England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/05/2013

Mrs Justice Pauffley :

Introduction and key issue

1. This has been the second and final stage of care proceedings which were commenced as long ago as December 2011. They relate to MR, born at the end of October that year, so that he is aged 18 months. He sustained life threatening injuries when only a month old. Since his discharge from hospital in early February 2012, he has lived with foster parents. His mother, KH, has not seen him since 12^th October 2012; the last contact between him and his father, NR, was on 24^th October that year.
2. The key issue at this hearing is as to whether I should resolve the local authority's applications by making care and placement orders or instead embark upon a process of the kind suggested by Miss Ball QC and Mr Squire so as to evaluate whether rehabilitation between MR and his mother is a viable option.

Essential background

3. The essential background is set out within the opening paragraphs of the judgment I gave on 16^th November 2012. The purpose of that 7 day hearing was to investigate the circumstances in which MR came to be so gravely injured and to make findings as necessary about the role of the parents in the circumstances leading up to his admission to hospital.

Key events since the fact finding hearing

4. In the immediate aftermath of the judgment, Mr Squire, the mother's Counsel, indicated that she did not invite me to make any order for the resumption of contact or for any further assessment of the mother. Her parents, the maternal grandparents, were prioritising the need to look after their daughter, provide her with a home and give her the emotional support she required after the hearing. The mother's sister, CH and her husband AH, were put forward by the mother as the individuals who should be assessed as a potential long term prospect for MR.
5. The final part of the proceedings had been listed for three days in mid December. Most regrettably, as it turned out, two of the those three days were vacated at the end of the November hearing primarily because it was thought that the proceedings might and probably would be resolved consensually as the result of a positive assessment of the maternal aunt and uncle.
6. However, after a period of initial assessment which went well and having had a period in which to reflect upon the contents of my judgment as well as to consider the impact of looking after MR long term, Mr and Mrs H decided to withdraw from the process, a matter which has caused the mother a great deal of anguish.
7. On 7^th December 2012, the local authority's care plan for MR to be adopted was endorsed by the Independent Reviewing Officer at a LAC review.
8. On 12^th December 2012, as the result of the maternal aunt's and uncle's decision, Mr Squire made an unsuccessful application for further assessment of his client by a Systemic Psychodynamic Family Therapist, Carol Edwards. The case was listed for final hearing on 22^nd and 23^rd April 2013.
9. On 8^th January 2013, the father visited the offices of Social Services and made clear that he was not in a position to contest the plan for adoption. He recognised that in all probability, MR would be adopted. Miss Wehrle's carefully drafted position statement for this hearing reflects his stance.
10. On 11^th January, during the course of a meeting at which the mother was described as extremely angry, she told Miss Dungate, the allocated social worker, that her sister was "dead" to her following her decision to withdraw as a long term carer for MR. According to the mother's evidence at this hearing, she did not speak to CH for three months but since about March of this year they have been reconciled.
11. The father's criminal trial at Maidstone Crown Court on a charge of causing grievous bodily harm with intent began on 18^th January. The mother who described herself in evidence as "the main prosecution witness" says she gave evidence for three days. On 4^th February, the father was convicted and sentenced to a 10 year term of imprisonment.
12. The local authority's final care plan of adoption which is fully supported by MR's guardian, Camilla Doolin, was endorsed by the Agency Decision Maker on 22^nd February.
13. Towards the end of March, the mother's lawyers initiated an application for permission to appeal both the fact finding judgment and also the 12^th December order declining the mother a further assessment. The application for permission was refused on the papers by MacFarlane LJ on 12^th April 2013 who observed that the process "is one single hearing with the potential for change and development in the evidence and the judicial view as the hearing progresses." He also related that his refusal of permission "does not prejudice the mother's ability to seek to raise some or all of the matters currently raised if, following an opportunity to take the points of clarification and / or argument in front of Pauffley J, the mother wishes to seek permission to appeal the judge's final determination."

This hearing

14. On the first day of this hearing, having afforded the mother's legal team some time to construct a draft document, I was confronted with a list of questions by Miss Ball and Mr Squire entitled "Request for Clarification." I then proceeded to hear the oral evidence of Ms Dungate, the allocated social worker, the mother, KH (she has reverted to using her maiden name) and then Miss Doolin, MR's guardian.
15. At the conclusion of the evidence, Miss Ball suggested I should provide my written responses to her clarification questions before I heard submissions as to how the 'welfare' stage of the process should be resolved. Miss Ball argued it would be illogical for her to be required to make her submissions before she knew how I had answered her questions. Miss Ball said she would be able to provide written submissions as to the outcome of the welfare stage very quickly after delivery of my answers. I was pressed to fall in with her request.
16. I did not to accede to that proposal and indicated to Miss Ball that she should make her submissions on the basis of the facts found against her client last November. After all, the mother's evidence in response to the November findings at this hearing had been more or less identical to that given at the hearing in December. It is as clear now as it has been all along that the mother does not accept the various significant criticisms of her contained within the November judgment. I saw no reason to defer hearing submissions until after the provision of my answers to Miss Ball's questions. It would have been both inconvenient and creative of further delay.
17. Moreover, as Miss Habboo correctly identified, the two processes are distinct and separate. The Request for Clarification is so as to assist the mother in her proposed appeal. The judgment resulting from the late April hearing is the last part of the care proceedings when decisions are made about MR's welfare needs.

The mother's proposals

18. I turn to consider the mother's proposals as to how the case should proceed. In summary, Miss Ball and Mr Squire suggest there should be some form of combined assessment of the mother to evaluate risk (perhaps), her emotional and psychological functioning as well as parenting capacity. A quantity of material has been supplied from Parenting Profiles Ltd., and also Nigel Blagg Associates (Adult and Child Psychology Expert Witnesses) with the names and curriculum vitaes of a number of psychologists who, it is suggested, might be suitable to evaluate the prospects for rehabilitation. At the same time, or it could be a sequential exercise, the mother's team suggests involving an expert such as Dr Berelowitz to advise in the vexed area of contact, how if at all it might be successfully re-started and what might be done to improve the circumstances for the child.
19. A little later in her submissions, Miss Ball accepted on behalf of her client that in reality she cannot ask for a risk assessment because the mother does not accept she presents any kind of a risk. Miss Ball accepts that KH's position is very clearly the same as it was at the November and December hearings. She is adamant that she has not lied, did not fail to protect MR and will not admit to something she maintains is not true. So, says Miss Ball, her client is caught in a terrible bind.
20. Miss Ball submits that this is not the right time to close the door, that the local authority's care plan for adoption represents "the most draconian outcome" for this child and that, as yet, all avenues towards rehabilitation have not been explored. This child, argues Miss Ball, deserves the opportunity for full exploration of the mother's capability to look after him particularly given that she has a very supportive family.
21. It is also relevant, so Miss Ball submits, that before the events of 1^st December 2011, there were no historic concerns. The mother had been keen to attend ante natal classes, welcomed professionals into her life and reacted entirely appropriately by very swiftly separating from her husband after MR's admission to hospital.
22. Furthermore, it is argued on behalf of the mother that there is really nothing to work on in relation to the question as to whether the mother has the emotional resources to parent the child. The social work and guardian assessments, it is said, are inadequate and although further evaluation would cause delay which is regrettable it would be proportionate. The paramount consideration must be so as to achieve an outcome for MR which will secure his best interests throughout his childhood and beyond.

Legal guidance

23. I am indebted to Miss Ball QC and Mr Squire for their very careful analysis of the several authorities which are of relevance when the court considers a dispute of this kind. I refer without citing the various key passages to Re L (Care Proceedings: Risk Assessment) [2009] EWCA Civ 1008; Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535; D McG v Neath Port Talbot County Borough [2010] EWCA Civ 821 as well as Re M-H (Assessment: Father of Half-Brother) [2007] 1 FLR 1715.
24. I also have fully in mind that the local authority's care plan for adoption would potentially infringe the mother's and MR's rights to respect for their family life under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Accordingly, it is necessary to specifically consider whether the circumstances for this child are such that an interference with his and the mother's Article 8 rights of the kind contended for by the local authority is permissible.
25. I remind myself that with effect from 31^st January 2013, the Family Procedure Rules as amended by the Family Procedure (Amendment) (No 5) Rules 2012 provide that active case management includes "controlling the use of expert evidence." By rule 25.1, as amended, "Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings. As the President recently observed in Re TG (A child) [2013] EWCA Civ 5 the new test is intended to be significantly more stringent that the old. The text of what is 'necessary' sets a hurdle which is on any view significantly higher than the old test of what is 'reasonably required'.

Discussion and conclusion

26. It goes without saying that here the stakes are high; and that if there was any reasonable prospect of safely reuniting MR with his mother then steps should be taken, even at this late stage, to assess that potential. I firmly believe that wherever possible consistent with his welfare needs, a child deserves the incalculable advantage of an upbringing within his natural family. It is only where there are unchangeable deficiencies of such dimension that the child's safety and proper development cannot be assured within his family of origin that a judge is compelled to consider an alternative placement elsewhere.
27. Here, and very sadly, I am sorry to say there is not the slightest sign that within an acceptable timescale for MR the mother would be able to begin to confront and acknowledge the scale of her responsibility for what happened on the night of 1^st December 2011. Nor do I believe she has the capacity to meet MR's emotional needs. If he were required to spend time in his mother's physical presence then, almost certainly, he would suffer further significant harm.

Failure to acknowledge past failings

28. I have searched anxiously, as I always would, for the smallest of indicators that KH was beginning to grasp and accept how her inaction that night contributed to MR's condition. I have been on alert to hear from the mother that she does indeed have more to say about events and that she is prepared at last to give a truthful account as to what happened. I have waited in vain for an acceptance on her part that the medical personnel at Darent Valley Hospital – the administrators, the nurses and the doctors – as well as the kindly police officer who accompanied her during MR's first day at Kings College Hospital were giving a truthful account; and that she does indeed accept she seriously failed MR that night.
29. Nothing of that kind has occurred. If anything, the mother is more entrenched than before in maintaining her complete innocence and ignorance. She has said both in writing and orally that she has nothing more to say. KH asks me to consider that the incident happened in the middle of the night; she had already been woken from her sleep; she'd had broken nights for a month since coming home from hospital and within a few hours she'd discovered the husband who she thought she knew, trusted and loved had grievously harmed her child and hidden his actions from her.
30. In her evidence at this hearing, as on 12^th December, KH stressed, again through her sobs, that all she has been doing is telling the truth. That, she maintains, is what she has been doing all along; and she finds it frustrating that no one believes her. The mother has, she says, revealed everything she knows. She cannot remember changing MR's nappy before they left for hospital. She promises she has not lied. She does not accept she said "there was an incident in the night" when they arrived at the hospital that morning. She says that if there had been she would have phoned for an ambulance – something the mother has said many, many times during the course of her evidence at the three hearings. Indeed, the absence of a call to the emergency services marks the high point of the mother's acceptance of responsibility. There is nothing else, according to her, she could or should have done differently.
31. When at this hearing Ms Habboo cross examined KH in relation to her state of wakefulness on 1^st December 2011, she was visibly shaking and dabbing her eyes as she said she "could not remember whether (she) was awake or not the whole time." It was put to her that she had agreed at the November hearing she had been. KH said she "did not know why" she had said that. She continued by saying, "There's blanks and I've said all along there's blanks." The mother said she does not know about being awake the whole time but "for the majority of the time, yes." She went on to say she "must have been awake but not for two and a half hours."
32. There are other significant indications of the mother's steadfastness from discussions outside the court arena. Indeed, in some instances, it would appear that she is now more intent than before in seeking to suggest she does not merit criticism. The prime example is to be found in what she said to Ms Dungate on 11^th January this year when, in general terms, KH was refusing to acknowledge her role in the events that led to MR's hospitalisation. It was an angry meeting. Ms Dungate said in evidence that the mother had been speaking very loudly. She had been swearing and using emotive language. She was, said Ms Dungate, "quite petulant."
33. At that meeting, the mother said that given the same circumstances Ms Dungate would have believed as she, the mother, had done – that the swelling to MR's head was the consequence of his cold. Ms Dungate said in evidence she had challenged the mother immediately because "it was nonsense for her to have agreed with the father's explanation." I pause to reflect that when on 1^st December 2011, a nurse saw the baby's swollen, extremely soft and boggy head she felt so sick and distressed she had to leave the resuscitation area. It was indeed quite ludicrous for the mother to have said to Ms Dungate what she did about the swelling to MR's head.
34. There is other material which merits mention. It arises from the meeting between the mother and Miss Doolin, MR's guardian on 17^th April, so very shortly before the hearing. KH presented as very distressed and highly agitated throughout the discussion. She suggested she was "being punished for telling the truth" and expressed anger towards the local authority for "playing mind games and bullying" her. She described Kent CC as "nothing but bullies throughout this whole situation."
35. Asked about that during her evidence, the mother said the local authority has "timed things incredibly well" by discussing its Permanency Planning Report with her on the Friday before she was scheduled to give evidence at the Crown Court. KH also said that Ms Dungate knows how to trigger her distress by giving her "stuff and not going through it properly." The mother also said that Ms Dungate "takes pleasure through seeing (her) upset." KH said she can "recognise a bully when (she) sees one." Ms Dungate has given her what she described as "…glancing looks; she may not realise but she is doing it." In the mother's opinion "that does amount to bullying." KH was verbally quite aggressive when she remarked that the local authority had done nothing to help her when the situation at contact became so bad; they had not helped with her parenting skills; the "only thing they had done was take him away completely."
36. What has occurred recently – both at this hearing and in the discussions the mother has had with Ms Dungate and Miss Doolin – reveal the stridency with which KH defends her position, her anger that she is not believed and her entrenched inability or resistance to reflect upon the findings made against her last November. It might have been hoped that with the passage of time, KH would have begun to look within herself, to consider all of the steps she could have taken to protect MR on that night, to consider the detail of the judgment and the reasons why I decided as I did, in relation to her deficiencies.
37. As things stand, there is no basis for assessing the risk that KH may present and how it might be ameliorated or reduced because, very simply, she does not accept she has failed to protect MR. An assessment of the kind suggested by Miss Ball would not take matters further. The single most important factor is as to whether the mother might be able to develop sufficiently in her understanding of her own shortcomings so as to guarantee for the future MR's physical and emotional safety. I am afraid to say that now almost six months on from the fact finding hearing she is more resistant than ever she was to acknowledgment of her failings. She shows no interest at all in developing an ability for reflection or insight into why it was that she did not respond protectively.

MR's response to his mother at contact

38. There are other reasons as well for denying the mother a further opportunity for assessment. I mention first that there is a quantity of information about the quality of the mother's contact with MR from the moment when they were reintroduced during supervised sessions in February 2012 until I authorised the local authority to withhold further contact in October that year.
39. In summary, there was a great deal of disquiet on the part of Ms Dungate and particularly Miss Doolin, both of whom had first hand experience of contact because they had supervised, about MR's responses to both of his parents. Whilst not evident at every session, the overwhelming majority of contact visits were extraordinarily distressing for MR. From time to time, at a succession of brief hearings, I was asked to consider preventing further contact because of the adverse impact upon the child. None of the professionals had witnessed anything similar in a child before. It was, for me as well, an unprecedented set of circumstances.
40. According to the contact records, MR would show his extreme distress by crying continuously, avoiding eye contact, turning away from each parent, arching his back and, at times, hyperventilating. His behaviour whilst with his parents was in stark contrast to his presentation in his foster home or with other adults whom he did not know.
41. Within the court arena, there was strong resistance from the parents to any reduction in the weekly contact arrangements. Many strategies were tried. The parents were given every advice and assistance from Ms Dungate and the contact supervisors. The grandparents on both sides of the family joined the sessions between MR and his parents in an attempt to improve the situation. On behalf of Miss Doolin, it was suggested that expert advice should be sought so as to better understand why MR was responding so poorly to contact and also to give advice as to how it might be ameliorated. At first I was resistant, saying that the reasons for the problem were not of so much interest as the facts.
42. By mid July, Miss Doolin was asking, through her Solicitors for urgent consideration of the continuation of contact. She believed that in the child's interests, it should cease.
43. Dr Berelowitz was instructed to answer a variety of questions on the basis of his reading of the papers. His report of 28^th September 2012 contains the following advice – that "babies are capable of suffering the emotions which adults might best describe as fear, apprehension, terror and relief. It may further be possible for babies to be in a state in which they are anticipating being afraid or being harmed. That is to say it is possible for a baby to feel terrorised."
44. Dr Berelowitz also opined that "Any parent who has perpetrated grievous bodily harm upon a child, or has failed to protect a child from such harm, does not understand his needs and cannot meet them consistently…." Responding to a particular question relating to the impact upon the child of periods when he did not see his parents and the effect of that upon his attachment to them, Dr Berelowitz said he did "not recall reading accounts in the attachment literature of babies who have not been maltreated responding with hyperventilation and becoming inconsolable." He also said that "whilst as a general point one can say that the historical level of parental contact has been insufficient to maintain adequate attachment between MR and his parents, (he was ) not at all confident that it is the level of contact that is a problem here."
45. On 10^th October, at a further hearing where the focus had been upon the quality of contact and a renewed request that it should cease, I directed that a video recording be made of the sessions. It had been thought that there might be a need for Dr Berelowitz to witness a typical visit. I also had an interest in seeing for myself rather than reading about the quality of contact.
46. The local authority Solicitor, Mrs Usher, wrote to me on 24^th October enclosing two DVDs and asking whether it would be appropriate for the local authority to restore its application under s.34(4) so as to suspend contact. It was also indicated that the parents were being invited to consider withdrawing from contact because of MR's extreme reaction.
47. I watched the DVDs. I was appalled by their content. My instantaneous reaction was that contact should be stopped with immediate effect. I indicated by email that any application to vary my order would be considered but only on the basis that the lawyer making the request had watched the DVDs. Right up to the present time, there has been no such an application.
48. Inwardly, I was filled with personal regret that three months previously I had not acted decisively to withdraw contact at the time when Miss Doolin gave me the clearest advice about the emotional distress and evident harm suffered by MR on almost every occasion when he saw his parents. I know why, in July, I acted as I did. It was because of the 'holding position' principles which ordinarily apply to parental contact for a child in interim care. But that is not to say I was right. I was wrong; I paid too much regard to the parents' rights and too little to MR's welfare needs.
49. It is unnecessary to say anything about MR's recorded contact with his father beyond the fact that within three minutes of NR's arrival in the room, MR was crying loudly, arching his back, holding his breath and then he screamed inconsolably for the remaining eight minutes of the session. Ms Dungate, with the father's agreement, brought the visit to an end.
50. During the mother's recorded session of 12^th October, MR started to cry within about 30 seconds of her arrival in the room where he had been quietly and contentedly playing with his foster mother. KH had brought two very large bags of toys with her and proceeded to unpack them for MR. He was quiet as he looked at some of the toys. But when, two minutes later, the foster mother left the room and the mother placed MR on her lap, he started to scream. He arched his back and held his breath so that it was necessary for Ms Dungate to intervene briefly. MR carried on screaming, crying and coughing more or less throughout the remaining six minutes of the session. He stopped once and only momentarily when the mother stood up with him in her arms to show him what was outside. Despite all of the mother's efforts to soothe and distract him, MR was inconsolable. KH agreed with Ms Dungate when she suggested after just eight minutes that they should "Call it a day."

The risk of renewed trauma: KH's capacity for insight

51. Thus, and on the basis of material that I have watched as well as read about, there is a firm basis for concluding that MR simply could not be reintroduced to his mother without suffering renewed trauma. And it is significant when I consider KH's capacity for insight that her suggestion for re-starting contact is that she should be in the background when MR attends at some pleasurable social event, such as "Sing-a-long." KH said in evidence she wants him to know who she is. He is her son. Seemingly she has little or no regard for the likely impact upon him of such an event. She said that all she wants to do, as a Mum is to be in the same room as MR so that he can see her and she can see him. She wants "to be able to run up to him and give him a hug" though she knows she cannot do so. She has "no choice but to take the risk" that if something of the kind she described were to occur MR would become immensely distressed.
52. In similar vein, when the mother met with Miss Doolin on 10^th December last year her level of insight and empathy for MR was of concern to the Guardian. When asked by Miss Doolin why contact would benefit her son at that juncture given his previous extreme distress, KH replied, "I know I'm being selfish but I have to see him, I'm his mother." It appeared to Miss Doolin that throughout the interview, the mother was more preoccupied with her own parental rights than MR's welfare needs.

The mother's cognitive functioning

53. Lastly in this regard it should be said that there is no reason to doubt the mother's cognitive functioning. She was assessed by Dr North, Consultant Clinical Psychologist in May 2012. He reported that there is no evidence of any cognitive difficulties nor any problem in the mother – expressing herself verbally; providing instructions to others; understanding complex, verbally presented material; non verbal reasoning; short term and long term verbal memory; thinking quickly even if placed under pressure; forward planning; long term visual memory.
54. When seen by Dr Llewellyn Jones in preparation for her June 2012 report, the mother was viewed as an emotionally vulnerable woman with a more problematic instability of mood as revealed by her medical records than she had disclosed. She did not appear mentally unwell when Dr Llewellyn Jones saw her though she has a history of recurrent depression. It had been her impression that KH seemed to have a significant level of anxiety, generally around her own competency and more particularly about caring for her son.

Overall conclusions

55. It follows as the result of what I have already said, that I see no basis for concluding that any further assessment of the mother is necessary and even although the effect of so deciding will be to extinguish the only remaining chance for KH of being rehabilitated with MR. His overwhelming and pressing need now is to be placed within an adoptive home where he is able to feel secure, settled and protected from harm. He is fortunate indeed to have had an excellent experience of being looked after by loving and nurturing foster parents who have been attuned to his every need. As the result, the chances of him making a good attachment to adoptive parents are seen as high.
56. Ms Dungate's Placement Order Application Report of 14^th March 2013 is an impressive document which persuades me, in combination with everything else, that MR's welfare will be safeguarded and promoted by the making of such an order.
57. I am entirely persuaded that it is necessary and proportionate to interfere with the mother's and MR's Article 8 rights in the way proposed by Kent CC's final care plan on the basis that his welfare requires such an intervention and that no lesser form of intrusion would suffice so as to preserve his safety and ensure his development throughout his childhood and beyond.
58. I dispense with the mother's and the father's consents to a placement order pursuant to s. 52(1) of the Adoption and Children Act 2002 on the basis that MR's welfare demands that I should do so.

The contributions of Ms Dungate and Miss Doolin

59. Finally, I should make clear that Ms Dungate, in my assessment, is an extremely thorough and professional social worker whose evidence impressed me greatly. She was thoughtful, orderly and clear thinking. MR is her priority and very properly so. In so far as it may be necessary, I exonerate her of the charge levelled by the mother of any bullying behaviour. It seemed to me that the mother has been all too ready to accuse Ms Dungate of bullying without a shred of evidence that she had done any such thing. It may be, I know not, that when the mother senses an individual is against her, it is her default position to accuse that person of bullying.
60. Ms Dungate had a responsibility, as did Miss Doolin, to discuss the November findings with the mother – a process which she did not welcome. They had their tasks to perform. Both attended to their work with professionalism, diligence as well as humanity. They have each contributed to this part of the hearing with insightful analysis culled from carefully recorded events. They may not be experts with a capital E but they provided me with all of the assistance I required to perform this exercise justly.