KH v A County Council

Hearing date: 3 December 2019

Approved Judgment

This judgment was delivered in public but it is ordered that in any published version of the judgment no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment shall be identified by name or location and that in particular the anonymity of the child and members of her family must be strictly preserved .

This is an appeal by a mother against an interim care order made on 3 October 2019 by Mr Recorder Wigoder sitting in the family court at Nottingham in respect of two of her three children, E, now aged twelve, and K, now aged seven. Although the mother's second child, A, was also the subject of the proceedings, she was by the time of the hearing living with her father, and the local authority did not seek public law orders in respect of her. By consent, a child arrangements order was made by the recorder authorising A to live with her father.

At the conclusion of the hearing before us, we indicated that the appeal would be allowed and the matter remitted for rehearing before HH Judge Rogers, the Designated Family Judge for Nottingham. This judgment sets out the reasons for our decision.

Background

The three children have been known to social services for over eight years. They have been provided with intensive support by the local authority and other agencies at various times in the intervening period. Concerns about the family included the children's appearance, conditions in the home, the mother's engagement with professionals, and, latterly, K's behavioural problems and developmental delay. In 2016, the children were made subject to a child protection plan under the category of neglect.

Conditions at the home continued to cause concern. There were many reports that the property smelled of urine. Dog faeces were observed in the children's bedroom. In May 2018, a contract of expectations was prepared and signed by the mother. It was her case that she believed things had significantly improved, but the local authority disagreed. Further child protection visits were undertaken and the condition of the home remained poor. A parenting assessment later that year concluded that there had been little evidence of change in the mother's parenting of the children. Although there was some improvement – for example, in school attendance – the overall conclusion was that there were significant concerns for the safety and welfare of the three children. The eldest child, E, had taken on responsibility for caring for her siblings. The middle child, A, was spending increasing time with her father. The youngest child, K, was the subject of blame, isolation and high levels of criticism. The assessor felt that the poor level of care shown to him was resulting in episodes of wetting and soiling.

On 24 September 2018, the local authority filed an application for a care order. A contested interim care hearing was listed before the magistrates a few days later but, after the guardian indicated that he did not support the removal of the children from their mother's care, the local authority withdrew its application for an interim care order at that stage. Shortly afterwards, A moved to live with her father, but the other children continued to live at home with their mother under an interim supervision order during the currency of the proceedings.

For various reasons, the proceedings did not reach a final hearing until September 2019, a year after the application was filed. Although the case was listed before the recorder for a final hearing, the local authority did not invite the recorder to make a final order. Instead, it proposed that he should come to a decision whether or not the children should be removed permanently from the mother's care. If he accepted the local authority's case that the children should be removed permanently, he was invited to make an interim care order. The local authority care plan was that the children would then be placed with a maternal aunt, N, and her partner, who live some 15 miles away in a different local authority area. It was proposed that the interim order should continue until a further hearing in the early part of 2020 when the court would be invited to consider making a special guardianship order in favour of the aunt. The mother and guardian, on the other hand, opposed the local authority plan. It was the guardian's case, supported by the mother, that the court should make a final order under which E and K would remain at home with their mother under a supervision order. All parties were agreed that A should remain living with her father under a child arrangements order.

At the hearing before the recorder, it was agreed that the threshold criteria under s.31(2) of the Children Act 1989 were satisfied in that, at the time the local authority started proceedings in September 2018, the three children had suffered, or were likely to suffer, significant harm in the form of physical and emotional harm and neglect attributable to the care provided by their mother, or likely to be given by her, not being what it will be reasonable to expect a parent to give. The specific findings on which the threshold was found to be crossed were agreed and subsequently recited in the judgment as follows:

(1) There is a history of the home conditions at the mother's property being of such a level that they are unacceptable for children to live in which has put the children at risk of physical and emotional harm as the mother has been unable to maintain acceptable home conditions as follows:

(a) Numerous visits to the home have revealed a strong smell of urine and faeces, with dog faeces present in the children's bedrooms and the rooms downstairs.

(b) Faeces and stained clothing and a mattress stained with faeces have been found in K's bedroom.

(c) Large amounts of rubbish have been observed under K's bed and overflowing in bin liners on the stairs and downstairs at the mother's property.

(2) K has a poor history of physical presentation which puts him at risk of social, behavioural and emotional harm as follows:

(a) K has been reported to be dirty and unkempt, wearing dirty, smelly clothing when in the care of his mother.

(b) K has been sent to school by the mother in trousers that are too long for him and a girl's blouse.

(3) K suffers from incontinence and his health needs have not been prioritised by the mother as follows:

(a) The mother has not attended all appointments at the continence clinic and has missed home appointments from health professionals in respect of K's incontinence.

(b) The mother did not contact the GP about K's continuing incontinence in a timely manner resulting in the family service worker having to make the appointment.

(c) K's GP requested that the mother take a urine sample from K to assist with his treatment, but this was not obtained by the mother until several weeks later.

(4) There is a lack of supervision, guidance and boundaries of the children at the mother's home which puts the children at risk of physical and emotional harm as follows:

(a) E and A have accessed inappropriate material on the internet and have spoken with strangers.

(b) K's behaviour can be difficult and the mother has not always immediately dealt with K's behaviour whilst the social worker has been present.

(5) The mother suffers from mental health problems which have impacted her ability to care for the children, putting them at risk of emotional and physical harm as follows:

(a) The mother has spent time as an inpatient in hospital in 2010 for depression.

(b) The mother has admitted to having suicidal tendencies and, in March 2017, took an overdose of paracetamol and flu tablets with the intention of taking her life when K was in bed with her.

(c) The mother has struggled to manage her mental health properly and has not always been compliant with her medication for depression.

(d) The mother's mental health problems have endured for many years and remain unsolved.

The hearing before the recorder took place over four days between 30 September and 3 October 2019. Having heard evidence over the first three days, the recorder adjourned with the intention of delivering judgment on the following afternoon. In the event, when the court reconvened, the recorder explained that he was not able to deliver judgment due to a computer error. He indicated that he proposed to outline his decision and hand down a written judgment a few days later. His decision was that he accepted the local authority's submissions and would make an interim care order on the basis of the plan for removal of the children from the mother's care and placement with the maternal aunt. After further argument from counsel, the recorder agreed that, given that the reasons for his decision were not available, the time for any application for permission to appeal would be extended to 28 October 2019 and that the interim care order would be stayed until 1 November. An order was...