Case No: (1) B4/2007/1536
(2) B4/2007/1538
Neutral Citation Number: [2007] EWCA Civ 1291
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT 
(HIS HONOUR JUDGE MARSTON)
(LOWER COURT NO.: P006C00048)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 10th October 2007

Before:

LORD JUSTICE THORPE
LORD JUSTICE DYSON
and
LORD JUSTICE WILSON
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IN THE MATTER OF G & K (CHILDREN)

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(DAR Transcript of 
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Mr Frank R. Moat (instructed by Messrs Biscoes) appeared on behalf of the Appellant Mother.

Mr Andrew Norton (instructed by Portsmouth City Council Legal Services) appeared on behalf of the First Respondent, local authority.

Miss Helen Khan (instructed by Messrs Bolitho Way) appeared on behalf of the Second Respondent, the child by his Children’s Guardian.

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Judgment

Lord Justice Wilson:

1.	A mother appeals from orders made by His Honour Judge Marston in the Portsmouth County Court on 18 June 2007 and in particular on 22 June 2007 in relation to her son, T, who was born on 24 March 2005 and so is now aged two.  Although I must mention the determinations made on 18 June, the focus of these appeals is the judge’s order made on 22 June, namely that T should be committed to the care of Portsmouth City Council (“the local authority”) upon a plan that he should reside with his maternal grandparents (whom for convenience I will describe as “the grandparents”) and, at any rate on an interim basis until the court’s further review, now fixed to take place on 31 October 2007, that the mother should have contact with him only under the supervision of the local authority.  In that, save for a month in January/February 2006, T had until 18 June 2007 resided with the mother throughout his life, it was on any view a grave decision that he should cease to reside with her.  Indeed, having refused the mother’s application by Mr Moat, her counsel, for permission to appeal to this court, the judge even refused to stay execution of his order pending Mr Moat’s approach to this court.  Thus, in the absence of any immediate approach on behalf of the mother to this court for a stay (for example, even by telephone from court), the situation arose on 22 June under which the mother, who on 18 June had gone together with T to stay with the grandparents, forthwith left their home and they began to care for him.

2.	T is the mother’s second child.  Her first child, by a father different from that of T, is a girl, H, who was born on 20 February 2001 and so is now aged six.  The care proceedings initially encompassed both children.  Thus the local authority were the applicants for care orders; the mother was the first respondent; H’s father was the second respondent; T’s father was the third respondent; and the children, by their Children’s Guardian, were the fourth and fifth respondents.  The second and final stage of the substantive hearing was conducted by the judge on 28 February, 1, 2 and 12 March, and 8 and 11 June 2007; on 18 June he handed down a reserved judgment and adjourned the hearing until 22 June, when he finalised his orders.  By that time, however, the proceedings related only to T.  For on 12 March 2007 the judge had ordered not that H should be subject to a care order at all but rather that she should live with her father under a residence order and have contact with the mother and T supervised by the grandparents.  Thereupon H’s father had ceased to play a part in the proceedings. 

3.	 T’s father was represented before the judge but did not himself play any active part in the proceedings.  Indeed he has not played any active role in T’s life and, at a late stage, upon his counsel indicating that he was not even seeking to have contact with T, the judge discharged him as a party.  He had, I believe, then indicated his preference through counsel that T should reside with the grandparents rather than with the mother.

4.	It can therefore be seen that by June 2007, the active participants in the care proceedings were the local authority, the mother and T by his guardian.

5.	I have referred to the hearing on dates between February and June 2007 as being its second stage.  Its first stage had been conducted by the judge on 17, 18 and 19 October 2006 and had led to his handing down of a judgment on 21 October 2006.  Within that judgment lies the justification, or, as Mr Moat would say, the purported justification, for the severe orders made in relation to T by the judge on 22 June 2007.  At the hearing in October 2006 the judge had been required to consider in particular how H had come to sustain a series of substantial bruises noticed at her school on 23 January 2006.  The bruises had led to the almost immediate issue of the care proceedings referable to both children; to the transfer of H into the home of her father; and to the interim transfer of T for about a month into the home of the grandparents, following which, albeit under the auspices of interim care orders, T had returned to the mother’s home.

6.	A mass of bruises were visible on H on 23 January but the six which, so the judge found, had clearly been sustained non‑accidentally were above the right eyebrow, on the left side of the forehead, below the right eye, on the back of the left hand, under the shoulder blade and on the right thigh.  The local authority argued at the hearing in October 2006 that, having been H’s sole carer, the mother had perpetrated those six bruises.  The mother denied that she had perpetrated them and indeed denied that they had been sustained non‑accidentally.  Her case was that H was a particularly clumsy child, prone to knocking into things and accidentally bruising herself.  Both sides relied upon evidence of earlier, albeit less serious, bruising noticed upon H in the preceding months: the local authority argued that those injuries were also non‑accidental and the mother argued that they were testament to H’s propensity to suffer bruises accidentally.  

7.	In the event, by the judgment dated 21 October 2006, the judge found that the mother was a completely unreliable witness; that in about September 2005 there had been a complete breakdown in her relationship with H; that those six of the bruises visible on H on 23 January had been inflicted non‑accidentally; and indeed that they had been inflicted by the mother, probably at least in part with a hair brush or other blunt instrument.  Thus the judge found not just that H had suffered significant harm in the mother’s care but that T was likely to do so.  

8.	It follows that, by the start of the second stage of the hearing in February 2007, T had for a year again been residing with the mother under interim care orders.  There was no suggestion that he had come to any harm at her hands at any stage of his life.  

9.	It is important to note the stance of the parties in relation to T at the outset of that hearing.  It was the local authority’s care plan that T should remain placed with the mother under a full care order.  One of their senior social workers, Ms Scarpellino, had conducted an interactional assessment of her and T, which had been very largely positive; and it is clear that the local authority were reluctant to break his primary attachment with her by removal of him to the home of the grandparents.  The local authority knew that the mother still refused to accept the accuracy of the judge’s findings on 21 October but understood also that, notwithstanding her denials, she was prepared to undertake any such course of treatment as might be suggested for her.  In that regard the guardian had commissioned a report on the mother by Miss Lindon, a consultant clinical psychologist.  Her assessment of the mother was that she suffered an obsessive compulsive disorder, with narcissistic traits, and that among the symptoms of her disorder were a propensity to anger, a reduced capacity to cope with stress and an attempt to control others.  It was the view of Miss Lindon that the mother was in need of cognitive behavioural psychotherapy, in the course of which, in particular, she might be assisted to confront her conduct towards H in relation to which she remained in denial.  Unfortunately it seemed at the beginning of the second stage of the hearing unclear whether, and if so when, the mother might be able to access the cognitive behaviour therapy to which, notwithstanding her denials, she seemed in principle amenable.  To her statement dated 21 February 2007 the mother attached a letter from her GP to the effect that she did not have a condition which would meet the criteria for referral to the adult mental health services which, alone, could be the gateway to her receipt of cognitive behavioural therapy under the NHS.  It seems, however, that, when he wrote that report, the GP was unaware of Miss Lindon’s diagnosis.  Nevertheless, with that door to therapy apparently then closed and with the local authority protesting that they lacked the resources with which to purchase cognitive behavioural therapy for the mother on a fee paying basis, their proposal was, instead, that one of their own officers, namely Ms Nichols, who had some knowledge of cognitive behavioural therapy but was not a qualified therapist, should do a piece of work with the mother along the lines suggested by Miss Lindon.  

10.	At the outset of the second stage of the hearing, the mother, I understand, was in agreement with the local authority’s care plan notwithstanding that it required T’s placement with her to remain subject to a care order.  The guardian’s position, however, was extremely hesitant.  By her report dated 15 February 2007 she declared support, albeit “with reservations”, for the care plan referable to T and said that, in the light of the mother’s serious assault upon H and her continued denial of responsibility for it, T remained at risk of significant harm at her hands in the future.  The guardian wrote that the local authority would need to be extremely and regularly active in reviewing the safety of T’s placement, in particular were the mother to fail to engage in such therapy as might be offered to her or to act on such advice as might be given to her.

11.	When on 2 March 2007 the guardian entered the witness box, there was a dramatic development.  For she indicated that, in particular after having heard the evidence of Mr Bevan, the allocated social worker, and of the mother, she had changed her mind and considered that the only course safe enough for T was that he should be placed, whether under a series of interim care orders or under a full care order, with the grandparents.  She indicated that she had changed her mind notwithstanding the oral evidence of Miss Lindon that, in her view, it was just about safe enough to leave T with the mother under a care order.  The transcript of the guardian’s oral evidence shows that she had changed her mind in particular because her impression of Mr Bevan’s evidence had been that the local authority lacked confidence in their care plan and, like her, considered that it was a high risk to continue to allow T to reside with the mother, and because her impression of the mother’s evidence, had been that she (the mother) appeared to have very little insight into the needs of T.  Although the guardian had understood Mr Moat to have told the judge that the mother accepted that T was at risk, nevertheless her, the guardian’s, view of the mother’s evidence was that she did not accept that T was at risk and appeared to be ready to undergo therapy, or at least work with Miss Nichols, only because that is what she understood to be required of her as a precondition to being allowed to continue to care for T.

12.	Insofar as the judge had any aspiration to complete the proceedings on 2 March, it evaporated upon his receipt of the guardian’s oral evidence.  Instead he adjourned the matter until 12 March, inviting a swift response by Miss Lindon and Miss Scarpellino to the guardian’s changed stance and indicating that it might or might not be practicable to complete the proceedings even on that day.  In the event the proceedings were completed on 12 March only in relation to H in the manner in which I have described.  In relation to T, the hearing was adjourned to dates in June.  

13.	In the event, the local authority decided, on balance, not to alter their care plan in the light of the alteration of the stance of the guardian.  The local authority seem largely to have proceeded by reference to the view of Miss Scarpellino, expressed in a supplemental report dated 13 March 2007, as follows:  

“I am in agreement with my social work colleagues that [T] remain in [his mother’s] care, but also share their concerns that this is a high risk strategy.  However based on the available evidence, and on balance, I think it would have a less deleterious impact upon [T] to remain with his mother, with an appropriate package of support, than to separate him and precipitate his confusion and distress, and potentially damage the attachment he has made to her.”

Miss Lindon’s reaction to the guardian’s changed stance had been articulated in a further report dated 3 May 2007; in it Miss Lindon stated that, by a narrow margin, she also had changed her mind and now agreed with the guardian.  Nevertheless, on 8 June, Miss Lindon also -- for the second time -- gave oral evidence.  To that evidence I will return for upon it Mr Moat on behalf of the mother founds his primary ground of appeal.  

14.	In his judgment handed down on 18 June the judge, having surveyed the history at length and the different approaches which he understood to have been taken by the professionals, both initially and ultimately, to what had all conceded to be a very difficult decision, the judge articulated his conclusion as follows:

“…I am bound to say that on balance the risks presented by the Mother here are too high for me to allow a placement with Mother to continue….[She] is unable to accept not just the findings of this court but the evidence upon which that is based; two paediatricians, the school evidence, the psychological assessments by Miss Lindon and most of all the evidence form her own daughter’s lips.  Somebody whose response to the situation that she has created in this case is to pretend that it has not happened.  The Guardian is criticised for changing her mind here.  I do not share that criticism.  If you read the Guardian’s main report it is very clear that the Guardian was very close to her current position even in her previous report as was Miss Lindon…I accept that it would be difficult removing [T] at this time.  However, the removal is to a known, trusted and loved figure, the Grandmother, where I know [T] will be safe.  Unfortunately at this moment on the balance of probabilities I am not convinced that [T] will be safe with his Mother.  My previous findings and all of the evidence points in that direction.  If the Mother engages with therapists and shows some degree of movement and realisation about the situation that she is in, the position may change in the future.  I do not criticise the Local Authority for the judgment that they made in this case which was couched as a high risk strategy but I do say this.  Having heard this case it is a risk that I am not prepared to take.  In those circumstances I am going to adjourn this matter for a short period of time on the basis of an Interim Care Order and I am going to ask the Local Authority to reassess their position in the light of this judgment.  My preferred option in this case would be for a Care Order and a placement under those auspices with the Grandmother but there are other options which, if forced to it, I can take.”

15.	Agreement was reached on that day, Monday 18 June, that T and the mother would forthwith go together to stay at the home of the grandparents; that they would remain there together at least until the conclusion of the further hearing before the judge on Friday 22 June; that in the interim the mother should not have contact with T other than under the supervision of the grandparents; and that in the light of the judgment the local authority should consider their position and file an amended care plan if so advised.  

16.	The local authority’s revised care plan represents good evidence of the sort of collaboration between courts and local authorities which is so much in the interests of children at the heart of these cases and which is now so prevalent.  For the local authority decided to re‑write their care plan in order to follow the decision as to T’s best interests which the judge had reached.  The revised plan, dated 21 June, was that the mother should leave the home of the grandparents on 23 June; that thereupon the grandparents should become the primary carers of T; that, in that his primary attachment was to the mother, his placement with the grandparents would be difficult and would need careful management; that the mother should undertake the proposed work with Miss Nichols; that all attempts should be made, including in particular by themselves, to procure access for the mother to psychotherapy under the NHS; that they would expect the mother to be undertaking such therapy within eight months; that, were progress in that area to have been made, rehabilitation of T to the mother’s care would be considered; and that T should have continuing contact not only with H but also with the mother, probably to be overseen by the grandparents.  

17.	Accordingly the local authority enabled the judge, on 22 June, to make the orders which he had indicated as optimum, namely a full care order upon a plan for T’s placement with the grandparents.  

18.	The mother’s main ground of appeal, most attractively articulated this afternoon by Mr Moat, is that the judge seriously misunderstood the effect of the oral evidence of Miss Lindon given in the course of her second visit to the witness box, namely on 8 June.  In this regard the judge said:

“In her second piece of oral evidence to me Miss Lindon took the view that having read the transcripts and considered the case again, she was now of the view that [T] should be removed from his Mother although again she made it very clear that this was a finely balanced decision.  She stressed the need for proper cognitive behavioural therapy to take place and was concerned that the Local Authority’s social worker was not a skilled cognitive behavioural therapist and that her intervention might actually make the position more difficult.  Again she voiced her concerns about the lack of change in the Mother and, as she saw it, lack of capacity to change and the potential damage that this set in store for [T] not just in terms of physical injury but emotional harm because of the make-up of the Mother’s personality and her inability to come to terms with what she had done.  She did make it very clear that she was now supporting the Guardian’s position.”

Mr Moat’s primary complaint is that that passage does not accurately or      adequately summarise Miss Lindon’s ultimate position.  

19.	In examination in chief on the part of counsel for T on 8 June, Miss Lindon had said:

“What I am saying is that I still think it is a very finely balanced issue.  I have not really changed my position in terms of what I said in evidence last time, except to say that having read the transcript [of the mother’s evidence given on 1 March] I was very concerned because I had hoped that the mother would have taken on board what she heard in evidence, and her position might have shifted slightly.  But it seems from what I read that nothing has fundamentally changed, even to the extent that she was saying that she did not need any therapy.  Now having heard this afternoon that she intends to engage in group therapy, she is seeing a counsellor, I am just wondering whether or not things have moved along a bit.”

During his own cross‑examination of Miss Lindon, upon which today Mr Moat strongly relies, he asked the following question:

“…would you agree that before a decision is made in this case, given the delay, in particular we have had since 12 March, when I think we were told that therapy was going to start within weeks, that it would be preferable to have that answer before making a final decision about moving [T] from his mother?”

   To that question, Miss Lindon answered:

“Yes.  My answer to that is yes, because when I wrote my report I was not aware that she was going to involve herself.  I really genuinely thought she would not.  But it looks as if she is going to, and the delay for [T] is not going to have any real negative impact on him.”

Thereupon Mr Moat sought to hammer the apparent concession home.  He      did so with the following question:

“Well, I think, Miss Lindon, we seem to be in agreement that if we are going to give this therapy a chance, after six sessions we will know from the therapist whether she feels that the mother is engaging, you agree that that would be the right time … to make a decision about any removal of [T].”

   To this Miss Lindon replied: 

“I think so.”  

20.	Mr Moat therefore submits to us that, contrary to the stance ascribed to her by the judge, namely, that she had ultimately made it “very clear” that she was now supporting the guardian’s position, it was the ultimate position of Miss Lindon that, before any decision was made to move T to the grandparents, the initial results of the mother’s intended imminent embarkation upon therapy should be reviewed.  

21.	Insofar, however, as Miss Lindon’s evidence seemed until that point to have wavered, the wavering appeared, in my respectful view, to be even more acute by the end of the questions delivered to her by the other advocates on 8 June.  My lord, Dyson LJ, for example, has drawn our attention to one of the few questions put to her by counsel for the father.  He said:

“There is obviously a difference between engaging in therapy in terms of going to therapy because you want to have full care of [T] and you want to do what is right in the proceedings, but if she continues to deny the deliberate, as you put there, deliberate physical harm to [H], then no amount of therapy is really going to make any difference.  Is that right?”

Miss Lindon’s answer was:

“Well, then I would think that the therapist would come to the conclusion that she is not engaging in therapy and there is no point in continuing.”

In the light of the fact that the mother had indeed made clear in her evidence on 28 February that she continued to deny the harm that the judge had found that she had inflicted upon H and that, in effect, she was offering to go to therapy only because that seemed to be the requisite avenue for her to achieve the retention of T’s care, Miss Lindon was by that answer clearly giving the thumbs down to the likely success of therapy.  

22.	But matters did not end there.  For the next advocate to cross‑examine Miss Lindon was Mr Norton on behalf of the local authority; and he asked the following question:

“I think in response to questions on behalf of the mother you might be saying it may be a little premature to move [T] at this stage.  But looking at paragraph 8 … you say that it is a difficult balance to determine whether or not [T] should remain in the care of his mother or whether he should be placed with the maternal grandmother while [the mother] undergoes therapy, if she will.  You say on balance he should be placed with the maternal grandmother.  Are you indicating by that that it is a temporary placement of [T] with maternal grandmother with an expected move back if mother engages in therapy successfully?”

To that question Miss Lindon responded:

“That was what I envisaged when I wrote this, yes.  That he could be with his grandmother, I really do think without too much trauma, or any trauma for [T], because the attachment will not be disrupted, that he could be with her and [the mother] would be able to engage, or not, in therapy …”

Mr Moat has, of course, to submit in relation to that answer that it was an exposition by Miss Lindon of the view that she had taken when she signed her supplemental report in May 2007 and was not a view which she was currently putting forward as optimum.  Had his submission been valid, she could have made her position in that regard much clearer.  

23.	But, so it seems to me, the confusion about Miss Lindon’s ultimate recommendation was ultimately clarified during the re‑examination conducted by Miss James on behalf of T.  For her first question was:

“Mr Moat had put it to you that if mother was undergoing this work with [Miss] Nichols, that [Miss] Nichols would report back in six weeks as to whether she is engaging in that work.  Now that you are more clear about what is being offered, that it is social work with a CBT background, does that revise your view that in six weeks we could know whether [T] should be removed at that stage, and make a decision then, rather than now?”

    To this Miss Lindon answered:

“No.  That becomes irrelevant because what I was talking about was six weeks of whether or not she had engaged in therapy or not.  That is something quite different.”

24.	In my view therefore it was, by the end of her oral evidence, tolerably clear that Miss Lindon’s suggestion that T should not be removed until the outcome of initial sessions of therapy was not an acceptance that he should not be removed until the outcome of the initial sessions of work with Miss Nichols, which was not psychotherapy and which was all that was then on offer to the mother.  Accordingly, to the extent to which it matters, I believe that the ultimate, clearly borderline, recommendation of Miss Lindon was indeed, as the judge recorded, in line with the recommendation of the guardian, namely for immediate removal.  Be that as it may, I do not think that any garbling of Miss Lindon’s evidence by the judge, of which I do not accept that he was guilty (even though I could not subscribe to his analysis that Miss Lindon had made her ultimate position “very clear”) would affect the validity of his decision.  On any view Miss Lindon, like all the other professionals, regarded the decision as on the edge; and it was for the judge to identify the side of the edge upon which, in T’s interests, the decision should fall.  

25.	Mr Moat has a second ground of appeal, namely that the judge failed to weigh the evidence of Miss Scarpellino as to the secure attachment between mother and son which, in her view, on balance militated against a move at that stage.  My view is that the judge may be seen, both by his comments during the evidence, as transcribed, and, in particular, in his judgment, at pages both nine and ten, to have had that evidence well in mind.  Indeed it was primarily that evidence which made the decision so difficult; and I do not subscribe to Mr Moat’s complaint that, in order to make his decision impermeable against appeal in this court, the judge needed to be clearer as to why he ultimately came to the view that the safety of T overrode his attachment with the mother.

26.	This afternoon Mr Moat has not canvassed other grounds of appeal lightly touched upon in his written grounds, such as that the judge might have favoured a series of interim care orders rather than a care order, a complaint to which I myself could not have subscribed within any analysis of this discretionary disposal on the part of the judge.  It follows that I would not uphold either of the complaints pressed upon this court by Mr Moat and would dismiss the appeal.  

27.	It might be worthwhile to add a footnote, namely that this afternoon we have been told that, unfortunately, the proposed work with Miss Nichols has hardly begun; indeed that, apart from one session on 26 September, there has been no work done by Miss Nichols with the mother since the orders dated 22 June; but that it is now proposed that there should be a fairly intensive piece of work on her part with the mother on four occasions over the next four weeks.  There are dramatically different versions as to why that work has not proceeded; the mother denies the local authority’s contentions that, particularly in July 2007, she indicated in effect that she was not interested in pursuing the work with Miss Nichols.  So that issue lies entirely unresolved; perhaps it need never be resolved.  One should very much hope that that work has a benign effect; and, perhaps more significantly, that proper cognitive behavioural therapy may now at last be made available to the mother under the National Health Service.  Assessment for it is due to begin on 16 October and one hopes that it starts, continues and has favourable results, enabling movement into full therapeutic mode.  I do not forget that the amended care plan of the local authority, endorsed by the judge on 22 June, was that very active reconsideration of T’s placement with the grandparents should take place in the event that, within a reasonable time-frame, real progress should be seen to have been made by the mother on such fronts.  

28.	At all events I would dismiss the appeal.

Lord Justice Dyson:  

29.	I agree.

Lord Justice Thorpe:  

30.	I also agree.

Order: Appeal dismissed