Re M (Special Guardianship Order: Leave to Apply to Discharge)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing,Lord Justice Baker,Lord Justice Peter Jackson |
| Judgment Date | 26 March 2021 |
| Neutral Citation | [2021] EWCA Civ 442 |
| Date | 26 March 2021 |
| Docket Number | Case No: B4/2020/2052 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 442
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COMBINED COURT CENTRE
Her Honour Judge Vincent
OX20P00090
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Jackson
Lord Justice Baker
and
Lady Justice Elisabeth Laing
Case No: B4/2020/2052
Ruth Cabeza for the Appellant Mother (by Direct Access)
Jennifer Kotilaine (instructed by Boardman, Hawkins & Osborne LLP) for the Respondent Grandparents
Hearing date: 4 March 2021
Approved Judgment
Introduction
This appeal is about the test for granting leave to apply to discharge a special guardianship order (‘SGO’). That turns on the construction of section 14D (5) of the Children Act 1989 (‘the 1989 Act’) in the context of an appreciation of the nature and effect of SGOs. The appeal also concerns the circumstances in which an application for a Child Arrangements Order (‘CAO’) can be summarily dismissed.
The proceedings concern C, a boy who is now aged 9. His mother, the Appellant, is in her late 20s. His father has never been on the scene. The mother's parents divorced during her teenage years and in 2007 she left home. She then experienced serious problems with her mental health and over the years she had hospital admissions and various forms of treatment. In October 2016, following a breakdown in his mother's health, C (then 4 1/2) moved to live with his maternal grandmother and her partner (‘the grandparents’), who live a seven minute walk from the home the mother shares with her partner, Mr D.
The local authority took care proceedings. Its parenting assessment concluded that the mother could meet most of C's needs when well, but that her recurrent ill health meant that she was unable to care for him adequately overall. Other family members had stepped in to look after him or to provide support in the home. C had experienced frightening situations, and had become persistently anxious about his mother's wellbeing. The mother's relationship with Mr D was fairly new and the local authority identified serious deficits in his parenting. Concern was also felt about the behaviour of his own young son towards C when that child had visited.
The mother was assessed by a consultant psychiatrist, Dr Ratnam, as having an Emotionally Unstable Personality Disorder and as needing long-term therapy. It was suggested that she work with the Complex Needs Service over 12–18 months to assist her in managing her condition. However, at the time of the assessment in May 2017, the mother did not recognise the need for a referral.
The care proceedings ended in July 2017 with the threshold being carefully defined in these terms:
“ Mother's mental health/neglect/emotional harm
1. The Mother is diagnosed as having an emotionally unstable personality disorder and has a long history of emotional deregulation, self-harm and depression. C is at risk of, neglect and emotional harm due to his mother's inability to meet his needs when she is unwell. C reports feelings of anxiety about his mother and that she might need to go to hospital again. The mother understands that this was as a result of her previously being admitted to hospital as a result of an asthma attack.
2. The Mother reports auditory hallucinations telling her to self-harm and to harm her partner and C. She reports complying with the directions to self-harm but not those relating to C or Mr D. The mother has self-harmed including:
(i) In September 2015 the mother drank three bottles of Calpol and consumed alcohol. C was not in her care at this time and she sought medical support the following day.
(ii) In May 2016 the mother took 15 Venlafaxine (antidepressant) and got into bed with C while at the Maternal Grandmother's home. She sought medical help the following day.
(iii) On 24 th October 2016, at home, the mother burned herself using a cigarette lighter while C was in her sole care. She sought medical help the following day.
(iv) On 12 th November 2016 the mother took 32 paracetamol in the lunchbreak at day hospital. She informed staff 1.5 hours after her overdose.
C is at risk of neglect, emotional and physical harm through exposure to such episodes.
3. At times the mother has engaged well and accepted advice and support. At other times when she has suffered mental ill health she has not been in a position to meet C's needs fully and has relied on her family members to support her.”
The outcome was that an SGO was made in the grandparents' favour without opposition. It was accompanied by a written agreement, signed by the grandparents, the mother and Mr D, and approved by the local authority and the court. The agreement, which describes itself as “underpinning” the SGO, spelled out how decisions for C would be taken and how information would be exchanged. It provided for the mother to have contact of up to five hours twice a week, supervised by the grandparents, extending in due course to staying contact at the grandparents' home once a month. For a “settling in period” of three months, C was not to have contact with Mr D and his son except for monthly Skype contact, but after that the expectation was that they would also have contact. The local authority agreed to fund mediation.
These proceedings
In February 2020, the mother applied for leave to make an application to discharge the SGO with a view to C returning to her care. In July 2020 she also applied for a child arrangements order for C to spend time with her while the proceedings continued, or in the longer term.
The parties filed statements. The mother stated that since 2017, her mental health had greatly improved and that her mood has been stable, without relapses or further episodes of self-harm. By the end of the care proceedings she had signed up to the Complex Needs Service and described it as life-transforming. She had also completed a course in Mentalisation-Based Therapy and attends another support group. She takes her medication regularly and maintains supportive contact with her GP. Since September 2017 she has had responsible employment as a team coordinator for an autism service. Mediation has not been successful and the grandparents have hindered contact, which the mother describes as rigid, inflexible and minimal. C is unhappy and should be returned to her care. Her relationship with Mr D continues and they plan to marry.
The grandparents acknowledged the improvements in the mother's mental health but believe that they are insufficient to enable her to care for C. They stated that it would not be in his interests to have a change of care and it would be traumatic for him to return to the home from which he was removed. Mr D is not a good parenting model. C is settled, happy and broadly doing well, but it has not been easy. The impact of his early life experiences is still very significant and it does not help that his mother has not accepted this should be his permanent placement, and that she gives him mixed messages and causes him to feel unsettled. In addition, some family members have taken the mother's side. Contact may have to be further reduced for C's sake.
A report was commissioned from the local authority and provided in June 2020. This describes the position in impartial terms, referring to the degree of involvement that the grandparents and the mother have had with local authority and other services, and their different perspectives. The difficulties include the fact that it has not been possible to complete Life Story work with C because of the distress that it causes him. He is on the SEND register. He finds school difficult and was referred to CAMHS. The social worker concluded that C is struggling with managing his emotions. Life Story work should be completed. C needs to be reassured about his long-term living arrangements and they need to be supported by the family members. In conclusion, it was stated that:
“A Special Guardianship Order was made for C as the courts identified the care he was receiving was not adequate and was neglectful. There were concerns for [the mother]'s mental health and treatment history showed clear periods of being very unwell, getting better, being discharged, self-harming, hospital admissions, renewed engagement with services, getting better and then a decline in her health. These cycles created instability for C. Therefore, to ensure C had permanency and stability he was placed in the long-term care of his Grandmother. Careful consideration and a thorough assessment would need to be completed to consider [the mother]'s application to revoke the Special Guardianship Order and whether this would be in C's best interests.
I am unable to make recommendations about how C is doing in his current placement… or recommendations in respect of the Special Guardianship Order or contact arrangements as there has not been a recent assessment to inform my view.”
The mother's applications came before Her Honour Judge Vincent (‘the Judge’) on 24 August 2020. The mother appeared in person with a McKenzie Friend, Ms Crystal Lowe, and the grandparents (whose legal costs are met by the local authority) were represented by counsel, Ms Jennifer Kotilaine. Having heard submissions and considered the evidence from the 2017 proceedings and the present proceedings, the Judge delivered a written judgment later the same day. She refused leave to the mother to apply for the discharge of the SGO and she dismissed the application for contact.
Then mother promptly sought permission to appeal,...
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