England and Wales County Court (Family)

IN THE MILTON KEYNES COUNTY COURT

		6th August 2013

Tuesday, 6th August, 2013

DISTRICT JUDGE HICKMAN:

1. I am concerned with LMB, who was born on 12th May 2013 and so is not quite three months old. Her Mother is AB - I shall need to say a bit about her in a moment. LMB's father is thought to be a gentleman named CS. He does not have parental responsibility for LMB and has played no part in the proceedings.
2. Buckinghamshire County Council started care proceedings immediately after LMB's birth, on 15th May. The reasons for the proceedings being taken are summarised in the council's application and were these:

Serious mental health issues;

Risk-taking behaviour on Mother's part and an inability to keep herself safe;

A history of absconding with the assistance of her family;

Extensive history of self-harming, which had been prolific and serious and had included numerous suicide attempts;

Violent outbursts against professionals and others at times of stress;

Inability to work openly and honestly with professionals;

Emotional and psychological development being severely compromised by the parenting she received.

3. Her Honour Judge Brown made an interim care order on 17th May and LMB has been living with foster parents since that time. I observe in passing that the interim care order falls due for renewal on Friday of this week and, having had the opportunity to hear from the parties on the subject, I renew it for a further four weeks to 6th September.
4. LMB was born two weeks early, weighing just over 6 pounds. The care plan records that there are no health concerns in respect of her and she is described as a contented baby who takes her bottle every three to four hours and is easy to settle.
5. Where Mother is concerned, it is impossible to quarrel with the humane but bleak summary in paragraph 51 of Miss Jeens' statement:

"Mother has had an extremely sad and traumatic history. She experienced a neglectful childhood and early adolescence."

6. As his Honour Judge Horowitz described in a long and careful judgment delivered on 18th December 2009, Mother was utterly failed, both by her own parents and by the child protection system until, to their considerable credit, Buckinghamshire stepped in. Judge Horowitz also described the case as one

"in which the distinguishing feature… is, in the case of AB, an almost total deficit in parenting…"

7. An assessment was carried out by the Anna Freud Centre. It is a long document and it is sufficient for me to quote a little of it:

"AB's emotional and psychological development is severely compromised and it is likely that this has impacted upon her level of educational attainment. She has a highly insecure dismissive attachment pattern, with a tendency towards disorganised behaviour when severe emotional distress is aroused. She frequently dissociates, indicating a complete disconnection between her conscious cognitive state and associated affect. It is difficult to conceive of this level of impairment could come about without considerable adverse early experiences of neglect and abuse impacting upon AB's overall development. AB appears to lack a theory of mind in terms of understanding or anticipating the minds of others in an ordinary way. Much of AB's behaviour suggests a highly egocentric profile where her actions are impulsive and lack any thinking about the impact upon others. This suggests an extreme lack of capacity to develop empathy and it was commented upon by all members of staff interviewed, that AB seemed capable of quite dangerous behaviour as a result, without any thought about the safety of others. AB's ability to keep herself safe or to seek out safety is virtually nonexistent because she has not had the experience of an adult who can prioritise her needs over their own and make her feel safe, and consequently she has never internalised this type of mental functioning."

8. Dr Duncan Maclean gave evidence to Judge Horowitz and he described Mother as one of the most disturbed and damaged children he had ever seen.
9. Matters got worse - if that were possible - when AB's mother took her own life. As one would expect, that has affected AB profoundly. She has given LMB her mother's own given name as a second name. Quite rightly, Judge Horowitz insisted that:

"AB must be given every assistance possible, in the short time that public intervention can be authorised, and before she moves into adulthood, to get rid of the idea she has received, or she has generated for herself, that what has happened to her is her fault; that she has behaved badly by making the fire calls, her stabbing herself, by telling lies, she has brought this down on the family, she has been a bad girl. She is not. She is a desperately unhappy girl, who has received wholly inadequate parenting, from people who themselves, probably, cannot be blamed for their own deficits, but I share and I take on board fully the wise insistence of the Guardian that one of the purposes of this judgment, one of the things I tried to say to AB, and I hope I got across, one of the reasons why I am invited, and properly invited, to address in the detail of the findings of fact and the threshold, is to put on the record that AB is not where she is and who she is, because of any fault of her own. She must be helped to develop a higher sense of self-worth than she has now."

10. Buckinghamshire took the extraordinary step of instituting High Court proceedings to allow them to offer AB support after she left the care system at 18.
11. I had some involvement in the care proceedings involving AB and her younger brother, and it is right that I should place on record that the young woman who gave evidence before me was, in my view, simply not recognisable as the same person Judge Horowitz and I were dealing with in 2008 and 2009. She has made considerable progress. I understand from counsel that she has a further appointment tomorrow with the psychiatrist, Dr Corfe, and I am glad to know that.
12. The care proceedings in respect of LMB came back before Her Honour Judge Brown on 27th June, by which time Mother had issued the present application. Judge Brown directed that the application be heard, with a time estimate of two days.
13. Before me, the local authority was represented by Miss Courtney of counsel, Mother was represented by Miss Hurworth of counsel, who has said everything that could possibly be urged in support of Mother's application, and the guardian, Diane Clark, was represented by Miss Clair King.
14. I have over these two days heard oral evidence from Mother, from Dr Gwen Adshead and from Faith Munroe of Ty Connections. The Guardian Miss Clark was on leave but I was assured by Miss King that she had been kept informed of the course of the hearing. I had before me the written evidence of the social worker, Fiona Jeens, who was on leave at the time of the hearing, the report of the Junior CATCH assessment team, signed by social worker, Caroline Dandeker, and a supplementary witness statement from Mark Whitehead, manager of Miss Jeens' team. Miss Hurworth did not seek to challenge Mr Whitehead's evidence, save for the observation that Mother's evidence is that at certain material times she was sleeping on sofas rather than floors. Miss Hurworth also indicated that she did not have any questions to put to Miss Dandeker.
15. The application is opposed both by the local authority and by the guardian.
16. The court's power to direct an assessment arises under s.38(6) of the Children Act 1989, which reads, so far as relevant:

"Where the court makes an interim care order or interim supervision order, it may give such directions, if any, as it considers appropriate with regards to the medical or psychiatric examination or other assessment of the child…"

17. The two crucial aspects of that are the word "assessment" and the words "of the child".
18. The scope of the subsection was considered by the House of Lords in 2005 in a case called Kent County Council v. G [2005] UKHL 68. There had been a division of opinion as to what the subsection allowed. One school of thought argued that it could be widely interpreted. In the Kent case what was proposed was a package of assessment and inpatient therapy at the Cassell Hospital, as to which Lady Hale said, paragraphs 41 and 42:

"41…We do not consider that the trial judge should distil the essential question as, 'Is what is proposed assessment or therapy?' The essential question should always be, 'Can what is sought be broadly classified as an assessment to enable the court to obtain the information necessary for its own decision?'

42. The issue for us, therefore, is whether, on the true construction of s.38(6), that is, indeed, the essential question for the court."

19. The answer appears from the leading speech of Lord Scott, at paragraph 7:

"To come within s.38(6) the proposed assessment must, in my opinion, be an assessment of the child. The main focus must be on the child. In the present case the main focus of the proposed residential assessment was not on the child, it was on her Mother. The assessment was not, for example, for the purpose of seeing whether or not the child and her Mother had become satisfactorily bonded with one another, nor was there any question about the child's health that needed to be assessed. What was to be assessed was her Mother's capacity for beneficial response to the psychotherapeutic treatment she was to receive. Such an assessment, no matter how valuable the information might be for the purposes of the eventual final care order decision, could not, in my opinion, be brought within s.38(6)."

20. He added later, at paragraph 24, in a phrase which is well known:

"There is no Article 8 right to be made a better parent at public expense."

21. If the court is satisfied that what is proposed does constitute assessment rather than therapy, the court must then consider whether it is appropriate to direct the assessment sought. It must be borne in mind that an assessment is an expensive exercise. The estimated cost of what is proposed in this case would be some £41,000, though that is far less than the cost of the assessment, so-called, in the Kent case which cost upward of £200,000.
22. I am not sure that I am comfortable with the assertion of Holman J in Re M : Residential Assessment Directions [1998] 2 FLR 371, where, at page 384, he appears to suggest that "a good prospect (by which I mean a much better prospect than 50/50) of the child living with and being brought up by her own mother" is a precondition for an order under s.38(6). That seems too prescriptive in relation to a decision which must always be fact-sensitive, but the court must be satisfied that the game, so to speak, is worth the candle.
23. Miss Hurworth drew my attention to Re L and H [2007] EWCA Civ 213. That was a case in which the Court of Appeal, reversing the County Court judge, held that there should be an assessment, and Wall LJ, as he then was, said:

"[W]hat is equally important, in my judgment, is that the court should be astute to ensure that the case has been fully investigated and that all the relevant evidence necessary for the decision is in place...

There will, in my judgment, of course, be cases in which to order an assessment under s.38(6) of the 1989 Act will be a waste of time and of public funds… [I]f the professional evidence in the instant case is unanimous that a s.38(6) assessment would serve no purpose, it would be unlikely that the judge could have been criticised for refusing to order one…

[I]t is manifestly in the interests of [the child] to see if his parents are able to care for him and it is the responsibility of the court to ensure that it has the best evidence on which to reach a conclusion about his welfare. It is also procedurally fair for his parents to be given the opportunity to demonstrate that they can overcome their manifest difficulties and care for him and it would, in my judgment, be unfair were they to be denied that opportunity."

24. However, the scope of this decision was made clear more recently in Re S (a Child), TL v. The London Borough of Hammersmith and Fulham [2011] EWCA Civ 812. Black LJ said that the Court of Appeal in Re L and H had been clear that it was not purporting to lay down general guidelines for s.38(6) applications , and she explicitly rejected the submission that, following Re L and H, the courts had focused on ensuring that parents should be given every possible opportunity to present a positive case.
25. There is no rule that a parenting facing permanent removal of their child should have a further parenting assessment as of right.
26. Black LJ sums up the position in paragraph 93 of her judgment in this way:

"In so far as the earlier of the Court of Appeal decisions to which I referred contain passages which might be taken to suggest that a parent facing the permanent removal of the child has a right in all cases to an assessment of their choice rather than one carried out or commissioned by the local authority, I am sure that this was not what the court intended. Still less is there a principle that parents must be given the chance to put forward a positive case to the judge determining the issue of whether a care order should be made. Such a principle is unworkable, not least because, sadly, there are cases in which parents are plainly not able to care for their children and in which no amount of assessment or evidence gathering will enable them to put forward a positive case."

27. In Re L and H the clinical psychologist who had carried out a preliminary assessment of the mother concluded:

"I strongly recommend that this family are offered a residential parenting assessment before any firm decisions are made regarding the child's future. In my opinion, the mother and Mr H have the potential to be viable parents to the child and I thus feel that the time and expense of a residential parenting assessment would be warranted."

28. This was a case in which there was a clear and positive recommendation that a residential assessment should take place. That is a long way from the "borderline" judgment call, which I shall note in a moment, is described by Dr Adshead. And if Re L and H is being relied upon as authority that there is a right to an assessment, the remarks of Black LJ show that this is a misreading of the case.
29. I consider that an observation of the County Court judge, endorsed by Sir Nicholas Wall in Re S, is also worth noting. He said:

"Far better for the mother that she continue with her existing psychotherapy, unburdened with the care of a very small baby. Much in the best interest of this child that she is not treated as an experiment which does not have any benefit for her."

30. Returning to my discussion of the application itself, Buckinghamshire's position at the start of the proceedings was that:

"The local authority are prepared to consider the merits of a mother and baby foster placement but need the assessment of Junior CATCH to inform whether such a placement would be appropriate and safe enough. This means a careful assessment of AB is required to enable the risks to be fully identified and considered in relation to any future planning before such a placement could be progressed. Currently, the local authority believe the likelihood of significant harm to LMB is very high."

31. The assessment by Junior CATCH is at pages F82 to F93 of the bundle. It contains some material that is very positive. For example:

"Mother engaged well in tasks and activities during the first few days of the assessment period. Mother appeared attentive to LMB and genuinely forming a sensitivity towards her needs."

32. However, the observations also include:

"During LMB's arrival and departure AB appeared to be emotionally flat as she did not move to see, touch or pick up LMB. During the first few days of the assessment AB appeared attentive to LMB and genuinely forming a sensitivity towards her needs. However, as the assessment period progressed AB appeared to become more agitated, which in turn caused her to be distracted from LMB's needs. Research has shown that care givers who have histories of emotional deprivation are likely to display disorganised neglect. This would mean that behaviour is influenced by how a parent is feeling at the time, resulting in volatile and unpredictable care giving. It is said that children brought up in this environment will experience unpredictable and inconsistent parenting. I would expect to see a mother of a newborn baby becoming excited when their baby looks at them for one of the first times, which AB did not display. I found it difficult not to prompt AB to check on LMB whilst she was crying in the Moses basket. I would expect mothers with newborns to be extra vigilant of their babies and for them to be over-attentive to noises their baby has made. It was necessary to prompt AB on some aspects of LMB's basic care throughout the assessment period. AB appeared to have grasped how to make a bottle. However, she was then observed on two occasions putting the milk powder in before the water, making it impossible to see the amount of water poured in.

Throughout the assessment period I had concerns regarding AB's handling of LMB. It was necessary to remind AB to be gentle with LMB and to hold her in a secure manner. AB did adopt the new way of holding LMB. However, she still became easily distracted from LMB, by her phone ringing or having something on her mind. This resulted in AB rushing tasks, such as running with LMB in her arms and not noticing when LMB had been sick, which forced me to intervene to ensure LMB's safety."

33. The overall conclusion put forward by Miss Dandeker and her team is this:

"AB is a vulnerable mother who is unable to fully comprehend and act upon risks posed to LMB. AB has no supportive networks around her and would be likely to engage in negative relationships with new partners and her family. AB has engaged in risky behaviours during the assessment period, which shows her lack of insight into the reasons for assessment and what LMB needs from her. AB presents as emotionally flat, which would have a direct impact on LMB's emotional and physical development and unlikely to have consistent emotional stability in her mother's care. It is unlikely that AB would be able to meet LMB's basic care needs without prompts, support and guidance in a structured and controlled environment. I feel there is a poor prognosis that AB will be able to ensure that LMB grows and develops within a secure and safe environment. I would recommend that LMB does not return to the care of AB. It would appear that AB has many unresolved issues in terms of her own childhood and experiences, and I would recommend for AB to seek specialist support to enable her issues to be explored further."

34. That view is supported by Mr Whitehead. As noted, Miss Dandeker was not called to give oral evidence and Mr Whitehead's evidence was not challenged.
35. Mother's advisers have sought an assessment by Ty Connections Limited at Northolt and a preliminary assessment has been forthcoming from Ty Connections.
36. As I mentioned, Judge Brown directed that this application be considered over two days because she took the view that the outcome of the application was likely to determine the outcome of the proceedings. In the Kent case, at paragraph 70 of her speech, Lady Hale declares:

"Nor should we be tolerating a situation in which an hour's directions hearing, followed by a day's full hearing, are devoted to deciding whether or not to make a direction under s.38(6), as happened in this case."

37. In the context of the present case, and in terms of fairness to someone who has been so badly failed by the system in the past, I am in no doubt that Judge Brown was right, Lady Hale's observations, and indeed those of Black LJ in Re S, at paragraph 97, notwithstanding.
38. Ty Connections' proposal appears at pages E72 to E78 of the bundle and what is proposed is set out at E76 in the following terms:

"To take a phased approach to the introduction of LMB within the unit, i.e. managed contacts between Mother and daughter at Ty Connections for the first week, if all goes well extended contact, with a possible overnight, in the second week and increased in the third week. Alongside this, developing linkings with existing agencies currently involved and establishing the intensive support programme for mum, including local health and community resources to be identified and set up in order to support the family whilst in placement; e.g. individual therapy, parent/child programmes, parenting groups and so on. Support and facilitate the relationship with the child; i.e. expressed or observed feelings, interest in the child's well-being, capacity for empathy, ability to prioritise the child's needs, meaning of the child and so on. Prepare AB to settle into the routine of the unit, unit staff and structures in preparation for the 12 week parenting assessment. Explore AB's capacity and willingness to accept and engage with support from the professional network. Explore AB's motivation and commitment to the parenting role."

39. I heard evidence from Dr Gwen Adshead and she has made two reports, which are at pages E1 and E22 of my bundle. Her addendum report at E22 is probably the high watermark of the application. She says:

"There are clearly concerns about AB's capacity to care for LMB, which are clearly set out in Miss Dandeker's helpful report. Principally, I note that she was not tuned into LMB's distress and was easily distracted by her own worries or concerns. She needed reminding and prompting and I note the concerns that she was heavy-handed. On the plus side, I note that AB came to all appointments and was motivated to support LMB materially and independently. I note, too, that she asked if she could leave the sessions if she became distressed, which shows some degree of self-awareness. To some extent AB is demonstrating exactly the kinds of difficulties that one would expect to see in a young woman who has not received good care herself. I completely agree with Miss Dandeker's comments about disorganised attachment systems and their negative effect on parenting. It would have been remarkable if AB had been able to provide good enough parenting for LMB at this stage. I would respectfully suggest that the issues now are whether AB can develop new skills in caring for LMB and whether she can do this in a timescale that is good for LMB. These are highly complex questions and, in my opinion, could best be answered by a parenting assessment in a residential mother and baby unit, such as Orchard House in Taunton, although there may be others. The advantages of an additional extensive assessment are that it gives AB a chance to build in her strengths and focus on her maternal role. Even if the assessment concludes that AB cannot parent LMB safely, it may make separation from LMB easier and may help AB delay her next pregnancy. Such an assessment would also provide useful information if and when AB becomes pregnant again, as she discussed with Miss Dandeker."

40. In the course of giving oral evidence, however, Dr Adshead seemed to me to row back to some extent. Asked by Miss Hurworth why the Junior CATCH assessment was not sufficient, she responded:

"It's a borderline case. It's a judgment call. I wondered if there was a possibility for AB to have an opportunity to learn from a parenting assessment. We would learn more about her beliefs about her daughter and about being a mother."

41. In answer to Miss Courtney, she said:

"I find nothing to disagree with in the Junior CATCH report. It's a careful description of AB's difficulties."

42. Asked how long it would take for Mother to move to a different place psychologically, she responded:

"It would take a number of months and she would need to engage in therapy. The best evidence we have is that it takes 12 to 18 months."

43. I heard evidence from Mother herself. She said:

"I'd like to go into a unit to see whether I can look after LMB. I understand it's going to be hard, but it's something I'm willing to take on board. I accept there were times I didn't do well. I'd like that chance to prove I can be a responsible mother for my daughter."

44. Importantly, in answer to some gentle questioning from Miss Courtney, she said:

"I'm willing to undertake therapy."

Asked,

"Would you be willing to open the box and look inside? It might be painful.""

she replied,

"Yes."

"It could take up to two years."

"Yes."

"And who would be looking after LMB?"

"I don't know."

45. Miss King asked but a single question, and it is one which does not really concern the present application but is of the greatest importance to the matter overall. She asked,

"If the report said it would take too long for LMB, would you be willing to undertake this work for any further children?"

The answer was, simply,

"Yes."

46. I heard this morning from Faith Munroe, the service manager of Ty Connections. Her proposal appears at pages E72 to E78 of my bundle, and suggested a placement for a total of 16 weeks, the first four weeks being a transition and settling in period, with a 12 week parenting assessment to follow. Miss Munroe was questioned fairly vigorously by Miss Courtney.
47. Concern was expressed as to safety issues, but I tend to the view that the measures in place would keep LMB safe. As is acknowledged by Miss Jeens, Mother loves LMB, and I do not think she would knowingly or deliberately harm her, and in an establishment like Ty Connections she would be focused very much on caring for LMB free of distractions.
48. My difficulty with Miss Munroe's evidence is that it did not seem to me to point me to the assessment of LMB but rather to the support and encouragement of Mother. I entirely accept that Ty Connections' proposal envisages that Mother would undergo therapy alongside their assessment, though somewhat optimistically assuming that this would be funded by Buckinghamshire, but almost the only answer which pointed towards providing the court with information which it needed was when she said:

"What we'd be able to provide is a view on how AB's difficulties may impact over an extended period of time when Mother gets the opportunity to see that they can remain as a family."

49. I do not propose to lengthen this judgment by setting out all the answers from Miss Munroe which appeared to be directed to helping Mother rather than assessing LMB, but the following answers were representative:

"We work with lots of families. We try to explore the emotional environment of all the routines of care, by the environment which is clean and nurturing, balancing the parent's needs with the baby's. The mother's need is to be supported as a young mother…

What we can do is manage, guide, teach, support, and we would hope that that knowledge would turn into skill and the better she would be at ensuring the baby's safety…

We establish knowledge. We'd start with what she knows and work with skills…"

50. The local authority say, in effect: to the extent that this is assessment, it is duplicating the work already done by Junior CATCH; to the extent that it goes beyond assessment and is therapy or treatment, it is something the court has no power to order under s.38(6).
51. I am afraid, having given the matter the most anxious consideration over several days (because I was able to read the papers over the weekend and I have had some previous dealings with the family, as I have mentioned), I have reached the clear conclusion that I should not make the order Mother seeks.
52. I think it is doubtful whether what is proposed can be described as an assessment of the child. Dr Adshead described the situation as, "a borderline case, a judgment call" but I think she hit the nail on the head when she spoke of wondering,

"if there was a possibility for AB to have an opportunity to learn from a parenting assessment."

53. Likewise, in her addendum report, Dr Adshead writes that:

"The advantages of an additional extensive assessment are that it gives AB a chance to build on her strengths and focus on her maternal role. Even if the assessment concludes that AB cannot parent LMB safely, it may make separation from LMB easier and may help AB delay her next pregnancy…"

54. The proposed exercise, it seems to me, would fundamentally be about helping Mother, not about assessing her with LMB. That would be an immensely worthwhile objective, but it is something the House of Lords has made it quite clear is an impermissible use of s.38(6).
55. Even if I considered the proposed assessment fell on the right side of the line and was genuinely assessment rather than treatment of therapy, the view advanced by Ty Connections, that

"…a residential placement could perhaps assist AB…"

falls a long way short of a good prospect, even if I am right in thinking that Holman J's approach to that criterion may have been too prescriptive. The case appears indistinguishable from the situation in TL v. Hammersmith where, as Black LJ explains at paragraph 96:

"…it could only gather evidence about Mother's capacity in the limited sphere of a residential placement and, even if that assessment was positive, that would not overcome Mother's difficulty, that the therapeutic work that she required to put herself in a position to care for her child would take longer than the child could wait for a permanent home."

56. I accordingly, refuse the application.
57. However, I want to emphasize, and to record in this judgment for the future, some of the things Dr Adshead in particular said about Mother. For example:

"She has made some real psychological gains…

She has been able to develop some psychological skills since leaving care. I'm aware, for example, that self-harming has reduced and there's been some engagement with the community mental health team."

58. Mother's own evidence to me, which was not challenged, was that she had in fact ceased self-harming and had brought her consumption of alcohol under control.
59. Dr Adshead said:

"…It would be remarkable if she was able provide good enough care at this stage given her experiences…

…Her commitment is a positive indicator."

60. Mother has, in my respectful view, made truly remarkable progress. She is already not the same person as the girl who Dr Maclean described as "one of the most damaged children" he had come across. However, she is a work in progress. In particular, she has yet to convince herself that she deserves better than a succession of casual and frequently abusive relationships. Dr Adshead was suggesting that it might be another two years before she was in a place where she might be able to parent safely, and it might well take longer than that.
61. That work will not be easy. As Miss Courtney gently put it, she might have to "open the box and look inside" and it might be painful. However, as Mother said in answer to Miss King, she is willing to undertake this work for the sake of future children she may have, and I believe that this courageous young woman means it.
62. As I have mentioned, I shall direct a transcript of this judgment at public expense. This has been a regrettably long judgment and there will be a lot for Mother to take in.
63. But I also hope that the transcript will be helpful for LMB in due course. She needs to know how much her mother loved her, how hard her mother fought to be allowed to look after her and she also needs to know how hard her mother has worked to overcome the rotten start that she herself had in life. Even if, as I think is likely to be the case, LMB has to be brought up by others, she needs to know at the appropriate time how very proud she should be of the young woman who gave her birth.