Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Pauffley |
| Judgment Date | 13 February 2014 |
| Neutral Citation | [2014] EWHC 270 (Fam) |
| Docket Number | Case No: RW13C000128 |
| Court | Family Division |
| Date | 13 February 2014 |
[2014] EWHC 270 (Fam)
Mrs Justice Pauffley
Case No: RW13C000128
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Reading District Registry
Katherine Dunseath for the Appellant mother, EL
Isabelle Watson for the local authority
Seona Myerscough for the Children's Guardian, Ms G
Hearing date: 28 th January 2014
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
I am giving this judgment a fortnight or so after the conclusion of the appeal hearing for three reasons. Firstly because the case raises important issues of practice and procedure during the earliest stages of care proceedings; secondly because significant irregularities have emerged as to the way in which the Justices had compiled their Facts and Reasons; and thirdly so I could discover, by delving into the court file, why the hearing of the appeal only came to be listed more than two months after issue.
At the conclusion of the hearing on 28 th January, I indicated that the mother's appeal would be allowed; and that the outcome she had sought at the Family Proceedings court on 7 th November 2013 would prevail — namely the return of her infant son on the basis that he would be cared for by her within the protective environment of a specialist resource.
Now I give my reasons for that decision and begin by setting out the background to what was, on any view, a complex case.
The background
The mother, EL, is 32 years old. She had a sad, unhappy childhood and became a 'looked after' child during adolescence. In 1996, when only 15, she formed a relationship with a 26 year old man who came to be the father of her elder four children. She and the children's father abused alcohol, took illicit substances and there was domestic violence — both were seen as instigators. Their children were born between 1998 and 2001. There was local authority involvement, Child Protection Plans and eventually proceedings were brought which resulted in residence orders in favour of the father of those children together with a 12 month supervision order.
The mother's evidence is that until she went to [a specialist treatment unit in the north of England] last August, she and the four older children were 'messaging' one another every day. Since then, she has had telephone contact when they are around at the maternal grandmother's home visiting.
The mother's younger three children were born between 2006 and 2009 when she was in a relationship with another man. Again there was local authority involvement resulting from the mother's longstanding issues with illicit substances — heroin, crack cocaine — and alcohol. Her then partner was also taking heroin and crack cocaine. The mother's seventh child was born in May 2009 withdrawing from drugs. There was local authority intervention. He was made the subject of an emergency protection order and placed with foster parents.
Although the two older children of the sibling group were also subject to proceedings, initially no orders were made because their parents demonstrated a willingness to engage with the local authority so as to effect change. In 2010, a random drugs test of the father, positive for cocaine, led the local authority to issue further proceedings. Ultimately, in March 2012, those two children were returned to their father who, together with the paternal grandmother, looks after them under a residence order. The mother's evidence is that she has a good relationship with the father; they talk about the children regularly and, prior to last August, she would take them out, for example, to the park. Now her contact with them is over the telephone and by writing.
The youngest child of the sibling group, now aged four and three quarters, was made the subject of full care and placement orders. Very recently, and after an overly lengthy period of uncertainty, he has been 'matched' for adoption with his current foster parents.
The mother became pregnant with NL as the result of a fleeting relationship with a third man. He has played no further part in the mother's life nor in these proceedings.
The mother contends that she went to see her GP when she was 7 weeks pregnant and asked the doctor to notify social services. The local authority maintains that information about the pregnancy resulted from a referral made by the youngest child's social worker in late June by which time the mother was 18 weeks pregnant.
On 20 th July 2013 there was a meeting between the then allocated social worker and the mother; EL admitted to using crack cocaine but said she had done so as the result of 'slip ups.' Subsequent information from a local drugs treatment service revealed the mother had taken the drug regularly.
On 16 th August 2013 the mother was admitted to [the resource], a specialist family service which works intensively with individuals who have become dependant upon drugs and alcohol. The aim of the organisation is to keep families together. The approach is three pronged — focusing on substance misuse, parenting and child development. There is group work as well as one to one sessions within what is intended to be a therapeutic community.
During her first few weeks at [the resource], the mother completed her detoxification from methadone and diazepam. When NL was born in October 2013, he showed no signs of withdrawing from drugs. Whilst in the hospital environment, the mother was viewed by the Vulnerabilities Specialist Midwifery Team as having provided good care to NL. She was "accepting of all advice… reacts well to baby's demands." EL and her baby were said to be "bonding well" and there was "good emotional interaction." There were no concerns in relation to the mother's parenting whilst in the hospital setting.
These proceedings
The local authority began its application for a care order on 29 th October. It is plain on the documents that a decision had been taken prior to issue to seek NL's removal from the mother. There was, as might have been expected, extensive reliance upon her history.
The local authority relied on the fact that during her first and second trimesters of pregnancy, the mother had exposed NL to illicit substances in utero. It was also claimed that she had failed to prioritise NL's needs above her own; and it was suggested that NL was likely to "continue to suffer significant harm if returned to his mother" because of her unwillingness until mid August to "address her dependency issues." It was also said she had failed to make meaningful lifestyle changes; there had been a lack of consistent engagement with professionals; and she had had very little positive life experience to help guide her own parenting skills.
The hearing on 1 st November
The application for an interim care order came before the Justices on 1 st November when NL was still in hospital in the north of England — he had a slight heart murmur. The final version of the Findings of Fact and Reasons record that, "The application for a holding Interim Care Order is not agreed or opposed today by mother pending a contested hearing on 7 th November…" There then follows a comprehensive and very detailed analysis of the interim Threshold Criteria as well as the Welfare Checklist.
The effect of the 1 st November order for NL was that he was taken from his mother and placed within a foster home in the South East. His mother remained living at [the resource] in the north.
The 7 th November hearing
By the time of the hearing on 7 th November, the mother had filed evidence including a letter of support from [the specialist resource]. The legal adviser's notes, which Ms Myerscough, helpfully, has had typed since the hearing on 28 th January, provide a good guide as to what happened on the day.
The Justices heard evidence over the telephone from Dr Celest Van Rooyen, a chartered clinical psychologist.
Within her written report, Dr van Rooyen had said it was " positive that (the mother) is now motivated to seek assistance and bring about change, but until she has entirely resolved her unmet needs … the safety and best interests of the baby could not be ensured whilst in her care. The assessments from [the resource]clearly demonstrate that (she) has the knowledge and ability to provide daily instrumental care of a baby, however it is her capacity to provide consistent, reliable and safe parenting in the future (my emphasis), which needs to be the determining factor when it (sic) would be appropriate to place the baby with her."
Dr van Rooyen also said, " It would not be appropriate for baby NL to be place (sic) in the care of her (sic) mother until she has completed the detoxification plan, demonstrated the ability to maintain abstinence in the community, improved empathy and has demonstrated she has the capacity to translate her insight into her day to day functioning. It would only be at this point that she would be emotionally and psychologically receptive to parenting work, as without empathy and the capacity to translate what she has gained, there would be no foundation for the parenting work to be built upon."
Her written report ends with this — " When considering the background history, which highlights fourteen years of substance addiction and misuse, having seven children removed from her care and having continued to make use of...
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