“Finding” out the hard way

A discussion of the High Court decision of A London Borough v A and Others 2013, and what it tells us about coming to terms with difficult findings.

 The case does not contain much that is precedent or important for cases other than for these specific facts, but on a human level, it throws up some really interesting issues, which I felt were worthy of a closer look.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/96.html

In this case, the family had had four children and one of them died. A finding of fact hearing was conducted, and the Court concluded that the father had been responsible for the death of that child, having rejected the proposition that one of the other siblings, C, had caused the injuries and hence the death.

At the final hearing, the mother had not come to terms with this finding or accepted it, and the Court were faced with the stark choice of adoption or returning the three surviving children to her care with that risk in place.

The Judge decided, having heard the evidence, that if mother could be assisted, through provision of therapy to move to  “a substantial and genuine acknowledgement that the father may be dangerous, combined with a genuine emotional distancing from him, would be sufficiently protective.”   

And made as a finding that if, at final hearing, she could be demonstrated to have reached that point, this would be sufficient for the children to be placed with her. The Judge therefore adjourned the final hearing for five months, to give mother the chance to get to that point, with help. This was a real second chance, and it was of course imperative for her to grab it with both hands.

Therapy was provided for her, and she was seen again by the psychologist following that therapy, to see if there was any movement

Sadly for her, there was not.

26. On 19 November 2012, the mother’s therapist reported to a professionals meeting within the limits of proper confidentiality. She said that the mother had been open about her reluctance to engage in therapeutic work but had shown commitment and was open to attending more sessions. The mother “is clear about what the judgment said and understands she will have to talk to the children about this later. [She] however feels she cannot say for sure what happened as she wasn’t there and feels this is true for anything that she has not been present for in life. [She] believes that ‘seeing is believing’ and this is where she is at and cannot go beyond this perception.” The therapist said that she had been working with the mother on her beliefs but that the possibility of change would take perhaps a year or more and without any certainty of a shift in her belief system.

27. On 21 November, the mother met Dr Asen, who discussed her understanding and acceptance of the risk posed by the father with her. In his report at paragraph 3.1, he records what she said:

“I can’t know what happens if I wasn’t physically there … but I believe that he did not do it … there is nothing else apart from the Judgment that shows me what happened … Judges have the power to make a Judgment … but the coroner found something different … I wasn’t physically there, so I don’t know what happened.” She added, “it is not fair that I have to say what one person (i.e. the judge) has said”. She repeatedly stated that, as she had “not been there”, “I do not know” what had happened. When I put to her that none of the professionals involved in the case had been ‘there’ either, but had nevertheless arrived at different conclusions from her, she replied, with a smile on her face: “but you don’t know K… – they don’t know K…” She said she knew K… very well and therefore “I know he could not have done it.”

28. The mother accepted that this note is accurate with the exception of the two passages I have underlined, which she denies saying. Dr Asen explained that he keeps a contemporaneous note during interviews such as this and he confirmed that the mother spoke in the way he records. I accept his evidence about this.

29. In his report, Dr Asen concludes that nothing has changed with regard to the mother’s internal understanding and acceptance of the risks posed by the father to the children and herself. “Essentially her current position is no different from how she presented earlier this year when I first assessed her …”

This is something which professionals come across quite often with findings of fact hearing, that the findings are made, that there needs to be some movement towards accepting them, but that people remain of the position that the judgment is ‘one person’s opinion’,  ‘they weren’t there, so how can the judge know what really happened’ and ‘they don’t know him/her like I do’

 Those are all pretty natural, understandable, and human reactions; but against the background of a ticking clock (as decisions needs to be made for the children and they can’t wait for the parent who has been found to be not culpable to come to terms with the awful reality).  It is harsh, it is difficult, but from a legal perspective (if not a human one), once the Judge has given that finding of fact judgment, that is now the truth of what happened.  As hard as that must be, once the Judge has made the decision, the time for doubts or uncertainties about what has happened has gone, the truth is now what the Judge said happened.  

In this case, and adding a particular dimension, there was of course the issue that if the mother was not accepting that father caused the injuries, the only other candidate was the child, C.  And how would C growing up in her care, with that in mind, impact on C?

30. He [Dr Asen] advises that the mother is able overall to provide a psychologically nurturing environment for children, but that in relation to C there is one major limitation in that, when he had the ability to understand, she would “tell him what the judge said …” When Dr A pointed out that C would in all likelihood pick up her own underlying views, namely that she does not believe that the father could have killed B, and that he will ask questions, leading to C and his siblings coming to the conclusion that his mother believes that he actually killed his brother (even though he was not legally or morally responsible), the mother replied that she would not be able to tell C that his father had caused B’s death, repeating: “I don’t know what happened — I wasn’t there.”

31. Dr Asen concludes that this position is also unchanged and it is his opinion that the consequences for C and his welfare remain a major concern for the reasons set out in paragraph 5.5 of his first report. I will not repeat that passage, which lays out the implications for all the children of there being two conflicting stories about such an important part of the family history, and for C, who would pay a very heavy penalty for something the court had found he did not do.

32. Dr Asen also discussed the mother’s support network with her. He gained the strong impression that she had not discussed the risks the father poses with her friends and that they could not at this stage contribute to the protective network that needs to be in place.

33. Dr Asen’s opinion is that the changes made by the mother, if any, are not sufficient to reduce the risks posed to the children’s future welfare if returned to the mother’s full time care now or in the medium term future. Plans should be made for the children and the mother should continue to be offered therapy.

 On a human level it is deeply sad and tragic that mother wasn’t able to reach the stage that the Judge had wanted, even with the help, and although he had lowered the stage from one of total acceptance of the findings.  It is not terribly surprising with a lawyer hat on, that the case was going to conclude with decisions that were adverse to her.

 She wasn’t helped by a decision to file a letter of support from a leading light of her local community / religion, this being more of a nail in a coffin than a letter of support  

The mother was then asked about a letter circulated on 17 December 2012 by Dr O, who holds an honorary title and is the local co-ordinator of the Traditional Rulers Union of the parents’ community. This letter, entitled “Community Support” and running to three pages, was sent to the mother’s solicitor and copied to the therapist, to Ms Stephens, to the Guardian and to Dr Asen. In it, Dr O is highly critical of the judgment that the father was responsible for B’s death, and of many aspects of the proceedings. He refers to C as having been up and about “mischievously” on the night and he draws attention to the Coroner’s verdict. He states that “the couple have been made to separate” and that the process, including therapy, is “psychological warfare… professional blackmail” in that it attempts to persuade the mother that her husband killed the baby. He variously describes the process as prejudicial, racist and insulting, and says that the social workers are seeking to destroy the parents. Dr O then sets out a practical programme which he would coordinate for visits to be made by members of the community to the mother and children

The Judge’s consideration of the mother’s position was measured and careful, and was mindful of the difficult situation she found herself in

57. Having listened carefully to the mother and being conscious of the intense difficulty of her position, I find that her views have not moved on in any meaningful way since she undertook therapy. I assess her as being deeply sceptical about the father’s responsibility for B’s death, and in my view it is this, and not only cultural or religious considerations, that explains her decision to remain married to him.

58. The mother’s witnesses, most of whom do not form part of her immediate cultural and ethnic community, are clearly excellent people. They have an appreciation of the court’s findings and of the risks posed by the father, and I am sure they could be relied upon to do their best to support the mother and children. However, it is striking that even this body of opinion has not enabled the mother to move on in her own thinking. She did not involve them over the past months in planning the future with social services. I do not accept that this is because she did not want to trouble them: it is more likely that she did not involve them because their views do not coincide with her own.

59. Instead, it is to her family and her community, including her church, and to Dr O, that the mother has turned. The view of the family and significant community members is that C was probably responsible for B’s death. The views contained in Dr O’s letter reflect this and it is to be noted that the mother has not chosen to call evidence from the people upon whom she most depends.

60. Making all allowances, I cannot accept the mother’s evidence about her present beliefs. I do not believe that she has even reached the point where she has an open mind about what happened to B. Her nature is not militant, but I find that she has a quiet belief that the father is probably innocent. She was not frank about Dr O when first asked about him in evidence, and I was not persuaded by her attempt to dissociate herself from the views he expresses.

61. Setting these conclusions against the many other factors in this case, and weighing up the children’s individual interests, I have concluded with real sadness that they cannot be returned to the care of their mother. The nature of the risk in this case is of the utmost gravity and there are no effective measures that could guarantee the children’s physical safety over time. Like Dr Asen, Ms Stephens and Ms Shepherd, I find that despite any current good intentions, the mother would not be reliably able to exclude the father from her life or the life of the children over the long period of years that would be necessary for their safety and wellbeing. She does not have the inner belief to enforce separation, and she would come under increasing pressure from her own thinking, from the father, from the community, and no doubt in time from the children themselves, to let him back into their lives once the intensity of the current professional interest was in the past. Moreover, even if the father was kept at a distance, I accept the evidence of Dr Asen about the likelihood of emotional harm to the children that would arise from being brought up in an environment in which the prevailing belief was that the father was innocent. The consequence is that C would learn that he was thought to have harmed B, and yet none of the children could see the father or be given a good reason why they could not.

62. I accept the unanimous professional evidence and therefore approve the local authority’s plans for the three children’s future placements. I shall make care orders and, having considered the terms of the Adoption and Children Act 2002, make placement orders in relation to M and J. In M’s case, adoption is clearly in her interests, and in J’s case, a time-limited search for adopters is in my view right, while at the same time seeking a long term foster home. I dispense with the parents’ consent to making placement orders because the children’s welfare requires it. If an adoptive placement is not found, the placement order will have to be discharged in a timely fashion – the application can be made to me.

As we wind our clock ever more tightly and make the hands turn faster, how compressed will the time period for a parent to come to terms with an awful finding against their loved one be?  You can’t hurry love, as they say, but you can’t necessarily hurry dismantling that love in the light of an awful finding  either…