S & H-S (Children)

This appeal relates to a care order made on 21 December 2017 by Her Honour Judge Lynch with respect to a young girl who was then aged 2 ¾ years. The narrow, but plainly important, issue in the appeal solely relates to the judge’s finding that the threshold criteria in Children Act 1989 [CA 1989], s 31 were satisfied with respect to L.

The background to the proceedings is complicated firstly by the fact that L is one of a family of 3 children, with 2 older siblings aged 9 and 6 years at the time of the hearing and, secondly, by the fact that these proceedings followed earlier care proceedings issued in May 2015 and concluded in July 2016.

The Appellant is the children’s mother and the focus of the appeal is upon her relationship with the children, and particularly L, who is the sole subject of the appeal proceedings. Following her birth L lived with her two parents and the elder two children for some two months prior to being removed from her parents’ care at that stage following discovery that she had sustained a fracture to her left femur. By the direction of the court, she was returned to her mother’s sole care in about March 2016 and she remained there, subsequently subject to a supervision order made at the conclusion of the first care proceedings in July 2016, until her removal in March 2017 when the second set of care proceedings was instituted as a result of allegations that one or both of the two older children had been assaulted by their father.

Finally, by way of introduction to the issue under appeal, HHJ Lynch, who was the judge with respect to both sets of care proceedings, found the CA 1989, s 31 threshold criteria satisfied with respect to the mother’s care of L on the basis that L was suffering, and was likely to suffer, significant emotional harm.

In the course of the 2015/2016 care proceedings the judge made factual findings under the following three headings:

That the two older children had suffered emotional harm arising out of the significant domestic violence in the relationship between their parents (i.e their father, not the mother’s subsequent partner who is the father of L);

L had suffered significant physical harm when she sustained a fractured femur, but this fracture was caused accidentally by her father. The father, nevertheless, failed to obtain prompt medical treatment thereby exposing the child unnecessarily to prolonged pain and distress and failing to meet her emotional needs;

All three children had suffered significant harm through neglect of their emotional and developmental needs, at times, although not exclusively, arising out of the drug use of the mother and L’s father. The older children had been harmed by inconsistent school and nursery attendance. The mother’s use of drugs when under stress put the children at risk of significant harm and they were likely to suffer significant harm of that nature in the future.

At the conclusion of the 2016 proceedings, the two older children went to live with their father and L continued to live, alone, with her mother under a supervision order. She was also regarded as “a child in need”, by the local authority and a range of modest support services were provided.

The 2017 proceedings were commenced following allegations made by the mother that the two older children had reported being physically assaulted by their father, with whom they were living. The proceedings commenced on the 9 March 2017 and that date, therefore, is the relevant date for the consideration for the threshold criteria with respect to all three children, and particularly L.

Partly on the basis of the mother’s allegations and partly on the basis that these were supported, in part, by what had been said by the two older children, the local authority prosecuted findings of fact with respect to physical harm against their father. In addition, allegations of emotional harm to all three children were made.

The hearing before Judge Lynch took place over the course of three weeks in December 2017. The Judge issued a reserved judgment which was circulated to the parties ready for handing down on the 21^st December.

A substantial part of the judgment, 24 of the 56 pages, is taken up with the judge’s review of the evidence relating to the allegations of physical harm. The judge’s ultimate conclusion was that the older children’s father had chastised them by slapping them on their bottoms and legs, but that this did not cause them any injury and that such bruising that may have been seen on them was likely to have been caused accidentally in play or by the children fighting with each other. The father’s discipline did not constitute over-chastisement. On that basis, therefore, the judge declined to make any threshold findings against the father.

In the course of her evaluation the judge concluded that the mother held the strong view that these two children should be back in her care and that she had been unable to hide those views from the children when she spent time with them. Whilst the judge found that the mother had not deliberately caused the children to lie or exaggerate, her reaction to their complaints will have encouraged them to speak negatively of their father. Further, the judge expressly found that the mother had, herself, deliberately lied in order to bolster the accounts given by the children.

The remainder of the judgment focussed upon the local authority’s assertion that each of the three children was being caused significant emotional harm as a result of the mother’s emotional personality.

Although none of the three categories of finding made in the 2015/6 proceedings related directly to the mother’s personality, the court in those earlier proceedings had had evidence of the mother’s emotional functioning from a clinical psychologist who had described the mother (on the judge’s description) as “an emotionally reactive person, crying frequently with relatively little provocation, and that she presented all information with a positive bias”. She was said to be prone to give “highly reactive emotional responses” and was at times “cognitively dysregulated”. The judge held that this accorded with her own, lay, description of the mother as “a drama queen”.

In the closing stages of a judgment given on 11 November 2015, although not directly relevant to the findings of fact relating to the threshold criteria, the judge went on to draw conclusions on the evidence of the mother’s psychological health that had been presented to the court by that stage and, of course, from the judge’s direct exposure to the mother during the hearing. At paragraph 122 the judge said this:

The judge then records that the psychologist’s description fits the judge’s own impression of the mother as being “someone with highly reactive emotional responses, having difficulties with episodic depression, anxiety and irritability, who experienced relationships in a way which may be chaotic, intense and marked with difficulties, but then found it extremely hard to let go of relationships.”

Having cautioned herself that, as the mother was pregnant at the time of the assessment and as the clinical psychologist was not medically qualified, those factors may mean that the court would not rely upon a formal diagnosis of “personality disorder”, the judge went on to hold that that diagnosis fitted entirely with the judge’s own impression of the mother during the case. She said “it also fits with so much other information available to me from the papers and from my impression of the mother in the witness box”. Behavioural therapy had been identified as a possible means of assistance to the mother, but, the judge held, to be effective this would require a significant amount of work on her part.

In the final judgment in the 2015/6 proceedings, given on 4 July 2016, the judge returned to the topic of the mother’s emotional health and stated “the mother’s emotional and psychological health has always been at the forefront of this case.” Then, at paragraph 93, she revised her earlier conclusion in the following terms:

In concluding that the two older children should live with the father, rather than their mother, the judge explained her conclusion on the basis of the doubts that she had “about the mother’s ability to meet their needs and the fact is that her caring for three children as a sole parent, with the psychological difficulties we know she has, is untested.”

In the present round of proceedings, the court had the benefit of an independent expert opinion from a different clinical psychologist, Dr Hall. Dr Hall conducted an in-depth interview with the mother and observed one contact between the mother and all three children. Her report contains a substantial section summarising what is said to be a considerable and growing body of research indicating the importance at all levels of “the relationship environment” upon a child’s emotional and, significantly, neurological development. In summary she stated:

Dr Hall then described the benefits of secure attachment and made reference to recent advances in neuroscience indicating the impact on the development of a baby’s brain as a result of the attachment process. Later she stated:

Dr Hall’s overall assessment of the mother identified an inability to control her emotional reactions in the course of her ordinary life. She oscillates between a state of hyper-arousal (over emotionally reactive, hyper-vigilant, hyper-defensive, obsessive cognitive processing), or, at the other end of the scale, hypo-arousal (parasympathetic responses, flat effect, numb, cognitively dissociated, collapsed, disabled defensive responses). Dr Hall considered that the mother’s lack of control of her emotional reactions affected all her relationships. She had poor interpersonal boundaries, probably resulting from her own adverse experiences as a child.

As a psychologist, Dr Hall, understandably, held back from offering a psychiatric diagnosis but her report was in tune with the earlier conclusions drawn by the psychologist in the previous proceedings. She agreed that the mother had significant borderline personality traits and that “she shows difficulties with attachment, poor impulse control and a level of emotional reactivity which prevents her from learning from situations and showing the level of maturity that she believes she possesses.”

In the course of her oral evidence Dr Hall stated with regard to the children’s attachment to their mother that it was “at very best” insecure. The level of attachment was, she considered, “on the boundary of insecure and disorganised.” The part of the questioning, on behalf of the older children is of relevance:

The first matter of note with respect to the judge’s judgment dated 21 December 2017 is that, although she records the findings of fact made by her in 2015 relating directly to the threshold criteria, she does not make reference to her supplemental finding as to the mother’s emotional and mental well being based upon the clinical psychologist’s report. This is a perplexing omission given the importance that that element of the case was to play in the findings that the judge went on to make in 2017.

In the course of the substantial section of the judgment dealing with the potential for emotional harm caused to the three children as a result of the mother’s personality, the judge gave a summary of the evidence provided by Dr Hall. The judge then moved on to set out her conclusions on emotional harm which, as they are of central importance to this appeal, I will set out in full:

In the welfare section of the judgment the following appears:

Finally, in a separate box of text on the last page of the 21 December judgment the following appears:

The judge had circulated a draft of her judgment prior to handing it down on 21 December. As a result, further submissions were made by Mr Alex Taylor, counsel for the mother before the judge as, indeed, he is before this court. At Mr Taylor’s invitation the judge provided a supplemental judgment to be read in conjunction with the main judgment which, in part, focussed on the question of emotional harm to the child L as follows:

After making reference to the case of Re B [2013] UKSC 33 the judge continued:

Finally, it is relevant to note that the court order dated 21 December simply states that all three children are to be placed in the care of the local authority prior to setting out four further short supplemental directions which are of no relevance to this appeal. The order does not refer to or record the court’s findings on the threshold criteria.

The mother’s grounds for appeal represent a root and branch challenge to the judge’s conclusion with respect to the threshold criteria relating to the child L. In summary, the following points are made:

The proceedings were commenced in response to allegations of physical harm to the older two children perpetrated by their father. Those allegations were, in the event, not found proved in the terms of the threshold. The stress of the proceedings, however, triggered a marked deterioration in the mother’s mental well-being to the extent that, by the end of the proceedings, she conceded that she could not at that time provide a home for any of the children. The judge is criticised for failing to distinguish between the mother’s presentation and her parenting prior to the relevant threshold date of 9^th March 2015, and the compromised state that she descended into thereafter during the proceedings.

Evidence from social workers, community support workers and health visitors prior to 9 March, insofar as it mentioned the mother and L, was positive and gave no cause for concern.

It was conceded by the local authority that no social worker was contemplating issuing care proceedings with respect to the mother’s care of the children as at 9 March 2017.

The judge wrongly equated a perceived lack of attachment between the mother and L with the establishment of “significant harm”.

A failure to follow the guidance given by the Supreme Court in Re B to the effect that it is necessary for a judge to identify a precisely as possible the nature of the harm that L was suffering or likely to suffer as at 9 March 2017.

On 31 January 2018 I granted permission to appeal on the basis that there was arguably a lack of focus in the judgment on the need to establish significant harm (or likely significant harm) to the individual child and that “simply identifying deficits in the mother’s personality is unlikely to be sufficient to meet the legal requirements of s 31.”

Before this court Mr Taylor has advanced the mother’s case with force and clarity both in his skeleton argument and at the oral hearing. He seeks to establish five basic submissions:

The lack of clear and bright reasoning within the judgment falls so far short of what is required so as to amount to an unfair process.

The judgment confuses evidence as to the state of affairs prior to 9 March with evidence of what consequently occurred as a result of the mother’s mental collapse during the proceedings.

The necessary process of evaluation of the threshold criteria, as required by Re B, has not been undertaken.

The findings made by the judge as to the mother’s character are insufficient of themselves to support a finding on the threshold criteria.

Various findings made by the judge with respect to other aspects of the case are insufficient to support a finding of threshold with respect to L.

The appeal is opposed by the local authority and the children’s guardian. L’s father takes a neutral stance.

Looking at the mother’s appeal in more detail, it is, unfortunately, correct that both the judgment and the court order lack clarity with respect to the judge’s findings as to threshold relating to L. The following points are, in my view, established in the appellant’s favour:

The judgment makes no reference to the judge’s previous findings as to the mother’s psychological well being set out in her judgments of 11 November 2015 and 4 July 2016.

The judge’s finding (paragraph 106) that “the attachment difficulties seen in the children…are evidence of emotional harm” does not expressly amount to a finding of “significant” harm as required by s 31.

Paragraph 107, which is lengthy, includes reference to material arising both prior to 9 March and, thereafter, during the proceedings. Again, the finding in that paragraph relates to “emotional harm” and not “significant harm”.

Although the phrase “significant harm” appears in paragraph 109, the judge there refers to “the other factor relevant to whether the children have suffered significant harm as a result of the mother’s presentation” and describes the emotional impact on the children of the mother raising the allegations of physical chastisement which, in turn, led to the institution of proceedings. Paragraph 109 does not make a finding that the children did suffer “significant harm” in this respect. The finding is that the mother’s past behaviour “cause(s) me to think she will continue to have anxieties about the care of her children and therefore potentially undermine any placement of the children away from her care”.

Paragraph 110 does include a finding that the mother’s emotional stability and her presentation are such that “the children have suffered from significant emotional harm”. The finding is not, in that paragraph, tied to the period prior to 9 March and there is no finding with respect to likely future significant harm.

As Miss Gillian Irving QC and Mr Zimran Samuel for the local authority before this court who did not appear below, reluctantly concede, the judge’s statement of “threshold findings” posted at the end of the judgment cannot, as a matter of law, be said to satisfy the requirements of s 31. The paragraph is confined to a summary of the judge’s findings as to the mother’s mental well being both now and in the future. The paragraph does not contain any explanation for the judge’s finding that as a result of the mother’s condition the children have suffered significant harm.

The court order, which simply records the making of care orders, fails to include any recital as to the court’s findings with respect to the threshold criteria.

Despite the concession that the local authority was bound to make as to the formulation of the judge’s “threshold findings”, Miss Irving submits that there is sufficient within the judgment, and the judge’s findings as to the validity of Dr Hall’s evidence, to make it clear that the court accepted that the mother’s life-long personality traits and presentation were causing each of the children significant harm as at 9 March 2017 and were likely to cause significant harm in the future.

Miss Astbury, representing the children’s guardian before this court, as she did before the Judge, effectively adopts the local authority’s submissions.

What I have said thus far encompasses Mr Taylor’s first two points. The third point relates to Re B in which the judgments of the Supreme Court endorse the practice guidance contained in the judgment of Baroness Hale. Mr Taylor relies upon the totality of what is said between paragraphs 177 and 193, but principally upon the following which appears in paragraph 193:

For the reasons which I have already rehearsed in more detail with respect to his first two points, Mr Taylor submits that the judge’s analysis wholly fails to deliver the degree of particularity and precision described by Baroness Hale in her judgment.

So far as Mr Taylor’s fourth point is concerned, if the judge’s findings on threshold are to be taken as being set out in the paragraph at the end of the judgment, then, as conceded by the local authority, simply to identify a deficit in the mother’s emotional and mental wellbeing is indeed insufficient, of itself, to establish that the children were suffering or were likely to suffer significant harm as a result.

Mr Taylor’s fifth and final point is, in reality, an attempt to neutralise part of Miss Irving’s presentation of the local authority’s response which he knew was to be delivered. Miss Irving had extracted some 14 specific findings made by the judge in the course of her judgment and had included them in a new “threshold” document which, she argued, could now properly stand as a record of the judge’s findings on threshold with respect to L.

For my part, it is simply not possible for this court to contemplate directing that Miss Irving’s document should now replace the threshold findings recorded by the judge in her judgment. I hold that view for two separate reasons. Firstly, and this is not unimportant, the document was produced for the first time at the oral hearing having been prepared by counsel overnight. As it is a submission that the care order should now be upheld for reasons that are either in addition to, or replace, those stated by the judge, the local authority’s case on this point should have been set out in a Respondent’s Notice filed in due time in order to provide the appellant and this court with sufficient notice of the point. It would, simply, be procedurally unfair for this court now to entertain the local authority’s submissions in that regard.

Secondly, whilst the specific findings relied upon, for example the mother’s manipulation of the older children in order to generate false allegations against their father, might have been used by the judge to support a threshold finding, the judge, who had been steeped in the detail of that aspect of the case forming, as it did, a major aspect of the trial before her, chose not to take that course. The judge made no finding that the children were suffering significant harm as a result of the various matters which are now pleaded. It seems to me, therefore, notwithstanding any issues of procedural fairness, it would simply be exorbitant for this court now to re-determine the threshold on a wholly different basis from that found by the judge.

In contrast to the position that applied when granting permission to appeal, this court now has the benefit of the judge’s judgments given in 2014 and 2015, Dr Hall’s very detailed report and the transcript of her evidence. That material plainly and sadly establishes that the mother’s emotional and psychological vulnerability has been evident throughout the period from 2014 onwards. Dr Hall’s evidence, which the judge accepted, was that the mother’s difficulties were deep-seated and arose as a result of the impact of her own childhood. On the judge’s findings in 2014, 2015, and now in 2017, the mother’s emotional difficulties are “life long” and, whilst possibly amenable to therapy, such therapy would represent a substantial piece of work.

Although the judge makes no reference to the findings that she made in 2014 and 2015, she was the judge who had made those findings, she records that Dr Hall agreed with the basic premise advanced by the clinical psychologist in the earlier proceedings, and the judge, in turn, was impressed with Dr Hall’s evidence and adopted her conclusions.

As the extracts that I have set out from Dr Hall’s written and oral evidence demonstrate, the attachment that these children, including L, had with their mother was compromised to a significant degree so that it was on the borderline of being characterised as disordered. Dr Hall’s opinion was that without secure attachment the children would suffer significant detriment, not only to their emotional and psychological functioning, but to the very development of their brain during infancy.

The attachment, or lack of it, formed between L and her mother must relate to the period when L was in her mother’s care prior to 9 March 2017. It arose from core intrinsic elements in the mother’s psychological makeup, rather than arising from the recent collapse in the mother’s mental health. Dr Hall’s description of the mother being unable to control her emotional reaction to relationships and events with unpredictable and regular oscillation between the extremes of hyper-arousal and hypo-arousal, accords entirely, as she herself said it did, with the mother’s presentation as recorded by the previous expert in 2014.

It is clear that the evidence upon which the judge relied, and her findings, relate to the mother’s long-standing condition and its impact on the children, rather than any deterioration that occurred during the proceedings.

This material amply supports a finding that L was suffering significant emotional harm as at 9 March 2017 and would be likely to suffer significant emotional harm in the future as a result of the care provided by her mother were she to return to the mother’s home. Although, for the reasons that I have given, the judge’s judgment lacks precision and clarity, there is in my view, sufficient in paragraphs 106 to 110 of the judgment to identify the threshold findings made by the judge in this regard.

At paragraph 106 the judge expressly accepted Dr Hall’s assessment with respect to attachment. She holds that the attachment difficulties seen in the children by Dr Hall are evidence of emotional harm resulting from the mother’s parenting. At paragraph 107, the judge, as she was able to do having been the judge in the previous proceedings, held that the mother’s emotional presentation and behaviour had been evident throughout the period prior to the issue of the 2017 proceedings and that the children had suffered emotional harm during that period.

Although the phrase “significant emotional harm” is not used in paragraphs 106 and 107, HHJ Lynch, as a specialist family judge, will have been well familiar with the need to establish “significant harm” within the context of s 31. As her conclusion in paragraph 110 demonstrates, she did indeed find, on the basis of the matters set out in the previous paragraphs, that “ the children have suffered from significant emotional harm” and, as I have demonstrated, that this related to the period prior to 9 March. Further, so far as L is concerned, paragraph 152, although appearing in the welfare section of the judgment, does include a finding that L would be at risk of significant emotional harm were she to return to her mother’s care.

Set against the comprehensive expert evaluation provided by Dr Hall, the positive records of L’s functioning made by the health visitor and others, and, indeed, the fact that social workers were not considering care proceedings as a result of the mother’s care of the children, can only be of minimal weight. Whilst the judge did not expressly refer to the positive records of those visiting the family, she did engage with the bigger point relating to the social worker’s view of the mother prior to 9 March at paragraph 108. For the reasons given by the judge in that paragraph, she was entitled to hold that the threshold criteria were met at the conclusion of a three week trial informed, as it was, by the credible expert opinion of a clinical psychologist.

In the circumstances, whilst accepting, as I do, the validity of the criticisms that Mr Taylor makes as to the lack of clarity and focus in the judge’s analysis, Dr Hall’s evidence and the judge’s previous findings as to the mother’s behaviour provided a very solid basis for finding the threshold established and it is plain that the judge adopted that analysis, which was in part based upon her own findings made two years earlier, in concluding that the threshold was crossed with respect to L in this case.

For the reasons I have given, I would, therefore, dismiss this appeal and uphold the judge’s finding that the threshold criteria in CA 1989 s 31 was established as at 9 March 2017 with respect to L as a result of the care given by her mother on the basis that, at that date, L was suffering significant emotional harm and was likely to suffer significant emotional harm.

Before leaving this case, and with Lady Hale’s more detailed judgment in Re B in mind, I hope it is helpful to make the following observations as to how the difficulties that have led to this appeal could have been avoided in practice.

In the course of a necessarily long judgment covering a range of issues and a substantial body of evidence, where the threshold criteria are in issue, it is good practice to distil the findings that may have been made in previous paragraphs into one or two short and carefully structured paragraphs which spell out the court’s finding on threshold identifying whether the finding is that the child ‘is suffering’ and/or ‘is likely to suffer’ significant harm, specifying the category of harm and the basic finding(s) as to causation.

When making a finding of harm, it is important to identify whether the finding is of ‘significant harm’ or simply ‘harm’.

A finding that the child ‘has suffered significant harm’ is not a relevant finding for s 31, which looks to the ‘relevant date’ and the need to determine whether the child ‘is suffering’ or ‘is likely to suffer’ significant harm.

Where findings have been made in previous proceedings, either before the same judge or a different tribunal, a judgment in subsequent proceedings should make reference to any relevant earlier findings and identify which, if any, are specifically relied upon in support of a finding that the threshold criteria are satisfied in the later proceedings as at the ‘relevant date’.

At the conclusion of the hearing, after judgment has been given, there is a duty on counsel for the local authority and for the child, together with the judge, to ensure that any findings as to the threshold criteria are sufficiently clear.

The court order that records the making of a care order should include within it, or have annexed to it, a clear statement of the basis upon which the s 31 threshold criteria have been established. In the present case, during the oral appeal hearing, counsel for the guardian explained that, following the judgment, she had submitted a detailed draft order to the court by email for the judge’s approval. We were shown the draft which, whilst in need of fine tuning, does provide a template account of the court’s threshold findings. It is most unfortunate that counsel’s email, which may not have been seen by the judge, did not result in further consideration of the form of the order and statement of threshold findings. Had it done so, the need for the present appeal may not have arisen.

I agree