M (A Child)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice McCombe,Lord Justice Peter Jackson |
| Judgment Date | 20 February 2018 |
| Neutral Citation | [2018] EWCA Civ 240 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2017/1863 |
| Date | 20 February 2018 |
[2018] EWCA Civ 240
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE
Family Court in Southampton
His Honour Judge Hess
PO16C01149
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lady Justice King
and
Lord Justice Peter Jackson
Case No: B4/2017/1863
Kate Branigan QC and Judy Earle (instructed by Abels Solicitors) for the Appellant
Jessica Habel (instructed by Southampton City Council) for the Respondent
Hearing date: 24 January 2018
Judgment Approved
This is an appeal by MR (Mother) against an order made by His Honour Judge Hess on 16 June 2017 in respect of her daughter E who was born in November 2012 (5 years 2 months). By his order the judge:
a) Dismissed the mother's application to discharge a care order made by HHJ Miller QC on 31 March 2016:
b) Made a placement order pursuant to s.21 Children Act 1989.
Permission to appeal was granted by McFarlane LJ on 3 November 2017. The issue before the court is as to whether the judge had fallen into error by failing adequately to make findings as to the risk of future harm in the event that E returned to the care of her mother and whether the judge thereafter gave a sufficiently clear and reasoned analysis of the factors which in his view made up the balancing act and which ultimately led to his concluding that only permanent separation from her mother would be in her interests.
At the conclusion of the hearing the parties were informed that the appeal would be allowed and the matter remitted for a rehearing. The following are my reasons for allowing the appeal.
Background
The mother, who is now aged 35, is of Zimbabwean origin having come to live in the UK in 1999 aged 19. On her arrival in this country she lived with family members and trained as a nurse. Her relationship with E's father, JM, lasted for some three years but came to an end in 2012 upon the mother realising that she was pregnant with E. The mother was thereafter, at all times, the sole carer of E.
On two occasions, 23 October 2014 and 8 May 2015 the mother took E to hospital by ambulance having administered an epi-pen in the belief that E was suffering an allergic reaction. Medical opinion was that the epi-pen had been administered unnecessarily on both occasions. A number of multidisciplinary meetings were held under the local hospital trust's Factitious and Induced Illness (FII) guidelines in the absence of the mother and, (from the limited information available to this court) it appears that a decision was made to arrest the mother. The mother was accordingly arrested on 17 June 2015 on suspicion of fraud and neglect; and the two year old E was removed under police protection powers and placed in foster care with an interim care being made on 19 June 2015. E has been in the care of foster carers since that date.
No charges were pursued and, the experts in the field of FII who prepared medical reports, concluded that this was not a case of FII but rather the actions of an overanxious mother.
The local authority initiated care proceedings and assessments took place. The parenting assessments of the mother were positive on the basis that she would live with her aunt and uncle. Unfortunately, some time around January 2016 this preferred option fell away as, the court was told, the aunt and uncle who were working professionals, required financial resources to be made available in order for a full-time nanny to be employed before they were prepared to take E and her mother into their home. This support was neither available, nor appropriate, and unhappily an alternative care plan had to be considered.
The next care plan was for E to live with her father as sole carer and it was this care plan that was put before the court at the final hearing of the care proceedings before Judge Miller on 31 March 2016. At court was an agreed threshold document which, unusually, I set out in full:
“Agreed Threshold To Satisfy s.31 Of The Children Act 1989
It is accepted by all parties and agreed by the Court that at the relevant date (17.6.16) the child, E, had suffered and/or was at risk of suffering significant harm attributable to the care given to her by her parents, not being what it would be reasonable for a parent to give because:
1. The mother was an over-protective parent, and as a result misinterpreted some of E's symptoms, not least because of the mother's unawareness of the severity of E's sleep apnoea.
2. The mother accepts that her over-protectiveness led her to administer E's epi-pen to her on 2 occasions when this was objectively not necessary. The mother says that she did this in the honest but mistaken belief that E was suffering a serious allergic reaction.
3. The mother accepts that with hindsight that her own medical training should have put her in a better position to respond appropriately, however her concern as a mother took over and prevented her from seeing the situation objectively.
4. The mother can see how the way she responded and acted led a range of professionals to be concerned about the risk of escalation of medical interventions which E might receive, and to question the mother's motives for seeking medical and/or financial assistance. The mother accepts that this could have impacted on E's development which has accelerated in foster car.
5. The mother now realises that the way in which she presented E's difficulties made them look more serious than they actually were.
6. Both parents failed to give consistent and reliable information as to their roles in E's life and their ability to provide care for her before and after she came into care.”
Supporting the care plan was a written agreement of the same date which included amongst other things the requirement that:
i) The local authority provide six sessions of reflective work/therapy for the mother to address issues of anxiety around E's health needs and the reasons for E coming into care.
ii) The mother to engage in therapy and demonstrate an ability to work with professionals.
iii) For the parents to attend the Incredible Years parenting course.
It is common ground that the mother complied with these requirements and in addition attended and funded counselling for herself.
Sadly for E, this second care plan also broke down three months later in June 2016. The father disengaged with the rehabilitation process and he has since played no part in these proceedings and no longer sees E.
By this time E was three years six months and had been in foster care for a year. The local authority decided to reassess the mother, hopeful that E could return to her care. In August 2016 the mother married her partner RR with whom she continues to live. The couple have no housing or financial difficulties.
On 11 October 2016 a social worker, Helen Freebody, having conducted an assessment over six sessions with the mother (and RR), concluded that the mother was unable to meet E's emotional needs and there should be no further delay in setting in motion a permanent plan outside the family. I note that the conclusions rely heavily (although not exclusively) on the advice of a Dr Sharon McKinnon from BRS (Building Resilience and Strength) who had been providing support to the foster carers. Dr McKinnon expressed her views having viewed a video of the recorded contact session but without having seen the mother. Dr McKinnon herself was clear the views were based on a very brief observation of part of a contact on 1 October and that she had not had sufficient time to review all the recorded contacts. Notwithstanding this, it seems clear to me that Dr McKinnon's suggestion that E and her mother would require lengthy therapeutic intervention substantially influenced the assessor's view that the mother will require intervention to “address her emotional misattunement with her daughter” and that such intervention would be “essential” before any reunification could be considered safely.
This report was presented at a planned meeting on 28 October 2016. After the meeting which now ruled out rehabilitation, the mother, unsurprisingly in the circumstances, made an application to discharge the care order. A raft of assessments were then carried out by the local authority. Each highlighted what was regarded as E's complex emotional needs and some attachment difficulties with the mother together with the inability, it was said, of the mother to understand and accept the necessity of E having been made the subject of a care order. (The mother accepted that the epi-pen had been administrated unnecessarily, but did not accept that in doing so she had caused E significant harm).
A directions hearing took place on 9 January 2017 which provided for a parenting assessment of the mother and RR and the disclosure of the papers and reports (including psychiatric and paediatric evidence) filed in the previous proceedings into the current proceedings. A case management hearing took place a few days later. The matter was timetabled for a final hearing on 2 May 2017, with the mother being directed to lodge any application for experts by 17 March 2017 and for the local authority to file any application for a placement order by 4 April 2017.
Ms Branigan QC, representing the mother on this appeal, explained to the court that those representing the mother in the court below were of the opinion that given the nature of the threshold findings, the developmental difficulties from which E suffered (of which more shortly) and the suggested attachment difficulties, such a complex combination of features necessitated assessment by a psychologist or psychiatrist of appropriate expertise. Time was however running out and the judge had (she said) been understandably clear that the hearing could not be further delayed. In those circumstances, given that an independent social...
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