P (A Child)

This is the appeal of the appellant mother (“the mother”) against an order made by Her Honour Judge Probyn at the Family Court at Croydon on 1 February 2018 in respect of a little girl (“L), who was, at the date of the order, seven months old. By her order the judge refused the mother’s application for an adjournment of the proceedings for a period of six months. The judge made a final care order and a placement order.

The mother is an alcoholic. The issue before the court is whether the judge was wrong to refuse the mother’s application for an adjournment and to proceed to make the placement order given the uncontested expert evidence that the mother had, at the date of the hearing, been abstinent for 13 months, had developed some insight into her condition and had “done all that could have been asked of her”.

The mother had a difficult childhood and spent periods of time in care. She has been addicted to alcohol since her teenage years. On two occasions in 2009 she was sentenced to alcoholic treatment programme by the criminal courts.

The mother has been in an intermittent relationship with the father (“the father”) from about 2005. He is the father of each of the mother’s children, although he does not have parental responsibility of L and has played no real role in the proceedings.

The approach and view of both the local authority and the judge in this finely balanced case was significantly influenced by the history of the case. Given that L was removed from the mother at birth, in order fully to understand the perspective of the judge, it is necessary briefly to consider the history in relation to L’s older sisters, B, who was born in August 2012 (five) and M who was born in April 2014.

The local authority had no specific involvement with the mother and her older children until M died, aged five months in September 2014 as a result of SIDS (sudden infant death syndrome). The mother had been drinking the night M died. The death of M became the catalyst for close local authority involvement with the family and a period of heavy drinking by the mother.

On 10 September 2014 B was removed from the mother’s care and placed in foster care. Later that month the mother was arrested for assaulting a taxi driver whilst very drunk and, on 7 January 2015 in the subsequent criminal proceedings, she was given a further referral to an alcohol treatment programme at A specialist rehabilitation service. This programme she undertook for six months from 23 January 2015 to 17 July 2015.

The mother’s progress at the specialist rehabilitation service was such that it was decided that B could be rehabilitated. To this end the care proceedings in respect of B were concluded on the basis that B returned to live at home with her mother supported by a one year supervision order and a working agreement that mother should remain abstinent and continue to engage with the specialist rehabilitation service’s aftercare services.

The mother was sober for 12 to 13 months between January 2015 and February 2016. In February 2016 the mother told the social worker that she had been drinking over the weekend when B was staying with her paternal grandmother. On 1 June she again told the local authority, of her own volition, that she had again been drinking whilst B was with her grandmother. A hair strand test on 22 June 2016 seemed to confirm that these were isolated incidents as that test was negative for drugs and excess alcohol from February to the beginning of June.

On 12 August 2016 the supervision order in relation to B expired. In the light of a number of concerns, including that the mother had not taken up the aftercare services with the specialist rehabilitation service, a decision was made to make an application to extend the supervision order. The mother opposed the making of a further supervision order or to submit to further hair strand testing. A hair strand test on 16 December showed that the mother had consumed alcohol from the end of May to the end of November 2016. On 18 January 2017 the mother admitted to the local authority that she had been drinking on the alternate weekends when B was in the care of the grandmother.

By 18 January 2017 the mother was pregnant with L and on 2 February 2017 she was arrested for shoplifting.

Almost inevitably, on 17 February 2017 Mrs Justice Pauffley gave the local authority leave to withdraw application for an extension of a supervision order on the basis that they would now seek a care order in respect of B.

On 7 March 2017 B was made the subject of an interim care order and placed with her paternal grandmother with whom she continues to live. Various directions were made during the course of the care proceedings in relation to B. A direction was made for SCRAM monitoring (Secure Continuous Remote Alcohol Monitoring) and, on 13 April 2017, the mother again entered (this time a residential) programme at the specialist rehabilitation service.

L, the child the subject of this appeal, was born on 20 July 2017, care proceedings were issued and L was placed in foster care where she has remained to date. The local authority removed L at birth with a care plan for adoption. They therefore did not offer the mother any support during the course of the proceedings (Ms Joan Connell on behalf of the local authority rightly emphasised that, whilst this was undoubtedly the case following L’s birth, they had offered the mother significant resources and support in respect of B).

The Child Permanence Report prepared by the local authority in support of their application for a placement order for L recorded that the mother had, in the absence of support from the local authority, located and engaged independently with the AA, the specialist rehabilitation service, a community drug and alcohol service and worn a SCRAM bracelet.

Up until the final hearing of the local authority’s application for a placement order, the mother was having contact with L four times a week. Not only is the quality of that contact good, but the foster carer told the Children’s Guardian that, in her almost 30 years of fostering, the mother is “one of the most impressive parents [she had] met in terms of her connection and her relationship with her daughter.”

The final proceedings in relation to B were conducted between 4 and 7 September 2017 and resulted in the making of a special guardianship order in favour of the paternal grandmother. The mother has not appealed the making of that order accepting that B is happy and settled where she is.

The local authority’s application for care and placement orders in respect of L came before the judge on 1 February 2018 and is the subject of this appeal. The mother had by the time of trial been abstinent for 13 months.

These two judgments should, as directed by the judge in her judgment of 1 February 2018, be read together. In my judgment it is of importance when reading these judgments to contrast the mother’s position in September as compared with February, in particular with reference to her honesty and insight, as it had evolved in the months between the two judgments.

In her first judgment of 20 September 2017 in relation to the local authority’s application for a special guardianship order in respect of B, the judge whilst recognising the mother’s strengths and accepting that she had been sober since December 2016 nevertheless, having seen her give oral evidence, made a number of damning findings. In particular:

Dr Hallstrom, is an adult psychiatrist specialising in psycho-pharmacology and is the consultant psychiatrist for the Family, Drug and Alcohol court team. He was instructed not only in relation to L but had previously been instructed in the proceedings in relation to B in which case he gave oral evidence. The court had before it in the placement proceedings, a fresh report prepared by Dr Hallstrom who had seen the mother again in order to prepare his report. No party challenged Dr Hallstrom’s evidence and, although he was happy to do so, no one required him to attend to give oral evidence.

Dr Hallstrom saw a very different young woman from the one he had previously assessed for the care proceedings in respect of B.

The critical parts of Dr Hallstrom’s uncontested evidence were as follows:

Dr Hallstrom went on to say that the mother had made “a very substantial leap forwards in addressing her alcohol use disorder.” He noted that it would be expected that her previously assessed personality difficulties would stabilise to some degree now that she is not drinking. So far as prognosis was concerned Dr Hallstrom said as follows:

Dr Hallstrom went on to consider the issue of risk as follows:

It should be noted that Dr Hallstrom had in mind as a backdrop to his opinion that this was the mother’s second round of treatment at the specialist rehabilitation service (although the first one had been non-residential) and that on the earlier occasion she had had glowing reports similar to those which were given by the specialist rehabilitation service now.

It is against this backdrop that the judge had an opportunity herself to see the mother give evidence and to form her own assessment as to whether the lack of honesty and insight which had been such a concerning feature in the earlier proceedings, had been ameliorated in line with Dr Hallstrom’s cautiously optimistic assessment, and in such a way as to tip the balance in favour of the adjournment sought on the mother’s behalf.

The local authority’s position was that they felt unable to be confident in the mother’s ability to remain sober and to be honest. In their view the risk remained too great both now and in six months’ time.

The guardian regarded this as a finely balanced case, but as with the local authority, had concerns as to the mother’s insight and reliability within the context of the history, noting that as recently as September 2017 the mother had been lying about her drinking to both the court and the professionals.

The judge noted the pattern of the mother’s drinking to date including her period of abstinence from January 2015 to January 2016 and the lies she told about her level of drinking during the course of 2017 [52 – 53].

The judge set out her summary of Dr Hallstrom’s evidence, although she did not record his clear observation that the mother was now a very different person from the person he had examined at the beginning of the proceedings, or particularise her very active and continuing engagement with the specialist rehabilitation service and the AA (in stark contrast to her earlier admission) or refer to the fact that Dr Hallstrom felt that an example of the progress she had made was to be seen by the fact that the mother was no longer “externalising” blame.

The judge in addition to the evidence of Dr Hallstrom, had the benefit of the social work evidence of Mr Ayres. Mr Ayres was allocated the case in September 2017 and he too, as of January 2018 saw in the mother significant improvement both in her abstinence and her insight [62].

Mr Ayres concluded however that the local authority remained of the view that there was a high risk of relapse post the conclusion of the proceedings based on the earlier history.

The judge then turned to the evidence of the mother. The evidence she gave, as recorded by the judge, could not have been more different from the evasive evidence given by the mother in September 2017 and, it might be argued, served to confirm the progress (particularly around blame) that had been observed by Dr Hallstrom and Mr Ayres.

In her evidence the mother accepted that she had not previously been honest to the court as to how much she had drunk. She accepted that she had lied and that B had suffered emotional harm as a consequence of her drinking. She said that her refusal to provide hair samples had been because she knew what the result would be. She accepted too that she had lacked insight and that she still had much work to do. She admitted that she was drunk the night M died and, the judge recorded, her guilt and shame were evident.

The judge having heard the mother give her evidence concluded that, whilst the mother had given a much more detailed acknowledgment than previously, what mother now admitted led her (the judge) to the conclusion that the previous “lies, denial and lack of insight and responsibility was not simply to myself, the local authority and the professionals involved in the care proceedings but much wider than that. It was to the specialist rehabilitation service and all her supporters at the AA”. The guardian too was concerned at the mother’s previous ability to conceal her drinking from everyone including her family and expressed the view that the mother was coming from “a low base of trust and that the shift is very recent”.

This then was the dilemma faced by the judge. On the one hand it is undoubtedly right that L should be brought up by her mother if that can safely be achieved; further it goes without saying that if a very young child cannot be returned home, the sooner a permanent substitute family is identified for him or her the better it is for that child. The question therefore was whether there was enough in the undoubted changes as to sobriety and insight in this mother to justify a delay of six months before making the most draconian of all orders, namely a placement order which would lead irrecoverably to adoption.

The judge had in mind Sir James Munby, the President’s judgment in Re S Child [2014] EWHC in which he addressed the family, drug and alcohol court approach to (in that case) an extension to the 26 week timetable:

The judge’s analysis was conducted against the backdrop of the agreed evidence that an adoptive placement could be found for L quickly, whether at the time of the trial or in six months’ time. The evidence was that this child is able to make secure attachments. Ms Davis on behalf of the Children’s Guardian helpfully clarified the position in relation to attachment, which was that there is nothing specific in relation to L regarding attachment. The submissions to the judge in relation to L were those which apply to all sets of children of L’s age, namely that she was at an important age for making secure attachments. Ms Davis told the court that it is accepted that a delay at six months would not put L on the wrong side of that “attachment window,” although it went without saying that the sooner she moves to her permanent placement the better.

In her analysis the judge accepted the shift in relation to the mother’s admissions as to the extent of her drinking and the duration of her sobriety, but regarded them as “green shoots”. She concluded that, in her judgment, there was a real risk of relapse and of the mother not being able to be open and honest with the professionals. Her sobriety must, she said be looked at within the context of “the dishonesty she actively pursued throughout B’s proceedings” [109]. The judge’s analysis in reaching her conclusion that there should be no adjournment was essentially found in one paragraph. The judge said this:

Ms Hasan on behalf of the mother submits that the judge failed adequately to analyse the issues in her judgment. Whilst [111] of the judgment sets out a number of features in the case, there Ms Hasan submitted, was no analysis as to why any one feature should carry any, or more weight, than any other feature such as to lead the judge to dismiss the mother’s application. Had she done so, Ms Hasan says, the judge would not have concluded that, even if there was an adjournment, ‘the level of honesty required would remain sadly untested’ nor would she have concluded that an adjournment would “serve no purpose other than to delay the final decision.” (By which, all parties agree, the judge meant that the outcome, namely adoption would have been the same inevitable outcome, even after an adjournment).

Ms Hasan submits that the judge allowed herself to be overly influenced by her own earlier judgment and the damning findings she had made about the level of dishonesty exhibited by the mother during 2017. As a consequence she failed adequately to take into account the evidence that this period of sobriety was showing itself to be qualitatively different from the last lengthy period of sobriety. For example in contrast to the mother’s last period of treatment at the specialist rehabilitation service, she was now availing herself of all the follow up opportunities, similarly her engagement with AA 3 – 5 times a week.

Further and of most significance, submitted Ms Hasan was the insight that the mother was now developing both in relation to her drinking and the effect it had upon her children. This she reminded the court had been observed by Mr Ayres, Dr Hallstrom and the Children’s Guardian and demonstrated by the mother in her late filed statement and oral evidence.

It is undoubtedly the case that all this was very recent, but it is important to note that the judge did not find that the mother was simply saying what the judge wanted to hear. The judge [107] accepted that the mother was showing insight and that there were ‘green shoots’. One can quite see that had the only options facing the judge been immediate rehabilitation or a placement order, then she may well have been driven to conclude that it was too little too late. It is however hard to see how, given that sobriety and honesty are inevitably intrinsically woven in together, a period of six months would have done other than to allow the local authority and Dr Hallstrom not only to see if she remained sober, but also whether the “green shoots “and developing insight could now lead to the sort of working relationship, co-operation, and therefore trust, that the local authority rightly regard as essential if the risk of a future relapse is properly to be managed.

In my judgment the appellant is correct in her submission that whilst the history is of considerable importance, too much emphasis was placed on the historic lies to the extent that the judge seemed to regard this feature alone as determinative of the case. There was, as a consequence, a failure properly to set those undoubted and serious concerns against the genuine and significant progress made by the mother. If this progress was maintained the mother’s likely future level of honesty could be assessed in the context of sobriety and with a developing understanding and insight as against her historic drunkenness and lack of insight.

Similarly in [111] the judge factored in, without more:

Contrary to the judge’s judgment, there was no evidence that L had suffered attachment damage. On the contrary, the Children’s Guardian had observed L to be well attached to the foster carer and therefore able to make secure attachments in the future. Whilst delay is always inimical to a child’s interests, there is nothing in L’s history or life experiences to date to suggest that her position is any different to any other child of 6 months. The sooner L (in common with all children in her position) is settled with a permanent primary carer the better. However, the generally accepted critical period for forming long term secure attachments would not have been be fatally compromised in L’s case to such that delay had, in her interests to be, to all intents and purposes, the determining factor. This was particularly so in circumstances where it was common ground that adopters could be identified quickly following the making of a placement order (and indeed following the making of the placement order now challenged, prospective adopters were identified within a matter of weeks).

In weighing up the issue of attachment the judge in my judgment fell into error in that she did not mention the fact that the mother was having good quality contact 4 times a week, or to the high praise given to her by L’s very experienced foster carer, evidence in my judgment of considerable significance when considering L’s timescales and that the alternative was adoption.

The local authority submits that the period of 18 months sobriety indicated as a critical period by Dr Hallstrom, is a “red herring”. The question, they submit, is not the risk of relapse. Ms Connell told the court that the local authority had felt at trial that the mother could and would indeed achieve sobriety (as she has in fact done) for a further six months. The key issue for them, she submitted, is that given that the nature of alcoholism is that it is a chronic and relapsing condition, how could she said, the local authority manage the risk to L in the event that the mother had a relapse when L was in her care.

Ms Connell says that if a local authority feels that a mother who is a recovering alcoholic has insight and will be honest, then they can manage the risk and will look to rehabilitation. The local authority were and remain, concerned in this case that once this mother was “out of care proceedings” she would not be open and honest; (Ms Connell reminds the court that the mother has not been honest in the past once care proceedings had concluded and the history does not she says offer a good prognosis in this respect.) The judge, the local authority submits, was right to accept the “shift “and “green shoots”, but equally right to have concluded that they are not enough to justify a return of L to the mother’s care.

The local authority accordingly accepts the content of Dr Hallstrom’s report, but says that the question is ‘where does it leave us now?’ Dr Hallstrom’s report may provide encouragement in respect of the mother’s prognosis for abstinence, but does not, Ms Connell submits, help as to her future honesty when set against her pattern of deception in 2017.

It was put to Ms Connell in argument that the Permanence Report and the judge (at [9]) had regarded the key question as being whether the mother can maintain her sobriety and care safely for L. Ms Connell’s attention was drawn to the Permanence report, written only weeks before the final hearing, in which, it was said that a finding that a relapse was low risk would lead to “a good argument for L to be returned to the mother’s care”.

Ms Connell says that that regardless of the judge’s view, or what Mr Ayres put in his report, that is not the local authority’s case. Their case is that the risk of relapse cannot be managed due to the mother’s historic lying.

With respect to Ms Connell, that is, in my view, to put the cart before the horse. The prognosis for achieving long term sobriety was the first and key issue rightly identified by the judge and Mr Ayres. Dr Hallstrom was cautiously optimistic, with greater cause for optimism if the mother could make a further six months of progress. Without such a prognosis for sobriety, there could be no prospect of an adjournment and a relapse in the adjournment period would inevitably lead to adoption. It is only if the prognosis for sobriety is sufficiently encouraging that one moves on to consider how the risk of any relapses would, or could, be managed – the principal concern then is will the mother work with the local authority and be honest with them as she was in 2016 in the period before her disastrous relapse in the middle of that year.

The judge held that “no purpose” would be served by an adjournment. With respect to the judge, and conscious as I am that it was she who heard the evidence, I do not agree.

For the purposes of considering whether or not the mother could make the necessary changes within the child’s timescale, the period in question is a delay of six months in relation to a baby of seven months of age.

The courts are often faced with cases where the judge is told that some sort of therapy may result in a mother being able to parent her child, which therapy has not yet begun and will take an indeterminate period, often 18 months to 3 years. I accept that in such a case a plea for ‘more time’ by a mother serves no purpose but to put off the inevitable, to the detriment of the child in question.

This court was faced with a very different situation. Not only had the mother been abstinent for 13 months but, in contrast to her earlier period of abstinence, she was, even on the local authority’s own case, now energetically cooperating with the follow-up. More importantly, there was an a new, and genuine, acceptance by her and insight on her part into both her alcoholism and its impact upon her child’s welfare.

This proposed adjournment therefore not only tests out the mother’s ability to remain sober for the further six months, but also to judge her continued commitment to AA and the specialist rehabilitation service and to see whether the personality stability which had come with sobriety would be maintained. Most importantly from the local authority’s point of view, the adjournment would give the local authority and Dr Hallstrom an opportunity to see if the developing insight shown by the mother was capable of developing into an honest working relationship with the local authority such that, in the event that the mother has a “setback”, (which is by no means to be ruled out) she could be trusted to seek help in the interests of L.

In my judgment there was a clear purpose in the adjournment, namely whether, within L’s reasonable timescales, the mother could capitalise on the considerable progress she had made such as to allow L to live with her mother. The outcome at the end of a further six months was not as the judge believed, inevitable and I am satisfied that, on the evidence before the court, there was a sufficient prospect of the court being in a position to decide that L could be safely placed with her mother to justify the adjournment.

The court was told that at the time of the hearing there was no FDAC (Family Drug and Alcohol Court) court in this local authority area. It was submitted on behalf of the mother that had that been the case and the three questions set out in Re S and identified by the judge in her judgment, been addressed, then an extension to the 26 week timetable would have been permitted in order to allow the six month adjournment.

Ms Connell on behalf of the local authority responded by saying that no adjournment would be granted by an FDAC court absent the cooperation of the mother. It is Ms Connell’s submission therefore that the outcome would have been the same regardless of whether an FDAC court had been in operation in the area at the relevant time.

I do not accept that submission. It is not necessary for the purposes of this judgment to consider each of the three questions in detail but, on the agreed evidence before the court it seems unarguable that the mother is committed to making changes (Question 1) and that there was an evidence based reason to believe that she would be able to maintain that commitment (Question 2).

That therefore leaves the question (Question 3) as to whether there was a “solid” evidence based reason to believe that the parent would be able to make the necessary changes within L’s timescale. It goes without saying that one “necessary change” would be the ability of the mother to satisfy the court that the combination of sobriety and further insight would allow the court to be satisfied that the risk to L, in the event that the mother has a relapse is manageable, and that the mother would be honest with the local authority and in such circumstances seek help at the earliest possible opportunity. In my judgment there is indeed ‘some solid evidence based reason to believe that the mother will be able to make the necessary changes within the child’s time scale”.

In my judgment therefore, the outcome of either a straightforward conventional analysis or of the more structured FDAC approach, would have led to the same conclusion namely that in was in the best interests of L to grant the mother the adjournment she sought.

The judge set out [25 to 32] the law in relation to the making of care orders and placement orders. The judge did not however thereafter analyse the facts of the case against the backdrop of that law, although I note that the judge [29] said in terms that she had the decisions in relation to placement orders “firmly in mind at all points during this hearing”.

Having rejected the application for an adjournment the judge’s analysis and evaluation as to the need to make a care order and the requirement to make a placement order is to be found in one paragraph of the judgment:

The learned judge therefore on two occasions in her judgment reminded herself that absent the consent of a parent, a placement order cannot be made unless “the welfare of the child requires the consent to be dispensed with”. (my emphasis)

In my judgment, had the judge, even in a couple of paragraphs, once she had rejected the application for an adjournment, gone on to consider all circumstances of the case by reference to the law in relation to placement orders that she had so carefully set out earlier in her judgment, she may well have hesitated again before concluding that L’s welfare “required” the severing of her relationship with her mother without more ado.

I for my part, whilst fully accepting the legitimate concerns and doubts expressed by the local authority and the Children’s Guardian, cannot see how at that stage, L’s welfare required the breaking off of all L’s ties to her mother and full sister and in my judgment, the making of a placement order was a disproportionate outcome in all the circumstances of the case.

It follows therefore that the mother’s appeal will be allowed and the order made by the judge set aside. There will however be an interim care order and the matter should be listed for urgent directions before the Family Division Liaison Judge covering the Croydon area. That matter will be listed as a matter of urgency.

In conclusion, I note that by the time the appeal came on last week, the six month period sought by the mother had been and gone. The mother has remained sober throughout. The local authority, as already noted, has provided no support to the mother in the interim period and more particularly has not carried out any form of updating assessment of her because, Ms Connell told the court, their case remains that the mother cannot be trusted to be open and honest and the risk to L in the event of a relapse is therefore too great to allow them to reconsider their position, even now. They have, they said, shown good faith in reducing contact from four times a week to once a week rather than once a month which had been their original plan pending placement.

I hope that the local authority may, on reflection, regret that approach and on reviewing the case conclude that in the interests of L, once Moylan LJ had granted permission to appeal, the better way would have been once again to have become active in the case, and to have engaged with the mother in order to see whether, their worst fears about the mother continued to be justified such that in the best interests of L the last resort of adoption remained the only option.

I agree.

I also agree.