London Borough of Wandsworth v W

These are care proceedings brought by the London Borough of Wandsworth in relation to a baby boy, J J, born on 14 December 2014, so he is seven months of age. The J’s mother is 41, and his father is, aged 28. The parents are not married and have never had a substantial relationship with each other. The father is not engaged with the proceedings and has not had any contact with J. He does not have parental responsibility.

The proceedings arise out of the mother’s long history of serious substance abuse and her inability to date, notwithstanding her genuine desire to care for her children, to remain abstinent from drink and drugs. On 26 July 2013, the mother was sentenced to three and a half years’ imprisonment. She was pregnant at the time. On 14 December 2013, J was born and a few days later placed in foster care. On 10 March 2014, the prison, faced with judicial review proceedings, agreed to offer the mother and J a place in their mother and baby unit. J has remained in his mother’s care at that unit since that time, a period of three and a half months.

The mother’s case (which is accepted by the local Authority), is that she has abstained from any substance misuse during the nearly 12 month period since her incarceration. The mother is likely to be released on a tag in September 2014 and wishes to care for J, either in the community, (living with her mother and her other daughter), or at a residential unit, possibly one known as the Residential Family and Reunification Diversion Prospect, otherwise known as the Free Women’s Project.

The local authority and the guardian, whilst acknowledging the excellent quality of care the mother has given J within the structured environment of prison, submit that the risk of relapse to J is so considerable that it is not in his best interests for him to remain in his mother’s care. The paternal grandmother has been assessed as a potential special guardian for J. The local authority’s care plan, supported by the guardian, is that J should make his home with his grandmother but with some face to face contact with his mother. The local authority and guardian would each hope that the mother could play an important role in J’s life.

The local authority has prepared a threshold document, the majority of which is agreed between the parties. The issue between them is the issue of future risk put by the local authority in the following way:

“While the mother has maintained abstinence from drugs and alcohol during her period in custody, there is a high risk of her relapsing into drug and alcohol issues when she returns to the community such that J is likely to suffer significant harm.”

The issue before the court therefore is to determine whether the risk is, in all the circumstances of the case, too great to allow J to remain in his mother’s care as she returns to the community, whether immediately or gradually, upon her release from prison. The court has been assisted in assessing that risk by evidence from J’s social worker and a consultant psychiatrist, Dr. McVeedy, instructed on behalf of the mother, who saw the mother and prepared a report dated 25 April 2014. The mother and J’s guardian have also given evidence. The guardian was able to give valuable evidence having been J’s guardian in earlier care proceedings in relation to the mother’s daughter, who is five and lives with the maternal grandmother.

The relevant law to be applied is well established. In summary, (1) the burden of proof lies on the local authority. (2) The standard of proof is the simple balance of probabilities, neither more nor less – Re. B, Children Care Proceedings (Standard of Proof) UKHL 35, 2008, 2FLR, 141. In reaching the decisions I do, I take into account the matters set out in the welfare checklist at s.1(3) of the Children Act 1989.

In the present case, whilst these are care proceedings, I also have before me the application that J’s paternal grandmother should be made his special guardian on the basis that she will offer him a permanent substitute home throughout his childhood, although it is anticipated, as already noted that the mother will continue to have direct contact.

Mr. Powell, on behalf of the mother, reminds me of Re. BS (Children), 2013, EWCA Civ., 1146, urging the court to make a supervision order in relation to J rather than a special guardianship order as the most proportionate and least interventionist outcome consistent with the Article 8 rights of both the mother and J.

The mother had a very difficult childhood. She was born on 15 June 1973 and spent about two years in care between 1975 and 1977 due in large part to her mother’s mental health problems. Her parents split up when she was about one as a consequence of her father being violent to her mother. Her father was a drug dealer, although not a drug user.

The grandmother subsequently enjoyed a stable relationship with a man who became the mother’s stepfather, although this relationship was itself not free from domestic violence. That relationship endured for 30 years; the stepfather died, I believe, in December 2013, leaving the grandmother, not only bereft and grief stricken, but without her main support. Not surprisingly against such a background, the mother’s adolescence was turbulent. The mother’s behaviour was bad at school and she started selling drugs for her father. Almost inevitably, she too started taking drugs and by 1989, aged 16, the first criminal convictions are recorded against her, mostly relating to theft to feed her addictions.

The inevitable consequences of the recognised chaotic lifestyle of the drug addict applied to this mother. She was unable to maintain employment, her last employment coming to an end in 1999, and she was unable to sustain accommodation, being evicted due to her antisocial lifestyle and by running up substantial rent arrears.

Her difficult background impacted upon the mother’s mental health from her being only a little girl. She was first seen by a psychiatrist aged nine years old in November 1992. She was described as an unhappy little girl with clear signs of depressed mood. Psychotherapy sessions were offered but it seems unlikely that they took place. That is, of course, no criticism of the mother, at her age, that should have been arranged for her and she should have been helped to engage with any therapy that was offered.

The mother was seen again in J psychiatry department at Queen Mary’s Hospital in Roehampton in August 1989, by which time she was 16. She had taken an overdose and she had been cutting herself. The mother was seen again about mood swings in November 1995 and again in November 1999. There was another overdose during the course of 1999. In May 2000, by which time the mother was 20, she was referred to the psychotherapy department at Springfield Hospital by the addiction treatment centre at Queen Mary’s Hospital in Roehampton.

The actual assessment is not held on the mother’s medical records, only a note recording that the mother had been assessed and recommended for an admission to the Henderson Hospital. Henderson Hospital was an in-patient psychotherapy facility where people with personality disorders could be admitted for long-term admissions of at least six months for intensive psychotherapy.

In giving his oral evidence, Dr. McVeedy, who is familiar with the Henderson facility, (sadly now closed), explained that this was a facility used exclusively for the treatment of enduring marked personality disorders which were not capable of being treated in the community. So far as Dr. McVeedy is concerned therefore, the fact of this referral indicates to him, beyond peradventure, that by the time she was 20 years of age, the mother had been diagnosed with a significant personality disorder requiring treatment by intensive psychotherapy. Unfortunately, no doubt due to her global difficulties, the mother did not take up this referral.

Attempts were made to rehabilitate the mother. She had a period of in-patient treatment in December 2002 but was discharged in March 2003 for abusing drugs. She had a further period in residential rehabilitation in Plymouth in 2005, discharging herself before the end of the period, and again in 2006 at Longreach in Devon, where again she was discharged.

In 2008, the mother became pregnant with K. The mother accepts that she used drugs throughout that pregnancy. On 12 December 2008, K was born and in December 2008 an interim care order was made. Later in December 2008, the mother, and K, moved to Trevi House, a unit providing a six month structured rehabilitation programme which would help the mother overcome her dependency on heroin/crack/alcohol whilst simultaneously learning and developing parenting skills. The mother did extremely well at Trevi House. In a report filed a month into the programme, it was recorded that:

“She is very well motivated towards her treatment and very open to any suggestions regarding K. She has been medication free since 28 December 2009 and has coped with this very well.”

The report described the mixture of therapy groups, counselling sessions and English and numeracy classes which were available and made use of by the mother. Trevi House felt that the birth of K had motivated the mother, making her keen to address the underlying issues around her drug taking. The report voiced however one note of caution:

“The only concern at present would be post-Trevi and where the mother would live and clean support networks and friendships. This is being addressed during her stay at Trevi House.”

The next report was filed some six months later on 25 June 2009. The accompanying letter refers to the mother as having “gone from strength to strength in her treatment. We are very pleased with the all-round progress she has made during her time here.”

Trevi House, in relation to the mother’s motivation and ability to remain drug free once back in the community, prepared a report for the court and said:

“The mother is very motivated to remain drug-free and to be a good enough parent to K. She has good insight into her underlying issues. She has voiced that loneliness, boredom and depression could be triggers and difficult for her when she leaves Trevi House, but is using her remaining time here to work on strategies and build support to deal with these emotions.”

Within the care proceedings relating to K, the mother expressed her motivation in this way:

“Since K’s birth, I have been completely abstinent and I am committed to being drug-free and being able to show that I am able to look after her. I recognise that I need help to remain drug-free. I fell in love with K as soon as she was born and cannot believe that I did anything during my pregnancy that might have caused harm to her. I am determined to do right for her from now on.”

The mother left the unit in early June 2009 and returned to London she was provided with extensive support from both the maternal grandmother and local support programmes which had been put in place before she left Trevi House, this included the Drugs and Alcohol Foundation, one-to one counselling and attending Narcotics Anonymous. A foster carer was provided to assist with childcare while the mother attended her various programmes. Unhappily within three weeks of being back in the community, the mother had relapsed into taking cannabis, alcohol and cocaine. A further attempt was made to support the mother and initially K was not removed. The mother however relapsed again and in November 2009 she left K with the maternal grandmother. By early December 2009, the mother had admitted that she was once again addicted to drugs.

By the time the mother left K with the maternal grandmother, K was over a year old and had never been apart from her mother. The next three and a half years were marked by heavy drugs use and a chaotic lifestyle. For five years between 2006 to 2011, the mother was conviction free. However, in the last three years, she has been convicted of more offences than at any other time in her life. In July 2013, she was convicted of serious offences of domestic burglary carried out at the homes of two elderly women aged 88 and 94. The offences involved tricking her way into their home and cutting their phone lines so they could not get help.

The mother told the court in her evidence that things are different this time from when K had been rehabilitated to her care in the following ways:

I accept, as does the local authority, that the mother is entirely genuine in what she tells the court: she really does wish to care for J and to be free of drugs.

Dr. McVeedy in his report made the following diagnosis in respect of the mother:

“Her history from her early childhood onwards is consistent with the sort of adverse experience and significant emotional distress in childhood which may lead to problems in personality development in adolescence and into adulthood. In my opinion, her description of frequent disturbed moods not amounting to the diagnosis of mood disorder as such and her regulation of these with substance misuse, her pattern of unstable and at times abusive intimate relationships, her substance misuse over her entire adult life and her repetitive deliberate self-harm, at least in part, as a means of regulating tension/mood difficulties, are all consistent with a diagnosis of borderline or emotionally unstable personality disorder.”

In oral evidence, Dr. McVeedy clarified his diagnosis explaining that the expression “borderline” does not relate to severity, but rather it is the term used in America for this type of personality disorder In terms of severity he classified her personality disorder as being “moderate to severe”. Dr. McVeedy considered treatment and said as follows:

“So far as her personality disorder is concerned, she has as mentioned before previously been assessed within psychological therapy services in the community and offered intensive psychotherapy, but did not take up that offer. In my opinion and since her substance misuse is intimately bound up with those personality difficulties, she should seek further psychological assessment for long-term intensive psychotherapy … long-term intensive periods of psychotherapy lasting usually 18 months to two years. There would be some period of time to wait for assessment and in most areas a period of time spent on the waiting list which might itself be of 6 to 12 months’ duration. Of those who successfully complete this intensive programme of psychotherapy, around one third have derived substantial benefit.”

In amplification in his oral evidence, the doctor said that key to such treatment being effective is motivation. This, he amplified, means not only that the person undergoing therapy wishes to make progress, but there is an acceptance of the fact of the personality disorder. The psychotherapy is challenging and requires complete commitment and must be completed in full. It is only if all this is in place that there is the one third success rate of which he speaks.

Such specialist intensive psychotherapy is accessed through the National Health Service. No such referral has as yet been made and, as noted, there could be a waiting list of up to a year. Mr. Powell, on behalf of the mother, asked Dr. McVeedy whether he had patients in the community having such treatment and who had children living with them. The doctor confirmed that he did. I am afraid that, although Mr. Powell submits that it follows that the same course could be adopted for the mother, it is so simple. Patients treated in the community by such units as Dr. McVeedy’s at the University College Hospital will no doubt have been fully assessed and decisions made by the professionals that the risk presented to their children, (if there is any in any given case), is manageable in the community. No such assessment has been made in relation to this mother and, given her experience with K; it seems highly unlikely that it would be felt to be safe to discharge J and his mother directly into the community even with a proposed package of psychotherapy in place.

The mother is struggling to accept that she has a personality disorder and in oral evidence doubted her need for psychotherapy. Twice she said that she saw herself as an addict rather than someone with a personality disorder. Dr. McVeedy explained that the substance misuse was intimately bound up with her personality difficulties. Borderline or emotionally unstable personality disorder typically, he said, presents with self-harm, substance misuse and unbearable feelings of emptiness. One of the reasons she abuses substances is to blank out her feelings and one of the reasons she has these feelings is because of her personality disorder.

Mr. Powell on behalf of the mother proposes three different alternatives which, to a certain extent, overlap and which would allow J to remain with his mother.

I agree with Mr. Powell that the heart of this case is the balance of risk as far as the mother is concerned. I take into account all the circumstances in the case including:

Set against those undeniable positives are a number of matters, in my judgment, despite the mother’s desire to regard herself simply as an addict, I accept (and cannot ignore) that she has a moderate to severe, long-standing personality disorder of which substance abuse is a significant feature. No matter how much the mother wishes to stay clean, unless the issues that form part of that personality disorder are addressed through intensive psychotherapy, (thereby lessening the impact of the triggers which drive her back to substance abuse time and again), she will undoubtedly slide back into serious substance misuse. The motivation that is required is not just to stay clean but complete commitment in relation to therapy, and an acceptance of the diagnosis; a very challenging road. The mother is struggling to accept her diagnosis. She feels it is a shaming thing and she is currently awaiting an NHS referral for a second opinion hoping that it will undermine Dr MvVeedy’s diagnosis, which is naturally her right.

In her oral evidence, the mother said that this was the first time anyone had suggested she had a personality disorder as opposed to simply being an addict. That may well be the mother’s understanding, but the referral to Henderson Hospital back in 2000 indicates that there has been a diagnosis of a serious personality disorder in the past. The mother said in evidence:

“I am an addict. I would like a second opinion. I don’t think I need psychotherapy. I have had counselling and it is hard. I don’t know if it is different from psychotherapy. I am struggling to get my head round personality disorder, but I will engage with anything this time. I’m doing it for myself.”

Whilst I have no doubt about the mother’s genuine desire to be free of drugs, I am concerned about her ability to have the necessary motivation to tackle difficult, intensive psychotherapy in circumstances where she clearly has grave reservations as to the diagnosis.

Dr. McVeedy explained that, in order to shift in his prognosis that the mother is likely to relapse, it would be necessary to see her abstinent for a period of 12 months in the community. He explained that her period of abstinence in prison, whilst laudable, does not count as it is well known that most inmates are users in the outside world and that although drugs are available in prison, the majority of women are abstinent for the duration of their sentence.

The mother will be released on a tag in September 2014. Referral for psychotherapy may take as much as 6 to 12 months. The mother would need to be assessed as suitable and thereafter a programme of psychotherapy could take between 18 and 24 months. Inevitably, the risk of relapse must be particularly high until the therapy is well advanced and even then Dr. McVeedy could not regard there a having been a reduction in the risk of relapse for a year after abstinence in the community.

I note that in relation to K, that whilst the mother did extremely well in Trevi House upon her discharge and all possible support was in place to support her upon her return to the community, including the provision of foster care to allow her to attend out-patient and support groups; she had not had the psychotherapy for her personality disorder which Dr. McVeedy regards as essential for a successful outcome. The consequence was that she relapsed within three weeks.

The mother suggests that a residential unit could keep J safe whilst allowing him to remain with her for that period of time but:

Rehabilitation straight into the community on the basis that no parenting assessment is necessary is untenable. The mother’s proposal in such circumstances is that she would go to the maternal grandmother’s home, a two bedroomed house which she shares with K. The maternal grandmother has recently suffered a major bereavement and is struggling to cope without her partner of 30 years. She is in poor health and is also struggling to cope with K.

The history in this case is important not least for two reasons:

I accept the evidence of Dr. McVeedy that, no matter how well the mother is doing in the structured, protected environment of prison and no matter how much she wishes to turn her life around and live a life free of drugs, it is highly unlikely that she will be able to do so absent the treatment recommended by that psychiatrist.

S.32 of the Children Act 1989 as amended requires the court to dispose of an application “without delay and in any event within 26 weeks.” This case is already over 26 weeks. Mr. Powell seeks an adjournment for a significant further period. He prays in aid an article written for Family Law by a barrister in his chambers, Mr. Edward Lloyd-Jones entitled “Decision-making within J’s timescale: who decides?”, Family Law, August 2013, p.1053. That article looks at the issue of the 26 week statutory requirement and competing research as to the impact on children of delay.

Mr. Powell accepts that that article is not evidence and that its contents should have been put to the guardian if, as he intends, he wishes to use it in support of the proposition that the court should not regard as harmful to J in the long term a timescale of years, not months.

Mr. Powell asserts in terms that the harm caused to J if he is removed from his mother (now aged seven months), rather than in, say, 12 or 18 months’ time is the same. An adjournment or long-term decision, he says, can therefore be taken a considerable distance after 26 weeks. Mr Powell additionally quotes Paufley J. in Re. NL (A Child), 2014, EWHC, 270 that: “Justice must never be sacrificed on the altar of speed.”

I do not accept on any level except that the article assists in the balance of risk I have to undertake. I do note the core concern that the 26 week provision may mean that:

“The social workers may be placed under inappropriate time constraints such that they will have insufficient opportunity to distinguish between those families beset by objective adversity which, with suitable support, are likely to be able to make the necessary changes within J’s timescale and those families for whom requisite change is unlikely.”

It is apparent therefore that the 26 week time limit is not intended to bind the court in all circumstances and the President specifically considered overcoming drug addictions as a potential exception. The question therefore is what is J’s timescale? Mr. Powell submits that a delay of six to eight months, until the mother was able to move into the community, is within J’s timescale as he would be living with a mother “who has done no wrong” and with whom he has thrived. J is now seven months old. He is attached to his mother. The guardian and local authority rightly accept he would be very distressed to be separated from his mother.

In the event that J is not to stay with her, the mother (to her great credit,” has agreed to a transition plan which, if I make a special guardianship order, would result in J moving to his grandmother by 11 July 2013 - that is to say, in a week’s time.

In my judgment, there can be no question of the mother going straight into the community with J. I am satisfied that a move by the mother straight from prison to the home off the maternal grandmother would lead to a rapid relapse and, in fact that is not her preferred option. The mother would wish to go to some sort of residential unit. The guardian does not know of one which would be suitable and which offers long-term residence of the type which would be necessary. In this context I should note that I was most impressed by the guardian’s detailed knowledge of available resources, both within and outside the Prison Service.

Obtaining a place in such a residential unit if identified is problematic and would have to be accompanied by therapy first of all having been assessed as suitable, which in its self is not a given, given her ambivalence about her diagnosis. Thereafter the mother would have to engage and make sufficient progress with intensive, difficult psychotherapy for her to be rehabilitated to the community. Doing the best I can, it is most unlikely that this would be a period of under a year from her release date in September, by which time J would be 22 plus months old. Even after the move to the community, there would be a further year when the psychiatrist indicates that, for a recovering drug addict, there is a significant chance of a relapse, by which time J would be nearly three.

I do not accept that the harm or distress caused to J resulting from a breakdown in his placement with his mother due to a relapse, (a situation bound by its very nature to be fraught and chaotic, and which would inevitably involve a period of significant instability and deterioration prior to the final breakdown), can be compared to a planned removal to the grandmother. In saying that, it should not be thought that I am in any way minimising either the quality of attachment J has to his mother or the distress that he and she will each undoubtedly feel.

I have taken into account the fact that J’s grandmother would in the event of a breakdown almost certainly still offer J a home. I find and accept in the evidence of the psychiatrist that the likelihood is that once she returns to the community, the mother will relapse. I also take into account all the matters in the welfare checklist. In my judgment it is not in J’s best interests, or in his timescales, to remain with his mother, consolidating his attachment with her during the crucial early months and years, in the knowledge that the likelihood is that the attachment will have to be broken in, what if K is anything to go by, is likely to be an unplanned and traumatic way. In addition in my judgment, J would undoubtedly suffer significant harm if he were in the care of the mother while she was under the influence of drink or drugs.

In Re. S, the President set out the three questions to which I have already referred:

For the reasons set out herein therefore, I find the threshold satisfied in all respects, including para.7 of the draft threshold. I have read the report of the special guardian and taken into consideration that the placement is supported by not only the local authority and J’s guardian but also, in the event that J cannot remain in her care, by the mother. In my judgment, J’s overwhelming interests require me to make a special guardianship order in favour of the paternal grandmother.

This is yet another case demonstrating how drugs ruin people’s lives. This mother was brought up in unbelievably adverse circumstances the result of which was the development of a significant personality disorder, a disorder which constantly drives her back to the drugs which have dominated her life since she was 16. It was with great sadness, but in no doubt, that in J’s interests I have reached the decision that I have.

The mother says that she intends to do all that she can to remain off drugs regardless of the outcome of this hearing. I do hope that in the coming days and weeks, which are inevitably going to be traumatic and difficult for her, she can, in the structured environment of prison, maintain that resolution and make the application for psychotherapy that she so badly needs. As the Guardian says, there is still an important role for this mother in the lives of both her children. I hope very much that, even though J cannot stay with her and his home must be with his grandmother, the mother can hold on to that as a reason to embark upon and, having embarked upon it, complete the treatment to which she is entitled.

That is the judgment of the court.