Nottingham City Council v G & Ors

These care proceedings (NG08C000185) were last before me on 18 February 2008. I heard them immediately after I had heard the related judicial review proceedings (CO/532/2008). Following the hearing I handed down judgment on 5 March 2008: R (G) v Nottingham City Council (No 2) [2008] EWHC 400 (Admin). I need not repeat what I said in that judgment, most of which relates to the judicial review proceedings; paragraphs [80]-[85] deal with the care proceedings.

The order which I made following the hearing on 18 February 2008 provided for a residential assessment at the Cassell of G and K (and possibly also K’s father, C). It was contemplated that the process would fall into three stages:

It will be appreciated that the purpose of the directions hearing on 14 March 2008 was (a) to decide, in the light of the interim report from the Cassell, whether K should join his mother there and (b) whether, in the light of the assessments of him to be carried out by the local authority and by the Cassell, they should also be joined there by C.

Unhappily the planned assessment at the Cassell has completely broken down:

There have been two further unwelcome developments since the last hearing:

On 12 March 2008 the local authority issued an application seeking (a) the discharge of the order for the assessment at the Cassell I had made under section 38(6) of the Children Act 1989 on 18 February 2008, (b) an order pursuant to section 34(4) of the Act authorising the local authority to refuse to allow contact between G and K, (c) an order transferring the proceedings back to Nottingham County Court and (d) an order abridging time so that the local authority’s applications under (a)-(c) could be heard on 14 March 2008.

The same day I made an order abridging time for service to 24 hours, directing that paragraphs (a)-(c) of the local authority’s notice of application be listed for hearing before me on 14 March 2008 and giving the local authority leave to file evidence in support of its application.

The local authority filed, and I read, a ‘chronology of significant events’ since the hearing on 18 February 2008 and the ‘running record’ of its dealings with the case since 7 December 2007. Particularly important in the context of the local authority’s application was that part of the record detailing events since 18 February 2008. The local authority also filed, and I likewise read, the relevant ‘contact notes’.

In addition, the local authority filed statements by Ms SJ, the team manager, and by Ms AJ, the family support worker who, with others, had had the responsibility of supervising G’s and C’s contact with K.

Ms SJ’s statement, which was not tested in cross-examination, said that “the quality of the contacts has largely been very poor. K’s needs have been secondary to the parents’ own needs.” Ms AJ’s statement was directed in particular to the incident on 12 March 2008.

In addition to the material filed by the local authority I had reports from the Cassell dated 13 March 2008. The consultant child psychotherapist recorded that:

“Unfortunately, it has not been possible to put together a report as originally planned as G did not feel able to continue with the assessment after the first week.”

As he pointed out, the preliminary reports which had nonetheless been prepared by various professionals at the Cassell:

“reflect the genuine effort that G made to engage in an assessment process to be able to care for K although the reality for her of what it would involve proved too difficult for her.”

Counsel in the case were able to discuss matters further on the telephone with the Cassell during the course of the hearing. I need not go into details of what I was told. For present purposes it suffices to say that the Cassell did not, for its part, see the door as irrevocably shut, although it made clear that it would not be able to assist further were I to find that the events which had taken place on 12 March 2008 were indeed as alleged by the local authority.

In these circumstances, Mr Brian Jubb who, as on the previous occasion, appeared for G, understandably and appropriately indicated that he would wish to cross-examine Ms AJ about the events of 12 March 2008, before calling G herself to give evidence.

I proceeded to hear evidence from Ms AJ.

Contact on 12 March 2008 began at about 9.30. From then until 10.15 it was supervised by Ms SF and Mr MJ; from 10.15 it was supervised by Ms SF and Ms AJ. Ms AJ made a detailed note of the events she had witnessed the same day and within hours of them happening.

The note prepared by Ms AJ describes in some detail the build up to the point at which Ms AJ telephoned Ms SJ “to inform her that the situation was escalating and that K was becoming distressed.” Following on from that, C, who was holding K, threw G’s mobile phone charger at her. G “threw it back at him just missing K’s head.” G then “grabbed” K from C and “continued to fight with C.” In her oral evidence, Ms AJ confirmed that this was a physical fight; they were hitting one another with K in the middle. “Suddenly she thrust K with force into the baby bouncer” then “roughly swooped K back out of it and continued to fight” – that is, as Ms AJ confirmed, to fight physically. Ms SF said to G “give me the baby” and G “threw him at her from a distance of about 18 inches.” Ms AJ comments that although Ms SF caught him “G had carelessly thrown him without due care of where he was actually going to land and without supporting his head” – I interpolate that K was only 6 weeks old. Ms AJ’s account continues: “G and C continued to fight and at this point Ms SF and I took the opportunity to remove ourselves and K”. They went to a locked room for safety while the police were called.

I have no hesitation in accepting Ms AJ’s evidence as both truthful and accurate. She was a careful, thoughtful, reliable and patently honest witness who was not shaken by Mr Jubb’s cross-examination. Her note, as I have said, was made only hours after the incident and her oral evidence was being given only two days later. Her note is an accurate and balanced record of what was, in my judgment, a profoundly disturbing incident.

G, in the event, declined to give evidence and indeed left the court-room, although remaining in the building. During Ms AJ’s evidence she had made a number of comments more or less under her breath. At one point, she called her a “lying bitch”.

It is sadly all too obvious that the assessment at the Cassell cannot continue. There are two quite separate reasons for this:

In these circumstances, the local authority is entitled to an order discharging the order for the assessment at the Cassell I had made under section 38(6) of the Children Act 1989 on 18 February 2008.

Ms Rowley submits that, in the events which have happened, the time has now come to transfer the care proceedings back to the County Court. I agree.

The judicial review proceedings are now, in large measure, at an end. There is not to be any further assessment at the Cassell. The rationale which underlay the Court of Appeal’s decision to transfer the care proceedings to the High Court, and my decision on 18 February 2008 to retain the proceedings for the time being in the High Court, accordingly no longer exists. Stripped of those aspects, the case, as Ms Rowley correctly submits, is not a complex case of the kind justifying the involvement of the High Court.

In my judgment, the care proceedings should now be transferred back to the County Court, where there will need to be a case management conference as soon as possible. Judge Inglis tells me that he can accommodate the case in his list in the first week in April. I shall make an order accordingly.

The local authority does not seek, at this stage, to terminate C’s contact with K, but it does seek an order under section 34(4) authorising it to refuse to allow contact between G and K. This is not merely because contact has, in Ms SJ’s (untested) opinion been “very poor” and, in Ms AJ’s opinion, undergone a “recent deterioration.” It is essentially because of what happened on 12 March 2008, though that is only the culmination of what appears to have been a steadily deteriorating situation.

It is a very drastic thing indeed to interfere with a young mother’s contact with her newborn baby, and his contact with her, particularly at a time when ‘threshold’ (see section 31(2) of the Act) is yet to be established. It is an even more drastic thing to deny contact altogether, and something which lies at the very extremities of the court’s powers. Extraordinarily compelling reasons must be shown to justify an order under section 34(4) at this early stage in the proceedings.

Mr Jubb submitted that, whatever view I took of events on 12 March 2008, the case was not made out for an order under section 34(4). An order under section 34(2), defining appropriate contact arrangements, and more particularly imposing appropriate conditions entitling the local authority to terminate or discontinue further contact in the event of any breach, would, he submitted, suffice to protect K. Alternatively, he submitted, any order under section 34(4) should be limited in its duration so that the question can be re-visited by Judge Inglis at the forthcoming case management conference.

Ms Rowley for her part submitted that I should here and now make an order which, unless varied on application made by G in the meantime, should last until the final hearing of the proceedings.

I confess that I have not found this an altogether easy question to resolve. I am quite satisfied that, at least in the short-term, there must be an order under section 34(4). In the light of what happened on 12 March 2008, K’s safety imperatively demands that I make such an order. The more difficult question is whether I should make that order so that it lasts only until the next hearing or whether I should make it so that it lasts until the final hearing.

Ms Rowley, contending for the latter, submits that it is idle to imagine that things will have changed sufficiently over the next two or three weeks to allow contact then to be resumed – and in any event, she says, whatever order I make there will be nothing to prevent G applying to vary or discharge it. Furthermore, an order under section 34(4) only “authorises” the local authority to refuse to allow contact. It does not forbid such contact and a local authority, even if clothed with authority under section 34(4), is, of course, under a continuing duty to keep matters under review and to allow contact to resume as soon as it is safe and appropriate to do so.

I can see the force of Ms Rowley’s submissions, but having reflected on the matter over the weekend I think that an order in the terms she seeks would be too drastic and that it might very well send out quite the wrong ‘message’ to all concerned. Accordingly, I will make a section 34(4) order, but limited to expire on the date of the case management conference before Judge Inglis.

This will allow the dust to settle and give G another opportunity to show that she can put K’s needs before her own problems. But I do not want there to be any misunderstanding. The onus will very much be on G to demonstrate to Judge Inglis that contact, no doubt carefully supervised and, it may well be, subject to stringent conditions, is something that should be allowed to resume. The next two or three weeks will give G a breathing space to show, if she can, that she is willing and able to work together with the local authority, to take on board the local authority’s concerns about her behaviour during contact, and to demonstrate as best she can that she is going to behave herself if contact resumes. If she is able to do this, then it may be that Judge Inglis will be persuaded that contact between G and K can safely and appropriately resume. If, however, she is not able to do this, then in all probability the order I have made will be extended and continued by Judge Inglis.

A number of other matters were canvassed in front of me in relation to the future conduct of these proceedings. There is no need for me to discuss them in this judgment. I have made the necessary directions, which are set out in the order I made at the end of the hearing.

I repeat and draw attention to what I said in my previous judgment.

The hearing before me on 14 March 2008 took place in chambers – in private. Reporting of the proceedings accordingly continues to be subject to the restrictions imposed by section 12 of the Administration of Justice Act 1960 and section 97 of the Children Act 1989.

In the particular circumstances of this case, and not least in the light of all the previous publicity, I have decided to release this anonymised judgment for publication, so that the public can be aware of how this stage in the proceedings has turned out. But the case will, from now on, be continuing like any other care case being heard in the County Court. Those aspects of the case which are of particular public interest have now, it would seem, come to an end. It should not be assumed, therefore, that Judge Inglis will see any need to make public disclosure of further steps in the proceedings, though it may be that he will think it appropriate to announce the eventual outcome. All that, however, is entirely a matter for him.