Re Land H (Residential Assessment)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Thorpe |
| Judgment Date | 14 March 2007 |
| Neutral Citation | [2007] EWCA Civ 213 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2007/0335 |
| Date | 14 March 2007 |
[2007] EWCA Civ 213
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HHJ TICEHURST
BRISTOL COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Wall
Case No: B4/2007/0335
L (A Child) and H (A child)
Kay Firth-Butterfield (instructed by AMD—Solicitors) for the 1st Appellant - (who was not present)
Charlotte Pitts (instructed by Hoole & Co- Solicitors) for the 2nd Appellant – (who was not present)
Caroline Budden (instructed by the Local Authority) for the 1 st Respondent
The 2 nd Respondent was not present and was not represented
Catriona Duthie (instructed by the Guardian's Solicitor) for the 3 rd Respondent
Hearing date : 1st March 2007
Introduction
The mother and the putative father of a male child born on 11 January 2007 (whom I will identify only by the initial M) seek permission to appeal against the refusal by His Honour Judge Ticehurst, sitting in the Bristol County Court on 29 January 2007, to order a residential assessment of M pursuant to section 38(6) of the Children Act 1989 (the Act).
The judge was hearing applications in care proceedings brought by the Bristol City Council under Part IV of the Act in relation M and to another female child born to the mother on 30 December 2005, whom I will identify by the initials SA. The father of SA (whom I will identify by the initials PL) claims also to be the father of M, and that issue awaits the outcome of DNA testing. The mother's case, however, is that the father of M is her current partner, PH, with whom she has been in a relationship now for about a year, and for the purposes of this judgment I propose to assume that this is so. I will, accordingly, refer to PH from time to time in this judgment as “the father”.
We heard argument in the case on 1 March 2007. At the outset, we gave permission to appeal, and at its conclusion announced that the appeal would be allowed. However, it is apparent that the case (1) raises important questions relating to both the purpose and the proper use of section 38(6) of the Act; and (2) requires this court to re-visit the two key decisions of the House of Lords in the field, namely In re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489, ( Re C) and In re G (A Minor) (Interim Care Order: Residential Assessment) [2006] 1 AC 576 ( Re G). Accordingly, we reserved the reasons for our decision, which we now give.
As these are ongoing proceedings, reporting restrictions will apply, and nothing must be published which in any way identifies the children concerned or their parents. The only exceptions to this restriction are my identification of the local authority involved and the consultant clinical .psychologist brought in to the case to make assessments of the mother, PH and PL.
The history
To understand how the particular question in the case arises, it is necessary to look at the history of both the mother and of PH in some detail.
The mother was born on 29 June 1981 and is thus still only 25 years old. She has, however, already had five children by five different men. Her first child, a girl (L) was born in October 1997, when the mother was 16, although she was clearly conceived when the mother was 15. In the judge's words, the mother “struggled to care adequately” for L. In the event, she was unable to do so, and L was made the subject of a residence order in favour the child's maternal grandmother. The judge records that there has been no contact between the mother and L for some years.
The mother's second child was a boy, J, born in December 2003. Once again the mother “struggled” to care for him. Her third child, a daughter, S, was born in December 2004. S's father was a Schedule 1 offender and that fact, in addition to concerns about domestic violence between the couple, combined with abuse and neglect of J led to the removal of both S and J from the mother's care on the day that S was born. Both children were made the subject of care proceedings and subsequently adopted outside the family.
The mother's fourth child is SA, who is the subject of the current proceedings. She is now 14 months old. Her father, PL, is a party to the proceedings. His case is that he would wish to care for SA. Perfectly sensibly, however, he did not appear on this appeal, although his solicitors made it clear that he opposes it.
SA's name was placed on the local authority's child protection register in January 2006 on the ground of neglect, and on 23 February 2006 she was removed from her parents' care under emergency police protection powers. She has since then remained in foster care pursuant to interim care orders, the first of which was made in May 2006. Given her age, it is clear that a decision as to her future placement should be made as soon as possible.
As I have already stated, the mother's fifth child, M was born on 11 January 2007, and was less than three weeks old when the judge delivered his judgment. Although, as I have already stated, the dispute about M's paternity has yet to be finally resolved by DNA testing, the judge appears to have proceeded on the basis that PH, with whom the mother is living, is indeed his father. On any view, however, it is clear that the mother ceased her relationship with PL, began her relationship with PH and conceived M all in a very short space of time.
It comes as no surprise, looking at the history, that M was removed from his mother at birth, and joined to the already existing care proceedings relating to SA. Those proceedings have been time-tabled to a final hearing in the in the Bristol County Court on 5 July 2007, with a time estimate of 5 days.
The mother and PH wish to care for SA and M. To that end, the mother applied to the judge on 26 January 2007 for a residential assessment of M under section 38(6) of the Act, with the possibility that SA would join the assessment at a later stage if appropriate. In that application, she was supported by PH, who was deemed by the judge to have made a similar application. The two applications were, however, opposed by both the local authority and the guardian, and refused by the judge, who also refused permission to appeal. There were other orders made by the judge which are immaterial for present purposes.
On 25 February 2007, after considering the applications for permission to appeal on paper, I listed them for oral hearing on 1 March 2007, with appeals to follow if permission was granted.
The context: the report of Dr. Michael Drayton
In order to put the judge's judgment in context, it is necessary to record that at an earlier hearing in the proceedings, prior to the birth of M, the court had directed a psychological assessment of the mother, PL and PH. This had been carried out, on joint instructions, by Dr. Michael Drayton, a consultant clinical psychologist, whose report is dated 26 October 2006. Dr Drayton also gave evidence to the judge. In my judgment, his report is an impressive piece of work.
One of the principal arguments advanced by the local authority and the guardian in the instant case is that both the mother's and PH's history of parenting is so poor, and their overall deficiencies as parents so transparent, that an assessment under section 38(6) serves no purpose. It is therefore important, in my judgment, to examine the background of both the mother and PH with some care. I propose to do so, however, through the independent eyes of Dr. Drayton who, as it seems to me, had access to all the relevant material, and made assessments of each of the parents which are both thorough and realistic.
We do not have the letter of instruction to Dr. Drayton, but he records his instructions in relation to the mother (they are the same, mutatis mutandis in relation to PL and PH) in the following terms in his report: —
2.1: I am instructed to carefully consider the bundle of documents enclosed with my letter of instruction and carry out a comprehensive psychological assessment of (the mother) and prepare a psychological report giving an opinion on the following questions:
2.2 A general assessment of her parenting ability, with particular regard as to whether she can prioritise the needs of SL and any other child.
2.3 An assessment of her relationship history, including her current relationship with PH.
2.4 Please advise as to whether she has the capacity to change in her parenting ability, if appropriate and whether such change can be done within a timescale to meet the needs of SL or that of the unborn child.
2.5 Please advise as to what support and/or treatment you would consider necessary. Please comment, in particular, as to whether a residential assessment would be appropriate. (Emphasis supplied)
It is, I think, important to note that Dr. Drayton was specifically instructed to consider the very issue which forms the subject matter of the appeals.
The thoroughness of Dr. Drayton's work is demonstrated, in my judgment, not just by the length of his report and the detail which it contains, but also by the range of issues which he discussed with those whom he was assessing. Thus, in the report on the mother, in addition to undertaking psychometric testing and reporting on the results, Dr Drayton reports on the detailed discussion he had with her about the relationships she had with the fathers of her children. There are also headings dealing with domestic violence; contraception; the mother's understanding of...
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