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An increasing probability gradually increasing to a certainty

 

A discussion of the judgment in A CITY COUNCIL v (1) M (2) F (3) C (BY HER CHILDREN’S GUARDIAN) (2012)  and how private law proceedings can go really badly wrong

 

I have for a long time held an informal belief that the longer a set of private law proceedings go on, the more inexorably they tend to progress towards the involvement of the State, in the form of social services.

 

This recent decision of the High Court deals with that very concept and is a sad case, and a salutory lesson to all of those who are involved in protracted private law proceedings. The first application was concluded in 2004, but as His Honour Judge Cleary   (who I have had the pleasure of appearing before, and who is the judge who very helpfully engineered the appeal on Re LA which led to the extinguishing of the widely-claimed concept that the “imminent risk of really serious harm” was the test for removal, for which I am if not eternally grateful it would certainly be a gratitude of some longevity) points out, that was not the end of the litigation.

 

13. Litigation was not concluded by that Judgement. To the contrary, that ruling was to be the first of, by my calculation, no less than seven Judgements of the court, delivered by the Recorder whom I have identified, two circuit Judges, a District Judge, and finally, the Court of Appeal. Judgements by His Honour Judge Bellamy were delivered on 16 July, 2006, 4 April 2008, and 11 September 2008. District Judge Jones, again at the A County Court, delivered his Judgement on 29 May 2009, and His Honour Judge Cardinal, on appeal from District Judge Jones, delivered Judgement on 5 November 2009. On 1 March 2010, Lord Justice Ward heard, and granted, an application for permission to appeal. That appeal came before a full Court of Appeal sometime later, on a date which, like the Judgement itself, is not before me. At irregular intervals throughout that depressing journey, which accompanied that which the child was, as she grew older, taking towards her teenage years, the court instructed the local authority to prepare reports pursuant to section 37 of the children act. Again, by my calculation, and including the report which was prepared in readiness for the hearing before Mr Recorder Scott, there have been no less than four such reports.

14.Each report, and each Judgement, recorded the turmoil being suffered by this little girl. The local authority commissioned reports by a number of experts, seeking to assess the child, but those endeavours were hindered by C herself, since the child presented with great reluctance to talk about her home life. What was becoming increasingly obvious, however, was that C’s emotional state was becoming increasingly fragile. I will return to the report of Dr Gillett in due course, but I remark at this stage that it seems to be generally accepted that the child had lost her primary attachment figure (that is, her mother) and had been unable to replace it with another.

 

It is a reflection of our familiarity with protracted private law disputes that the figure of seven judgments in a case is merely disappointing and somewhat unusual, rather than unfathomable.

 

The Judge went on to say very many kind things about both parents, both of whom clearly loved the child but that the battle over where the child should live, which began with their separation in 2002 had wreaked devastation on both their family life and the child herself; to the point where the expert evidence before the Court and the Court’s own conclusion was that the child now needed not just ‘good enough’ parenting but exceptional parenting.

 

58.Neither parent is capable of providing exceptional parenting of the kind so desperately needed by C. In the case of the mother, she did accept at the stand that she is in fact the carer for T. He, she insisted, is stable and, given the regular medication which he is taking, the need for her care is minimal. Yet on the final day of the hearing, the day following T coming to the stand, the mother reported that she had thought it wise to call the doctor to visit him, given that he was particularly stressed by his giving evidence the day before. It is perfectly plain that she either hides from or does not understand the likely impact of her vulnerable and confused daughter on the household and upon T. If the experience of some two hours in the witness box is enough to cause T to require medical attention, one can only imagine that he would experience similar and probably worse stress if, within the house, not receiving the exceptional parenting which is now required, C behaves as one can only imagine. Mother’s attention will of necessity be diverted from one or other of her charges. She appeared, under cross-examination, not have considered that likelihood. I am satisfied that that is an indication that the mother is unable to place her daughter’s needs before her own. In the case of the father, he accepts, no doubt with regret, that he cannot provide the exceptional parenting described by Dr Gillett.

 

The Judge was driven inexorably to the conclusion that the only appropriate order for this child was a Care Order and for her to be cared for in foster care.

 

Contact was a significant issue in the case, and there was a difference not only between that sought by the parents and that recommended by professionals, but also between the level that the child herself wanted and what others considered best for her. Bear in mind, that by this stage, the child is now 13 years old.

 

64.Contact, both past and future, was one of the two major issues before me (the other being section 91(14) ) and took up a significant part of the examination of all the witnesses. Dr Gillett is perfectly plain in her view. That C must be allowed to identify a placement where she is given unconditional love, support, and boundaries, and a nurture which he has missed, now, for some nine years, if not longer. This witness considers it is likely that the child was already showing signs of instability when she was a toddler, having experienced the mother’s distress even when she was being carried in her womb. It is entirely likely that the child will have detected that her mother’s attention was elsewhere and that she was experiencing significant distress and anxiety over the loss of her son (and the documents confirm that the mother was a leading campaigner and participant in attempts to have greater attention paid to the plight of abducted children and their parents).
65.When, at the age of five, she was removed quite abruptly from her mother’s care into that of her father, who was, in the event, ill-equipped to nurture her as a single parent, while fighting off the depredations of the mother, her ability to form an attachment with the primary caregiver suffered damage which escalated to the present day when, as we hear her almost beg the Guardian, as will be seen in his report, to reassure her that these proceedings are concluded by ‘a final final order’, the articulation of a desperate wish by a child who can hardly believe that such a thing exists.
66.The justification for this discussion is found in the evidence of Dr Gillett and indeed in the cross-examination of mother and by counsel for the Guardian.
67.C desperately needs a placement to be permanent and to be free of the conflict to which she has been exposed over the last nine years. She is ‘ over professionalised’, not, as mother complains, by the observation of contact but by the host of different clinicians, therapists and experts to whom she has been exposed over the last nine years, and by that I mean no less than three psychologists, a play therapist, the authors of the four section 37 reports, those of the core assessment, and no less than three successive children’s guardians.
68.There has to be a transition upon the making of this order, that being a transition into the permanence of long-term foster care. It has to be acknowledged by these parents that that is a transition which must not be accompanied by mixed messages. She must not be confused by substantial contact with either parent. She must not be diverted from the path of establishing a nurturing attachment to her caregiver. Dr Gillett considers that if she is to have the kind of contact that mother promotes, and if she senses that mother is embarking, again, on a wish to remove her into her care, she will withdraw from what appears, from the evidence which I have heard, to be a budding and loving relationship with her foster carer. I extract these crucial comments from her evidence: ‘The child is on the cusp of adolescence and her anxieties and concerns are such that she shouldn’t be presented with some sort of transitional plan… It is important that she be told that the Court has made a decision on contact and the cessation of proceedings – she needs a genuine understanding that this is now how it is going to be… If C identifies a desire by Mother to seek a rapid return that will undermine any attempt by C to invest … she would withdraw from any emerging connection with the foster carer – and [this] would likely be the last time she risks that engagement. The messages from the Court must be clear and unambiguous and supported by everyone… this is a long haul and C needs to know that it is worth the effort … There needs to be a noticeable difference – which is time associated – and stability.’

 

The Judge made the care orders, set a relatively low level of contact and made section 91(14) orders against both parents, seeking to insulate this child against any further litigation.

As I said at the outset, a desperately sad case. Had there not been so much conflict between the parents, or if the conflict could have been resolved with finality earlier, it appears that either of them would have been capable of caring for this child appropriately, but the conflict of the case became all-consuming.

There must be a better way of resolving even long-running and fraught cases than simply continuing them from one batch of litigation to another. It cannot be right that litigation about a child continues for over 8 years, nor that it takes ten years from the separation to finally resolve where the child lives. Some cases of course, take a long time for the evidence to be gathered and tested, and sometimes the issues are complex and difficult and take time, but it ought never to take eight years for a final resolution.  I commend this judgment as both an example of how a Court can finally grip a case and draw it to an end, and as a stark example of what can happen when a legitimate desire to have a Court resolve a dispute between parents as to residence and contact becomes conflict for its own sake and a fire that simply cannot be extinguished.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

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