Re C and B (Children) Care Order Future Harm
| Jurisdiction | England & Wales |
| Judgment Date | 30 March 2000 |
| Date | 30 March 2000 |
| Docket Number | PTA 2000/5230/B1 |
| Court | Court of Appeal (Civil Division) |
[2000] EWCA Civ J0330-6
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT
(Her Honour Judge Ludlow)
Royal Courts of Justice
Strand
London WC2
Lady Justice Hale
Sir Christopher Staughton
PTA 2000/5230/B1
MR A LEVY QC and MISS G GILLIATT (Instructed by Kenneth Barnes & Co, M Nightingale House, 80 Broomfield Road, Chelmsford, Essex) appeared on behalf of the Appellant
MR J DUGDALE (Instructed by The Legal Department, Southend-on-Sea Borough Council, PO Box 6, Civic Centre, Victoria Avenue, Southend-on-Sea) appeared on behalf of the Respondent
Thursday 30th March 2000
: This is the parents' appeal against the order of Her Honour Judge Ludlow in the Chelmsford County Court on 20th October 1999. She made care orders in respect of the two youngest children of the family, C, born on 22nd July 1999, who was then three months old and is now eight months; and J, born on 4th September 1998, who was then 13 months and is now 18 months. Secondly, she gave permission under section 34(4) of the Children Act 1989 for the local authority to refuse contact between the parents and all four of the children: C, J, their older sister, CM, who was born on 1st February 1994 and who is now six, and her half sister, K, who was born on 29th February 1988 and who is now 12. Thirdly, she imposed a prohibition under section 91(14) of the Children Act 1989 on any application by the parents for contact or to discharge the care orders until 21st October 2001 —that is, for two years —without permission of the court.
All care cases are sad, but not all of them are difficult. This one is both. The oldest child, K, is now 12. Her father was Mr C. The parents were not together for very long after her birth. The father of the youngest three is Mr B. He and the mother have an unusual relationship, with separations, but they keep coming back to one another and appear to be committed to one another for the long term. Neither of them had an easy childhood. The mother's parents were divorced when she was very young. Her own mother has been diagnosed with manic depressive illness; she has been married five times and the mother had to take considerable responsibility for her own mother at difficult times. The father was adopted but his adoptive parents were killed in a road accident when he was six. He was brought up by other adoptive relatives but it was not always a happy experience for him. Both of them are capable of considerable commitment and stability. The mother worked very hard in various employments until she had children. She created what has been described as a "glorious" home. She has had only two serious relationships, with the fathers of her children. The father has worked for many years as a hospital porter. Both are thoroughly committed to all four of the children.
There were no problems reported for the first six and a half years of K's life. There is nothing in the social services chronology. Referrals did begin in late 1994 and continued during 1995, but there was nothing which was thought worthy of child protection action. Then, over the summer of 1996, the mother suffered a breakdown in her mental health and was eventually admitted to hospital for a month, from 2nd September to 4th October. This was associated with well-documented harassment from her neighbours, a break-up (temporary, as it turned out) of her relationship with the father and burglaries at her home.
We do not have all the evidence from the earlier proceedings about the two older children, and so it is difficult to piece together a precise account as to how they came into care. The fullest account before us is in the report of the Marigold Family Centre dated 23rd July 1997. There appear to have been two incidents, on 22nd and 25th September 1996, when K was found at home alone. Apparently the mother was on leave from hospital at the time, certainly during the first of those incidents. This provoked a case conference with the conclusion that K should be cared for by an aunt and CM by her grandmother. On 24th October 1996 the mother agreed that the children should be accommodated, but on 25th October the children were taken into police protection. I find the circumstances recounted in the report about that event strange, and say no more about them. An emergency protection order was made on 28th October and care proceedings were begun. The children were placed in a foster home where, as I understand it, they have lived ever since. I am told that the mother believes that she agreed to voluntary accommodation on the basis that she would have the children back when she was better, but compulsory measures were taken instead. It has certainly not helped her view of the local authority and its actions.
The care proceedings took until 19th September 1997. On that date His Honour Judge Howe made care orders in relation to both girls. There were at that stage four sets of reports. Firstly, there were psychiatric reports on the mother by Dr Chowdhury dated 17th December 1996 and 30th April 1997. These were generally favourable to the mother, although they did advise that she took a very small dose of medication which would assist with her moods. Secondly, there was a series of psychological reports by Mrs Martin Alam. The main one is dated 28th February 1997, but there were follow-ups on 3rd March and 18th August. Thirdly, there was the social work assessment by the Marigold Centre dated 23rd July 1997 which I have already mentioned. Fourthly, there were the inquiries of the guardian ad litem, Mrs Eleni Sandrini, whose report is dated 9th September 1997. All of those reports are in the bundle before us.
Most unfortunately we do not have a transcript of His Honour Judge Howe's judgment or any annexed statement of the basis upon which the court was satisfied of what are known as the threshold criteria in section 31(2) of the Children Act 1989. That is the necessary threshold relating to actual or likely significant harm, without which no court may make either a care or a supervision order. Neither do we know what facts were found by the learned judge. We can only surmise from the evidence in our bundles. From this we read of those two incidents of leaving K alone; of the view that K had been given too much responsibility for her younger sister; of incidents where the mother had lost her temper or behaved in an embarrassing way in front of the children. The evidence of actual harm appears to be based on Mrs Alam's report of 28th February 1997 which contains, among much else, the following passages. Paragraph 12.2:
"Formal assessment indicates that [K] is functioning overall at a level significantly below her chronological age… It is impossible to make a definitive statement about the causation of [K]'s learning difficulties… My observations coupled with indications obtained from the school staff, suggests that a significant proportion of [K]'s learning difficulty is the result of environmental factors —namely, limited exposure to age appropriate play and leisure facilities."
Paragraph 12.3:
"In my opinion [K] has been psychologically harmed by the experiences she has suffered in her childhood. She has not been offered sufficient protection, nor been provided with age appropriate rules and expectations … It would appear that [K] has a warm, but somewhat detached attitude towards her mother… She has suffered emotionally from the unusual parenting offered by [the mother]."
Paragraph 12.5:
"CM appears to have come through these proceedings relatively unscathed, secure in the knowledge that her big sister [K] is with her."
It appears therefore that the orders must have been based on actual harm to K's intellectual and emotional development and the likelihood of such harm in the future to CM. This was obviously not at anything approaching the most severe end of the scale, but by the end of the assessment process (which was, after all, some ten or eleven months after the children had been taken into care), the result was a clear view of K that she did not want to return home. Those views seem to have developed over the course of the proceedings and may to some extent have been influenced by the parents' variable response to her complaint of sexual abuse by her step-grandfather, the maternal grandmother's husband. Those points were coupled with a severe pessimism on the part of the professionals about the mother's understanding of the situation and capacity to change. The care plan at that stage was for both girls to remain in long-term foster care.
After that there were two important developments running in parallel. Firstly, both the mother and the father found it hard to accept the decision and to abide by the restrictions and limitations on contact which were placed on them by the local authority. The last official contact was in April 1998. The local authority was not willing to arrange any more contact without discussion with the parents because of the problems that were being experienced and the unhappiness of the girls. That discussion did not take place, so there has been no contact since. However, the homes are so close that unofficial meetings have taken place. The judge found that the parents' behaviour around contact had caused further significant harm to K.
On 17th July 1998 the mother applied to discharge the care orders and, in the alternative, for a defined contact order. The discharge application was withdrawn in December 1998 but the contact application continued. There was a report from Mrs Alam of 20th November 1998. This was clear that K wanted to stay where she was and did not want any...
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