It ain’t me babe, it ain’t me you’re looking for

The perplexing circumstances of London Borough of Barnet and M1 (aka M2) 2013

I always love a good County Court judgment on Baiili, sometimes they end up being far more interesting than the High Court stuff.  This one doesn’t fail to deliver

http://www.bailii.org/ew/cases/EWCC/Fam/2012/5.html

We have all had cases where the parent says that the person described in the papers is not who they really are – that the picture painted is far more damning than the reality, that the many good features aren’t brought into the light.  “That’s just not me – I’m not like that”

But this one goes much further than that – to “That’s just not me, I am not the person named in the proceedings”

At the final hearing, the mother of the child in question – who had been present at earlier hearings, claimed that she was a different person entirely and that the facts of the case related to a different physical person – the proceedings were about M1, but she was really M2.  

As a result, she said that her child C2, had been wrongly taken into care by people who had been treating him as the child of M1.  She was therefore, not disputing any of the facts or assessments that had led the Court to believe that M1 was a risk and that C should be in foster care, but instead that all of those facts and assessments related to different people entirely.

The Court obviously had to deal with this by way of evidence – which was more tricky than one might suppose, despite the obvious fact that some of the professionals in the case had seen both M1 and M2 and knew them to be one and the same.  [Underlining, as ever, mine for emphasis]

50. I deal, firstly, with the mother’s identity. Since her return to this country the mother denied that she was or ever has been M1. I already said that she said her name is M2 and her son (to whom we refer as C) was C2. She refused to see her former solicitor; she would have been able to identify her. SW1 and the newly allocated social worker, SW2, went to visit her in HMP Holloway on 7^th February 2012, neither of whom have seen her before, were seen by her. She told them that her name had been linked with M1 because she bought a car from that woman in Spain. She confirmed that C was called C2. She said she had lived in Spain since 2008 with the exception of a few days in London. She disclosed the name of her brother, Mr A. She said he could look after C.

51. Mr. A was contacted by the social worker on 15^th February 2012. He was able to say that his sister, M2, contacted him some two to three weeks earlier. If I understand correctly, he has not heard from her for some twenty years beforehand, and last saw her in 1992/1993 in the USA. She told him in the recent telephone call that she had a son called C. He gave the social worker additional information to be found at C246 in the bundle. The information would be important for C’s life story book, but does not need to be detailed by me.

52. I should add that the mother refused to see anybody who was involved with her in the previous round of these proceedings. This included the Guardian, who was therefore unable to meet with her before the hearing.

53. When spoken to again, Mr. A and Ms. B said they could not care for C.

54. The Guardian (as I said) went in to the witness box and was sworn. The mother turned away from her and covered her face with her hair. I suggested that she revealed her face to the Guardian and she did so reluctantly. The Guardian identified her without any hesitation.

55. Even more importantly, in my view, was the identification of C. The Guardian saw him in December 2010 prior to the May 2011 hearing. She saw him again on 13^th January 2012. She had no problem identifying the child she saw recently as the C she saw last year.

56. For the avoidance of doubt, I have asked Ms. Carol Edwards to go to the school which C attends and meet up with him at the conclusion of her evidence so as to tell me whether she had any doubt about his identity. Carol Edwards saw him five times in the course of her preparation of the two reports for the 2011 hearing; the last time being in March 2011. I had an email from her later that afternoon confirming the Guardian’s evidence, namely that the child she saw at school was the same child she saw here in 2010/2011.

57. Despite the mother’s protestation, I find as a fact that regardless of names and true identity the woman who sat in court on Monday was the same woman who was subject to the proceedings in 2010/2011. I make a similar finding in respect of her son.

One might think at this point of some cognitive issues, and those are increased when one learns that some of the concerns about M1 were in relation to her frequent attempts to have her own legs amputated despite having no medical conditions that would require it.

58. I went on to consider, having found the mother’s identity (as I have said), the issue of capacity – capacity to conduct legal proceedings. I intended for M1 to give evidence on Tuesday to deal with her understanding of these proceedings. I wanted this to take place when Dr. Bass was attending court, so as to consider whether she lacked capacity to conduct litigation. She chose not to attend.

59. Dr. Bass gave evidence on the issue of capacity. I deal with his written report later, but, even though his oral evidence was short, I was impressed with its cogency and indeed with its breadth. He told me that he recorded the interview with the mother, due to realising (having read her medical notes) that she was litigious and misrepresented aspects of conversations and/or advice of doctors who treated her in the past. He told me that there was nothing in his conversation with her to indicate that she did not understand the nature of the proceedings. He considered her behaviour now to be symptomatic of her dishonesty and pathological lying. He considered her to be very manipulative; her capacity to deceive had been used by her throughout her life and she had probably developed the skill and new mechanisms over the years. She demonstrated, in his view, some features of factitious illness. He thought that from time to time she adopted new identity (he could think of at least five he said) in order to evade reality.

60. For my part, I took the view on Monday, when the mother attended the hearing, that she was reluctant to be identified at court by the guardian. I was not altogether surprised when she did not arrive on Tuesday, knowing, as she did, that Carol Edwards and Dr Bass would be giving evidence.

61. Having heard Dr. Bass and having formed an impression of the mother’s behaviour at court, coupled with her non-attendance on a day two other witnesses were going to give evidence of her identity, I have come to the conclusion that there is no evidence before me to rebut the presumption of capacity. I considered her non-attendance yesterday. The mother, in my experience, was not the first parent not to attend a final hearing about their child. As I was satisfied that she did not attend of her freewill, I decided to continue the case in her absence. I am satisfied that her rights to a fair trial have been observed. I decided that C (of whom more below) has waited for far too long, in my view, for the conclusion of these proceedings and his welfare demanded expeditious conclusion of this case. I have seen nothing in the mother’s conduct on Monday, and indeed today, which would indicate to me that there was any merit in adjourning this hearing.

There is an issue in the case which has wider application – it does not of course dislodge the existing precedent authority, but it brought to my attention that this authority probably doesn’t stand up post Re B, B-S etc

101. I turn to deal with the question of the placement order. This case was before the Local Authority’s permanency panel on 9^th May of last year. C has been approved by the panel for adoption, which means that the panel recommend that he is placed for adoption. That, of course, was ten months ago. Firstly, I deal with the application itself. In my judgment, it has been served on this mother very late. It would be wrong, pursuant to Article 6, to deprive her of the opportunity to consider it. I am satisfied that since she told me today yet again that she is not who I say she is, she is very unlikely to participate as the person I say she is in any future proceedings.

102. Nevertheless, I have decided to adjourn the question of a placement order for seven days to give her an opportunity to consider my judgment and to consider her response to a placement order. I will list it, subject to looking at the court’s diary and tell you shortly which day and what time, so that the mother can be produced, should she wish to come.

Now, the Court of Appeal have previously said, in Re P-B (A Child) 2006 EWCA Civ 1016

http://www.familylawweek.co.uk/site.aspx?i=ed278

that where a parent is made aware that the care plan for the child is adoption, the actual physical Placement Order application can be served at any point before the Court makes the order, including during the final hearing.

I think that although that authority presently stands [and would have allowed the Court to move to consider the Placement Order application], the Judge was wise here not to have followed it, and to have instead adjourned to provide a greater period of time between the application being served and the Court considering the making of the order.  I am pretty sure that Re P-B would be considered to no longer be good law if an appeal were brought on that point.