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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> DAM (Children), Re [2018] EWCA Civ 386 (08 March 2018) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2018/386.html Cite as: [2018] 2 FLR 676, [2018] EWCA Civ 386 |
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ON APPEAL FROM THE CENTRAL FAMILY COURT
HHJ Tolson
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE PETER JACKSON
and
LADY JUSTICE ASPLIN
____________________
Re DAM (Children) |
____________________
Alison Ball QC and Nerys Wyn Rees (instructed by Legal Department) for the Local Authority
Catherine Piskolti (instructed by Matwala Vyas LLP) for the Father of M
Michael Bailey(instructed by Myra Pieri & Co Solicitors) for the Children's Guardian
Hearing date: 22 February 2018
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Crown Copyright ©
Lord Justice Peter Jackson:
Introduction
The decision-making process
The facts
(a) Contention about the choice of experts: – The local authority proposed a child psychiatrist (Dr Blincow) and an educational psychologist (Dr Maggs). The mother proposed a different psychiatrist and a different educational psychologist (Dr Rothermel). The judge selected Dr Blincow and, anxious to retain the mother's engagement, Dr Rothermel.(b) Dr Rothermel: – She filed an interim report on 9 June. She contacted the local authority to raise child protection concerns about the children's foster mother. She also recommended the immediate return of children to their mother. The judge did not criticise her for the first of these positions, but was clear that she was going far beyond her limited instructions (assessment of the children's educational attainments) in relation to the second. On 12 July, the judge approved the instruction of another educational psychologist, Dr Maggs, but did not remove instructions from Dr Rothermel, who then filed a report in July running to 92 pages.
(c) Statements made by the children: – The foster carers reported statements made by D and by S that they had regularly been hit by the mother, and reported that they showed unusual knowledge of street drugs. The father reported that M showed sexual knowledge beyond her years.
(d) The local authority's changing stance: – In August, the local authority purported to decide to return all three children to the mother. This was opposed by the Guardian and by the father and within a fortnight the local authority reverted to its original position. Then, in September, a social worker provided a negative assessment of the father, only for the report to be countermanded by the service manager.
(e) The mother's refusal to cooperate – The local authority attempted to assess the mother, but she almost immediately withdrew from the process. She also refused to take part in Dr Blincow's assessment, despite a direct request from the judge that she should do so.
(f) Dr Rothermel's approach: – The judge described this as the most bizarre aspect of the matter. Having filed her lengthy report, she was directed on 18 July to provide copies of her notes and correspondence. She said that would take six hours and sought payment for it, having already exceeded her budget. She was then directed to bring the documents to court on the first day of the hearing. They amounted to more than a hundred pages of, in particular, email exchanges with the mother. The other parties made extensive criticisms of Dr Rothermel, and the judge summarised the material as revealing her to be an expert who had strayed far beyond her limited brief, advising the mother on the presentation of her case, gathering evidence for her and, when giving evidence, being an advocate for home education and for the mother. She disposed of the key elements of her instruction in what the judge described as a few bland lines.
The factual issues
- the mother had failed to meet their health care needs
- the mother had failed to meet their educational needs,
- they had suffered a degree of social isolation
- they had been exposed to adult information and behaviour
- they had insecure patterns of attachment, requiring a degree of corrective parenting
- the mother had failed to engage with professional support and assessment
- the mother had failed to engage with the proceedings brought by the father
The judgment
- The father made a good impression as witness and as a father. The picture he painted of the mother as a woman behaving in a self-centred way, depending upon her mood of the moment, fitted well with her behaviour during the proceedings. [11]
- D and A have knowledge of street drugs well beyond their years. This derives from their mother, but it is not possible to establish the extent of their exposure to drugs or the context in which their knowledge was gained. [26]
- The children describe an unboundaried lifestyle in the care of their mother, with late or no bedtime, a poor diet, and freedom to do as they pleased, including viewing inappropriate television programmes. This was their experience of daily life. The pattern was consistent and their descriptions are all of a piece with everything that is known of the mother. [27]
- The case management phase has demonstrated the depth of the problem and the difficulty that will lie in effecting change. [48]
- The mother's level of engagement could not be described as partial; in reality, she had engaged only when she felt it to her advantage (with Dr Rothermel) or where compelled (with the court). [48]
- Accepting the evidence of the first foster mother, the children had extensive gaps in their knowledge: an ability only to read books for much younger children, no knowledge of times tables, an inability to tell the time, and S did not know her birthday. [50]
- On the basis of the evidence of Dr Maggs, the difference between D's verbal score (111) and performance score (82) is because he has not been adequately stretched. (The tests performed by Dr Maggs found D to be over a year behind in his basic reading and 2½ years behind in his reading comprehension and his spelling.) [50]
- Accepting the evidence of Dr Maggs, A is a child of above average abilities whose numeracy skills were age-appropriate, but her literary skills were not (a year to 18 months delayed). She has been diagnosed with dyslexia and will urgently need specialised help, or her educational progress will be stunted. [50]
- The mother did not take a decision to educate the children at home and the children were not being educated at home. They were withdrawn from the world around them, and in particular from the sight of any professional agency, except when it suited the mother otherwise. The situation was the consequence of her personality and its transference onto the children and their lives. [50]
- On the basis of the health records, the mother is HIV positive [53]
- The children, having been tested, have not contracted HIV. [55]
- The children, contrary to the mother's case, were not registered with a GP for significant periods between 2010 and 2017. [55]
- A is far more self-confident than she was before coming into foster care. The Guardian describes her as a child transformed. [57]
- Accepting Dr Blincow's evidence about the mother on the basis of his limited assessment:
"The conclusion I have reached is that how she has parented the children and related to outside agencies in recent years is most likely to be a function of her personality rather than to do with any specific mental health condition or substance/alcohol misuse. Nevertheless, it would be important to continue to pursue her receiving a psychiatric assessment, as treating a chronic depressive disorder effectively could potentially make a significant difference to how she presents." [58]
- Accepting Dr Blincow's evidence about the children:
"What is clear from the history and children's presentation is that they have been subject to a degree of neglect, affecting their physical well-being (missed appointments undermining their health, diet, etc.), as well as emotionally (lack of boundaries and the children becoming overly self-directed and self-reliant), socially (through the degree of isolation from peers, including lack of interaction with peers over shared interests) and educationally. In addition, there appear to have been harsh physical reactions of the mother to A in particular and the language used and behaviour shown by M strongly suggest exposure to adult information and behaviour. The signals are not so strong as to suggest direct sexual abuse, based on what has been reported to date." [58]
- Accepting the evidence of Dr Blincow, the children showed abnormal, insecure patterns of attachment. [59]
- The mother has set her face against interventions, psychological, psychiatric or social. That is not likely to change and it cannot be concluded that any professional could work with her in future. [62]
- The evidence of Dr Rothermel about the children's educational attainments was worthless. [33]
- The children were placed at risk of harm by the refusal of testing. [54]
- The threshold criteria are made out in every respect pleaded by the local authority. The children have suffered and are likely to suffer significant harm in the form of risk of physical harm, emotional harm, educational harm, neglect and exposure to inappropriate sexualised material. The causes are the mother's deep-rooted personality difficulties and a lifestyle she has now adopted over many years and which is highly unlikely to change. [61]
- The conundrum at the centre of the case was that the mother was obviously unusually 'difficult', but was her care of the children nonetheless good enough? [7]
- Making allowances for the difficulty in assessing the mother when she had not participated in any assessment except Dr Rothermel's, her history increases the need for the local authority to have insight into her lifestyle and parenting. Her lack of engagement and inconsistent parenting are repeated from the proceedings relating to her first three children. [36]
- A needs sensitive and specialised assistance with education which she would not receive in her mother's care. [50]
- An injunction to send the children to school, or placement at home under a care order, would not remove the problem. The case is not about the mother's conscious decision. If she were forced to place the children at school there would be the constant threat of removal and the distinct chance of frequent absence. The best example of the mother's manipulative behaviour is the children themselves: their lives are built around her personality and needs. [51]
- The mother's refusal to allow the children to be tested is a striking example of her behaviour overriding the welfare interests of the children. It is pathological behaviour that is not confined to medical treatment. [54]
- The risk of the children not receiving necessary medical screening or even treatment is unacceptably high. [55]
- There is no realistic option for D other than a full care order and for him to remain in foster care. [63]
- There is only one realistic option for A, which is to remain in foster care. Her father's offer to care for her could not happen within a realistic time, but the local authority will continue to explore that possibility. [65]
- M's father was an impressive witness who had shown great commitment to her. She is apparently happy and well in his care. The welfare balance in favour of this placement is an obvious one. [66]
- The children's wishes were initially in favour of a return to the mother. More recently, A has changed her mind and D has begun to show ambivalence. Decisive weight cannot be attached to these wishes when set against the real factors in play – needs and harm. [74]
- The children's needs are substantial, real things, such as education and healthcare that they will not receive from their mother. It is not a case that turns on vague concepts of emotional need or harm. [75]
The grounds of appeal
(1) The judge stated that the key to the case lay in the threshold criteria. [48](2) Having found the threshold to be made out [61], he immediately eliminated the mother [62] and announced his conclusion, stating that there was no other realistic option but foster care for D and A [63, 65].
(3) He did not carry out any welfare assessment, by balancing the advantages and disadvantages of placements at home or in foster care. He did not refer to the welfare checklist until [73], long after he had stated his decisions, and in doing so, he stated, "I check my conclusions against the welfare checklist."
(4) When identifying factors in the welfare checklist, he did not mention (g), the powers of the court, such as an interim or final care order with placement at home, or injunctions or undertakings to ensure schooling and medical care, perhaps as conditions to a supervision order under Schedules 2 or 3.
(5) He made no proportionality crosscheck.
Conclusion
(1) It was unwise of the judge to characterise the decision as one that turned on the threshold findings. The threshold is concerned only with harm, while the welfare checklist addresses a much wider range of factors. There are cases involving very serious abuse where the threshold definitively determines the outcome, but this was not one of them. Nonetheless, despite the way the judge expressed himself, his decision did not in fact rest on the threshold alone, but on all the welfare considerations mentioned in the judgment.
(2) The term "realistic options", deriving from cases such as Re B-S [2013] EWCA Civ 1146, ensures that time is not wasted on outcomes that are merely theoretical, so that attention can be focused on the genuine possibilities. In this case, the realistic options for D and A were placement at home or placement in foster care. The fact that one was discarded in favour of the other made it a rejected option, not an unrealistic one, and the judgment, read as a whole, shows that this is how the judge in fact proceeded.
(3) In the almost 30 years since it was devised, the 'welfare checklist' has stood the test of time and its value to decision-makers, as described in Re G, cannot be overstated. It is obligatory to have regard to its contents when considering what order should be made. That obligation will be discharged if it is evident that in substance all the relevant, significant welfare factors have been taken into account. I do not accept that there is an obligation to articulate a checklist analysis before announcing a decision. However, to omit any reference to the substance of the checklist, or to relegate the exercise until after the court has stated its conclusion, carries risks of the kind seen in this appeal.
(4) The absence of a point in the judgment where the judge can be seen to have drawn together the welfare factors for comparative evaluation is an undoubted weakness. However, analysis of the judgment as a whole shows that the judge did evaluate all the significant welfare factors, although not in a methodical order that would have made his reasoning easier to appreciate.
(5) I reject the argument that a court considering whether to make a care order has to be satisfied that "nothing else will do". A care order is a serious order that can only be made where the facts justify it, where it is in the child's interests, and where it is necessary and proportionate. But the aphorism "nothing else will do" (which, as has been said, is not a substitute for a proper welfare evaluation and proportionality check) applies only to cases involving a plan for adoption. That is clear from the case in which it originated, In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, which concerned an application for a care order with a care plan for adoption. It is clear, where it is not explicit, that all the justices were addressing a situation involving the severance of the parental relationship altogether, and not one involving physical separation under a care order, where the parent retains parental responsibility. That is confirmed by the summary given by the President in Re B-S:
"22. The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are "a very extreme thing, a last resort", only to be made where "nothing else will do", where "no other course [is] possible in [the child's] interests", they are "the most extreme option", a "last resort – when all else fails", to be made "only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do": see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215." [my emphasis]
(6) To continue, I do not accept Mr Twomey's submission that the judge did not consider the powers of the court, as required by checklist factor (g). He dealt with that matter squarely at paragraph 51 (see 31 above).
(7) I accept that the judge did not explicitly return to the issue of proportionality, but he clearly had it in mind from his self-direction and in my view his decision is not undermined by that omission.
Lady Justice Asplin
Lord Justice Moylan