England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT

SITTING AT MANCHESTER

Date: Tuesday 3rd March 2015

BEFORE HER HONOUR JUDGE PENNA

JUDGMENT IN THE MATTER OF L

These proceedings concern the welfare of L who is the only child of M. M tells us that L's father is D. D does not have parental responsibility for L, has not engaged with the proceedings and has not appeared during the course of this hearing. He has been offered the opportunity of undergoing DNA testing to identify whether or not he is L's father. He has declined to act upon that offer. Given the stance which he has taken and his lack of any relationship with L he does not take the matter any further.

These proceedings were issued on 22^nd May 2014. Well in advance of the issue of proceedings, on 23rd October 2013, the local authority had received a telephone call from the safeguarding midwife Ms B expressing concern because the mother had a diagnosis of factitious disorder and was now 12 weeks pregnant. She was concerned about the implications of this condition for the welfare of the expected baby. That first call was followed about a month later by a similar referral by Dr R. Both callers gave details of numerous occasions when the mother had presented to medical authorities (and a number of different medical bodies were contacted by her) complaining of medical difficulties which underwent investigation without an underlying physical cause being identified.

The history of hospital admissions and medical investigations undergone by M is not in dispute and determining a precise chronology need not be the focus of the courts attention. However the background reveals a startling number of visits to different hospitals and different medical authorities, none of which identified after investigations any organic cause for the presentation of M. The number of hospital visit's over 10 years runs not into double but triple figures. M registered with at least 7 GP's and made extensive use of emergency services. This led to a diagnosis of factitious disorder by Dr S at Tameside Hospital which M has told me during the course of this hearing she accepts in terms of its relevance to L. She also accepts that she has an anti social personality disorder.

It is notable that M was admitted to Tameside Hospital on 12^th December 2013 and was not discharged until after L's birth in May 2014. She was complaining of pain and secured a prescription of pethidine to be taken four hourly. She was not woken by any pain during the night but set her alarm to wake up and take more medication. She continued with the pethidine despite being told that this could be harmful to L. The level of concern was such that a strategy meeting was held on 9^th April 2014 involving social care, health visiting, midwifery services, drugs services and mental health services. In due course a decision was reached by the local authority to remove L from her mother after her birth without informing M in advance. Anxieties about the consequences of informing M were fuelled by comments she made including a suggestion that should there be a plan to remove L she would discharge herself from hospital and have the baby on a beach. M has since said that this was a joke.

The police obtained a police protection order immediately after L's birth and she was removed and placed in foster care where she has remained since. The local authority then applied for an Emergency Protection order and it subsequently began care proceedings. She is a delightful child whose photographs I have been privileged to see. She is developing well in foster care.

The court dealt with the final hearing in the care and placement order proceedings during the week commencing 16^th February hearing evidence over 3 days from two social workers SW2 and SW1 (the assessing social worker and the key social worker) and from the mother, Professor X psychologist and the children's guardian CG.

Many issues are agreed. The threshold criteria are conceded and are recorded in the bundle at pages A1-3. I have considered that formulation and adopt it as a proper representation of the concerns which existed at the outset of local authority involvement in relation to this child should she be in the care of her mother. As already indicated the mother's diagnosis of factitious disorder is agreed and it is agreed in addition she has an antisocial personality disorder. It is agreed that L needs to remain in foster care for the present. The local authority applications are for a final care order and for a placement order. Their plan is for L to be placed for adoption outside her family. This plan is supported by the children's guardian. The mother however asks the court to adjourn the matter in order to afford her the opportunity of undergoing psychotherapy to address her difficulties. She has not received psychotherapy so far and it is conceded that the waiting list would involve some 20 weeks before therapy could begin. It is agreed that therapy once begun would need to proceed for at least 3 months to ascertain whether the mother would work constructively within that discipline and whether she would be capable of making progress. It is expected that therapy would need to be undertaken for longer than 3 months and certainly the suggestion of at least a year has been made.

The issue therefore upon which I need to focus; is should these proceedings continue for an extended period in order to ascertain whether the mother's situation can be improved sufficiently for her to care for L or should the local authority be permitted to place her with an adoptive family in order to secure her long term future?

It is without doubt that M loves her baby and is devoted to her. Her contact is of high quality. She has missed very few sessions. When she gave evidence her devotion was clear as was her strongly held desire that L be returned to her. The starting point for the court is to support children being raised by their parents if that can be achieved safely for them. Against that background I remind myself of the legal structure within which the court operates. It is the Local Authority which brings this case and it is for the Local Authority to prove it. The standard of proof is the simple balance of probabilities. The court's paramount consideration is the child's welfare and the welfare checklists in the 1989 and the 2002 Acts assist in evaluating were the child's welfare lies.

A bundle of documents has been lodged with the court and read. The number of witnesses requiring to be called was reduced by agreement. The evidence heard by the court can briefly be summarised as follows; the notes which follow are not comprehensive but encompass those parts of that evidence which have assisted me in reaching a conclusion.

I heard first from SW2 Social Worker who undertook the assessment of the mother with E. She was very positive about contacts. She was clear that if caring for L the mother's hospital visits would impact on her child as the child's main care giver would be unavailable when her condition of factitious illness gave her the impulse to go to hospital. . She told me that the mother could not be relied upon to give consistent accounts of events and had given different versions at different times; she could not be relied upon to give a truthful account of hospital visits which have continued. She could not be confident as to how mother would manage with a child on a daily basis. She can be volatile. Her parenting at contact is good. She tends to pull herself together for contact visits. At times she can appear emotional and angry. Contact is positive and appropriate. However nothing has changed in relation to the underlying difficulties and she was unable to think of anything to make it safe for L to be with her mother full time.

She was followed by SW1 the current social worker having been appointed in October and the author of final care plan and final statement. She told me that M presented to Accident and Emergency in December, January and early February. The mother gave different accounts of the reasons for her hospital visits in October: either slipping on leaves or medication review. She also attended early in November claiming she had been kicked in the abdomen and additionally said that she was away visiting a friend at that time. She told me; it is difficult to monitor the mother and she does not think it could be done because of her dishonesty. She was unable to think of a form of support which would address the risks which arise. She was positive about contact. Her experience of mother is of someone who is very anxious she has not seen her aggressive. She commented that the mother says she accepts Professor X's view but that seems to be a verbalisation of acceptance rather than true acceptance. She could not accept that a mother and baby unit was appropriate. In her view even with support it would not be safe. There has been little genuine behavioural change. There is no guarantee that therapy would be successful if it were undertaken or that mother's engagement with therapy would be meaningful. She needs greater insight than she has at present into her disorders.

The impact of mother's factitious illness disorder is that she would be physically unavailable to care for L. L would feel concerned when her mother disappeared to seek medical attention and this would cause emotional harm. She also noted that there is a risk of the transfer of factitious illness disorder to L if cared for by her mother.

It impressed me that both social work staff readily conceded the good quality of the contact between the mother and daughter and the importance of that relationship to the mother. It seemed clear to me that both workers had learned through experience that they could not rely upon what they were told by the mother and that her accounts of the same events not infrequently varied. I had a sense that both would have loved to sense that the mother was succeeding in addressing her difficulties and improving her ability to care for L. Both had clearly hoped for a positive change which they had failed to witness. They continue to admire the quality of the contact between mother and daughter which takes place. However over time their analysis of the whole picture did not inspire optimism about the mother's capacity to manage her difficulties and to change. I cannot fault that analysis with which I agree.

I heard the mother's evidence next. She accepted that she has a factitious disorder and an antisocial personality disorder. She told me that she always feels ill. She wants to be able to change and to be a mum. She told me that she is willing to undertake therapy which she knows she needs. She is unable to accept L being adopted. The change she wants to make is to get better and not go into and out of hospital. She told me that she can't trust anyone – they took her baby away. This was a reference to the fact that professionals agreed that the expected baby would need to be removed after birth and that the mother should not be warned that this was planned. It was feared that prior knowledge of what was to happen would compromise the mother's care of the baby and cooperation with medical authorities.

Having conceded the factitious condition and her psychiatric illness the mother went on to deny that she had given fabricated accounts of siblings of her own suffering from a variety of diagnosable medical problems. No such siblings exist. She conceded that she had taken pethidine when she was pregnant against medical advice. She was aware that her own mother had been discounted by the local authority as a protective factor but she told me that she and her mother now have a good relationship and they support one another. She linked this change with the fact of her daughter having been removed from her care. She asserted that she would not take her baby to the accident and emergency department unless she was suffering a health event which was life threatening. She indicated that she would agree to visits from professionals.

Listening to the mother's evidence gave me an illustration of how profound her commitment to her daughter is and how strongly felt her love for her daughter is. It also illustrated the yawning gap between that commitment and M's ability to put it into practical effect. I was able to see the impact of her personality disorder upon her ability to give a truthful account of events and to be consistent. From this I deduce that she could not be relied upon as an accurate narrator or historian. I note that the use of pethidine when pregnant illustrates that the mother's compulsion to seek medical treatment for herself outweighs any assessment which she is able make of the effect of her behaviour upon her vulnerable baby (at that stage not yet born).

Following the mother I heard from Professor X. She told me that factitious disorder is the voluntary presentation to medical professionals of oneself claiming illness where the person with the disorder has none. Often symptoms are simulated. Her first report was 75 pages which is the longest she has ever written in 25 years of practice because of the sheer volume of medical history. M was good at learning symptoms which cannot be ignored but avoided using a GP consistently – thus side stepping the risk of her behaviour being analysed (my comment). In describing the consequences of anti social personality disorder she was clear that this results in extensive deception by M. She described her behaviour as compulsive and aggressive.

Professor X had discussed M with Ms P a clinical psychologist with Tameside & Glossop Psychological Therapy Service to whom M's Community Psychiatric Nurse K and Solicitor O had written about her resulting in the screening assessment conducted by her and included in the bundle. Professor X told me it was difficult to see how M could consistently bring up a child as a single parent given the conditions which she has. She noted that there had been a hospital admission as recently as 14^th February. M has admitted to her when she goes to hospital she makes up symptoms and messes with samples. She described her as not being able to reflect. She and Ms P had agreed that rehabilitation of L to M could not be supported to start until she had undertaken 3 months therapy and the therapist was convinced that there was a good prospect of a positive outcome. Before that 3 month period could start to run there would be a 20 week wait.

When asked about the prognosis for M she told me she is still presenting with her symptoms, has no insight and has had no therapy. From these comments I deduced that the prognosis is not optimistic. Certainly she expressed the view that given the risk factors the risk to L is significant. The likelihood of progress is small and she was aware of the limited nature of time for L given the process of attachment formation which will shortly begin. She noted the factitious illness disorder is something which individuals do to themselves and is something which M is continuing. Her current presentation is different but is not improved. There are a number of risk factors in relation to factitious disorder by proxy being passed onto L but she cannot say whether it is likely to occur. She did however consider that M's factitious illness disorder would make it difficult for her to prioritise L's emotional needs.

M has always found it difficult to trust professionals and an element of dishonesty is part of her factitious disorder. She thought that 3 months was an appropriate period as a test of therapy for M as suggested by Ms P and she thought a proper attempt should be made. She noted that there had been little change in M's presentation during the last 9 months since L was born and in the light of that she was guarded about the outcome of therapy. She was hoping that M may have moved on after seeing her report but it appears not. In her view failure is the more likely outcome of therapy than success but the process should be begun.

I noted when reading Professor X's report that she was apologetic for appearing pessimistic and that pessimism remains the characteristic of her view. I did not identify any sense of personal animosity from her towards M. It appeared to me after hearing her give evidence and having considered her reports that the conclusions she reached were well based in her experience and practice. I accept her analysis which is not undermined by the discomfort which she clearly feels and the court shares in relation to what is a pessimistic conclusion. My view is that pessimism is realistic. Bearing in mind the contents of Dr P report which I have read and Professor X's evidence and reports it would be my hope that M can start and make progress with therapy. However this process is not simple and will need an investment of time which cannot be tolerated for L.

The children's Guardian CG gave the concluding evidence. She confirmed the two reports which are within the bundle. She told me she was very pleased with contact which is working successfully. She was aware of the limitations of a mother and baby unit and could not recommend it. She accepted Professor X's analysis. In her view L has already waited long enough for her future to be settled and she could not support further delay before a conclusion is reached. She is worried about how M will be following the hearing if the result is not as she wishes. She is unable to see any support which could be put into the home in order to minimise the risk. The solution reached at the conclusion of these proceedings has to work within L's timescales and she is at a crucial developmental stage. The risk is that the mother's factitious disorder would disrupt L's routines and she is concerned about emotional neglect resulting.

The Guardian was positive about the mother's contact in general terms but was of the view that to live full time with L would be a very different undertaking for this mother. She clearly was concerned as to whether the mother could manage full time care with the level of success she has achieved in contact. She was clear that the proposed 3 month trial of therapy would be to assess the mother's level of engagement and would not represent the sum total of work needed to undertaken in therapy; that work would take place after the 3 month period. She found it difficult to envisage a monitoring process for the mother whilst undertaking therapy and remains concerned about L's need for permanence.

There is tension in M's relationship with her parents. Contact between mother and L is positive; as she grows older she will present more of challenge and she is concerned how the mother will manage that.

The Guardian's perspective matches my own and I accept her conclusions and the way in which she reached them.

Viewing the evidence as a whole is it clear that M is not able to look after L as matters stand. Both the documentary evidence and that evidence which I have heard unite on that point and M herself knows that she needs to undertake therapy to address the factitious disorder before L's return could be contemplated. When giving evidence she urged me to contemplate placing her with L in a mother and baby unit whilst the therapy is undertaken but even she seemed aware that that proposal is not realistic; on that point I accept the Guardian's evidence that is not possible to contemplate a monitoring regime which would be adequate to meet the challenges posed by M's factitious disorder linked with the untruthfulness resulting from her personality disorder. I also agree with the Guardian's assertion that L has waited long enough. The timescale for the therapeutic process involved 20 weeks waiting followed by a 3 month trial period before the genuine therapeutic work would actually begin. The indicators are that the success of that process could not be relied upon and it is impossible to be confident as how long the process would take even if (and this is by no means certain) the mother saw a programme of therapy through. The balance I am having to strike is therefore between the objective of L being brought up by her mother against the uncertainties of both timescale and success.

I turn to the welfare checklist in the 1989 Children Act. L is at too young an age for her wishes and feelings to be formed or expressed in any meaningful manner other than a generalised assumption that she would wish to carry as she is and to be happy. I will deal with her physical emotional and educational needs together with her age, sex and background.

L is at a critical stage of her development. I accept the Guardians assertion that she is beginning to develop the ability to form attachments and that she needs a reliable and dependable attachment figure or figures without further delay. If she were to remain in foster care for the months which will be required for the mother is to undertake therapy the development of her ability to form attachments will be compromised because her primary attachment will be to the foster carers and will be disrupted after many months. At the time when she is learning about her relationship with significant characters in her life the trust which she is able to place in those relationships continuing will be profoundly undermined.

I move onto the likely affect on L on any change in her circumstances; as already indicated I agree with the Guardian that she needs a stable and secure home now and that moves of home and carer for her will be unsettling and could compromise her development. I believe that L's emotional needs would not fully be met in the care of her mother as a consequence of her factitious illness is that she simply could not be available to attend to those needs consistently. I move on to consider how much harm she has suffered or is at risk of suffering; fortunately the timely intervention of the authorities has allowed L to live untroubled for the first 9 months of her life but it is clear that a time when her mother could look after her without the risk of harm is not even yet in contemplation and the causes of potential harm have yet to be addressed. The prospects of them being successfully addressed are reduced by the combination of disorders which the mother has. M's capability to look after L is by her own admission limited by the conditions from which she suffers. The two applications before the court are the appropriate focus for the courts powers.

The welfare checklist in the 2002 Act to a large extent replicates the 1989 Act but in the Placement Order application I consider additionally the relationship which L has with her relatives and any other relevant person and the affect upon L throughout her life of having ceased to be a member of her original family and having become an adoptive person. This is a sad subject to contemplate because during contact it is clear that an attachment exists between mother and daughter and their love is not in question. However upon weighing up all the factors it is clear to me that the love between mother and daughter is not sufficient to sustain L through the process of growing up. As she grows older I sincerely hope that the extent of her mother's love can be conveyed to her and the arrangements for indirect contact will serve as a reference point for her when she reaches an age to ask questions about her family of origin. No extended family member has been favourably assessed and the grandparents who were assessed have not sought to challenge the unfavourable conclusion of that assessment.

So what are the options for L? It is clear from the foregoing that the threshold criteria for the granting of a Care Order are met and having considered the welfare checklist it is my view that L's welfare requires the making of such an order. The issue remaining is whether the care plan is the appropriate care plan and whether a Placement Order is the correct option for L. Would anything else do? There is no option of a return to the mother as matters stand and for her to undertake the process of therapy could take a year. The outcome of therapy cannot at this stage be predicted. There are no family members in a position to offer alternative care. I have made clear my agreement with the Children's Guardian that L at 9 months old cannot be expected to wait for longer than her life so far for the unpredictable outcome of therapy undertaken by her mother. L's welfare requires me to dispense with the mother's consent to the making of an adoption order. I do so and the final orders which I make are a Care Order (approving the local authority's plan) and a Placement Order.