England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		19 April 2008

Mr Justice Ryder:

1. These are care proceedings concerning a seven month old baby ML. Her mother is JL and her father is PL. ML is represented by a children's guardian, Mrs Hazel Birchmore. The Local Authority is Y County Council.
2. The proceedings are pending before the Y Family Proceedings Court (FPC) on a contested application by the Local Authority for an Interim Care Order on the basis that their Care Plan had changed to the removal of ML from her mother's care. The Local Authority had given the Court an assurance that in the event that they proposed a removal that would be brought to the Court to enable the matter to be considered on the merits.
3. It is now clear that the hearing of that Interim Care Order application, which remains incomplete in the FPC pending an appeal to this court, had ultimately become a hearing on the merits of all of the issues in the case. Indeed the children's guardian told me in terms that that was what was required and as soon as possible. The final hearing before the FPC is presently listed to take place in January 2008.
4. For a number of reasons that I need not dwell upon, the hearing in the FPC was blighted by procedural problems some of which had the potential to raise serious Article 6 complaints (not least the fact that the Magistrates were not in possession of all of the papers and the interim hearing was in no real sense interim at all in that by its conduct and invited conclusions it would have been determinative of the issues in the case). In the event and on day three of that hearing, the Magistrates adjourned part heard to a further five (sic) days in September 2007 and refused an application by the mother for a viability report concerning a further residential assessment at a unit in the Reading.
5. On 10th September 2007 the appeal against the residential viability assessment decision came before the Applications Judge for directions. It was remitted to this Court for an urgent hearing of the appeal on the following day. On an examination of the conduct of the interim care hearing in the FPC, it immediately became clear that its continuation other than as a final hearing was unsustainable. So far as the ultimate issues were concerned, it was equally clear that an independent expert who had given evidence to the FPC, Dr Freedman, had advised that a further assessment might demonstrate in the mother an ability to care for her daughter and that there should at least have been a viability report from the unit proposed. Accordingly I adjourned the appeal for one week to allow that report to be produced and, in the event, it recommended a further residential assessment. As the gravamen of the appeal was whether such a report should have been ordered, I allowed the appeal without objection, vacated the balance of the interim care hearing before the FPC, transferred the contested application for an ICO to the care centre and thence to the High Court and embarked upon that hearing with an estimated length of one day on 18th September 2007.
6. I have not vacated the final hearing before FPC in January 2008 and may yet remit these proceedings to a new bench on that day if it cannot be determined any earlier and if the issues in the case are once again suitable for determination in an FPC. The Magistrates in this case lost control of the issues and their own process. They should have acknowledged that this was the case and asked the care centre for assistance. It was incumbent on their legal adviser to give them that advice. I can find no appreciation of this in the papers and will accordingly direct that a copy of this short judgment be provided to the relevant justices clerk for his or her consideration.
7. Turning to the key issue in the case, that is, whether ML should remain in her mother's care pending the final hearing. That issue needs to be considered in the context of the subsidiary issue as to whether she should reside with her mother at the unit in Reading.
8. There is no question but that an interim threshold in accordance with Section 38 of the Act is made out by the Local Authority i.e. there is cogent evidence that more than adequately demonstrates a prima facie case justifying an Interim Care Order being renewed on the Local Authority's application. Mother's case is not so much that she denies the likelihood of harm that arises out of her relationship with PL but that despite all her prevarications and alleged deceptions she wants help to separate from him so as to be able to care for ML. The Local Authority statement of facts in support of the existence of the threshold dated 17th September 2007 (which I annex to this judgment) is supported by the evidence filed. As to whether an interim order is proportionate and necessary, there would equally be no real dispute as to that question (or at least no discernable case that would have a reasonable prospect of success at an interim hearing) were it not for the Local Authority's plan to remove ML.
9. It has been the Local Authority's assumption and, in my judgement, that of the guardian, that all that needs to be demonstrated is that an interim threshold exists for the Local Authority to succeed in persuading the Court that ML should be removed. That is explicit in the documentation filed before this court including the Local Authority's statement of facts. That is a profound error of perception that regrettably on the facts of this case amounts also to an error of law. Nowhere is there a recognition that removal is a separate consideration from the existence of the interim threshold or the need for an interim order.
10. Even more stark is the failure to acknowledge the need to consider on the alleged facts of this case whether:

a) there is an imminent risk of really serious harm i.e. whether the risk to ML's safety demands immediate separation (per Thorpe LJ in Re H (a child) (Interim Care Order) [2003] 1FCR 350); and

b) if not, the question whether mother is able to provide good enough long term care should be a matter for the Court to decide at a final hearing not to be litigated at an interim hearing which effectively pre judges the full and profound trial of the Local Authority's case and the parents' response to the same thereby usurping or substituting for the function of the final hearing or issues resolution processes: Re G (minors) (Interim Care Order) [1993] 2 FLR 839 at 845 CA and Re H (Supra) at paragraph 38.

11. At the parties request and in addition to reading all of the documents filed, I have heard evidence from the viability assessor of the unit concerned Mrs Shirley Wainwright, Dr Freedman, the Social Worker Mr James Ellis and the children's guardian Mrs Hazel Birchmore.
12. I can summarise that evidence in the context of the documentary evidence that demonstrates the existence of an interim threshold as follows:-

a) The dominant issue in the case is whether the mother can separate from Mr L and thereby reduce or minimise the risk that he presents.

b) Mother loves her baby but does not know how to separate from father in which regard she needs support.

c) The unit in Reading is particularly suited to provide a supportive environment within which the key question can be assessed including a month of total supervision and restricted activity, locked and secured gates, CCTV and planning and review mechanisms to help mother protect her child followed by a monitored environment within which mother can demonstrate compliance and ability to separate from father. Within three months sufficient would be known to judge the prospects of success. d) The unit can protect ML from the unpredictability and volatility that father allegedly presents.

e) At the end of three months, the Court should know whether mother's existing need for a relationship with father interferes with the priority need that ML has for protection from harm.

f) The previous residential assessment at the St Michael's Fellowship satisfied the need for evidence as to mother's ability to provide practical care (that is no longer an issue) but did not adequately address mother's relationship with father: in effect it will be said that the unit left mother to it and the relationship remained in place.

g) Mother is herself a young person who is maturing and changing over time: that may contribute to a different assessment process focussed on the dominant question of her relationship with father that is whether she can break her dependence on him.

h) Accordingly, there is little or no cogent evidence on the dominant issue save the Local Authority Social Worker opinion and that of the children's guardian that mother has demonstrated no capacity to change.

i) If mother and ML remain at the existing foster carers or in the proposed unit in Reading there will be no immediate harm caused to ML.

J) Rehabilitation of ML to her mother would be very unlikely if ML were to be removed now. The dominant issue would remain unaddressed.

k) There is a possibility that ML will develop or may be developing an insecure attachment to her mother i.e. if mother's emotional responses are unpredictable and unreasonable. On the contrary, however, there is no cogent evidence as yet of an insecure attachment and in any event the more secure the mother is in herself the more likely her attachment to ML will be/become secure and settled.

13. The extent of the Social Work evidence from the Local Authority and the children's guardian is that:

a) ML was unresponsive in the context of a potentially disruptive and distressing incident in the summer of this year.

b) If the relationship between mother and father persists, his unpredictability, drug and alcohol use present a real emotional risk to ML.

c) There is no professional relationship with mother that allows of any more adequate safeguards for ML i.e. the Local Authority cannot police the mother.

d) It is the Social Work opinion that there are no prospects for change in mother and no signs of her developing any trust with them.

e) In any event there must be a very real risk that mother will establish anothher relationship with a man of similar risky propensities.

e) The information is now of a covert relationship carried on between mother and father which increases the risk to ML.

f) The incident observed by the children's guardian confirmed her in her view the mother is a dysfunctional adolescent who has refused to co-operate and doesn't have the skills to change.

14. With the greatest of respect to the social worker and the children's guardian who are genuinely concerned and articulate professionals, they have misconstrued two issues that are important at this interim hearing and which are frequently misconstrued by professionals when dealing with incomplete evidence at interim hearings. I emphasise as strongly as I can that ultimately they may be right but that is a matter for the final hearing or issues resolution opportunity when all of the evidence will be available to the Court.
15. The first is the test to be applied to the question of removal. The children's guardian valiantly attempted to meet that test, when it was put to her, by her description of the child's response to the parental incident in the summer which she, the guardian, observed. But in light of Dr Freedman's analysis, the question of the insecurity of attachment remains a real issue for determination on the merits which can be better addressed by further residential assessment as proposed and in any event does not present an acute safety question necessitating the child's removal.
16. The second is the nature and extent of the risk. The fact that the Local Authority and/or the children's guardian do not have knowledge of matters either generally or even because of an alleged course of conduct including the deception of a parent does not change the actual risk that a child faces it merely changes their perception or assessment of that risk. If in fact the perception of risk could have been greater had the Local Authority or the children's guardian known of the parents alleged covert meetings, then the question still arises as to whether the consequences of that risk have been adequately protected against or can be so as to ameliorate the same. If so, there will not be an imminent risk of really serious harm because of the new information but rather a risk of harm that may be really serious but which has not yet occurred and may not do so within the proceedings if adequate arrangements can be put into place.
17. I have heard the children's guardian in evidence on the interim proposals. She takes an absolute view about mother to the point of being dogmatic. As I have observed, she may be correct in her judgement, but her real imperative is to obtain an early full hearing as soon as possible. In that regard, it will not do to say that a proposal that relates to the dominant issue in the case cannot be considered by the Court simply because the children's guardian belatedly submits that the Court's existing timetable for a final hearing in January is in itself not in the child's best interests. To do so, the children's guardian would have to rely on particulars relating to the child's best interests. These are singularly missing save in respect of the vague assertion that an insecure attachment may be developing. On any basis, the guardian is arguing for a hearing after November 2007 because of her own availability and as she rightly points out the Local Authority recommendations have not as yet gone to panel. There is nothing in the evidence I have read or heard that demonstrates any significant priority that this case should have over others with similar issues and deadlines. I agree that it needs to be listed on the first available date but that is not a reason to abandon the proper consideration of the proposals before the Court. In my judgement the merits of the case can be provided for and a reasonable timetable for the child can be constructed despite the guardian's concern.
18. The Local Authority's interim case is based almost in its entirety upon the probability that mother's relationship with father will continue. I have already commented on the errors of analysis that lead to that question being used as a basis for an urgent application to remove absent more cogent reasons. I am not persuaded that the existing assessment material answers the dominant question that I have identified and in that regard I prefer the advice of Dr Freedman. In any event, as all witnesses defer to the existing assessment of the St Michael's Fellowship, it would be preferable in a case where it can be provided for, for a second opinion to be available where the existing assessment has not apparently addressed the dominant question.
19. I had considered whether I should assist the process of further assessment by prohibiting father from associating with mother but have come to the conclusion that that would be too artificial a circumstance. Just as I do not believe that the St Michael's Fellowship assessment which permitted mother to do as she pleased has provided the material that the Court needs, so might it be argued that providing too artificial an assessment within which mother makes no choices for herself provides no opportunity to answer the dominant question.
20. I have no doubt that with appropriate case management this matter can be ready for hearing in January whether before me, the care centre or the FPC. In the event that the proposed assessment at the unit in Reading fails the matter will be available to go to panel and then to a relatively short final hearing before the end of the year. To ensure that this occurs I shall personally keep conduct of the ICO renewals each month as an opportunity to review progress in the case. I shall direct that they be listed before me with the attendance of the parties and their witnesses excused and only such advocates as are necessary to explain the then existing circumstances.
21. Accordingly, in addition to giving permission to adduce additional evidence on the appeal and allowing the appeal setting aside the FPC's refusal to order a viability assessment and vacating the interim hearing before the FPC, I shall on the hearing of cross applications for an Interim Care Order and a section 38(6) direction make the following orders:

• An Interim Care Order renewable before me with a direction that only those advocates who have anything to say need attend.

• A Section 38(6) direction that mother and child be placed at the One Stop Unit in Reading for a period of up to three months to assess her ability to separate from father and thereby provide emotionally for her child.

• No later than three months hence the unit in Reading shall provide an assessment report in accordance with a letter of instruction which shall be the responsibility of mother's solicitors in consultation with the local authority and the child's solicitors. The report shall be filed and served prior to the December renewal date of the interim care order.

• At the renewal hearing in December I shall give further directions for issues resolution and/or final hearing.

22. I decline to approve the removal of ML from her mother and upon the Local Authority's undertaking not to do so without bringing the matter before the Court, I approve a plan to continue the placement of the child with her mother.