England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		Wed 21st June 2006

The Hon. Mr Justice Sumner :

Introduction

1. I am concerned for 2 children, M born on 6 January 2001 and now 5 years of age, and K born on 10 November 2004 who is now 1 ½ years of age. The father of both children is believed to be Mr O who lives in Benin, Nigeria. The mother of M is believed to be Mrs O also living in Benin.
2. The mother of K is 27 year old Mrs O. For the purposes of this judgment I shall refer to her as the mother.
3. The mother says she married the father in Nigeria in 2004. She lived with him, his first wife Rita, their 2 children, M, and paternal grandparents, brothers and sisters.
4. The mother arrived in the UK on 5 September 2004 alone. She claimed asylum. She said her husband's family believed in female circumcision or genital mutilation. They would murder her children if she gave birth without having undergone that ritual. She claimed asylum.
5. She was then 7 months pregnant. About the end of October 2004 M arrived in the UK. She was accompanied by a person referred to by the mother as the Reverend Father. The mother paid neither for her fare to this country nor that of M. Initially she claimed M was her daughter.
6. K was born on 10 November 2004. A month later on 9 December M started at Elswick Nursery School. She was reported as being a confident child, clean and tidy, enjoying the company of other children.
7. M returned to nursery school after Christmas on 5 January 2005. She had a U shaped scar on her cheek. The mother said it was as a result of a fall at home. Five days later M was seen with bruising round her right eye. The mother said she had been fighting a 6 year old child at home.
8. M's demeanour had changed. She was subdued, uncommunicative, sad, and looked exhausted. She was smelly, wearing the same clothes and underwear all week though the mother had been given clothes for her.
9. The school referred M to social services. On 13 January they visited the mother's home at 4.00pm. M was there alone locked inside. The mother and K returned at 5.15pm. A police protection order was made.
10. M and K were placed with foster carers, Mr & Mrs Mitchell, where they have remained. M was seen by a paediatrician, Dr Richards at hospital. Some 21 marks were noted. Care proceedings were issued by Newcastle City Council, the local authority, on 17 January 2005. They were based on the mother's alleged violence to M.

Hearing November 2005

11. The case first came on before me on 14 November 2005. The local authority initially sought a final hearing. The Guardian had reservations about this for 2 main reasons. There was concern about the mother's understanding of the proceedings. It was felt that she needed the opportunity to absorb any adverse judgment. Secondly the natural family in Nigeria though aware of the proceedings did not know that the local authority's care plan envisaged placing both children for adoption.
12. The local authority was represented by Mr Stonor, the mother by Miss Dodson QC and Miss Woolrich appeared for the Guardian; in May 2006 it was Miss Shaw. There was a contested hearing on the causation of the injuries. I gave judgment on 18 November.
13. Of the 21 marks found on M, the local authority relied upon 8 of them as being deliberately inflicted injuries of which the mother was the perpetrator. I found that in respect of 7 of the 8 injuries they were deliberately inflicted by the mother. They had caused her significant harm. The evidence of how that happened is appalling.
14. Of the 7, I held that 5 were the result of deliberate burns. One was caused by the infliction of force sufficient to make marks without puncturing the skin. The final one, 3 parallel marks on her back, were caused as a result of the use of a whip. The mother denied that she had caused any of them. She said they were all accidental.
15. The burns were dreadful. The U shaped scar on M's face is permanent. It was caused by a heated object.
16. There were 2 U shaped pigmented scars on her back. It was likely that they were caused by the same instrument as the scar on her face but either held for a lesser time or was less hot.
17. There was a ring on the right aspect of her arm and a smaller scab on her knee. I held that these were caused in all likelihood by a cigarette being held to the skin. There were the lateral scars on the right trunk which I found consistent with whipping. In addition there were 4 small lesions and 2 circular marks below the right eye and finally a pale coloured abrasion above the right eye which was consistent with a burn.
18. It is unlikely that all the deliberate injuries were caused at the same time. The shrieks of pain at the time and the agony that resulted are not difficult to imagine.

The law

19. Before any final care order can be made it is necessary for the local authority to prove that M suffered significant harm in the care of the mother. Following the injuries inflicted on M, they seek to prove that both she and K are also likely to suffer significant harm if returned to the care of the mother.
20. I found significant harm had been caused to M. I find within these proceedings that the likelihood to which I have referred is also proved in respect of both children. In each instance I am satisfied to a high standard that the local authority has proved its case.
21. I am then able to go on to the second part which is to make a decision about the local authority's care plan. I only agree its recommendation for adoption or long-term fostering away from the mother if the local authority satisfy me that it is in the children's best interest because their welfare is my paramount consideration. I balance that against the mother's wish for both children to be returned to her care. I bear in mind the strong presumption that a child should be brought up in its own family. Strong compelling evidence is required for any other course. That is the exercise I now undertake.
22. I note that since the last hearing the criminal proceedings have been determined. The details are as follows.

Criminal proceedings

23. The mother was charged with grievous bodily harm to M, neglecting her, and causing cruelty. In December 2005 she was acquitted of the charge of grievous bodily harm. She pleaded guilty to the charge of neglect and she was convicted of cruelty.
24. On 28 February 2006 she was sentenced to 12 months imprisonment on the charge of cruelty with a further 1 month imprisonment concurrent on the charge of neglect. She is due to be released at the end of August 2006. He appeal against a refusal of asylum is currently due to be heard on 13 June 2006.
25. I now turn to the evidence I heard on 8 and 9 May 2006 in Newcastle. I refer in particular to the evidence of Professor Finlay Graham, the mother and the Guardian.

Professor Graham's report

26. He prepared a psychological report on the mother in January 2006. He has recently retired from being a consultant forensic psychologist for over 30 years and a visiting Professor at the University of Northumbria. He adopted a clearly cautious approach. He was particularly anxious that problems of language and culture might lead him to make false assumptions or misunderstand the mother with the result that he could be led to conclusions that might not be fair.
27. In his report of January 2006 and on the basis of my earlier judgment, he started from the premise that the mother had harmed M on a number of occasions in different ways involving some planning. His report was limited because he was unable to follow his preferred practice of looking at 3 separate sources. These were factually established details of the person's life history, interviews with the individual, and psychometric assessments.
28. In this instance there was no documented life history. There was a language barrier not overcome with the skilled interpreting there was. Finally cultural differences he considered made psychometric assessments not appropriate.
29. He was not assisted by finding that the mother was evasive about her reasons for coming to the UK with M or the means by which she did it. He was unclear whether she had incurred any debts or commitments which she would be expected to repay.
30. He was unable to assess whether there was any sadistic motivation in the planned harm. He noted that M had been neglected and that subsequently there was evidence that her relationship with M was a troubled one.
31. With him she maintained her denial and showed no remorse. He regarded her as highly defensive. He found no major psychological difficulties but he noted the circumstances in which she arrived in the UK. She was in the late stages of pregnancy, unable to speak the language, socially isolated, in an unknown culture with a weak attachment to M all of which he concluded led to substantial situational stressors.
32. In assessing risk of future harm he considered the previous violence was the most powerful factor. He saw little that indicated in the past factors which might account for her behaviour save for my findings of her behaviour to M. She lacked insight into her present situation and that and lack of remorse made things worse.
33. He concluded that the mother had displayed a pattern of developing violent behaviour towards M within a dysfunctional relationship where attachment was poor. He considered that she may present a significant risk of violence towards M in the future. He was also concerned about M's emotional needs if she were returned to the mother.
34. He found the difference with K more difficult to assess because she was the mother's own child. There was no evidence of prior violence to her poor attachment or negative behaviour. On balance he was not convinced that there was evidence that the mother would present a significant risk to K.
35. Before recommending a return of K to the mother within a robust risk management plan, he wanted a more clear understanding of why the mother came to the UK and the views of the father of both children. He noted in his warning factors about possibly increasing risk, any lack of openness and honesty by the mother in engaging with professionals or hostility towards them.

Professor Graham's evidence

36. Whatever support there was for the mother to be found in his report largely evaporated when he gave evidence. In the circumstances where all parties wished to cross-examine him on some aspect of his report, with the consent of the parties I called Professor Graham and asked a series of open questions to elucidate his opinions.
37. He started by explaining the importance for him of knowing the circumstances in which the mother had come to the UK. Was it truly traumatic and she left in desperation taking or arranging for M to come as well or was it a planned move? He pointed out that the level of uncertainty about this impacted very negatively on any plan for risk assessment.
38. It was a difficult task at the best of times but, given these uncertainties, he was being asked to conduct an assessment in the dark. He pointed out that if he did not know what might have triggered past events, he could not know what might trigger them again in the future. "My position is that it is difficult to guard against a risk if you do not know how the risk arose".
39. He was concerned that M and K's father had not made his views clear. It appeared that he and the mother were in regular contact.
40. I asked him about splitting the children. He regarded a strong bond with the mother as of greater significance for K than remaining with M.
41. He acknowledged readily the difficulties in the case where the mother was considered unreliable or untruthful and he was relying on her self-reporting. He considered the language barrier took his ability to the limit. Her non-verbal reaction was very difficult to interpret.
42. He was concerned about his understanding of her religious beliefs. There was a spiritual element as well as her Christian faith.
43. He considered that the evasive aspect of what she told him was that she would not answer his follow up questions on how she came to this country. He had a feeling that there was more behind it. He had not been given a full picture.
44. He was not confident about saying whether she might have post-traumatic strain disorder because he needed a knowledge of what she had been through. He was worried whether the mother had incurred a debt because of coming here and later M's arrival without payment. If so there were possible stress that could be placed on the family if there had to be some repayment. Given the change in M over Christmas he felt the mother's position was more an acute state rather than an underlying long-term psychological trait.
45. He pointed to her rigid set of beliefs. It was very difficult for her to shift when she resorted to an attitude that God would determine the matter. They were beliefs held with a passion and rigidity which was unusual. It was very difficult to determine what was going on.
46. He noted the difference that the injuries were caused to a lively 4 year old but an immobile baby was unharmed. He concluded that whichever way he went there was a leap in the dark.
47. He had never recommended rehabilitation where in respect of injuries to a child there was planning behind the injuries, and subsequently a lack of empathy, no remorse, a denial of causation, and a highly defensive attitude. He was much less confident now. There was a risk to K and he was not confident they could prepare a risk management plan which was sufficiently robust.
48. He pointed to the lack of insight and that denial was a barrier because if it continued it went against risk management approach. He had hoped for a greater acceptance of the issue but it had not happened.
49. He did not think that the risk to M could be managed given the lack of insight and denial. In relationship to a risk to other children he thought it speculative to jump to any conclusion. He accepted that the more extreme the behaviour the more cautious he had to be in assessing risk. With K he felt he was left on very uncertain ground. He could not confidently go down either pathway with K.
50. The mother would struggle with helping K to come to terms with the loss of M. He accepted that if K returned there was a fear of non-reporting of any problems. He had made it quite clear what he described as a plea to the mother if she came back with information. He had taken the trouble to confirm that the mother understood this.
51. Her thinking was rigid. It meant that she was less amenable to change, it made risk management very much more different. A rapport with workers was crucial. There was nothing to explain the magnitude of the aggression. He could not throw light on the psychotic process because of the denials.

The mother

52. She gave evidence. She confirmed that the reason she left Nigeria was problems with the father's family and her refusal to be circumcised. She had not paid to come here. She had not incurred a debt and she maintained that she had not caused the injuries. She explained how they had happened accidentally.
53. She did not think that the persons who had been identified were M's parents. She did not know the whereabouts of Amas. He had said that he would come to the UK but had not done so. It was because of the troubles at home.
54. She wanted M and K returned to her care. She was ready to leave the country with the children. If M could not come with her she wanted her to remain with the natural parents. She was appealing the asylum decision. If she had a choice she would like to take the children back to Nigeria. She wanted to leave because she did not understand this country and how when children had accidents they were taken away.
55. She could not reflect on the injuries. She was not responsible and had nothing to say. M had never shrieked with pain, she was laughing. She was convinced despite the surgeon's evidence, Mr Settle, to the contrary that M was not scarred for life. She was sorry that the injury had happened in her care but she had never punished M.
56. It was the Reverend Father who had paid for the flights and he had looked after M for 2 months. There was nothing in it for him. She was not hiding anything, she had nothing else to say. She was afraid for her life if she went back to the village, she would fear for K's life.
57. She could not stay here the problems are too great. She could not leave the country without her children. Though children were whipped with canes at home she had never whipped any child. She had been angry and upset at a meeting with social workers in January.

Care plan

58. This was modified during the course of the hearing. No prospective adopters had been found of a culturally appropriate background. The local authority proposed to widen the scope of prospective adopters forthwith and to consider the question of long-term foster placement as well. This was in order to find a placement for the children hopefully culturally appropriate at the earliest opportunity given their ages. It was regarded as a very last resort to consider splitting the children up. It was not proposed to have any future contact to the mother save a goodbye visit. It had been planned to be 1 hour a month to K since the mother had been sentenced to imprisonment. This has not taken place.

The Guardian

59. Mrs McGaughey was appointed in January 2005. In her first report in November 2005 she pointed to the very different relationship between the mother and K and the mother and M. She considered that the mother had not taken any responsibility for the collective nature of the abuse suffered by M. In fact she had become more entrenched. There was a real and high potential that K would experience the same level of deprivation and physical abuse as her sister.
60. The mother presented as "a strong minded, determined and complex person who has a highly charged, volatile personality and who is prone to unpredictable outbursts of temper. When these occur (the mother) does not appear to mind where she is or who is present. (The mother) who also presents as being very controlled can at times be both confrontational and challenging. I had first hand experience of (the mother) temper outbursts ……….".
61. She considered that every effort had been made to engage with the mother without success. She noted that the mother had shown no remorse or understanding for M's suffering. She had become more evasive and confrontational challenging and at times aggressive. She saw little evidence or optimism that in the long term K would receive any better standard of care than M.
62. The Guardian reported again in April and May 2006. She noted that the mother, after the hearing in November and her prison sentence, had become more belligerent and dismissive of the court and of professionals who are attempting to work with her. She was verbally abusive at a meeting in January ending up by saying that it was only God who would judge her.
63. She was holding K at the time and was oblivious to her distress caused by her mother's tone of voice and excitability. She was firmly of the view that adoption would be the most appropriate way of providing K and M with the safe and secure environment they required.
64. In evidence she noted that the mother at the meeting in January had been extremely dismissive of the court and the professionals who had given evidence. She could not accept that the court had made decisions which did not reflect her wishes. She had seen her being upset and angry on a number of occasions. When she had tried to explain to the mother what my findings and the decision of the criminal court meant the mother said that she was tired of hearing the Guardian's voice and would not talk to her anymore.
65. She had taken onboard the cultural aspect of the matter. She had in the end come back to thinking what would be done if this had happened in any other family. Given the nature of the injuries she was particularly concerned about the planning and thought that had gone into what had happened. They were not spontaneous injuries. She thought that M in the mother's care was an unacceptable risk.
66. She had a particular concern because she did not know how the mother would react when K was no longer dependent but was emotionally and physically more challenging. Because of the unknown factors the balance of risk was high and unacceptable. She wanted to know what changes could be affected. It was fundamental that there had to be some acceptance of what had happened otherwise you could not take things forward.
67. The mother could not and would not engage with the professionals who could not understand why. In her words the local authority had bent over backwards to engage with the mother but had come up against a brick wall. She had not understood the concerns that were raised and not even worked minimally with them.

My decision

68. At the end of the evidence and submissions I said that if everyone agreed I would announce my decision with reasons to follow later. I was leaving Newcastle that evening. There was no realistic prospect of my early return. I had come to a clear conclusion, and I did not want the mother to remain in doubt. Therefore with everyone's consent I took that course.
69. I pointed out that the mother had never accepted my findings, she had shown no remorse, she had not cooperated with the local authority, and was now serving a term of imprisonment. I pointed out that I only accepted the local authority's care plan if they satisfied me that it was in the children's best interests.
70. I had to consider the risks to the children of any repetition of the violence that the mother had shown in circumstances where the mother had made it impossible for the local authority properly to assess that risk. The nature of the injuries inflicted and the degree of pain caused demanded some explanation, some acknowledgment and some remorse. None were forthcoming.
71. It presented a wholly unacceptable risk for both children should they be returned to the mother's care. The local authority and Guardian were right in saying that she had been given every chance and that a decision had now to be taken for the children's future. I considered that it would be less than responsible in safeguarding both children if I did other than approve the care plan sought by the local authority.

Further findings and conclusions

72. I add now that I have considered the evidence of Professor Graham, the mother, and the Guardian with care. I am satisfied that it was only because Professor Graham adopted an extremely cautious approach in his report that he could ever have contemplated any question of rehabilitation of K to her mother. His evidence however reflected his profound concerns about such a course given the evasive nature of the mother's explanations, her lack of remorse, her continuing denials and her rigid thinking. He was unable to present any positive case for such a rehabilitation. I accept his reasons for rejecting a risk management plan and his more realistic oral evidence.
73. Even if I had contemplated such a plan, the evidence of the Guardian and her conclusions which I wholly accept put that beyond any doubt at all. The mother has not cooperated with the local authority or the Guardian who was striving to assist her. She has been intolerant, aggressive and had outbursts of temper.
74. She has inflicted appalling injuries on a defenceless child which no cultural differences can explain. Every opportunity has been extended to her by the local authority, Professor Graham and the Guardian to explain what has happened and to reflect on mine and the jury's decision about her actions. It has produced no change. I see no prospect of change in the future.
75. I too have searched to find some understanding, some explanation, some acceptance by the mother of what she has done. There is none. She maintains her explanation of an accident in the face of the clearest evidence. It defies commonsense. She blames no one else.
76. She is given to bursts of anger. She has become more defiant. Her attitude and actions demonstrate that she cannot cooperate or engage with the local authority.
77. Given the high quality of her legal representation, I conclude that she was aware that if she did not change she ran the risk of losing the care of her daughter. Even that has not been enough. I cannot think how she could have been more effectively helped.
78. The local authority by their care plan and further application seek an order freeing both K and M for adoption. The mother does not consent to this. It is not sufficient that I find, as I do, that such an order is in the best interests of both children.
79. Under s.16 of the Adoption Act 1976 I am invited to dispense with the mother's consent to the freeing application. This is on the ground that she is unreasonably withholding her consent.
80. Though the interests of the children are of great importance if, as here, the mother objects to the making of an order the best interests of the children cannot prevail absolutely unless the court can properly and in accordance with its powers under the Act dispense with the relevant parental consent. The test was put in this way by Steyn and Hoffmann LLJ as they then were in Re: C (A Minor)(Adoption: Parental Agreement; Contact) (1993) 2 FLR at p. 262 where they put the test in this form –

"…… by the Judge asking himself whether, having regard to the evidence and applying the current values of our society, the advantages of adoption for the welfare of the child appear sufficiently strong to justify overriding the views and interests of the objecting parent or parents. The reasonable parent is only a piece of machinery invented to provide the answer to this question ……"

81. I look at all the circumstances of the case as set out in this and my former judgment. I take my decision as at the date that I gave it. I bear in mind that there can be a wide spectrum of views by a parent which cannot be called objectively unreasonable.
82. Endeavouring once more to give the mother every understanding and allowance, I am forced to the inevitable conclusion that looking at the matter objectively she is unreasonably withholding her consent to the freeing of her daughter for adoption. I am satisfied that the criteria for the making of a freeing order are made out in respect of K.
83. The person believed to be M's mother, Mrs O, and the person believed to be her father, Mr O, were served with the freeing application on 5 January 2006 (they had been informed of the care proceedings in July 2005). Mrs O completed a form. In that she stated she did not consent to adoption. She was informed that she was entitled to free legal aid. She has not responded further.
84. It is a drastic step I am being asked to approve. I have looked hard for an alternative. But the Guardian's robust good sense (which if there is a conflict I prefer to Professor Graham's views) leaves me with no alternative.
85. Given that situation the risk of her appallingly violent behaviour re-occurring even to her own child presents a level of risk which the court cannot entertain. With the mother's uncooperative and at times hostile attitude to the local authority, I do not see how any rehabilitation could be planned nor supervised. There is no alternative in this case if both K and M's best interests are to be met. Accordingly I approve the care plan as amended. It is a matter of regret that neither M and K's father nor M's mother has proposed any alternative placement.
86. That approval is only given once I have dispensed with the mother's consent in respect of K and the parent's consent in respect of M as I do. Accordingly I approve the care plan and make freeing orders in respect of both children and the draft orders which have been forwarded to me.