Re L (Care: Assessment: Fair Trial
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Munby,Mr Justice Munby |
| Judgment Date | 01 July 2002 |
| Neutral Citation | [2002] EWHC 1379 (Fam) |
| Court | Family Division |
| Docket Number | Case No: SA01C00334 |
| Date | 01 July 2002 |
In The Matter Of The Children Act 1989
And In The Matter Of L J C (dob 6.4.01)
The Honourable Mr Justice Munby
Case No: SA01C00334
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
SWANSEA DISTRICT REGISTRY
(In Private)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr James Tillyard QC (instructed by the Head of Legal Services) for the applicant (the local authority)
Mr Michael Keehan QC and Ms Ruth Henke (instructed by Avery Naylor Wilson) for the first respondent (the mother)
Mr Mark Allen (instructed by Graham Evans & Partners) for the second and third respondents (the maternal grandmother and step-grandfather)
Mr David Crowley (of Howe & Spender) for the fourth respondent (the child)
The child's father (M D) was neither present nor represented
Hearing dates (in Cardiff) : 27–31 May 2002
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was handed down in private on 1 July 2002. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
1. These are care proceedings under the Children Act 1989 in relation to a little boy, L, who was born on 6 April 200His mother and father were never married. His father, MD, plays no effective part in the proceedings. His mother, D, was born on 20 September 1980. She had a previous child by another man, a little girl, M, who was born on 19 June 1997 and who died on 10 November 1997. In the mean time, in about August 1997, D had begun a relationship with an older man, SC. That relationship broke down in 1998.
2. Because of the circumstances in which M had died it was decided at a Child Protection Conference on 16 February 2001 that L should be placed on the Child Protection Register at birth. Care proceedings were started on 9 April 2001, three days after L was born. Initially the plan was for L to be placed with D at the home of the maternal grandmother, S, and then in a residential unit. Within days the plan was changed. An interim care order was obtained on 12 April 2001 and L was placed with foster carers, Mr and Mrs J, with whom he has remained ever since.
3. In order to defend themselves against any allegations that might be made in relation to M's death, both SC and S were granted leave to intervene in the proceedings.
4. Pursuant to directions given by Coleridge J on 11 May 2001 and by Sumner J on 30 July 2001 a threshold hearing took place before Connell J in November 2001. On 23 November 2001 D submitted to a consent order which recited that it was made “on the basis that [D] caused [M's] death” and provided that the Court had found threshold established on the basis of a “document submitted to the Court and agreed by the parties”. SC and S were granted leave to withdraw from the proceedings.
5. The agreed threshold document was in the following terms:
“1 [D] accepts Professor Meadow's opinion in that:
“No natural cause of death was identified. That does not exclude possibility of natural disease but the circumstances of her ([M]'s) sudden collapse and the presence of previous injuries, characteristic of physical abuse, make it more likely that the cause of death was from an unnatural cause, such as smothering.”
2 She therefore accepts that on the current medical evidence, and on the balance of probabilities:
a. [M]'s death was unnatural, and
b. It is likely that it was caused by suffocation.
3 She however continues to assert that there is possibility that [M]'s death was caused by a yet unascertained natural cause.
4 [D] specifically and firmly denies that she did anything that might have caused [M]'s death. She specifically denies smothering [M].
5 However, given the factual circumstances surrounding [M]'s death and the overwhelming current medical evidence, she accepts:
a. That the Court will find the balance of probabilities, that she caused [M]'s death, and
b. that any future assessment of her ability to care for a child will have to proceed on that premise.
6 [D] accepts that:
a. The rib fractures were non-accidental and were caused by [M] being squeezed or gripped, and
b. the facial bruising was non-accidental,
and that they both occurred whilst the child was in her care, and that of [SC] and [S]. In the premise she failed to protect [M] from injury.
7 Having regard to the matters set out above on the balance of probability, it is accepted that the Court will find that [D] caused significant harm to her child [M], and as a result [L] is at risk of suffering harm whilst in the care of his mother.”
6. Both before and after the threshold hearing the plan had been for D to be assessed with a view to possible habilitation of L to her care. That plan was abruptly terminated in March 2002 following an unfavourable report from a Consultant Child and Family Psychiatrist dated 13 March 2002, amplified in a further report by him dated 11 April 2002. An assessment of S and her partner P dated 25 March 2002 recommended against placing L with them. The local authority's care plan dated 7 May 2002 was accordingly for adoption. Thus the general shape of the case when it came on for hearing in front of me on 27 May 2002.
7. Thus far the case would appear to be of a type with which the court is, unhappily, all too familiar. But to understand what it is that takes the case somewhat out of the ordinary and what it is that has given rise to the important points of practice on which I now give judgment I must first go back and recapitulate the course of the proceedings in more detail.
8. On 3 May 2001 D applied for a direction under section 38(6) of the 1989 Act for a mother and baby assessment in a residential home. That application was adjourned at the hearing before Coleridge J on 11 May 2001. On 30 July 2001 Sumner J made an order by consent giving leave to the local authority, D and L's guardian “to jointly instruct” the well known Consultant Child and Family Psychiatrist Dr J “for the purposes of providing a preliminary report to the Court upon the potential avenues for the management of this case after the November hearing”. Dr J is highly expert in cases of this kind. His letter of instructions was dated 6 August 2001. In accordance with Sumner J's order it had been drafted by the guardian's solicitor and approved by the other parties. It made it clear to Dr J that he was being instructed on behalf of the local authority, D and L's guardian. Appropriately it included this reminder to Dr J:
“It is essential to your role as an independent expert and to the parties' perception of your independent status, that there are no informal unrecorded discussions, or correspondence with any of the professionals or lay parties involved in this case.”
9. Together with his colleague Ms N, a Senior Social Work Practitioner, Dr J assessed D on 29 August 2001. Later the same day there was what was described as a “professionals meeting” attended by, inter alios, Dr J, N, L's guardian and the local authority's lead social worker, Mrs HD. D was neither present nor represented. It appears that no minutes of this meeting were taken. The only record which has been produced are notes taken by Dr J for his own clinical purposes: they were not disclosed to anyone until after the final hearing before me had begun.
10. Dr J and N assessed D again on 14 September 2001. Dr J discussed the case with N on 24 September 2001. His note of the discussion recorded that “our observations were not positive, by and large”. He provided an initial report dated 3 October 2001. The report stated that:
“[D] will need a high level of therapeutic intervention both in relation to her own personal life story and her parenting ability, if she is to be able to assume care of [L] and offer him appropriate parenting. … We feel … that if a successful family unification were to be achieved it would take longer than the Family Unit at [my] Hospital is able to offer. Further psychiatric intervention therefore would need to be linked with a longer-term residential mother and baby type placement … [my] Hospital would initially offer a two-week residential admission for [D] with [L]. The aim of such an admission would be both to continue with a more detailed assessment and also to consider whether [D] is able to respond to parenting advice/support and individual personal therapy. … In summary, therefore, while we feel that [my] Hospital Family Unit could have a further assessment and treatment role with this family, we do not feel that this service on its own would be enough to achieve a successful family unification.”
11. On 19 October 2001 the guardian telephoned N. The only record of this conversation which I have been shown is N's note which records:
“Guardian ad litem and the social workers involved with [L] have expressed concern following receipt of the report from the … Hospital, which they feel puts a more optimistic slant on the assessment than was perhaps shared at the professionals' meeting following the all-day assessment. Guardian ad litem and I discussed the fact that [Dr J] and [N] had met with [D] for a second appointment as planned, and had felt slightly more encouraged re the possibility of her engaging in psychological work following that second meeting. Hence this was reflected in...
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