Fl (by His Children's Guardian) v En
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Baker,Lord Justice Males |
| Judgment Date | 22 January 2020 |
| Neutral Citation | [2020] EWCA Civ 20 |
| Date | 22 January 2020 |
| Docket Number | Case No: B4/2019/2776 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 20
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WEST LONDON FAMILY COURT
Mr Recorder Ullstein QC
ZW18C00575
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lord Justice Baker
and
Lord Justice Males
Case No: B4/2019/2776
In the Matter of the Children Act 1989
And in the Matter of FL (A Child)
Giles Bain (instructed by Duncan Lewis Solicitors) for the Appellant
Kevin Gordon (instructed through Direct Access) for the First Respondent grandmother
Richard O'Sullivan (instructed by Local Authority Solicitor) for the Second Respondent
Onyoja Momoh (instructed by E.H Dawson Solicitors) for the Third Respondent mother
The Fourth Respondent father was not represented.
Hearing dates: 18 December 2019
Approved Judgment
By an appeal notice dated 6 November 2019, a guardian appointed to represent an 18-month-old child (“F”) in care proceedings appealed against the special guardianship order made by Mr Recorder Ullstein QC in favour of the child's maternal grandmother, hereafter referred to as “Mrs N”.
At the conclusion of the hearing on 18 December 2019, we informed the parties that the appeal would be dismissed. This judgment sets out the reasons for that decision.
Background
The family originates from Kenya. Mrs N and her children, A and her sister E, came to this country when Mrs N's husband was posted here as a diplomat. At that time, they enjoyed a comfortable lifestyle, but the marriage broke down in 2004 as a result of the husband's violence and coercive control. Mrs N applied for asylum and for a period she and the children lived in a detention centre. When they were granted asylum, they moved into rented accommodation, but the circumstances of the family remained strained and both A and E, then in their early teenage years, developed mental health problems, including eating disorders, in A's case bulimia. The local authority social services became involved and A spent six months in foster care accommodated under s.20 of the Children Act. She returned home but her problems continued, and she was treated for a time at Great Ormond Street Hospital. At that stage, relations between Mrs N and A were sometimes difficult and it was reported that Mrs N was struggling to cope with the family's problems. A was placed under a local authority child in need plan for nine months, but by March 2012 circumstances had improved to the extent that the local authority decided to close the case.
Thereafter, the life of the family settled down. Mrs N qualified as a psychiatric nurse. A went to university and obtained a degree in economics and politics.
By 2017, A was in a relationship with a man with a lengthy criminal record. When he returned to live in Uganda, A went to visit him in the same year and became pregnant. She returned to this country and on 29 June 2018 gave birth to F. At first, she looked after the baby without apparent difficulty. On 8 September 2018, however, after consuming “a few drinks”, A jumped from a second-floor window, sustaining several fractures. Fortunately, Mrs N had been able to take F from A shortly before the incident. In the following days, while A was recovering in hospital, Mrs N looked after the baby. Subsequently, A and F were placed in a mother and baby unit linked to a psychiatric hospital. On 15 October 2018, A was found drunk to a degree that she was unable to care for F. This prompted the local authority to start care proceedings and an interim care order was granted. After a further relapse, A left the unit and F was removed from her care and placed initially with a relative and, after that placement broke down, in foster care.
A psychiatric assessment of A was carried out for the purposes of the proceedings. In his report dated February 2019, the psychiatrist recorded that, when giving an account of her personal history, A had described her mother as supportive but old-fashioned. She said that Mrs N had found the bulimia difficult to manage and understand. The psychiatrist concluded that A had suffered from a severe depressive episode in the post-natal period, exacerbated by excessive drinking. By the date of the report, she had recovered, and her prognosis was described as good, provided she “addresses every issue, moving forward”. As to the cause of her illness, the psychiatrist observed:
“With regard to aetiology, this will be multifactorial. There was probably a predisposition to depression, given that she had an emotionally unsupportive relationship with her mother, there were chronic bulimic symptoms and a sister has an eating disorder also. However one should not also underestimate the aetiological contribution of post-natal period. There is a particularly high incidence of depression at this time. This is probably caused by, at least in part, biological changes … But there are also obvious psychosocial stressors, particularly for A, was [sic] looking after her baby without the support of the father. Further, the alcohol harmful use worsened the level of agitation and insomnia. It is also probable that the ‘few drinks’ prior to the suicidal act made her more impulsive than usual.”
Unfortunately, over the following months it became clear that the prognosis given in the report was over-optimistic. A continued to drink and her mental health remained fragile. Hair strand testing carried out in September 2019 revealed that she had consumed chronic excessive levels of alcohol in the preceding six months. The testing also found evidence that the mother had taken ecstasy. By the date of the final hearing, A accepted that F could not be returned to her care.
During the course of the proceedings, Mrs N offered to care for F in the event that he could not be returned to his mother. An initial assessment carried out by the local authority was negative, but a subsequent special guardianship assessment supported her. The children's guardian appointed to represent A in the proceedings was dissatisfied with the special guardianship report and applied successfully to the court for a further assessment to be carried out by an independent social worker, Julia Hughes. At the conclusion of her assessment, Ms Hughes recommended that F should not be placed in Mrs N's care. She accepted that Mrs N would be able to provide good care for F in the early years but was concerned about how she would cope when he became older. She also expressed further concerns about Mrs N which she considered added to the risks were F to be placed in her care. These included: (1) that Mrs N had given conflicting accounts about her family history; (2) that she had colluded in A's attempt to obtain employment at a nursery and been less than frank when contacted by the nursery staff raising concerns about A; (3) that she had wrongly said that she had had no relationships since the separation from her husband, but had then identified as referees two men who each told Ms Hughes that they had been in a relationship with her, and (4) that she minimised the risks posed by A to F and could therefore not be trusted to protect F during contact with his mother.
In her final report, the children's guardian reached the same conclusion as Ms Hughes. She reported that in their discussions Mrs N had adopted a professional attitude, referring to her experience as a psychiatric nurse. The guardian considered that their discussions illustrated the ongoing communication difficulties between Mrs N and her daughter, and felt there was a “worrying contradiction” between their assertions that they would manage the challenges of a special guardianship placement and what the guardian saw as the reality of their fragile and fraught relationship. The guardian considered that Mrs N underestimated the risks presented to F's long-term stability by his mother's problems and was over-confident about her capacity to manage her daughter given her lack of awareness of and curiosity about the details of A's life. It was the guardian's opinion that Mrs N continued to lack ideas about how she might have supported A's emotional needs when she was younger and that she would struggle to meet the particular needs that F would face overcoming his earliest experiences.
The hearing
The final hearing of the care proceedings was listed before the recorder in October 2019. The local authority, supported by the children's guardian, submitted that the court should make a care order on the basis of a care plan for adoption, coupled with a placement order. A and Mrs N proposed that F be placed in Mrs N's care under a special guardianship order.
In his judgment, the recorder went through the written and oral evidence put before him. He was critical of the evidence given by the local authority social worker, describing her as demonstrating hostility to A and Mrs N. He was also critical of the initial special guardianship assessment, observing that the report demonstrated a lack of understanding of the duties of an expert. Given the extensive guidance now available in Part 25 of the Family Procedure Rules, it is concerning to read such criticisms about an expert witness instructed in care proceedings.
In summarising A's evidence, the recorder noted that she described her mother as having been always supportive and agreeing that, if F was placed in Mrs N's care, it would be a permanent placement which she, as his mother, would not seek to undermine. The recorder concluded his summary of A's evidence with this observation:
“Taken as a whole I found that the mother was trying her best to assist the court. I find that she was a careful witness whose evidence I accept, with one exception. The exception is that I find that she understated her use of alcohol and drugs. It does not, however,...
To continue reading
Request your trial
-
A London Borough v A Mother
...is a legitimate criticism, but it does not necessarily lead to a successful appeal. A similar argument was advanced in Re FL (A Child) [2020] EWCA Civ 20, in which I said (at paragraphs 31 and 33): “31. …. [T]he discipline of identifying the realistic options and summarising the advantages......
-
A Health and Social Care Trust and A Mother and A Father and between: A Grandmother v A Mother and A Father and in the matter of AB, BB, CB and DB (Children aged 12½ years, 10 years, 8½ years and 1½ years)
...necessary for a legitimate aim and proportionate to that aim (see Keegan LCJ in Re M [2022] NICA 7 at [16]). [32] But Baker LJ in Re FL [2020] EWCA Civ 20 at [31] emphasised that the correct approach of a judge should always be to consider substance over structure - “I turn next to the crit......