England and Wales County Court (Family)

Neutral Citation Number: [2010] EWCC 39 (Fam)

 

In the County Court

 

 

Before:

District Judge X

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Between:

 

	Local Authority X	Applicant
	And
	A Mother	1st Respondent
	And
	A Father	2nd Respondent

 

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Hearing dates: 16 July 2010

 

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Judgement

 

 

1.         This is an application by the [blank] who seek a care order by application made on 29^th July 2009, initially to the Family Proceedings Court.  The case was transferred to this court on 2^nd October 2009 and has been listed for the hearing before me for the past four days.

 

2.         The two children, the subject of this application, [blank] (on his birth certificate), born on (date given), so he is now (age given), and his younger sister, [blank], born on (date given) and she is (age given).  Their mother is [blank] who is now (age given)..  Their father is [blank] who I believe is (age given).

 

3.         The applicant local authority has been represented throughout the hearing before me by Mr T of counsel.  The guardian was originally a different guardian at the outset of the proceedings, but around February 2010 Lwas appointed and she has been presented throughout by Mr H, solicitor.

 

4.         The father has taken little part in these proceedings.  He has never served any statements nor, do I understand, has he ever been represented.  He attended before me on the first day of this four-day hearing, explaining then that he would not attend the remainder of the hearing.  It was made clear to him that he could and indeed perhaps ought to think of attending, but he decided not to.  He explained to me that he agreed with the local authority’s care plan in respect of the two children, which, in summary, is that a care order be granted in respect of both children to the local authority; and that they together (and any proposals for these children are for them together and not to be separated) should be placed into long-term foster care.  They have been in what I will call short-term foster care since they were taken into care and have been doing well in that accommodation.  But if the local authority’s plan is to be put into effect that will require a change of foster carers to longer term foster carers.  Investigations have been made and I understand that potential new foster carers, who live some miles to the west of [blank] have been identified.  If the local authority obtain the order then the matter will progress through the internal processes of panel and match and so forth.

 

5.         Going back to the father, he would like contact which is presently suggested once a month at a contact centre.  He says he would like better contact including unsupervised. I record that at one stage in the proceedings he indeed said he wanted to be assessed as a potential carer for the children, but he failed to cooperate at all with any assessments and no longer suggests that he can be a carer.  He has attended contact since the children have been in care.  The local authority would support contact with him.  It seems the children enjoy their contact and would like contact with him.  There is one issue, which I am not entirely convinced the father fully appreciates, and that has been the impact of his failure on occasions to attend contact or cancel it.  He apparently gave reasons but I think there is grave doubt as to whether such reasons were genuine, though I have not been asked to try that issue.  But it states the obvious that if contact has been arranged then the children become extremely disappointed.  So if the care order is made then that is an issue that he would need to address very considerably.  Of course, contact would be under close supervision and reviewed by the local authority.  I start off mentioning the father not through any priority but to deal with his aspect of the case in those few words I have.  I will turn to mother in a moment.

 

6.         There has been quite a history between the mother and the father, Certainly for some years before the care proceedings they were embroiled in private law proceedings - contact and residence.  Mother was actually granted a residence order some years ago and indeed the two children have resided with her I will say throughout - there have been occasional changes but essentially she has been the main carer.  The private law proceedings, however, continued, essentially over contact.  Eventually His Honour Judge G made an order for a section 37 report from the local authority.  That led in due course to these proceedings.  I do not today enter into the rights and wrongs of the issues between mother and father over the contact matters (we are not dealing with those today), but it is a sad fact of life that for many years the life of these children has been subject to court scrutiny.

 

7.         Mother attended throughout this hearing and for all direction appointments - maybe one, but she has certainly shown a wish to be substantially committed as far as these proceedings are concerned and I fully accept that.  As I have mentioned, the children were in her care when they were removed after the interim order.  She was initially represented by solicitors but around February of this year (the exact date does not particularly matter) she dispensed with their services.  I do not go into the reasons for that.  I think it is fair to say she had been urged by myself in the earlier hearing and by several circuit judges, including His Honour Judge M., the DFJ, to consider reinstructing or instructing a different solicitor to represent her.  I did ask her about that and she mentioned she had spoken to people - I am not sure whether solicitors or not, advisers perhaps - but has never given instructions to be represented.  That is entirely a matter for her, but I do record that throughout this four-day hearing she has had the unenviable task of representing herself.  I fully acknowledge how terribly difficult that must be even in the best of circumstances, and so terribly difficult when she is dealing with her own children in a case such as this.

 

8.         I also mention that at the start of this four-day hearing (which had been listed many months ago) she asked for an adjournment.  She said she wanted to obtain some help from an, as yet, unidentified person (she was not saying to go to a solicitor but some form of assistance) so she could go through documentation.  Put simply, she said that the contents of much of the documentation would be very difficult.  She clearly told me she had scanned some of it but said she had not read much of it.  Whether that is the case I do not know, but that is what she said.  So she wanted to adjourn this matter to obtain someone to help her to go through documents.  That was in fact opposed by the advocates for the local authority and the guardian, I say not surprisingly.  I refused her application  My reasons were several: first, of course, the welfare of the children demanded a decision, and any adjournment would likely have required several months’ delay before the matter came back.  Under their care plan, if they are successful, the local authority want to progress any new foster arrangements over the school summer holidays which would enable the children then to be placed in and settle into new schools.  So there is a timing issue with that on their case.  Under the mother’s case, the children would be returned to her.  I understand they leave school today, so they would be breaking up for the summer holidays.

 

9.         Going back to the adjournment, this hearing was fixed a long time ago by His Honour Judge M..  There really has been no explanation given by mother and I have heard none during the course of this case, although she has periodically again referred to the fact she wanted time to go away to read papers and so on.  But she gave no explanation for her failure to obtain legal or other assistance.  As the psychologist has described in his report, she is an intelligent lady.  She does not have disabilities in the sense that she is unable to read and write or understand matters.  But also she completely failed to respond to threshold despite orders to do so.  I will come back to those a bit later.  I did not dismiss her application to adjourn without consideration as I am fully aware of the content of both the psychiatric and psychological evidence, having read the reports before the case started, and the fact that at least the experts diagnose her with a borderline personality disorder.

 

10.      So the matter proceeded and we are here on the afternoon of the fourth day and I am delivering judgment.  There are quite a number of bundles in the case.  As with many care cases, there has essentially been the primary bundle that we have looked at (I will call it the main bundle).  But also in the course of the hearing, in a sense perhaps slightly unusually, one did actually look at a lot of the contact recordings.  They formed quite an important part of the evidence.

 

11.      As had been arranged at the issues resolution hearing which I dealt with a month or so ago, the consultant psychiatrist, Dr Jamil, gave her oral evidence on the first day of the hearing.  We were a little late starting but her evidence was dealt with well within the timescale of the day.  The next day we heard from Mr Woodhouse, the consultant psychologist, who gave his evidence and he was questioned.  In summary, at this moment both experts confirmed orally the conclusions they reached in their respective reports.  I also record that they had met as experts and they actually concur with one another, having, they said, independently reached their conclusions.

 

12.      I also heard the evidence of the current social worker who has been with the family now for quite some time (there having been an earlier social worker), although I understand once this case is concluded she is moving on elsewhere.  Can I say that I was very impressed by the evidence of the young social worker who, in my view, since she has taken over from the previous social worker -- (name given) has, with dedication and much empathy to the family circumstances, conducted fairly and skilfully her work in sometimes difficult and trying circumstances.  Certainly that is the view I have taken.  I believe she has developed a good relationship with the children such that they were able to trust and communicate with her.  But also she has endeavoured to work with mother.  She describes the difficulties that that has brought and I will come back to that later on as well.  She, with her manager, has been instrumental in developing the care plan. 

 

13.      In the course of the hearing, mother perhaps often suggested that all the local authority wanted to do is to remove the children from her care.  I have not heard any evidence that supports that belief: they have not wanted to.  Far from it, the local authority, in my view, have done much to support the possible rehabilitation of the family, which I am quite satisfied throughout has been their desire, if at all possible.  I give a very simple example: the provision of supervised contact, which may not have met with mother’s wishes but frankly in the circumstances, not surprisingly, had to be supervised.  But when contact broke down, substantial efforts were made to try and restore contact.

 

14.      I heard evidence thereafter from the mother herself.  She was questioned by Mr T and much of that cross-examination related to what I might call the more recent events, as far as the welfare issues are concerned, arising from the contact records.  She was also questioned further (not duplicating) on some other aspects or perhaps emphasising other matters by Mr H.  I would also say this that whenever any parent has to represent herself in a case like this, the court cannot give any greater or lesser support to any party. However it does seem to me that the cross-examination of this lady by counsel and solicitor, whilst it has been firm and in detail on occasions, has nevertheless been carried out quite fairly and quite properly.  I am grateful to both of the professional lawyers for that approach.

 

15.      I would like to think that in the course of the proceedings - and mum may or may not agree - I have tried to help her out as I can.  It is difficult for her to cross-examine but I have on occasions, when I felt may be of some help, asked quite a few questions myself, not by way of cross-examination  but to try and clarify issues.  One of the reasons for that is there was no written evidence filed on her behalf or by her.

 

16.      Let me turn to the basic legal principles in these cases.  The local authority seek a care order pursuant to section 31 of the Children Act.  In the early part of the case I read this out to mother so at least she knew the legal context, if she had not before.  I will read it out again for our purposes.

 

“On the application of a local authority, the court may [in other words, it is the judge’s decision, it is not obligatory] make an order placing the child with the local authority; or put him under the supervision of a local authority. 

 

The court can only make a care order or supervision order if it is satisfied that the child concerned [and one looks at it from the point of view of each of the two children] is suffering, or is likely to suffer, significant harm.  The second part ingredient is that the harm, or likelihood of harm, is attributable to the care given to the child, or likely to be given to him or if the order were not made, not being what it would be reasonable to expect a parent to give to him.”

 

17.      As Mr T helpfully described, that is the gateway and the court can only consider making an order if that gateway is entered.  It is what we lawyers call “the threshold”, and I will come to that in a moment.  If threshold is proven by the applicant local aithority that does not mean to say a care order is right or is appropriate or any order at all is necessary.  The court must then consider, by applying section 1 of the Children Act, the welfare of the children test, what is best for the welfare of each child.  In considering that, the court will look at all of the circumstances.  Under section 1(3) of the Act, the circumstances, the court shall in particular have regard to a number of matters which include the risk of harm, for example, the capability of the parents, the ascertainable wishes and feelings of the children.  Those are some of the circumstances.

 

18.      Can I deal with that aspect of the wishes and feelings of each child concerned.  These are two intelligent children.  If we need expert  evidence of that - which we do not because the schools tell us - the psychologist, who also saw both children and did some tests, shows that they are both within the very top level of ability - top 5 per cent one, and top 1 per cent the other potentially  of the population as far as their ‘intelligence’ is concerned.  Indeed it is fair to reflect that their mother also has a great deal of ability in this respect.  Notwithstanding that, the children’s views, being the ages they are, would not determine this case..  The court will always wish to know how they feel, if it can be genuinely ascertained. They are far too young in a case like this to make a decision. There is no doubt that this mother loves her children, there is no doubt that these children love their mother.  That is not the issue unfortunately, it is not about the love of the parent and the love of the children.  This case is essentially about the capability of the mother.  That is a brief summary of the legal principles here.

 

19.      So far as threshold is concerned, there is a threshold document which has remained the same document for much of the case.  It has not been subject to amendments, which in many cases it is by virtue of legal representation and submissions that are put forward, and very often the document is actually agreed.  But in this case we have the local authority threshold document, which is A35 in the bundle through to A37, dated 9^th November 2009.  The issue of threshold has been slightly unusual in this case for the following reason.  Mother has never actually agreed any aspect of threshold, and, of course, she is quite entitled not to agree it.  Father has not formally agreed any threshold criteria, although on the first day of the hearing, as I mentioned, he agreed with the LA that a care order should be made and the care plan adopted.  So, by implication, he does not dispute that the threshold hurdle has been overcome.  But with him there was no need or necessity to go into any detail of threshold.

 

20.      In the course of giving directions in a care case, it is very often the case that parties are ordered to serve threshold responses and/or statements.  Even those represented by the most capable of solicitors often fail to do so within time.  Nevertheless at some stage (not long before trial sometimes) the court has a response to the threshold and also a statement setting out the party’s position.  In this case, mother never did file any statements nor did she file any response to the threshold. 

 

21.      As the case moved through its procedural route, clearly different judges took the view that this issue was required to be addressed and orders were made.  On (date given) His Honour Judge M. ordered mother and father to reply to threshold by 26^th February.  That was not necessarily a once and for all date, it was the judge requiring mother’s position to be set out. Around that time mother left her solicitors and I acknowledge representing herself could not have been very easy.  I think at that time permission was given for the joint psychologist instruction as well.

 

22.      On 25^th February (I believe it is the only time that mother was not present but it is not a criticism of her), His Honour Judge Y ordered a response to threshold by 19^th March and put in paragraph 1 of the order: “If no response to threshold is received from mother or father, the court may be prepared to deal with the satisfaction of the threshold criteria at the IRH on 9^th June.”  That was not quite saying “You shall do this or else” but it was again taking it the next level of “Please respond to threshold so the court knows what your case is.”  Paragraph 5 of that order also made it clear, to mother in particular, that, if she did not seek advice well in time for the final hearing in July, a failure to do so would not automatically lead to an adjournment.  Earlier when I dealt with the adjournment request, I also brought into the equation that warning shot to the effect ‘don’t expect courts to adjourn proceedings; you have had a lot of time to get ready.”

 

23.      On 23^rd April, His Honour Judge M. ordered a threshold response by 22^nd May.  This was an order of severity, if I can put it in that language.  “This is a final extension of time and failure to comply will be deemed to indicate that the local authority allegations are not disputed.”  The words are simple and straightforward.  When the IRH came before me, I recall Mr T asking me to deal with threshold on that occasion.  I did not think that was appropriate even if time had permitted, which I think he accepted that that was fair.  But mother had not even then responded.  Even at that stage I know that it was made clear to her, not just by me but perhaps by others: “If you are going to seek advice, please do so and do it urgently.”  But, for reasons that she decided, she did not take advice and she did not file a response to threshold or serve a statement.

 

24.      At the IRH. I indicated that there was no need for oral evidence to be called by the local authority upon the issue of threshold, and that they would be quite entitled, unless there were any further orders of the court, to rely on the written evidence. Such effectively repeated  Judge M.’s order. I still hoped M would take fresh legal advice and of course any lawyer instructed may have made application. Unfortunately M did not serve or file any written evidence.

 

25.      Mr Ts, in submission in this case, asks the question, how therefore (if at all) can the mother now today seek to oppose threshold?  One answer, I suppose, is for me to look at the threshold documents and evidence in writing as served, as I have done - I spent quite some time over the last two evenings looking at the documents – and to conclude there is no evidence even in the papers to support these allegations.  That most certainly is not the case.  The summary of allegations is found in A35 through to A39 under several headings, which I will now generically look at. Under heading 4: “Mother on occasions acts in a way that is not consistent with the needs of her children”, the threshold date being 29^th July 2009.  So we are looking at matters as they appeared at that date and that is when these Child Protection measures were taken; in other words, the commencement of these proceedings.  As I said before, even though I think there was some local authority involvement previously with the family, this is a case where, through the section 37 request in the private law proceedings, the local authority became more involved.

 

26.      In paragraph 4(a) to (h) are listed a number of matters.  I am not in this judgment going to go through each item, but it reflects, for example, a number significant and sad events. On (date given) when mother was admitted, having taken an overdose of tablets.  There had been something similar some years before in 2005.  Of particular significance, because it has really come to reflect more so in the evidence I have heard, that “mother found it difficult to cope and is quite depressed by her circumstances, cries a lot, mood up and down, difficulties sleeping, etc.  Mother [according to this] said she accepted she does not always behave appropriately in front of the children, anger gets the better of her.”  In many ways that subparagraph (b) I have just read out, is but an example of many of the issues that were gone through with her in her evidence over the contact recordings and indeed matters of behaviour alleged at the school.  Those matters, of course, do not come into the issue of threshold, they all postdate it and so I do not further consider at this stage.. 

 

27.      We then have at paragraph 5 of the threshold what is called “The history of conflict between mother and father”.  It is not so much the fact of that or who is right or wrong, it is the impact that atmosphere and living environment has on the children and the care given by the parents. 

 

28.      Paragraph 6 “A history of non-cooperation by mother and father.”  Sometimes one thinks “ you can't expect everybody to get on with the social workers.”  It is much deeper than that, it is much more substantial than that.  It continues with issues such as aggression towards the head teacher, mother not attending professional appointments and so forth.  Again I do not read all detail out, they are in the threshold document.  I do not think it is necessary to go through each and every item for the purpose of this judgment.

 

29.      Paragraph 7 describes, as at that occasion, some history of issues at school.  One in particular alleged, on 26^th February 2009, “She was late, aggression to the teacher, language, ‘I’ll see you in court’, [blank] in school tomorrow.”  Those were the allegations against her.

 

30.      Within the threshold document are very helpful cross references I have been able to go through (I am not planning to do it in this judgment) to the evidence, in the social worker’s evidence essentially, whether it be in the documents or the written statements, that links each of these allegations to the evidence.  As far as a matter of finding is concerned, I find that each and every aspect in that threshold document is supported by evidence.  Therefore, as a matter of finding of fact, I find those matters proven. 

 

31.      I then step back and say, looking at all of those matters, does that support the section 31 criteria of threshold?  The answer to that is “Yes, it does.”  One has very little difficulty seeing that this is behaviour of either mother and/or father (I am perhaps more significantly today having to address it from mother’s point of view but the threshold criteria is in respect of both), whether that behaviour has impacted on the children such that they have suffered or could suffer significant harm.  What is the harm?  The harm in this case is not physical harm, this is not one of those cases, it is emotional harm.  I do not say this in any simplistic way: It does not need expert evidence to inform the court that the type of behaviour described can have a huge impact on children and their emotional well being. It is also not only  the harm suffered to date but the risk of future harm.

 

32.      So I find that the threshold hurdle has become overcome in this case.  I cannot image that decision comes as any surprise to the lawyers in the room and it really should not come as any surprise to mother in the circumstances.  It would have been utterly wrong for me to have come to any other decision based on what I have in front of me and the evidence. 

 

33.      As I mentioned earlier on in this judgment, the real issue in this case now is what happens.  There are many cases where threshold has been found or even conceded which result in the children not going into care, or going into care but going back to the parents, if not straightaway, ultimately.  The first position of the law, the first position any judge must ask is are there good reasons why the children should not go back to the parents?    There are as I will now consider very good reasons why the children should not go back in this case to the mother. I do not think that comes as any surprise to mother given the history. I accept there has been a very difficult history on a personal level between her and the father. I repeat, the father has attended court and made it clear that he would not  be caring for these children.” He agreed with the care plan of the local authority.

 

34.      So what is the situation now?  The overriding impression I have is this. When this case started there was a very strong hope in the local authority, and I am sure in the first guardian – [perhaps even in the second guardian, but by the time of her appointment matters had moved on] - that this is a case where perhaps there could be sufficient changes in mother to enable the children to return to her care. So what is the primary evidence that the court looks to? Perhaps stating the obvious, what happens over the course of these proceedings, not so much in court but how the parent or parents (in this case the mother) responds, reacts, behaves, all those words, to demonstrate that she can be a carer of the children.

 

35.      The children were removed from her care under an interim order last year and they have been with the same foster carers (if not immediately certainly after a short period of time).  The children have settled down well there, albeit in the difficult circumstances, not just for them but, of course, for the mother as well.  I will naturally take into account mother’s position because her capability as a parent is really one of the primary issues I am now considering.  But ultimately the test is what is best for the welfare of the children pursuant tosection 1 of the Children Act 1989.  I am not required to look at a perfect parent because the law does not expect any mother in these circumstances to be perfect, far from it - the question is whether sufficient ability can be shown for her properly look after the children, to provide care to an adequate standard.  Of course a child should live with the natural parent if at all possible.

 

36.      There are no real issues in this case over this mother’s ability to provide suitable accommodation ; she has not moved from pillar to post.  Whilst there had been some minor issue of drug consumption to start with, such criticism of mother has not really formed part of this case at all.  Indeed Dr Jamil confirms that.  So unlike many care cases that come before the court where there are issues of drug taking by parents, issues of bad housing, issues of physical violence in some cases, none of those factors fall to be considered in this case.  This case is about the emotional well being of the children. If it is not apparent to all present, it is well understood by lawyers, practitioners and courts dealing with child cases day in, day out, that emotional harm that children suffer [or risk suffering] can have in many instances a far greater impact than even physical harm or harm that comes through living in bad conditions.  Such issues may make these cases far more difficult because the cause and effect of physical harm is clear to see. But emotional harm is in very often more difficult to detect. In some instances there maybe clear evidence of children becoming unruly or terribly sad, or other extremes of behaviour witnessed.  Evidence from teachers, from psychologists in some cases or other sources is often available. Thus expert evidence is often very significant in a case.

 

37.      Here the court has expert evidence from 2 experts jointly instructed pursuant to directions given during the case management of this matter. The psychologist in this case, Mr Woodhouse, received and considered the case papers and he arranged to see the children. His reports follow his detailed analysis.  As I said before, both children are very bright children.  He states, at E73:

 

“[Blank] loves his mum, he has a strong bond with her.  He wishes to live with her but not under any circumstances.  He has now been provided with an opportunity to live in a family where there is no stress and antagonism.  He likes this and wishes it to be replicated in his own house.  [I interject, such in simple language, not surprisingly is often what a case is all about].  He says ideally he wants to live back with his mother but in benign circumstances.”

 

38.      I will be making reference to the detailed and lengthy written reports by the consultant psychologist and the consultant psychiatrist. Their evidence is crucial in this case.

 

39.      In the course of this case (and indeed within the hearing before me), time and time and time again it is apparent that mother failed to acknowledge any of the concerns expressed about her parenting. For example over her parenting abilities or her reactions at contact.  She failed, in the local authority’s view, to even acknowledge that there was something that was not exactly right.  That is one of the reasons why, I am sure, much time and detail in the oral evidence before me was spent assessing the contact recordings.  I am not going to go through each of those issues, but I think it is fair for me to summarise by saying that the local authority’s case and mum’s case are poles apart, in the sense that there was no acceptance by her of any concern or any criticism. She said to the effect, “No, that can't be right.”  She would, of course, acknowledge the good things.  Mr T, counsel, made that point.  I would like to think I was at pains to also consider the good contact sessions [some were absolutely as they should be] as well as the bad..  Indeed one thinks how can a contact session, as recorded in the local authority’s notes, be so good and then on another occasion so desperately bad for the children?  But that is the way in which the facts were presented.

 

40.      The consultants, the psychologist and the psychiatrist, had the opportunity of studying the case documents and they ultimately based their opinions in this case on how mother has presented herself and behaved in the period of these proceedings.  Mum made a significant point to the effect “Well, they were relying then on untested evidence, call it, hearsay evidence, circumstantial evidence” That is right in many ways.  I listened to the evidence today in respect of the contact sessions I am not going to make a finding in respect of each and every piece of evidence what was given. But mother wants the court to accept her explanation, “No, that’s not right, no, that didn't happen, it can't be right.” 

 

41.      There were a number of detailed contact recordings.  I freely accept that in some cases one wonders why such detail is required. In this particular case, the detail within the recordings, if I might say so, I found very helpful indeed [as did the experts]. It is the detail that helps the court assess how well or badly everybody was responding. Recorded good contact is as important to consider as the bad contact.  But in respect of the bad contact - and I am excluding here contact which may not have been good because, for example, a child was likely grumpy after a day at school for whatever unascertainable reason. I am more concerned at actual behaviour at contacts.  There were numerous occasions which the advocates went through in evidence, where mum was not accepting  the concerns over her behaviour or interaction with the children. The local authority presented as evidence the written detail of the independent contact recorders.

 

42.       I am required to come to a decision, on a balance of probabilities (that is the legal test), what is more likely the explanation?  Is the more likely explanation that mum is right (and, of course, she may well be right)?  Or is the more likely explanation that, on the whole, the contact recordings reflect accurately what occurred. Some of the specific detail is very important as well?  I have absolutely no hesitation at all in coming to a finding of fact that the contact recordings more likely reflect the true position of what actually happened on each of these visits.  One of the biggest concerns in this case is the complete and utter failure of the mother, unfortunately, to recognise her inappropriate behaviour and the effect upon her children.

 

43.      I put the question, how is it this lady who dearly loves her children behave so inappropriately as their mother? They are described as delightful children, they are intelligent, they love her. Despite the difficulties – as recorded objectively, in my view – on many an occasion they left school looking forward to contact that is the overriding impression. Then something happens at contact and it goes badly.  I ask how is it that there can be good contact - mum encouraging, mum doing  the right things or at least not acting  incorrectly ; on other occasions very concerning behaviour?  Any mother or father can parent differently of course. Thus, I have no quarrel with a mum perhaps becoming upset or telling a child off over he soiling in his trousers.  Many a parent would react and in different ways.  It is not about the reaction, it is more about her attitude, it is more about how she deals with the children.  Time and time again, as recorded in those contact recordings are examples of behaviour that is very concerning.

 

44.      I have said I need not go through each and every incident but, by way of example, at page 134, this is a contact in March 2010:

 

“She said and explained that she is going to be honest with them.  She turned to [blank], out of blue told them this was their last contact today, explained she had been told today that it doesn’t look as though they were going to be placed back into her care and asked how they felt about it.  She then went on again to repeatedly say that today was the last they were going to see her and that when they were older they would understand.”

 

45.      In evidence, mum said, “No, that’s not right, that didn't happen.”  But it clearly did.  It is difficult not to appreciate the adverse affect of such statement on the children.  The social worker in her statement gives an evidence of how upset the children were following this sort of behaviour. 

 

46.      There was another occasion when she left the contact centre removing the children and we have heard how the police were called.  I and both advocates tried to understand from mum, “What was the rationale behind that?”  She told me “It was because the child wanted to go home.”  But what was she thinking was going to happen?  I just do not know.  What could the contact workers do?  All they could do was follow and then they called the police.  They could not get physically involved.  Such are examples of mother’s behaviour.

 

47.      It is not just  mother’s behaviour at the contact centre. There are also other examples, in the witness evidence, over her behaviour at the school.  Mother did not accept the written evidence of the teachers. When the social worker set out in her evidence that teachers did this, that or the other, she countered by saying that they are effectively making it up or exaggerating.  Why would they do so?  They may not be perfect recorders of what went on, but they were certainly able to pass on a message as to how bad behaviour was.  Indeed after Judge M. made an order for her to keep away, she still deliberately went back to the school a few days later (the exact date does not matter).  I accept she lived near the school, and that she was desperate to see the children, but what did she think she was doing?  I am not here in any way considering punishment for disobeying a court order,  that is not the point; it is the impact of her behaviour on the child. 

 

48.      In this case, extremely unusually, no one less than His Honour Judge M. made a section 34 order in the course of  these proceedings, where in recent months before there had not only been contact but on occasions very good contact.  I am in no doubt, and having listened to the evidence, I can understand how His Honour Judge M. would have been very reluctant to make such an order. It would only be made in extreme circumstance. Having considered the evidence as to her behaviour, I can well understand  why that order was made.

 

49.      What is the importance of all that?  I acknowledge the considerable pressure on any parent facing up to having their children in care. She dearly loves them, and I believe they dearly love her.  It is an intolerable situation to put up with.  I appreciate that. The stresses and strains one can appreciate.  I appreciate she did not feel particularly happy about people sitting in a corner and writing down details of contact visits, but that is the way it has to be.  It was not intrusive. There is no evidence that workers were being particularly difficult; they were doing their jobs.  Mum knew that contact was first and foremost for the benefit of the children.  It seems to me that at many of these contact visits she brought to the children her own issues, not the considering  what was best for the welfare of these children.  If you are having contact, it is for the children.  She demonstrated time and time again that she could be highly sensitive and appropriate (I have mentioned that several times and repeat), but for no apparent reason the whole situation changed - the consultant psychologist used the expression “bull in a china shop”.

 

50.      The importance of all this is the psychologist and the psychiatrist in reaching their conclusions, have also been kept up-to-date with the evidence.  Mum said she has not read the expert reports in detail - I am not sure I accept she has not read these reports, I am sure she has looked at them; whether she has read them as closely as I have several times, I do not know, but I am sure she knows what they set out.  The huge importance is that these two experts in coming to their conclusions have had their views and conclusions‘firmed up’. They have not just considered the historic behaviour which they had before them and the case history, but the detail of recent behaviour and attitude of mother which is important..  Mum has said in the course of the case and in the course of asking  questions, “You are relying on this circumstantial, hearsay evidence.”  Yes, but they are relying on evidence that is absolutely right.  If I was in any doubt at all that those experts were relying on improper material, material that was of no credence, that it had been exaggerated, or not as accurate as it claims to be, I would have grave doubts over conclusions reached by any expert.  An expert can only give an expert opinion based on the evidence in front of him and her, and if based on evidence with wrong assertions and assumptions then clearly it would be suspect.  In this case the evidence is considerable, such as the contact notes, such as what happened in school, recorded and placed before the experts in the social worker’s report and other pieces of evidence ; that is the factual source for the expert opinion.

 

51.      That leads me then to the two experts’ reports.  They had detail of the previous Children Act proceedings when mum was granted residence.  There is certainly reference to previous medical reports but I was not shown any previous psychiatric reports.  But Dr J, after her careful work, has made a diagnosis of a condition that she believes this mother suffers.  I am quite sure that mother knows what Dr J has written. At page F57 in her report dated 8^th November, she describes “[Blank] presented as a clean, casually dressed young woman, at times pleasant and cooperative.”  I have absolutely no reason to doubt that at all; indeed I quite happily confirm that.  She then continues: “Intermittently throughout the interview she became frustrated and hostile.”  I accept a parent in these difficult circumstances can become frustrated and upset quite easily.  That does not mean to say there is anything wrong and I am sure that full consideration has been given for that and for the difficult circumstances. 

 

“Questioned on the purpose of the assessment...She became particularly irritable upon discussing her behaviour in the school with the professionals, denied she had ever been angry or hostile towards social services or any other professions involved with the children.”

 

52.      If I might pause there.  On what I have found as fact over the recent behaviour in particular, and indeed on the more historical matters of threshold then her denial could not be right. She has been hostile to people.  Mum  says: “They’re all against me, they want me to go mental, social services, the school, the solicitors and the council.”  Even that reaction there almost suggests that there must be something not quite reasonable in her approach.  In the next sentence, the doctor states this:

 

“The paranoid ideas she expressed were not delusional in intensity.  She appeared to have little insight into how her behaviour may affect others and also appeared to have difficulty identifying her own feelings.  I could elicit no signs or symptoms consistent with any mental illness.”

 

53.      I am not going to read all of the report.  At 19.3, page F63:

 

“Many features of [blank’s] personality is evidenced by her presentation.  The information contained in the papers are consistent with borderline personality style.  Borderline personality disorder features include that the individual’s relationships are intense and unstable.  They display impulsive behaviour which often places them at risk.  They make anxious attempts to avoid being abandoned.  They demonstrate emotional instability.  They have difficulties in managing anger and managing painful emotions.”

 

54.      She describes mum’s anger as being self-destructive and impacting on the care of the children.

 

“The action that led to the removal of the children from her care would suggest that she uses the children to express her distress and hostility towards others whom she feels have treated her unfairly, conspiring to undermine her ability to parent the children and negatively impacting on her mental health.”

 

55.      This makes very difficult reading for anybody and I have no pleasure reading it before mum.  There are many people embroiled incare cases who have difficulties, whether they be medical or social, and work can be done to improve, to help, to support, which can then lead to a situation when the court can state “Yes, it is perfectly safe and fair and proper and reasonable for the children to come back.”  What this consultant states is this:

 

‘ Mum presents with a complex set of psychological and psychiatric difficulties and change is likely to be slow and characterised by treatment reversal and challenges.  Her psychological difficulties are not likely to be fully addressed by any short-term therapeutic courses but would require sustained and committed engagement in specialised therapy provided by a highly trained therapist experienced with women who show problems with anger and aggression and have difficulties in emotional regulation.”

 

56.      The consultant is describing engaging not just for months but for years.  In short and summary form are the issues that the consultant psychiatrist raised..

 

57.      Also in this case a psychologist, Mr John Woodhouse was instructed.  He is a chartered educational psychologist and has other degrees that he describes.  He stated it was apparent from the outset mum is a cognitively-able person. I mentioned that before.  He also stated she has good insight.  He produced a detailed report.  At page E53, his description of her.

 

“[It is]...apparent that she is on quite a short fuse.  If you agree with her, she is positive and friendly.  When challenged about her behaviour, she quickly becomes defensive, denies what is being described and sharply comes up with her side of the story.  There was no point during the interview that she accepted that any of her behaviour was either inappropriate or counter-productive.  She gave the impression of a woman who always believes she is in the right.”

 

58.      If I might look at that paragraph.  In my view, that entirely reflects each and every response to the questions put to her in respect of her behaviour at the contact sessions and indeed in the school.  It is exactly that sort of thing that has been spoken about.  I myself have come to the view which fully agrees with that description there.  He also states that she does not understand the impact she has on others. 

 

59.      I am not going to read all of the report, it has been there for all to read.  At E71, “psychological emotional difficulty which could be associated with risk to the children and others in the future”.  This case is about, the future; we cannot unravel the past. 

 

“It is unacceptable the children should be subject further to the stresses and strains of their mother’s what you call angst and anger.  They are both highly intelligent children and as such think a lot about their circumstances.  They worry a great deal. Both show considerable empathy for their age and are aware of how easily they can upset either parent by saying or doing the wrong thing.  This is particularly so for their mother because they never know from one day to the next what mood she will be in or what battle she will be fighting.”

 

60.        I expressed previously  that the views of the children are not really what this case is about, but the social worker in her statement and the contact workers pick up the way in which the children react and their responses to mother’s behaviour, which in these circumstances is, frankly, not surprising. 

 

61.      The psychologist also, considering quite properly future therapy, describes that it would require mum to have a very strong-minded professional involved with her.  In fact it is also fair to say, both of the experts, were asked what treatment, what support is available. Each answered  frankly, very little seems to be the answer, certainly on the National Health Service.  If one could access such support - and there question is: where is it? - it has to be of certain quality.  The whole process of the therapy that is required for this mother, would be very difficult for the most committed person. As expressed by the two medical witnesses, such is not something that is going to happen overnight even if it the right medical support can be put in place.  One is talking in terms of perhaps several years of best treatment with best response.  That is best, and there is no evidence to suggest that anything has even started, or indeed is even available.  It is deeply worrying that there is no obvious way forward for this mother but I must say that is the position.

 

62.      At paragraph 7, page E72, considering prognosis :

 

“...it is very difficult to predict.  People with borderline personality disorder do not have a good record for change.  They challenge everyone who comes close to them and usually antagonise to the point where help is withdrawn.”

 

63.      That is almost what the failed contact sessions have been about, if I might say so. One of the reasons why the local authority  in their request to the court that contact should be limited and even supported by a section 34 order. 

 

64.      Mr Woodhouse highlighted the point “Time is of the essence.  The children must be released from family stress or they will soon become emotionally damaged.”  I acknowledge his opinion although ultimately it is my decision in this case, not his.  But that is his view about the matter which is powerful expert evidence. Against that, one starts off any case thinking is there not a way in which the children can go back to their mother?  The two experts, sadly, say “No.”  They are firm in their view that unfortunately this mother is not someone to whom the children should be entrusted to her care in the foreseeable future.

 

65.      I must read out paragraph 12 at E75:  “This is a very complex case.  The evidence of mum’s personality difficulties is rather damning and their effects are plain to see.”  I agree the effects are plain to see. But then he emphasises: “On the other hand, [blank] and [blank] are wonderful children” - mum says that and I have no reason to disbelieve her - “and in most part are well behaved, articulate, positive and friendly.”    “There are clear signs of good parenting which must, in major part, be due to mum undoubtedly.  He continues :

 

“As stated above, mum is her own worst enemy.  It is likely there have been many periods of good, thoughtful and stimulating parenting.  Unfortunately these are interspersed with crisis of stress, antagonism and intransigence.”

 

66.      That was the consultant’s report in November.  He wrote a subsequent report.  put it rather bluntly, the conclusions are in firmer on the question should the children go back to mum?  His conclusion is “No.”  At E83 at 13.1:

 

“It is now my opinion that mum is currently emotionally abusing her children.  Time after time she has allowed her impulses to determine her behaviour irrespective of the effect it has on [blank] and [blank].”

 

67.      He is clearly basing that opinion (albeit it was 21^st March he signed that report) on some of the contact recordings he had up until then and the behaviour incidents then before him. 

 

“I am now of the firm opinion [paragraph 3] that if the children return to her care it will have a major negative impact on them.  Mum will continue to challenge the world.  There will be incident following incident as she clashes with authority, neighbours and the children’s father and anyone who does not instantly agree with her.  The children will continuously find themselves with divided loyalties between what they know is right and what the mother is doing and saying.”

 

68.      These are very firm statements by an expert. As a judge I do not have to accept his conclusions but I need to give good reason to depart from his opinion.  He is after all looking into the future, but he is basing that expert view on his careful assessments and all of the other information that he has gathered.  He concludes with a terribly gloomy prediction

 

“All of the above means the children will be under considerable and intolerable stress which will result in emotional harm, possibly leading to behavioural disorder and falling self-esteem, etc.”

 

69.      I have spent time carefully going through those reports because the reactions that mum showed in the contact sessions are important.  One might say, “Well, despite all of that, surely there is a way in which she is going to behave differently?” But when linked with the medical evidence, the expert evidence, there is a very clear analysis and picture of the situation before the court. 

 

70.      So I have in evidence those two expert opinions hardly challenged. The guardian herself does not disagree with their opinions. Indeed the Guardian, in my view, has been very helpful in this case and taken a perfectly objective view.  She has done her best to keep in touch with mum and has carefully considered the rehabilitation of the children I would say as number one priority. That is what all experienced  guardians consider- “is it possible to rehabilitate?”  Indeed, as she explained in her evidence, at the outset she might have thought that would have been the way forward, although by the time she came into this case we had the experts’ reports. Those two experts’ reports have a considerable impact on the way forward. They do not stand alone but nevertheless are of considerable importance  There is nothing that I have read or heard (and I have spent much time considering them) that causes me to be able to look behind or go against those reports. There is a natural instinct to question “Surely you can't be that certain?”  But in evidence the consultant psychiatrists and psychologists are absolutely clear. I take account of the fact mum was representing herself and on her behalf the experts were not professionally cross examined.

 

71.      That expert evidence has considerably influenced the opinion of the applicant local authority, their social worker and manager, and also separately and independently, the guardian.  The guardian supports the local authority’s care plan.  The care plan is before me.  The actual care plan itself has been improved by me having confirmation that the identity of the proposed new long term foster carers has been ascertained .All things being equal, if there is an order of care, it may be that that placement  with these new carers will take place sooner than later.

 

72.      Everything I have described and considered has a huge impact on the ongoing contact.  I can well see why the local authority are planning, that sadly and unfortunately the children have to remain in care and in long-term foster care, but to have comparatively limited contact with their mother. Albeit not six times a year, which is at holiday times, but also now, the local authority accept, certainly at this stage, additionally with about half a dozen telephone contacts, which in effect brings each parent up to 12 contacts per annum of different type.  Contact is not just numbers, it is about the quality of contact .But I accept the proposal is not for a huge amount of contact.

 

73.      Where does that leave us in this case?  I am sorry that I have gone through this in such detail but it has been so important to do so.  I am left really having to decide this case on overwhelming evidence, and it is patently clear to me, that it is right for the care order to be made and for the care plan to be approved by this court, and that is the order that I intend to make.

 

74.      In so far as I have not dealt with the matter, for the purpose of this judgment I record that the children are known by the surname of [blank]  and for certainly several years, certainly during their life at school.  They will be moving to a new school soon.  They may not have the opportunity today to say goodbye to their friends at school but I am sure something that can be sorted out for that, and they will no doubt maintain their friendships.  But in their new school, of course they should be known by the name of [blank].  The application - and I deem it was an application - orally put by father when he attended at the outset, to seek to change the name from [blank] back to [blank] I refuse.  Therefore, so there can be no doubt about it, their surname will be that of [blank] as far as their known name. There could be that problem, but they will be known as [blank].  Certainly on my order I will write out their surname “[blank] (known as [blank])” so it is there for all to see.  But I am sure that can be made clear to everybody including, in particular, not just mum but the foster parents and school.

 

75.      So far as the section 34 order is concerned, in a way it is a strange application because the local authority in their care plan are of the view “Yes, we fully want contact to take place.  We want that contact to be of the quality of the good examples of contact in the records that we have been through.  We are fearful that unfortunately it may turn out to be some of the contacts that have been so desperately bad that have been described.”  Given that there has been a section 34 order also, it does seem to me that for a limited period that order should remain in place.  I am convinced - certainly from the way in which the current social worker has dealt with the matter, and I have no reason to expect any future social worker will not act in this way - that when contact failed it was not a question of “Forget it”, but “Let's try again.”  That is what I expect this local authority to do even if mum, sadly, has difficult circumstances, because I do not think there is anybody in this room who would not want mum to have as close a contact as possible, albeit limited. I know it is a big ‘if’ –but if contact goes as well as can be expected, a time in the future may arrive when developments can occur.  But I say no more about that now, it would be wrong to do so. 

76.      I am sure information will be passed onto mum, on a reasonably regular basis, of how well the children are doing in any event. She and the children are entitled to that.  She still retains parental responsibility.  I suspect the next period from now and perhaps (I do not know) the end of the summer holidays, the first and most important aspect of their lives for these children will be settlement in their new placement.  I am sure that information will be given to mum as to how well they are doing – whether she is given  the detail of where the placement is, I do not comment on that, although I would say that one would likely expect before long as much information will be given because it will come out in any event.  I think that these children will be in expert hands with the local authority.

 

77.      I have had to dwell in this judgment on some of the more difficult aspects of the behaviour.  I  would like to be an optimist and ask mum, if she is going to read more papers, by all means read the experts’ reports.  They are prepared not to be against you, they are prepared objectively, in my view, with a view to be of assistance.  It is a matter for you what you do.  I do sincerely hope, I do sincerely wish for your children’s sake that the future arrangements work as well as can be expected in the circumstances.

 

78.      There are no other orders, I take it, other than CLS assessment, whoever was legally aided, which is probably one at the moment.  That is it.

 

 

 

 

                   Approved District Judge J.Regan.                       24^th September 2010.