Re O (Supervision Order)

This is a local authority's appeal from the decision of HHJ Poulton in the Canterbury County Court on 3rd August 2000, when he made a supervision order in relation to a baby boy called Aiden.

Aiden was born on 23rd October 1999, so he was 9 months old then, and is 15 months old now. It was common ground then, and remains common ground, that he was to live with his parents, as indeed he had done for all his short life with the help and support of the psychiatric and social services. The local authority and the guardian ad litem wanted a care order. The parents wanted no order at all.

Aiden is the mother's fifth child. She has three daughters, Petra, Victoria and Alison, who are now aged 17, 16 and 14, from her first marriage to a Mr McIntosh. They divorced in 1987 soon after Alison's birth. In 1989 the mother married again to a Mr Robert Gray, whom she had met around Christmas 1988. Her daughters were removed from home in December 1989 and placed in a foster home, where they still live, in a context of serious allegations of sexual abuse. The mother had her fourth child, a son Liam, by Robert Gray in August 1990.

In May 1991, Robert Gray, the mother and three other family members were tried for sexual abuse of the girls. Robert Gray was convicted of the rape of Petra and indecent assault upon Victoria and Alison. He was sentenced to seven years' imprisonment. One of the others was put in charge of the jury but acquitted. The three others, including the mother, were acquitted on the direction of the judge. In July 1992 care orders were made in respect of all four children. Liam has since been adopted and the mother, as I understand it, is not in touch with her daughters.

The mother met her present husband in 1992. He was not in any way involved in the previous history. He is some years older than the mother and this was his first relationship of such seriousness that it caused him to leave his family home. The only blemish in his character is a conviction for indecent exposure many years ago for which he was placed on probation. They married in June 1994.

Aiden was born in October 1999. Because of the previous history, the local authority had, of course, given prior consideration to what should happen after his birth. There was a prior psychiatric assessment by Dr Judith Freedman from the Portman Clinic and her colleague Mr John Lawrence. They recommended a residential assessment. The family therefore stayed voluntarily in hospital after the birth and then transferred voluntarily to a residential assessment facility known as Fegan's.

There was a four-day hearing in February and March 2000 before HHJ Poulton. This is referred to as a "causation" hearing; it was, in reality, a hearing into the facts relating to the mother's degree of involvement in the earlier abuse of her daughters. HHJ Poulton gave judgment on 23rd March 2000 having earlier heard evidence from the social workers who had been involved at the time, from the girls' foster mother, and from one of the paediatricians who had examined them at the time. There was also available a transcript of Petra's evidence at the criminal trial and of video interviews with the children.

The findings that he made were as follows. The mother was not present at the abuse by Robert Gray. She did not know of it or see anything. She was however suspicious. She did not want to know what was happening. She did know that Mr McIntosh's step-daughter Rachel was abusing Petra. This was no secret. The mother did fail to protect all three of her daughters. She should have made further inquiries and taken steps to safeguard them. Furthermore, her attitude since the criminal trial had been "seriously inadequate". She had failed to accept the conviction until Mr Gray had admitted his guilt. The judge also found that the children had been neglected. They had been allowed to watch pornographic videos. The state of the house was terrible and their clothing was inadequate, although he did not accept that there was sufficient evidence to support an allegation that the children had been so badly fed that they were going round dustbins trying to get food.

At the end of the evidence HHJ Poulton made an interim care order, but that was on the basis that the family should go home. In fact they did so the following day. This was at the beginning of March. The interim care orders continued until the final hearing, which took place in July 2000, and again occupied several days. There was evidence of assessments from the social worker, from Fegan's and from Dr Freedman. There were also letters from the mother's psychiatrist, Dr Khine-Smith, reporting on her psychiatric history and current mental state.

As far as the threshold criteria were concerned, no harm had yet been suffered by Aiden. Furthermore, the thrust of the case for saying that he was likely to suffer significant harm in the future had, in the judge's view, to be based upon the mental health considerations.

The information from Dr Khine-Smith was that the mother was first referred to the community mental health team in 1992. There were several documented overdoses from 1992 to 1996. She had inpatient treatment on several occasions from 1992 until the last admission in April 1997. The diagnosis centered around:

"… Reactive Depression with Secondary Psychotic Features/Paranoid Psychosis/Schizophrenia and Schizo-affective Disorder —Depressive Type."

However, the doctor reported that she began to experience stability in her mental state on her last admission, and to wean herself off her psychotic medication from December 1997. She was under regular review and had sessions with her key worker, the community psychiatric nurse. The current state of her mental health was good. Nevertheless the prospect of recurrence remained, and she was still unrealistic about past events. Dr Freedman supplemented this information by pointing out that whatever the precise diagnosis of the mother's disorder, it did imply a serious mental illness, not one of a kind that simply ceases and goes away forever. Hence a relapse in her condition must remain a serious possibility.

The judge took the view that it followed that there was a risk of significant harm to Aiden. It was not possible to be very definite about precisely what harm might be suffered. The highest the judge could put it was that the child might suffer physically or emotionally because the mother's behaviour would become unpredictable were she to suffer such a relapse. He certainly did not hold that there was a risk of sexual abuse. Nor did the judge find the threshold criteria made out on the basis of any risk from the father. He found that that was not proved at all, and in making that finding he took into account the conviction to which I have referred.

As to what the outcome of that finding should be, the judge observed that the assessments had all been carried out before the fact-finding hearing and were therefore to some extent tainted with a suspicion of greater involvement on the mother's part in the girls' abuse than the judge had found proved. He rejected a criticism that the parents had not been sufficiently frank and forthcoming with those who were asking them questions for much the same reason. He found that there had been co-operation of a very high level indeed between the parents and the social workers in particular. He found nothing in the...