GM v Carmarthenshire County Council & Anor

This is my judgment on the mother’s application dated 16 August 2016 to discharge the care order made on 29 February 2016 in respect of her son L, who was born on 16 August 2009, and who is now aged 8¾.

I begin with some remarks of general application.

The application is made pursuant to section 39 of the Children Act 1989. Parliament expressly granted a person with parental responsibility the unfettered right to seek the discharge of a care order. In granting that right Parliament must be taken to have intended the right to have a meaningful content. Parliament must surely have intended that a parent who had lost a child to care by virtue of unfitness or incapacity must be given the chance to turn his or her life around and to reclaim the child. The very premise of section 39 is that the parent will not have been caring for his or her child for an appreciable period but that someone else will have been, and with whom the child would, no doubt, have formed a strong attachment. Yet, the stance of the local authority and of the guardian in this case is that the strength of the attachment developed by L with his foster parents over the 2½ years he has been in their care, coupled with the lack of a track-record of hands-on parenting by the mother and her partner Mr M, of themselves mean that her application should fail. If this approach be right then in my judgment it would rob section 39 of any meaningful content. It would be a largely meaningless provision – a dead letter – accessible, I suppose, only in those cases where the discharge was agreed.

It is true that on a section 39 application there is no formal requirement on the local authority to demonstrate the continued existence of the statutory factual threshold set out in section 31 of the Children Act 1989. However, in my judgment something close to that applies, for it cannot be disputed that the common law principle enunciated by Lord Templeman in Re KD (A Minor)(Ward: Termination of Access) [1988] AC 806 at 812 applies to this application. That principle was approved by Lady Hale in the Supreme Court in Re B (a Child) [2013] UKSC 33, [2013] 1 WLR 1911 at para 179 in the following terms:

“Since well before the Children Act came into force, the courts have recognised that there is a line to be drawn between parents whose personal characteristics mean that they may be less than perfect parents and parents who may cause harm to their children. Lord Templeman put the point this way in his well-known words in In re KD (A Minor)(Ward: Termination of Access) [1988] AC 806, 812:

"The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered. Public authorities cannot improve on nature."

If, by that last sentence, Lord Templeman was making a factual statement, then some might disagree: if local authorities remove children from unsatisfactory parents at birth and swiftly place them with highly satisfactory adoptive parents they can undoubtedly improve on nature. But in my view Lord Templeman was making a normative statement: public authorities have no right to improve on nature.”

In my judgment this normative principle applies fully to a discharge application. The court must be on guard against subtle and insidious forms of social engineering (as to which, see also para 180 of Lady Hale’s judgment) in favour of new, “better” parents. Rather, the court must recognise that the state has no right to deprive a natural parent of the right to bring up his or her child unless it can be shown that the exercise of that right would “endanger” the child’s moral or physical health. Thus, it can be seen that there is on this application something close to a formal threshold requirement in play.

It is true that in determining the application there is no formal presumption in favour of the natural parent. The welfare principle in section 1(1) of the Act, as particularised in section 1(3), contains no such steer, beyond that in section 1(3)(g) which requires the court to have specific regard to the capacity of the child’s parents to meet his or her needs. Yet, these provisions have to be read compatibly with the principle of proportionality as well as the right to respect for family life as expressed in Article 8 of the European Convention on Human Rights (as incorporated by the Human Rights Act 1998). In Re B at para 194 in the section headed “Proportionality”, Lady Hale stated:

“Once the threshold is crossed, section 1(1) of the Children Act requires that the welfare of the child be the court's paramount consideration. In deciding what will best promote that welfare, the court is required to have regard to the "checklist" of factors in section 1(3). These include, at (g), the range of powers available to the court in the proceedings in question. By section 1(5), the court must not make any order unless it considers that doing so would be better for the child than making no order at all. The Act itself makes no mention of proportionality, but it was framed with the developing jurisprudence under article 8 of the European Convention on Human Rights very much in mind. Once the Human Rights Act 1998 came into force, not only the local authority, but also the courts as public authorities, came under a duty to act compatibly with the Convention rights.”

Lady Hale then went on to examine a number of Strasbourg authorities, which I further summarise as follows:

This jurisprudence led Lady Hale famously to pronounce at para 198:

“Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do.”

In my judgment, the effect of this jurisprudence in the context of a discharge application is that:

The guardian and the local authority placed great weight on evidence from an independent social worker, Cathy Webley, about L’s “attachment profile”. This evidence was authorised by an order of the court on 29 January 2017. In making that order the court must have been satisfied that the evidence was “necessary” to assist the court to resolve the proceedings (see section 13(6) of the Children and Families Act 2014). In Re TG (a child) [2013] EWCA Civ 5 at para 30 the President stated:

“The test of what is "necessary" sets a hurdle which is on any view significantly higher than the old test of what is "reasonably required"”.

With the greatest respect, I have concluded that this evidence does not satisfy the new test. Indeed, in my judgment, it does not even satisfy the old one.

In Barings Plc v Coopers & Lybrand [2001] PNLR 22, at para 45, Evans-Lombe J held:

"In my judgment the authorities which I have cited above establish the following propositions: expert evidence is admissible under section 3 of the Civil Evidence Act 1972 in any case where the Court accepts that there exists a recognised expertise governed by recognised standards and rules of conduct capable of influencing the Court's decision on any of the issues which it has to decide and the witness to be called satisfies the Court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of those issues."

This was approved by Hildyard J in the RBS Rights Issue Litigation [2015] EWHC 3433 (Ch) at paras 13 – 14. At para 17 he continued:

“In determining whether particular evidence is reasonably required a key question will be:

"…whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area."

See R v Bonython (1984) 38 SASR 45 at 46, cited in JP Morgan Chase v Springwell [2006] EWHC 2755 (Comm) at [20] and Barings at [38].”

Thus, in order to be admissible in civil proceedings the expert evidence must be:

This is the test for admissibility in civil proceedings. As explained above, the test in family proceedings is significantly higher.

In her report dated 23 March 2017 at page 5 Cathy Webley stated:

“Theoretical Framework

This assessment is based on attachment theory. Attachment refers to the specific dynamic relationship that develops between an infant and their primary carer. During the first year or two of life children develop certain attachment patterns in response to the quality of caregiving they receive. Babies whose needs are met consistently and sensitively will normally develop secure patterns of attachment. Within sound attachment relationships children learn about basic trust that will serve as a template for future emotional relationships. Children with secure attachments learn to regulate their emotions and control their behaviour. With the parents providing a secure base, the child is free to explore and learn. Eventually, a child can hold the symbolic representations of attachment figures inside then to feel secure even without the physical presence of the caregiver.

With less optimal caregiving, the child has to adapt and try to organise a strategy to keep the pound close and engaged. This organisation of an adaptive strategy does not mean that the child fails to form an attachment. However, such strategies come at a price and may lead to a variety of problems as the child grows and develops.

If an infant’s expressions of need are routinely rejected or dismissed, the child will learn to shut down feelings of dependency, a style of attachment known as avoidant. In later adolescent (sic, semble adolescence) and adulthood this pattern of minimising the importance of feelings and relationships is referred to as dismissing.

If on the other hand the caregiver responds to the infant’s demands but in an unpredictable way the child may develop a strategy of escalating attachment-related behaviours by becoming more clinging and demanding, while at the same time their anxiety makes them resist being comforted. This pattern of attachment is known as ambivalent. In later adolescence and adulthood it is referred to as preoccupied or enmeshed.

The children are exposed to frightening behaviour from their caregiver, they may be unable to organise a strategy at all, as their drive to look to their caregiver for care and protection results in fear and increase, rather than decrease, in anxiety. This style of attachment is known as disorganised. Such children can develop highly controlling behaviours as they grow older but this masks underlying vulnerability and distress. In late adolescence and adulthood, this pattern is referred to as unresolved and is linked to the development of personality disorders.

Attachment patterns established in infancy are resistant to change once this early developmental stages pass, even if the caregiving environment changes, but over time, with reparative parenting, and, in later life, supportive relationships, new more secure patterns of attachments can begin to override existing patterns.”

A number of points may be made about this description of the theory. First, the theory, which I suppose is an aspect of psychology, is not stated in the report to be the subject of any specific recognised body of expertise governed by recognised standards and rules of conduct. Indeed, I asked the advocate for the guardian whether he was aware whether a student could undertake a degree in attachment theory, or otherwise study it at university or professionally. Mr Hussell was not able to answer my question. Therefore, it does not satisfy the first criterion for admissibility as expert evidence.

Second, the theory is only a theory. It might be regarded as a statement of the obvious, namely that primate infants develop attachments to familiar caregivers as a result of evolutionary pressures, since attachment behaviour would facilitate the infant's survival in the face of dangers such as predation or exposure to the elements. Certainly, this was the view of John Bowlby, the psychologist, psychiatrist, and psychoanalyst and originator of the theory in the 1960s. It might be thought to be obvious that the better the quality of the care given by the primary caregiver the better the chance of the recipient of that care forming stable relationships later in life. However, it must also be recognised that some people who have received highly abusive care in childhood have developed into completely well-adjusted adults. Further, the central premise of the theory – that quality attachments depend on quality care from a primary caregiver – begins to fall down when you consider that plenty of children are brought up collectively (whether in a boarding school, a kibbutz or a village in Africa) and yet develop into perfectly normal and well-adjusted adults.

For my part I would say with all due respect that I do not need a social worker to give me evidence based on this theory to help me form a judgment about L’s attachments.

In her executive summary Cathy Webley says:

“On balance, I feel that the risks to L of a return home at this stage are too high and that he should have the opportunity to consolidate the evident progress he is making in his settled foster placement. My conclusion may have been different if L’s foster placement was unsuitable or was in danger of disrupting. However that is not the case. L is happy, settled on making secure attachments in the way that his care plan was designed to achieve. L is more resilient than he was but he remains more vulnerable than most children. I would be concerned about disrupting him again and moving him into an uncertain future with his mother.”

This opinion is based on supposed expert evidence, but it seems to me to be no more than a standard welfare officer recommendation, and one that does not place any weight at all on the principle of proportionality, or on the right to respect for family life, as explained by me above, let alone on the positive duty of the local authority to take measures to achieve a reunification of the blood family. Indeed, it is noteworthy that on page 15 of her report the very first matter relied on by the independent social worker against the mother’s case is in these terms:

“L has been told he will be staying long-term with [the foster parents] and has made an emotional investment in his new family. He would undoubtedly find separation for his foster family, whom he has learnt to love and trust, distressing, even if he appeared outwardly happy.”

If L has been told that he will in effect be staying permanently with his foster parents then that would be a major dereliction from the positive duty imposed on the local authority to seek to take measures to reunify this family. I cannot see how this factor can be relied on first and foremost by the independent social worker.

I cannot say that this so-called expert evidence has assisted me in reaching the decision I must make.

In my judgment, in any future case where it is proposed that expert evidence of this nature is adduced I would expect the court to determine the application with the utmost rigour, and with the terms of this judgment at the forefront of its mind.

I now turn to the facts of this case. The background is set out in the judgment of Judge Sharpe dated 29 February 2016, where the care order over L was made originally. It is further elaborated in my judgment of 10 November 2017. I do not repeat those background facts here. In my judgment of 10 November 2017, I adopted what I described as the third way rather than making a binary choice between the grant or refusal of the mother’s discharge application. That third way was to devise what I described as a normal contact regime over a six-month period so that an empirical body of evidence could be built up as to the quality of the mother’s actual parenting. That contact provided for alternate weekends with the mother during term time; for half of each half term holiday; and for one week at Christmas and Easter. This would represent an entirely conventional quantum of contact in a private law dispute. However, most unfortunately, the foster parents have reacted very uncooperatively and antipathetically to my award of contact, even going so far as to say as regards the Easter contact that L might as well have his kit packed up and stay permanently with his mother. Further, it is clear that the foster mother has unfortunately and rather impolitely refused to communicate with the mother on banal contact arrangements – none of the mother’s reasonable texts have been acknowledged.

When I awarded the contact on 10 November 2017 I was fully aware that it might prove difficult for all concerned given that the mother had been confined to the most limited supervised contact since the child was taken into care in August 2015. I expected both the local authority and the guardian to appraise the quality of the mother’s parenting in a neutral and dispassionate way. Yet they have continued to oppose the mother’s application at this final hearing in a trenchant manner. For example, the local authority’s evidence in opposition to the mother’s application was contained in an extremely long, 44-page, witness statement made by the social worker Lowri Tommason-James dated 15 May 2018. This witness statement was very long on rhetoric and generalised criticism but very short indeed on any concrete examples of where and how the mother’s parenting had been deficient. Indeed, it was very hard to pin down within the swathes of text what exactly was being said against the mother. Therefore, I required Ms Tommason-James to identify in the witness box her top four criticisms of, or concerns about, the mother. These were given as follows:

It was rightly pointed out that as generalised statements, or tropes, these were easy things to say, but that concrete examples of the individual concerns were very hard to come by.

Ms Tommason-James was asked to identify her best example of the mother failing to meet L’s emotional needs. Her response was that until prompted by the local authority mother had not spent sufficient one-to-one time with L and had failed on one occasion to take him out for an ice cream. This struck me as utterly insubstantial criticism, and indeed it must have struck the legal representatives of both the local authority and the guardian in the same way because this was not put to the mother in cross-examination by either of them. A further criticism in this vein was that the mother had failed to arrange for L’s hair to be cut in the way that he liked. Again, this is obviously inconsequential, and again it was not put to the mother in cross-examination. A yet further criticism was that on one occasion the mother allowed L into the house of Mr S, the father of A and K. The local authority’s case is that Mr S represents a risk to L, although this has not prevented them approving the placement of A and K with him. On the occasion in question the mother had gone up to Mr S’s house to get some money for A, and L was allowed to visit the downstairs lavatory while the mother was talking to Mr S outside the front door. How this is supposed to represent a failure by the mother to meet the physical or moral needs of L is completely beyond me. It does seem to suggest that objectivity and disinterested fairness is not being applied to the mother.

A further example given of the mother’s alleged deficiency in furthering L’s emotional needs was her conduct in relation to a contact weekend when she discovered that she in fact was rostered to work the night shift at the time of collection. Initially, she was minded to work the shift as she did not want to jeopardise her recently acquired employment. However, on being told that L was very upset by this news she took a day off. Counsel asked how this was supposed to represent a failure by the mother to prioritise L’s needs; she put it that surely this was representative of the mother prioritising them. After being pressed repeatedly Ms Tommason-James reluctantly agreed.

So far as the dynamic of the relationship between L and Mr M is concerned it is true that to the foster parents L has made repeated disclosures that he “hates” Mr M, and that Mr M often shouts at him. He has also stated that his mother shouts at him (see paragraph 58 of Ms Tommason-James’s statement). What is this based on? Virtually nothing, it would seem. It is true that on an occasion in in January L was playing with a Power Ranger sword which he had been given for Christmas, and was waving it around indoors. These toys are sizeable objects (they can be viewed on the Internet). L was asked by Mr M to stop waving it around for fear of breaking something and when he did not the sword was taken away from him. I expect that Mr M spoke to him firmly. Mr M has also agreed that he has spoken to him quite firmly so that he learns the difference between right and wrong. Mr M and the mother completely denied that Mr M shouted at L, save that it was agreed that on one occasion when the bath overflowed and water poured through the kitchen ceiling, things became understandably anxious. Mr M was barely taxed on this in cross-examination, and indeed Ms Tommason-James accepted in cross-examination that she had no criticism as to how Mr M dealt with the sword or the flood. The suggestion that the mother shouted at L was not put to her at all in cross-examination and is certainly untrue.

It is my finding on a clear balance of probability that Mr M has not shouted at L. Mr M, who was a good witness (as was the mother), explained that while L was not deliberately naughty, he did push back boundaries. I accept Mr M’s evidence that the most that has happened is that he has spoken to L firmly in order to instil proper respect for the difference between right and wrong. This is appropriate parenting. It is my finding beyond any doubt at all that his mother has not shouted at him. So why is L telling false tales to the foster parents? It is well recognised that children of this age find it easy to tell lies. Sometimes it is done out of pure wilfulness and one is reminded of the famous poem about Matilda by Hilaire Belloc. Sometimes, and probably more commonly, it is because the child in question is saying the things to his audience that he believes that the audience wants to hear. It is a process of seeking validation, the psychological origin of which is easy to discern. There is no doubt that L has formed a strong attachment to his foster parents, and he is no doubt fully aware of their strong antipathy to the quantum of contact awarded by me in the mother’s favour. So it is not difficult to see why he would say untrue things about the contact visits that he would think his foster parents would want to hear. It may be seen as an infantile manifestation of Ibsen’s “saving lie” (livsløglen), the lie that makes life possible and which saves most families from eruption.

In her evidence the guardian stated: “L is always going to struggle to trust Mr M”. I am bemused by this because there is absolutely no evidential basis for this assertion whatsoever. What is Mr M supposed to have done that has given rise to this breach of trust? Certainly nothing was put to him under cross-examination to that end. It does seem to me to be another example of the tendentiousness that appears to have crept into the mindset of both the guardian and the local authority.

The mother told me that the contact ordered by me was:

“Difficult for all of us. He does not know if he is coming or going. It is heart-breaking to send him back. He does not want to go back. This is the case every fortnight.”

I am satisfied that the mother is telling me the truth, although this may well be another example of L saying things that he wants his listener to hear.

As regards the third area of concern, namely the dynamics of sibling relationships, this relates to the fact that A has been spending some time with the mother and Mr M; and it is the mother’s wish that he should in fact live permanently with them. It seems to be agreed that the relationship between A and Mr S is strained. A is 14 and in common with so many other sibling relationships of the same chronological distance has a slightly awkward relationship with his half-brother L. However, the only concrete example of a suggested dysfunctional sibling dynamic was what was described as the iPad incident, when A dropped L’s iPad on the floor. Again, this strikes me as completely inconsequential and I am surprised that this elaborate edifice of a supposed dysfunctional sibling dynamic has been erected on it.

As regards the mother’s supposed reluctance or inability to work with the local authority (a routine allegation made in cases of this type) it was noteworthy that when Ms Tommason-James was asked to give her best concrete example of this she was unable to think of one. This is another untenable allegation because the evidence shows the contrary. As one would expect, the mother has cooperated fully with the local authority during this transitional period when obviously she would be aware that her every move would be scrutinised. In fact, she has been subjected to what was described as a “statutory requirement” during periods of contact of having her cupboards opened and searched and her breath smelt; which she has suffered without complaint.

In his final submissions Mr Nathan Jones, on behalf of the local authority, accepted that if I were to determine today whether the threshold was crossed it would probably be impossible to say that it had been. This I take to be a concession that it cannot be said that L’s physical or moral health would be endangered were he to return to live with his mother. In his final submissions Mr Julian Hussell continued to rely very strongly upon the attachment theory report of Cathy Webley. I have already explained why I do not think that this evidence is even admissible; I have further explained that (it having been allowed in by the previous order) it has provided me with no assistance in determining the question I have to answer. Indeed, it seems to approach the question from entirely the wrong end namely by asking whether there is any good reason why the stable placement with the foster parents should be disturbed. The law is clear, however. The relevant question is instead: is there any good reason why the mother cannot resume the care of her child?

It is noteworthy that the report of the independent social worker Terry Wilson dated 5 June 2017 on the mother’s parenting capacity (evidence that was in my opinion rightly adduced) he stated:

“I have not identified evidence to suggest any probability that [the mother] and Mr M caring for L in the future would represent an obvious risk of significant harm, nor that they would not unbalance be able to provide good enough parenting. Thanks to the long period of reparative parenting that has taken place [the mother] stands a chance of being able to maintain the good standards that have been achieved on her behalf and build on them. Rehabilitation still represents something of a leap of faith however, with none of [the mother’s] excellent personal progress offering a guarantee of L’s needs continuing to be met. [The mother] understands that the court’s decision about her application will not hinge on whether or not she has ‘raised her game’, which she has, but on a dispassionate and child-focused analysis of what will ultimately be best for L. In coming to its conclusions, the court will have regard for what the local authority can offer by way of a further guarantee that L’s needs will be met more fully by remaining in its care. I have drawn attention in this assessment to matters that I feel impact on such a calculation and, in the absence of further evidence to the contrary, should contribute to the decision that is to be made in my view.”

In my judgment the evidence that has been accumulated since my implementation of the transitional phase in November 2017 augments and bolsters this conclusion significantly. It cannot seriously be said, notwithstanding the unconvincing attempt to do so, that the evidence does not demonstrate the continuance and development of the reparative parenting referred to by Mr Wilson. The reference by Mr Wilson to a “leap of faith” has been seized on. But uncertainty is inherent in every discharge application; and every successful application will, ex hypothesi, entail a leap of faith. A policy of iron-clad conservative safety would probably militate in every discharge case a refusal of the application; but that would not be consistent with the law as I have set out above.

On 18 May 2018, that is a few days before the final hearing, the guardian visited L in his school. (The mother has now agreed that L will not be moved from his school so that particular concern falls away. However, the mother should give a formal agreement to this effect in the order that disposes of these proceedings). The guardian asked L: “if the judge decides you will live with Mammy how would you feel?”. L replied: “happy”. The guardian then asked: “what about if the judge decides you will stay with [the foster parents]?” L replied: “fine”. L knows perfectly well that his mother has made her life with Mr M and that he is as much an occupant of the mother’s home as she is. If it were really the case, as the guardian says, that L was going to struggle to trust Mr M then I would not have expected him to say that he would be happy to live with his mother and Mr M.

In my judgment this is a strong case for the success of the discharge application. I asked rhetorically during the hearing: “what more could the mother have done?” The answer is nothing. The objections to the success of the application are inconsequential, trivial and insubstantial and have been, in my judgment, advanced to give effect to a predetermined end. If this application does not succeed then we might as well scrap section 39.

For all the reasons I have given above the application is granted and the care order is discharged. However, it is to be replaced for a supervision order to endure for one year, for two reasons. First, this is necessary in order that L can access the therapeutic services that all are agreed he should engage in. Second, it is necessary that there is formal supervision of L’s return to his blood family in view of the inevitable uncertainties that that return will entail.

I confirm that in reaching my decision I have given paramount consideration to the best interests of L. I have taken into account all the matters in section 1(3) of the 1989 Act. I have applied the principle of proportionality and I have endeavoured to reflect all the matters in the relevant Strasbourg jurisprudence. I am not satisfied, in the slightest, that L’s moral or physical health would be endangered were he to be returned to be cared for by his mother. Indeed, I am convinced that his moral and physical health are best promoted by him being brought up within his blood family. The matters relied on in justification for him staying where he is, and for his contact to his mother being drastically curtailed – an obvious impairment of his right and that of his mother to respect for their family life – are, on full analysis, inconsequential and trivial.

I have set out in detail above why I do not accept the evidence and arguments of the guardian.

That concludes this judgment.