The Mother v The Local Authority & Ors

The children are S who is 14 and A who is 12. They are represented through their Guardian by Mr Jenkins.

Their mother is represented by Miss Barraclough.

Their father represented himself at this hearing

The Local Authority which holds care orders for both children is represented by Miss Smith.

The children were removed from their parents’ care following allegations that the Father had abused S. In the care proceedings, findings of fact were made by HHJ Richards and the findings made are set out in his Judgment in the bundle.

The mother and children underwent an assessment by Dr Tostevin who ultimately concluded that the Mother did not at that time have the sufficient ability to care for the children in such a way as to meet their complex therapeutic needs due to their history of trauma.

The court made Care Orders with a plan for the children to be in long term foster care. There was to be an active and meaningful review of whether the children could return to their mother’s care within the next 2 years and key elements for the Mother to address were set out.

The father was convicted of abusing S and sentenced to imprisonment and remains in custody.

The Mother was dissatisfied with the process and outcome of the review and made an application to the court for discharge of the Care Orders.

The court gave directions and appointed a Guardian and allocated the case to District Judge level. Directions were made for the re-instruction of Dr Tostevin to undertake an updating psychological assessment of the children and the Mother and for a reunification assessment of the mother by an ISW, Sharon Kelly. The case was timetabled to an IRH/early final hearing on 26^th July 2024.

Dr Tostevin concluded that whilst the Mother remains motivated to do what she can for herself and the children, her skills are not sufficient to support the children with their recovery from trauma and abuse they have experienced despite the progress the mother has made. The ISW report also concludes that reunification is not in the best interests of S and A.

However, the children had not been made aware of these proceedings and have not had their specific views sought on the mother’s application, as a result of advice given by Dr Tostevin to Ms Kelly who notes:

“…consideration has been given to the children’s voice, despite the children not being aware that this reunification assessment was taking place. This is on the recommendation of Dr Tostevin, with her reiterating the importance of the children not being aware of the reunification assessment when she was spoken to on the 30.05.24. Dr Tostevin is of the view that for the children to be aware of any potential plans to return home will be upsetting and destabilising and potentially impact the therapeutic work they are undertaking.” [293]

Final evidence has been filed by the Local Authority and there is a Final Analysis by the Guardian. The Guardian had not met with the children nor ascertained their views due to the advice of Dr Tostevin and instead sought the views of the social worker, the Team Manager, IRO, foster carer, Ms Kelly and Dr Tostevin as to the children’s wishes and feelings. It should be noted that none of those individuals have ascertained the children’s direct views on the application before the court, instead their views on contact with their mother and their life with the foster carer have been gleaned from indirect observations.

No application had been made to the court for guidance on this point until the issue was raised at the IRH. The court then directed that this issue be listed before me for 1 day with Dr Tostevin to attend. I gave further directions that the Guardian was to file a C2 application for the court to consider whether notice of the proceedings should be withheld from the children which was filed on 21^st August 2024.

The Mother seeks that the children are informed of her application and that their wishes and feelings are obtained. The Local Authority adopts the position of supporting Dr Tostevin’s position whilst also accepting the legal hurdles this position poses. The Guardian raised all the difficulties in her current position but wished to hear further from Dr Tostevin before finalising her position. The Guardian is mindful of the expert opinion, in particular Dr Tostevin’s, that doing so may cause harm to the children and disrupt their therapeutic work. The Father who suffered from the dual disadvantage of not being legally represented and without full access to all the papers due to his incarceration, was concerned about the impact on the children and did not want them to be disturbed unnecessarily.

As the case could not conclude with oral judgment on 19^th September 2024 and the Guardian’s position was not capable of finalisation until she had been updated on Dr Tostevin’s evidence, a written judgment is being handed down as soon as possible in order to enable the case to progress quickly.

I have received helpful skeleton arguments from the legally represented parties for which I am very grateful. Counsel helpfully identified cases which may assist the court in its determination and provided a bundle of authorities but no authorities which were directly on this point could be found in their researches.

The starting point is that the children (and their parents) have the protection of Articles 6 and 8 of the European Convention on Human Rights. Article rights to a fair trial and to participate in decision-making processes that fundamentally affect their family life.

Whilst not directly incorporated into English law, the UK has ratified the UN Convention on the Rights of the Child 1989 in which Article 12 states:

“1.

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”

The court therefore has to consider its processes in the light of these fundamental rights and ensure that they are respected.

The Court of Appeal in Mabon v Mabon 2005 EWCA Civ 634 stated that “unless we are to fall out of step with similar societies as they safeguard Article 12 rights in the case of articulate teenagers, we must accept their right to freedom of expression and that their participation outweighs the paternalistic judgment of welfare”.

In Re D 2016 3 All ER 770, the Court of Appeal held that it is a fundamental principle that, in every case, the child shall be given the opportunity to be heard and it is a matter for the court as to how that is best achieved. Or as Sir James Munby P put it in Cambra v Jones 2014 EWHC 913 FAM, if a child’s article 8 rights are engaged, this carries the important procedural right to be involved in the decision-making process as a whole, to a degree sufficient to provide a child with the requisite protection of their interests.

It is an essential part of a fair process that the voice of the child is heard and considered, and of course the court must consider section 1(3) of the Children Act 1989 in determining the Mother’s application. Section 1(3) commences the welfare checklist of the factors the court must apply to its decision-making with the factor of the ascertainable wishes and feelings of the children.

In Re T 2024 EWCA Civ 241, dealing with the disclosure of material to other parties which a child wished to have withheld, the Court of Appeal reiterated that parties are entitled to disclosure of all materials and that non-disclosure should be the exception not the rule.

The Court of Appeal identified that the court should firstly consider whether the disclosure of material (in this case the application itself) would involve a real possibility of significant harm to the child.

If so, it should consider the overall interests of the child in having the material properly tested (or in this case, the overall interests of the child in having their views directly ascertained and placed before the court as part of its decision-making process) balanced against the identified risk of harm and its gravity.

The court should consider what measures could be taken to mitigate that risk when evaluating the gravity of the harm.

If this analysis pointed to non-disclosure, then this must be weighed against the interests of the parties in having a fair trial and any resulting undue interference with their Article 8 rights.

I have also been referred to cases where applications have been made for parties not to be given notice of proceedings, in particular A LA v A 2020 EWHC 274 and Re B 2021 EWCA Civ 1221. Again, these call for a strict analysis of the nature and gravity of any harm caused by notice being given, analysed in the light of what measures could be adopted to mitigate that harm. The identified risk of harm should then be weighed against the interference in the Article 6 and 8 rights of the party affected. The overarching principle is that there must be strong countervailing factors to justify a party’s exclusion from participation in proceedings if they have Article 8 rights engaged.

Drawing together all of these lines of authority, I derive the following questions which I need to address:

I have read the bundle which contains the updating assessments and statements in these proceedings as well as papers from the care proceedings.

The court heard from Dr Tostevin who identified the harm which would be likely to flow from the children being informed about the application and then asked about their wishes and feelings as being that the uncertainty each child would experience (particularly bearing in mind the uncertainties and trauma which they had experienced to date) would cause quite a significant level of emotional distress. Both children would experience divided loyalties. For A, they would cogitate on the decisions being taken and would be likely to assume a greater burden on themselves of seeking to please everyone. S’s education was at risk of suffering as they are likely to think about this issue at school and be unable to concentrate. Importantly, it would divert their therapy away from their trauma needs as they would need their therapeutic space to explore this decision. It may impact on their sibling relationship and cause a reversion in A’s unhelpful behaviours (such as controlling behaviours) towards their sibling. It could give rise to challenging behaviours in placement, but not to the degree which would place their placement at risk. Further, it could impact on their relationship with their mother, particularly if she were unsuccessful and this contributed to a narrative in the minds of the children of their mother failing.

Although pressed on this question, Dr Tostevin did not identify any long term or permanent risk of harm.

Although the risk of harm and its magnitude could be minimised by measures put in place (such as a shared narrative and the Guardian having the input of the children’s therapist before speaking to the children), Dr Tostevin’s view was that this risk of harm would still remain. Of particular importance if they were informed, would be the need to limit the amount of time during which the children were exposed to this uncertainty.

In her view this harm would outweigh the risk of emotional harm to the children of them finding out later that decisions had been taken without their knowledge or input.

Dr Tostevin’s preferred option was that the court should determine the Mother’s application to discharge the care order on a preliminary basis and only if that were successful, should the children be informed and their views sought.

No party challenged Dr Tostevin’s assessment of the risk of harm.

Dr Tostevin’s preferred option would not enable the court to carry out a holistic assessment of the factors which need to be considered by the court and would lead the court into the dangerous territory of examining evidence in separate compartments and falling into the trap of conducting a linear analysis. This option is not one urged upon me by any of the legal representatives, although for understandable reasons based on Dr Tostevin’s evidence, the Father supported this option if it were possible. I conclude that this would not be an appropriate way for the court to proceed for the reasons outlined above.

I accept Dr Tostevin’s evidence as to the extent and nature of the harm as set out above. Such harm is likely to be caused by the children being informed and their wishes and feelings being sought.

I have considered whether there are any options which would enable the court to hear the voice of the child, short of their being notified. I do not consider that trying to obtain their wishes and feelings through indirect means without them being informed would enable the voice of the children properly to be heard by the Court. This has already been attempted and does not provide the court with more than speculative assumptions of their wishes and feelings.

Further, given their ages it may be that they would be viewed as competent in their own right to instruct a solicitor and it may be that their wishes and feelings would differ from the recommendations of the Guardian in which case they would be entitled to legal representation separate from the Guardian.

I have borne in mind that, given the level of curiosity displayed in particular by A, it is entirely foreseeable that the children would find out about this application in the near future. I bear in mind the harm that finding out after the event that they had been excluded from even knowing about this court process would cause them, potentially impacting on their ability to trust professionals and have the open relationship with them which will best ensure their safety and well-being.

I therefore have to determine whether this risk of harm outweighs the degree of interference into the rights of the children and the Mother to a fair trial and into their Article 8 rights.

Given the importance attached to the voice of the child throughout all the authorities dealing with various applications before the Family Court and the High Court, a high degree of harm would have to be a real possibility before the court would exclude a child from any real participation in the proceedings in which their Article 8 rights are in play.

I am satisfied that the risk identified in this case, whilst significant, is not of a nature and degree sufficient to warrant such an exclusion of the children and such a limitation on the court’s ability to carry out its decision-making functions in accordance with the Children Act 1989. Therefore, the children are to be notified of the application and their wishes and feelings obtained.

However, this harm must be mitigated by the creation of the shared narrative (which the Guardian is already preparing) for the children to be given in preparation for work on their wishes and feelings. This narrative is to be signed up to by all parties and created with the input of the children’s therapist and Dr Tostevin.

Given what is set out at para 5.2.9 of Dr Tostevin’s report, both A and S need to be relieved insofar as is possible of any assumption of responsibility for the decision which the court will make. Guardians are highly skilled at ensuring that the views of the children are obtained in a sensitive way which ensures that they do not feel placed in the middle of competing parties and I know this Guardian will be vigilant to ensure that the children are properly prepared and supported through this process.

All parties must also ensure that no pressure is placed on the children, even inadvertently, to express views in support of any particular outcome for this case. They must be enabled, protected, and supported to express their own views free from the fear of upsetting anyone.

The other important factor is that these proceedings must be condensed so as to enable the shortest period of time of uncertainty for the children. I will list this case for a final hearing at this stage to enable there to be a fixed period of time for this uncertainty.

I expect all parties to enable finality at the earliest opportunity and if this period of time can be shortened in light of the children’s expressed wishes and feelings, I would expect a child-focused parent to assist their children by relieving them of this harmful uncertainty.