A discussion of Re B (A Child) 2012
The case can be found here
I think this case is of interest, and it certainly interested two of the Appeal Judges, because it looks in quite a lot of detail at the intersection between odd, unusual and peculiar parenting and significant harm where the State has to intervene.
The case is rather neatly summed up by these two passages, firstly from Lewison LJ’s judgment :-
- I have found this a very worrying case. In a long, detailed and careful judgment HHJ Cryan found that:
“I am satisfied that the threshold has been crossed, not perhaps in the most extreme way that is seen in some cases, but crossed it has been.”
- Yet when he came to make his ultimate order he made an order with a view to placing A for adoption; in other words to remove her from her parents forever. As I understand it that is, for practical purposes, the most extreme order that he could have made. How is that to be reconciled with his finding?
And then from Rix LJ’s judgment
However, standing back, I also wonder whether this case illustrates a powerful but also troubling example of the state exercising its precautionary responsibilities for a much loved child in the face of parenting whose unsatisfactory nature lies not so much in the area of physical abuse but in the more subjective area of moral and emotional risk
I know, from the comments I get on this blog, that emotional risk or emotional harm is the area that concerns many of them the most. It feels nebulous and vague and tenuous, and rather as though it could catch anyone in the net and snare them, if they just happened to fall foul of the State. And of course, it is the one area of child abuse that couldn’t result in criminal proceedings being brought – what the parents are alleged to have done is not treat their child in an illegal way, but just an improper one.
Let’s have a look at the harm that the LA alleged was posed by these parents
- The local authority’s case was that each of the parents posed a significant risk to A. The cornerstone of their threshold case was as follows:
“[M] and [F] have innate psychological and/or personality issues and/or anger management issues (in relation to the father) which are likely to impair their ability to provide good enough physical and emotional care of their daughter. [M] has been assessed as suffering from a significant disturbance of psychological functioning, being best described as somatisation disorder and has a long standing history of engaging in deceptive behaviour.
There is a real risk that A’s emotional, education and social development will be impaired as a result of the parenting and emotional nurturing she is likely to receive by her parents due to their own innate issues; this leading to a real risk of significant harm.
[F] does not accept the fact that [M] can be untruthful nor that she is a risk to A. He is not therefore a protective adult for A.
[F] is unable to communicate in an open and honest way with professionals and accordingly exacerbates the risks to A.”
- As the foundation for this, the local authority relied upon findings made by Judge Cryan in the proceedings relating to AE about M’s relationship with Mr E and about M’s untruthfulness, demonstrated inter alia by her criminal convictions. They also relied upon a number of other features including:
i) M having continued to live with Mr E despite his abusive behaviour and, when she left, having left AE behind with him;
ii) The apparent difficulties in M’s relationship with AE;
iii) The risk to A of unnecessary medical investigations and treatment flowing from the somatisation disorder that two psychiatrists had diagnosed in M;
iv) The risk that M may impair A’s moral, emotional and social development by involving A in her deceptions and exaggerations, termed in the threshold document a “tendency to pathological lying”;
v) The problem created by social services and other professionals being unable to rely on the truth of what M says;
vi) F’s long history of criminality and drug use;
vii) F’s refusal to engage with the local authority’s attempts to find out about him and to assess him, his failure to be open and honest with professionals and his deep hostility to social services including his threatening and aggressive behaviour towards them;
viii) F’s unwillingness to accept that M poses any risk to A and therefore inability to protect A from her.
Apart from the issue of father’s drug abuse, of which not much seems to be made, the rest of this seems to boil down to ‘the mother is a pathological liar’ and that might bring about harm to the child.
Whilst the totality of the case makes it pretty clear to me that there were sound reasons for believing the mother to be a pathological liar, and the Court of Appeal were very complimentary to the way that the trial judge had carefully sifted and weighed all of the evidence, I have to confess that I am struggling for concrete risks that having a pathological liar as a parent causes to the child. Some of the lies she is reported to have told are bizarre, odd and strange, and it is not a massive leap to suggest that a child exposed to them might find it bizarre, odd and strange that such lies were routinely told by a parent. But, I’m not sure that amounts to significant harm, or risk thereof.
There’s a hint at it in this line :-
iii) The risk to A of unnecessary medical investigations and treatment flowing from the somatisation disorder that two psychiatrists had diagnosed in M;
which implies that mother’s pathological lying might extend to making up illnesses or need for treatment of the child. In part because some of her pathological lying has manifested in her lying about her own medical situation to get attention. So it might transpose to the child (back at Munchausen by proxy again).
Well, it might. They don’t say that it HAD done this, and if it HAD, the LA would surely have been relying on it, and I think that’s a bit of a stretch.
It seems to me that this risk could be pretty comprehensively managed by the GP and local paediatric department being alerted to mother’s somatisation disorder, which presumably they had on the files about her anyway, so they would know not to take everything she said about A’s health at face value.
There is an interesting criticism of the Guardian by the original trial judge, which I think flows from working practices rather than any poor work on her part as an individual (yes, I am back on my Homeopathic Guardians hobbyhorse) – although the fact that in the previous paragraph she had not understood the limitations of an Interim Supervision Order was pretty troubling.
Judge Cryan’s judgment set out the limited role that the guardian had played during the care proceedings and the judge’s concern that in a case of this complexity she had not been able to engage more closely so that she could help the court from a more personally informed position. Her assessment of the family support network was described by the judge as “virtually useless”. His overall conclusion about the guardian was that she was “an unimpressive witness whose input to this complex case was little short of superficial”.
On threshold, this was the passage where the Judge decided whether it had been crossed
- Judge Cryan said :
“I am satisfied that the threshold has been crossed, not perhaps in the most extreme way that is seen in some cases, but crossed it has been. I am satisfied from the evidence of Drs Bass and Taylor that when A was taken into the care of the local authority some two years ago now she would have been at risk of significant harm from the care likely to be given to her by her parents. I am satisfied that the mother suffered from each of the disorders which the doctors have diagnosed and following on from that I accept their evidence that in the way described by them there was a risk of significant harm being caused to A. In addition, though for the purpose of the section 31 threshold such considerations are otiose, I am satisfied that the matters identified by Ms Summer, whose evidence I accept, cause me considerable concerns. In particular, curious as it may seem in light of the parents’ obvious commitment to contact, I would be seriously concerned about the parents’ capacity adequately to promote her emotional welfare if she was in their full-time care.”
The parents appealed, relying in large part on the doubt that the behaviour alleged by the LA, could (even if proven) constitute a risk of significant harm.
I liked this passage from their submissions
- Counsel invited our attention to a number of authorities, domestic and European, in order to provide a framework for the consideration of their factual submissions, whilst rightly identifying that there is relatively little authority on the meaning of “significant harm”; I will consider some of this jurisprudence a little later. Counsel submitted that the section 31 threshold is not a low threshold and that the requirement that the harm should be “significant” should not be diluted but interpreted in the light of the fact that any interference with family life must be “necessary”.
- They argued that the risk at its highest is that A “may develop unacceptable or unusual behaviour” but that it is not said how that would harm her or others.
- In a passage of their skeleton argument which brings to mind some often-quoted words from Hedley J’s judgment in Re L (Threshold Conditions)  1 FLR 2050 (see below), they said:
“Many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or ‘model’ them in their own lives but those children could not be removed for those reasons.”
- They submitted that to justify interference in family life, the harm which is foreseen must have some element of immediacy or at least reasonable proximity which is lacking here given the number of contingencies upon which it depended and given that the general practitioner would act as a safeguard against problems developing.
And I have to say, I don’t really disagree with any of that. To this point in the judgment, I am still struggling to see what transforms this from being a child who will be brought up in an odd, unusual and possibly downright peculiar environment to one who would be significantly harmed by the parenting she received.
This is how Black LJ squared that particular circle
- Although a significant focus of the argument before us was upon M’s medical behaviour and particularly upon whether her somatisation was sufficient to justify the orders the judge made given that there was no evidence of inappropriate consultation since she left Mr E, and whether she could additionally be said to suffer from factitious illness disorder, in fact the judge’s consideration of the case was rightly considerably wider than this. All the professionals involved in the case, whether or not advising that A should be united with her parents, accepted that there were risks. The focus of each individual witness varied depending on their point of view but the field was not limited to the acknowledged risk that M’s distorted behaviour in relation to illness (whatever it may be termed) may not be historical only and may revive. It included also wider risks to A’s emotional welfare posed by M’s personality problems and her non-medical behaviour, as well as F’s conduct separately and in conjunction with her.
- Given the focus of the hearing before us, I will deal in some detail with the type of harm that I consider the judge was entitled to find was a real possibility here. I do not accept that he erred either in the harm that he identified or in treating it as of significance. Furthermore I do not accept that the judge’s reasoning about harm and risk is confined to the latter parts of his judgment; he refers to both issues repeatedly throughout it as I hope can be seen from my earlier summary of the judgment.
- The judge was clearly aware of the need to look critically at what harm there actually was and in particular to separate that issue from the question of whether the parents would cooperate sufficiently with social services. This was evident not only from the judgment but also from a passage to which we were taken in the cross-examination of the social worker where at one point the judge intervened to explain to her that it did not matter how uncooperative parents were with social services if there was no risk against which social services needed to guard. He isolated for her the questions, “What is the risk to A that is actually being guarded against?” and “Why is it necessary [for social services] to engage with M?” (transcript 7/35).
- The corollary of the risk of M’s medical behaviour reasserting itself was the risk that A would be harmed by the “intergenerational transmission of abnormal health behaviour” and “excessive medicalisation”, which terms are self-explanatory even if not part of everyday language. This harm would not necessarily be physical but the judge did not discount the risk of physical harm. He is criticised for his acceptance of such a risk. The criticism is misplaced in my view. He found only that there was a risk of over-treatment or inappropriate medical treatment. He was undoubtedly entitled to find that there was a risk that M’s illness related difficulties, if they reappeared, would lead her to present A inappropriately to doctors and unnecessary treatment was a logical potential consequence of that. His finding about the parents’ approach to A’s health whilst she has been in foster care added substance to this risk as did M’s exaggerated description of A’s condition on her hospital admission to which both Dr Taylor and Dr Bass attached significance and which might, if repeated or made to those not in possession of the facts, influence her medical care as the judge said.
- Ms Summers dealt with the harm flowing from M’s chronic lying and F’s active tendency to dishonesty  in her report at paragraph 6.5. She considered that as A got older and reached more sophisticated levels of understanding, she would become aware that her mother’s version of the truth differed from her own which would be confusing for her and force upon her difficult decisions about whether or not to collude with her mother against the outside world such as friends, school and professional agencies. She said that exposure to persistent and longstanding patterns of lying would present a moral risk to A, potentially making it difficult to differentiate right from wrong which could lead to problems with her social and emotional development affecting school life, friendships and other relationships. Continued exposure to deceptive behaviour was likely, she thought, to result in A adopting similar styles of behaviour which would potentially have serious consequences in later life, such as delinquent/criminal behaviour.
- The judge said he shared Ms Summers’ view but he had plainly also made his own assessment of the likely emotional risk/harm to A from features of the case other than M’s illness related behaviour. He had the evidence of Dr Bass and Dr Taylor that M had personality problems and he had found a catalogue of ongoing deception which Dr Bass had indicated he would find very concerning. The catalogue can be found in full in the judge’s judgment and I have referred to it above so I will only briefly draw together a few of the features here.
- I would attach particular importance to the findings that the judge made about M’s position in the E household. M had plainly suffered very considerably in that household and she deserves sympathy for the abuse inflicted upon her there but the judge’s findings disentitle her from arguing that she was solely a passive victim and that her problematic behaviour will not recur. There was, to borrow phraseology from the guardian’s skeleton argument, a problem about learned or ingrained behaviour. The judge did not see M’s role in the E household as entirely inert . In the April 2011 judgment, he described her as “a habitual and purposeful liar and accomplished fraudster” and said he could not see that there had been any very marked improvement in her truthfulness despite her nearly two year separation from Mr E. Her use of complaining tactics since she separated from Mr E, as detailed in the judge’s current judgment, led him to describe her as “an accomplished pupil of Mr E” . The incident when M behaved vindictively with CN was redolent of the E household and worrying. It will be remembered that the judge also found that her dishonesty was pervasive and not merely reactive to a given situation such as the proposal that A should be adopted , giving examples which substantiated this assessment.
- F could not be relied on to curb the excesses as he had known of M’s inappropriate activities and furthermore had not been entirely candid himself in ways which the judge described. The judge also found him to have very poor impulse control and to have an assertive wilfulness about him as well as a problematic way of approaching authority including social services. The wider context was that F had not played a full role in the upbringing of his other four children and had an extended history of criminal behaviour and of taking Class A drugs, albeit that in more recent times he had not been convicted of any offences and had confined himself to cannabis.
- The judge’s assessment of the couple’s relationship was that they were deeply loyal to each other against the world, viewing the world of authority with great suspicion and sharing a disregard for the truth and integrity of conduct . It will be recalled that he referred to their “characteristically toxic reaction” when matters did not please them as they probably would not at times  and said that they were “controlling and wilful” when challenged on some of the distorted elements of their world view or faced with a refusal to be compliant . Commenting that there was a high probability that F would not separate from M in any meaningful sense in order to bring up A alone, he said that “their mutual tendency to lie and deceive is so profound and effective that there would be no way in which the situation could be effectively monitored and A safeguarded” .
You may, like me, still be at the ‘it is all pretty unsavoury, but am still not sure it crosses threshold and results in adoption, because it still boils down to being mum is a lying liar’ point
Black LJ presses on
- Counsel for M submitted that non-medical risks of the sort identified by the local authority and the judge were not what the Children Act was driving at. However, I agree with counsel for the local authority who submitted that it is a question of degree. The judge was best placed to assess the situation as a whole and to make the necessary value judgment about whether the threshold criteria were established and whether a care order was required. Somatisation might not have been an active problem for M in recent times but the same could not be said of her other maladapted behaviour and the judge was entitled to take the view that he would have to proceed upon the basis that there would continue to be problems. The emotionally harmful effects of maladjusted behaviour, albeit it may be said that they were in a more extreme form, had been amply demonstrated in the course of AE’s case. That the judge had made the link with this can be seen from his remark at  that the “highly undesirable isolation of the E household comes to mind”.
- It was argued on the parents’ behalf that the risk/harm was not sufficiently immediate. No doubt it could be said that A, at her present age, would not be old enough to appreciate the difficulties in her parents’ behaviour. However, a child’s emotional and social development begins from the earliest stages whether he is conscious of the influences upon him or not and, as the social worker said in her statement (C44), the actions and behaviours of parents can have a long lasting effect on children from an early age. Furthermore, this was not a case in which there appeared to be any realistic hope that things would change in future and a placement of A at home followed by a later removal into care would import a danger of more emotional damage plus even greater difficulties in finding a suitable permanent placement.
- In short, the catalogue of problems identified by the judge went beyond the routine; the problems were undoubtedly more than commonplace human failure or inadequacy. They were also of long standing and had not only manifested themselves in response to the intervention of this local authority. There is no doubt that the judge was entitled to take the view that any strategy to manage the risks would have to go beyond the safeguard of the watchful eye of the general practitioner and would need to involve social services. The parents needed to have the capacity to engage with professionals to ensure that A was safe from harm and there was ample evidence on which the judge was entitled to conclude that they would not be able to do this.
Nope, I’m still with the parents on this. The two other Judges basically came down to saying that the trial Judge could not be said to have been plainly wrong, though hinting that they might have reached a different conclusion, and the appeal was refused.
My gut feeling, and of course seeing the full case and hearing all of the evidence is an entirely different affair, is that on the headlines of what is alleged to have given rise to threshold, I don’t believe threshold is met. But I am wrong, because the Court of Appeal have decided otherwise.
I don’t think we have seen the last of risk of emotional harm as a topic ripe for litigation and clarification.