Neutral Citation Number: [2010] EWCC 53 (Fam)

In the County Court

Before:
HHJ X
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Between:

	Local Authority X	Applicant	
	And		
	A Mother	1st Respondent	
	And		

			

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Hearing dates: 18 October 2010

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WRITTEN REASONS

The written reasons are being distributed on the strict understanding that in any report, no person may be identified by name or location (Other than a person identified by name in the reasons themselves) and that in particular the anonymity of the children and the adult members of their family must be strictly preserved

Judgement
1.	
	This is the Local Authority’s application of 24th June 2009 for a care order in respect of O, who celebrated her 15th birthday just two days ago.  O’s mother is CC.  Her father is unknown to the Court and has not played any active part in these proceedings, although mother revealed today that she has been in touch with him and/or his wider family in relation to issues concerning O.	
2.		O and her mother came to England in 2005.  Mother established a relationship with Mr S and gave birth to E.  Both children were placed on the Child Protection Register in 2007 under the category of “Neglect” associated with issues of domestic violence between mother and Mr S.  Mother moved to (name given) in February of 2008 and the children’s registration was then cancelled.  Issues of concern then arose from December 2008 onwards as a result of O making disclosures which medical professionals and others considered consistent with non-accidental causation.  O was accommodated with mother’s agreement from December 2008 until June 2009.	
3.		On 9th June, mother withheld her consent for O to undergo an MRI scan, which O’s doctors considered to be essential in the investigation of symptoms that she revealed, because of her underlying condition of sickle cell disease.  That is a disease which places the body’s essential organs under threat. She has suffered from it since birth.  She is prescribed regular penicillin and folic acid, and such is the condition that prompt and appropriate response is necessary to any symptoms she may manifest.  The evidence is clear that mother withheld consent because she had little or no confidence in the doctor then treating O.  	
4.		This is what prompted the application on 24th June, and it became the single basis for what was an agreed threshold consideration in this case in June 2010.  The Court found then that that refusal by mother to co-operate in O’s medical treatment was a sufficient basis and that the threshold requirement under section 31 of the Children Act 1989 was established. 	
5.		In the course of investigation of the matter, Dr M prepared two reports.  Her first, an assessment of both mother and O, was undertaken in the late summer of 2009.  Her report is dated 2nd September.  In that, she concluded as follows:
“Miss C demonstrated minimal and insecure attachment to her family of origin, consistent with trauma, poor nurturance and limited emotional development in childhood.”
She said as well:
“Miss C’s intense pseudo control of her adult environment provides her with a false sense of control and stability.  However, this masks her vulnerability.  When this compensatory control is challenged, she uses aggression to protect her vulnerability and attempts to regain her sense of stability.  Miss C is insecurely attached to O in a highly controlling relationship.”
And of O, Dr M said this:
“O demonstrated insecure attachment to her mother consistent with her mother’s attachment style and the previous allegations of verbal and physical abuse.  Her mother’s controlling and volatile behaviour and lack of appropriate nurturance has limited O’s emotional development.  She displays hostility, defensiveness and denial in a similar way to her mother, demonstrating the negative impact of Miss C’s parenting style.”	
6.		Mother took issue with those conclusions, and that led to Dr M being instructed to undertake a second report, one in which she was then able to complete tests of mother’s intellectual functioning.  In that second report, dated 1st April 2010, Dr M reached these conclusions.  She said:
“Miss C’s portrayal of her family of origin indicated insecure avoidant attachment consistent with poor nurturance and limited experience of appropriate emotional care in early life.”
I pause to observe that that is much the same, if not identical, to her original conclusion.  She also said:
“Miss C’s intense pseudo control of her adult environment provides her with a false sense of control and stability, thereby serving to mask her vulnerability.”
That, again, is largely a repetition of what she had said earlier.  She went on:
“When this compensatory control is challenged, Miss C uses aggression in an attempt to regain her sense of stability and maintain protection of her vulnerability.  Miss C is highly controlling and insecure, traits which also characterise her relationship with O.  In light of this and the allegations made against Miss C with regard to her aggression and previous abuse of O, there are concerns regarding Miss C’s ability to provide consistent and appropriate parenting for O.”	
7.		Mother, unsurprisingly, does not accept that analysis.  She still challenges it.  She says that Dr M is wrong because she has taken into account things which she should not have and she has failed to take into account things which she should have.  The essence of what mother is saying is that this analysis by Dr M is therefore skewed. It is wrong and unreliable.	
8.		Miss T, who has made every submission she could today with skill, has advanced a number of issues which she says contribute to these  erroneous conclusions on Dr M’s part: 
the reliance upon allegations of physical abuse which remain unproved, not having been pursued as a basis for threshold; 
a failure to take account of O’s own unreliability in the past; 
a failure to take proper account of the history of the care which mother provided in France;
 a failure to factor in what are inconsistencies or invalidities in the scores obtained for mother in the course of tests of her intellectual functioning; 
a failure to take into account contradictions which are identified between some of the contact recordings revealing an emotional warmth between mother and O and her own assessment of mother as aggressive and controlling.  
a failure to take into account mother’s language difficulties leading to a false conclusion about mother’s propensity for being manipulative. 
a failure to factor into her reasoning the life long effects of the existence of O’s sickle cell disease.  	
9.	-	It is necessary, because of the extent of those objections and their impact upon what is an important aspect of the evidence in the case, to consider those issues in a little detail.  In the first place, I repeat the observation made this morning when I refused the application for an adjournment. That is that, in her conclusions, Dr M, although dealing with the position conjunctively, has taken into account all of her observations and findings about mother on the one hand and the previous abuse alleged on the other.  She has not in any sense, in my judgment and in my reading of her reports, rolled these together so that the basis for her conclusions are the disputed factual allegations.  	
10.		The second point in this respect is that, in dealing with the previous report and mother’s objections to it, Dr M is clearly aware of mother’s denials and of why she said that the report was flawed.  That further reinforces my understanding of what she is saying.  It would indeed be bizarre if, having been made aware of that, Dr M then proceeded to premiss all of her findings upon a known flawed basis. In dealing with it, it is clear from the analysis at paragraphs 21 and 22 of her report that she has a clear distinction in her mind between her own clinical analysis and what it is that mother was saying about this.  She said by reference to mother’s own explanation about the inadequacies of and the failure to complete the earlier assessment that she blamed Mr S and the Local Authority entirely for it.  She said she was pregnant and that it was through pressure and fear and such factors that she was unable to participate fully and adequately in that assessment.  It is a dramatic explanation in its own right, but what Dr M says about it is this:
“Miss C’s explanations regarding the reasons for her behaviour during the last assessment are consistent with her defensiveness and inability to accept responsibility for her own actions.”
And then critically:
“It is possible that her account of the events leading up to our previous assessment is accurate.”
In other words, she actually contemplates the accuracy of what mother was saying by way of explanation, but goes on to say, if so, then her behaviour during the assessment further demonstrates Miss C’s reaction when her pseudo control is challenged.  
“The situation that Miss C describes herself to have been in prior to and during the assessment is one in which her sense of control will be limited, thereby prompting her attempts to regain internal stability, through aggression and dominance.  This was demonstrated in her behaviour during assessment and is consistent with her high need of control.”
That is not an instance of Dr M making an analysis on the basis of a false assumption, but one of actually contemplating the truth of what mother had said about that.	
11.		At the core of her report, and probably its most important constituent element, is what is said about mother’s emotional functioning.  It is that aspect of it which has the critical impact and major significance both upon mother’s ability to parent O adequately and upon her personal interrelationship with O.  Looking briefly at that demonstrates to me quite clearly that this is not in fact a report premised on these false assumptions, but on diagnostic criteria the subject of clinical analysis undertaken by Dr M in the course of an extensive assessment.  	
12.		I will not leave it at that level of generality because it is of a major concern, of course, to mother.  Dr M has examined various constituent elements in mother’s emotional functioning and has said:
“[Mother] has poor emotional functioning, compensating for this through over control of her environment and others.”
She says that mother deals with denial at a high level in relation to her childhood and she contrasts this with the previous assessment, where there was a negative portrayal of mother and a positive portrayal in the second.  She said the same thing in relation to the portrayal of mother’s step father between the two assessments, observing that mother had said that the revelation that her step father was not her birth father when she was just seven had no impact at all.  That is nothing to do with the factual allegations which have remained untried in this case.  That is exclusively to do with the analysis during assessment.  Miss C demonstrates in paragraph 7 of her report the variations in the portrayal of her own mother.  All of the material in relation to that came from one source, and that was mother alone.	
13.		In terms of minimisation and image management, Dr M said there was also evidence in her responses and related them to her experience and expression of anger.  She explains this and correlates it with the conviction mother has for assault and says, tellingly, that additionally O has made allegations regarding mother’s physical and verbal abuse.  That shows quite clearly to me that O’s allegations and those untried, untested factual allegations were not the basis of that analysis.  She refers to mother’s intense compensatory control and she does so by reference by what mother said in the previous assessment about occupying a ‘self-contained square’.  Likewise in relation to her defensiveness, denial and minimisation, the Doctor’s conclusions were that these were apparent in her responses.  She had a low score for openness.	
14.		In terms of the attachment to O and the conclusion that she had demonstrated an insecure and controlling attachment consistent with her own style, this, again, is clearly based upon what mother revealed and demonstrated during assessment in terms of portraying an unrealistic relationship with O, consisting of an extreme number of positive feelings in the absence of any negative feelings.  	
15.		Those are not exhaustive examples, but they serve to demonstrate, to my mind clearly, that the suggestion that this report is flawed because of what it has taken into account is not made out.  Those aspects which I have identified from the second report feed into the conclusions Dr M reaches in relation to mother’s attachment with O and in relation to her ability to parent O adequately as well as other aspects, particularly relating to mother’s relationship with other professionals.  Those conclusions all have their origin in the analysis and what mother said and revealed, as well as what Dr M was told in the course of her instructions.  They are, in my judgment, a reliable and soundly based set of conclusions.  Conversely, there is nothing to persuade me that they should be rejected on the basis that, had she not taken into account irrelevant, unproved and controversial considerations (which I do not believe she has), the outcome would be different.	
16.		I turn, therefore, to what it is that should happen to O, reminding myself that her welfare is the Court’s paramount consideration and that I must take into account all of the circumstances of the case, including the criteria specified in section 1 of the Children Act referred to commonly as the “welfare checklist”.  Of those, it is acknowledged by everybody, for obvious reasons, that the child’s ascertainable wishes and feelings are of very considerable significance in this case.  I reiterate that the conclusion is not driven by what O says.  The Court will not follow slavishly what O or anyone else says and will reach its own independent judgment about her future.  But, in the case of a 15 year old young lady, because that is the stage of life she has now reached, as a matter of commonsense alone, it is bound to be the case that her wishes are an important factor.  Mother herself recognised that today, when she said in these terms that, if she believed that O wanted to stay where she is and would be happy in her foster placement, that is where she should stay.	
17.		The fundamental disagreement in this case is about the interpretation of what it is that O has said.  She has repeatedly told the Guardian that she wishes to remain in her foster placement.  She has been in a number of placements, but her current placement began in September 2009.  It is clear, and I accept from the Guardian’s detailed professional analysis of it, that she has settled well into that placement.  She is happy in that placement and she has said to the Guardian that she wishes to continue to live where she is.	
18.		Mother challenges this on the basis that she has been told repeatedly by O that she wishes to return home.  The explanation for this is that O has been shown in the past to say what it is that she either feels pressurised into saying or what it is that she perceives other people want her to say.  So in addressing what O’s ascertainable wishes really are, mother is saying it is too dichotomous simply to say that her views are right or wrong. There is much more to this.	
19.		In my judgment, O’s views are crystal clear in this case.  She has expressed them to the Court as well as to the Guardian.  I have no doubt in my mind that the Guardian expresses accurately what it is that O is saying and I have no doubt also that what she is saying does truly represent her current wishes and feelings in this case.  The reasons I come to that conclusion are these.   	
20.		A fundamental aspect of mother’s case is that O is inherently unreliable, because of what she has said and done about things in the past, and that she has been, in effect, forced through the pressure of the circumstances in which she finds herself to say what she is supposed to say.  The point is made to the Guardian, that from day one, that is to say from the date of her original analysis, her view has always been that O should remain in the foster placement.  That culminated in her final concluded position shortly before this case was listed for final hearing in August in the view that that is where O should now live permanently.  	
21.		Is mother right about that?  In my view, she is self-evidently wrong about that, because that simply is not what O has been saying in the course of this case.  She has told the Guardian, I accept, at different stages up until April of this year that she did not want to stay in her foster placement and, indeed, wanted to go home.  In July 2009, she signed a forceful and quite emphatic statement in which she said, contrary to what the Guardian was suggesting, that she wanted to go home.  In January 2010, a further statement was prepared on her behalf.  I have not seen a signed copy and suspect that none was ever signed, but I can draw a fair inference from what I have seen in the form of an unsigned, typed statement that the reason that it was typed and prepared was that O was telling a solicitor at the time that she wanted to go home. What she said in the draft of that statement was: “I want to go home as soon as possible.”  That completely contradicts the notion that the Court should see her current expression of her wishes as undermined by this unreliability through being pressurised into conforming with the views of the Guardian.  Until April, she was forcefully, emphatically and assertively at odds with the Guardian.	
22.		The second reason is that Mrs X, as a child’s Guardian, has had extensive involvement with O at various stages throughout the proceedings.  She has huge experience as a Guardian and, in my judgment, would be a very reliable source of evidence about a child’s true wishes.  She is well used to penetrating superficial expressions by children of all ages.  As a generality, that would be a more difficult exercise, in my view, with a younger child than it would be in the case of a 15 year old.  But, even if that is not so, the capacity of this young girl to generate a display of what appears to a very experienced Guardian to be genuine distress, anxiety and worry about an issue such as this, to fool her into thinking that she wanted to do one thing when her true wishes lay in another direction, is almost inconceivable.  Mrs X would have known the truth of that and seen through O’s masquerade.  It is much more likely that when Mrs X has come to the conclusion that these are real expressions of real worry and anxiety, that that is exactly what they are.  That supports the view that this is an expression of true wishes and feelings.	
23.		The third reason is that O has expressed her view to the Court.  I have had the opportunity of seeing O face to face and she of seeing me face to face and of telling me what her wishes are.  Those are recorded in a short minute which I prepared immediately following my meeting with her in August.  If her expressions did not truly reflect her wishes and if what she was doing was acting out a performance with me and with the Guardian, then she was equally convincing before me as well.  I saw nothing to detect within her any equivocation and nothing to suggestion that she was telling me anything other than what she wanted to say.  	
24.		Just as importantly as that point is an understanding of how it is that O came to see me in the first place.  She came to see the judge in her case because that is what she wanted to do.  She wanted to do it to be sure and to know for herself that what she was saying was being communicated to me.  She needed and wanted to know that I had listened to what was being said on her behalf and favoured telling me herself face to face to avoid any breakdown that she might have perceived there being in communication.  She was nervous coming to Court.  She found it a demanding experience.  The background to her coming and the way in which she came and explained herself is fundamentally inconsistent with the idea that this is somebody saying what she thinks somebody else wants to hear.  It is also fundamentally inconsistent with the notion that she has been pressurised through the circumstances she finds herself in to saying inaccurate things.  Far from that, she put herself in this position to want to come and speak to the Court.  That was of her own initiative, no one else’s, and was a response to the pressure she was in and cannot be explained by any suggestion that she was reacting to her position and wanting to tell me what she may have imagined I wanted to hear.	
25.		Fourthly, recent events raise very strongly, in my view, the spectre that there is a reason for O’s current anxiety.  I mention two aspects of the evidence which have not been explored or pursued in detail.  The one is that mother has been saying things to O about what will happen if she does not say she should come home.  I have no doubt in my mind that what Mrs X has told me about that, in other words what she says has been reported to her, is true.  In my judgment, those reports are true.  So too are the reports to Mrs X about Lord H’s involvement.  	
26.		It is not necessary in this case to undertake an extensive factual investigation of those issues, but the Court knows enough about them to come to this conclusion.  It is almost inconceivable, in my mind, that Lord H became involved in the way he has, with a telephone conversation with O so shortly before the final hearing, other than at mother’s instigation.  This is no coincidence.  The probability is, although it hearsay before me – so much is in this jurisdiction – that if O said to the Guardian that Lord H had said he was “on the case” and that she would “ be coming home soon”, she says it because that is exactly what she was told.  What it indicates is mother’s tendency here to attempt to influence O’s position about this, which itself further indicates that she too knows that O is saying something entirely different now from what she has been saying before.  That is why mother has sought to influence O into changing her view, putting pressure on her not to explain the real view she has but actually to change the real view she has.	
27.		Therefore, I am satisfied that it is overwhelmingly the case, on the basis of the evidence that I have heard, that O’s real wishes and feelings – and they are very strong wishes and feelings – at the moment are that she should stay in her current placement.  	
28.		I deal with the other criteria briefly in these terms.  There is no issue here about O’s physical, emotional and educational needs.  She has precious little left of her childhood.  She has discrete physical needs relating to her sickle cell disease: acutely the need for someone to remain alert, be responsive, compliant and co-operative if and when intervention is needed.  	
29.		The likely effect of a change of circumstances on her would be, in my view, as follows.  Were she to return home to mother, she would be at risk of the fall out of a dysfunctional relationship between them.  She would have to live with all of the anxieties, possibly the resentment, of having to do in her life something which is emphatically different from what she wants.  	
30.		O would as well, in my judgment, remain at some risk in relation to her sickle cell disease.  I acknowledge that this Court has not investigated the child’s history when in France, nor all of the medical records, but in one sense that is misleading in terms of her future welfare.  When such a crisis arose in June 2009, and when O was placed, as she was in my view, at such a potential risk at that time, the fact that it had not happened before is of little comfort.  When looking at her future, the fact that there was this fundamental difficulty in June 2009 is of much more immediate significance than what had happened before.  There is evidence, which again has not been explored in detail but which suggests to me that mother may have greater confidence in French medicine than she does in the treatment available to O here.  If this demonstrates a real lack of confidence in O’s continuing treatment, that of itself represents a potential risk that, in my view, she would remain subject to harm if returned to her mother.	
31.		Her age, sex and background and other characteristics are covered by everything that has been said already.  She is 15.  We know about her illness and there are no cultural issues directly relevant to outcome and her origins and French background are known to the Court.	
32.		Likewise, the harm which she has suffered or is at risk of suffering has been dealt with by what I have already observed.  The risk of harm is both to her emotional welfare and arising out of her sickle cell disease.	
33.		The capability of mother as the only relevant parent here has also been addressed by reference to what I have said in relation to Dr M’s reports and mother’s approach towards the medical treatment.  I find that Dr M’s reports are a substantial and reliable basis for saying in this case that there are very real questions over mother’s ability to meet O’s emotional needs currently and a question mark about how she would respond to her discrete physical needs.	
34.		In terms of the range of orders the Court could make, it could make no order, a care order or some lesser intermediate order.  In my judgment, having considered those parameters and the possibilities in between, the conclusion I have come to is that it is essential that the Local Authority share parental responsibility in this case.  No order of a lesser nature will suffice to meet O’s needs for protection.  In my judgment, the major influential factor, when considered alongside the risks of harm to her, are her wishes and feelings.  Indeed, if she had not expressed those wishes and feelings and expressed contrary wishes and feelings here, this is a case in which the Court could face a very real dilemma and so could everyone involved in her life.  I have come to the conclusion that this Court does need to listen very closely to what this child is saying, not to kowtow to her wishes, but to configure an outcome here that is appropriate in terms of her welfare and is one that will not only meet her needs for the rest of her minority but will also have realistic and clear prospects of working for her.  The alternative of the Court rejecting those clear and unequivocal wishes about her own life and not doing anything responsive to them would, in my judgment, be an abrogation of the Court’s duty and responsibilities towards O.	
35.		This is a case where her welfare is consistent with one outcome only, in my view, and that is that she should continue in her foster placement, taking advantage of all of the benefits which she has derived from it since September 2009.  I approve the care plan subject to any other observations there may be or any fine tuning necessary to reflect, so far as we can, what was discussed about the issue of contact between O and E and in the hope too that, now that this point has been reached in O’s life, the trauma of the past two years can be put behind her and she can begin to build not just her own adult personality but a newly configured relationship with her mother as well.  	
36.		In my view, given what I have identified in relation to the child’s needs, her wishes and mother’s inability to meet those needs, this is a necessary interference in the life of O and mother.  It is a proportionate step to take in pursuit of a legitimate objective, which is O’s welfare.  It is as well, in my judgment, the least intrusive method of achieving that legitimate objective