This is a Court of Appeal decision in relation to significant harm in care proceedings, where the harm was said to be emotional harm. And this is always a hot-button topic.
Re S & H-S Children 2018
It also deals with the grammatical weirdness that is in the Children Act at section 31, which we all tend to forget to an extent. The Act never talks about whether the child ‘has suffered’ significant harm, although that’s the language that we all use. Instead it says “Is suffering” and the law has subsequently developed to say that you are looking at the past, to when protective measures were taken as the relevant date. (That was a solution derived because care proceedings were being issued where a child had suffered significant harm and then gone into foster care or been placed with a relative – so on the day of issue, it would be inaccurate to say that the child ‘is suffering’ significant harm. So we routinely use the present tense of the Act to talk about the past tense of the relevant date)
In these proceedings, they were initiated on the basis of allegations about the children being physically harmed by father, and the LA accepted freely that at the time the proceedings started, they had no intention of issuing proceedings in relation to mother’s care. The allegations about father fell away – the Court found that he had physically chastised them, but left no marks, and that they had not suffered significant harm as a result of his chastisement and it was not over-chastisement.
However, within the proceedings, the assessments that took place highlighted emotional harm, and in particular the children’s poor attachment to their mother. The Court found that the children had suffered emotional harm.
The appeal was brought on the following points
- The mother’s grounds for appeal represent a root and branch challenge to the judge’s conclusion with respect to the threshold criteria relating to the child L. In summary, the following points are made:
- a) The proceedings were commenced in response to allegations of physical harm to the older two children perpetrated by their father. Those allegations were, in the event, not found proved in the terms of the threshold. The stress of the proceedings, however, triggered a marked deterioration in the mother’s mental well-being to the extent that, by the end of the proceedings, she conceded that she could not at that time provide a home for any of the children. The judge is criticised for failing to distinguish between the mother’s presentation and her parenting prior to the relevant threshold date of 9th March 2015, and the compromised state that she descended into thereafter during the proceedings.
b) Evidence from social workers, community support workers and health visitors prior to 9 March, insofar as it mentioned the mother and L, was positive and gave no cause for concern.
c) It was conceded by the local authority that no social worker was contemplating issuing care proceedings with respect to the mother’s care of the children as at 9 March 2017.
d) The judge wrongly equated a perceived lack of attachment between the mother and L with the establishment of “significant harm”.
e) A failure to follow the guidance given by the Supreme Court in Re B to the effect that it is necessary for a judge to identify a precisely as possible the nature of the harm that L was suffering or likely to suffer as at 9 March 2017.
So you can see that timing is important. At the time proceedings were issued, one could not now say that the children ‘is suffering significant harm’ (I know, the tenses make me feel queasy too. I wish the Act just said ‘has suffered’ but it doesn’t.) Any harm actually occurred within the proceedings. So the first limb isn’t met, and the LA would have to rely on the second limb, that there’s a likelihood of harm in the future.
The other bit I’m interested in is
d) The judge wrongly equated a perceived lack of attachment between the mother and L with the establishment of “significant harm”.
We hear a lot about attachment in care proceedings, and an awful lot of what we hear is misusing terminology and confusing quality of relationship or emotional closeness with attachment, which is not something you can assess by reading some contact notes or watching mum play with a toddler. We also hear a lot about attachment problems without ever giving the context of how prevalent poor attachment is in the general population. Trust me, I’m not saying that flawed attachment has no impact on a child’s childhood and later life (seriously, trust me, I’m well aware of how many of my own problems are due to exactly this issue), but one needs to be careful if pathologising something which is not that unusual. Remember, the wording of the Act says that the harm has to be attributable to the parent not providing care which it would be reasonable for a parent to provide – if a third of parents in the general population have difficult attachment styles, whilst that may be harming the child, is the parent culpable and behaving unreasonably?
The Court of Appeal said this :-
- Before this court Mr Taylor has advanced the mother’s case with force and clarity both in his skeleton argument and at the oral hearing. He seeks to establish five basic submissions:
- i) The lack of clear and bright reasoning within the judgment falls so far short of what is required so as to amount to an unfair process.
ii) The judgment confuses evidence as to the state of affairs prior to 9 March with evidence of what consequently occurred as a result of the mother’s mental collapse during the proceedings.
iii) The necessary process of evaluation of the threshold criteria, as required by Re B, has not been undertaken.
iv) The findings made by the judge as to the mother’s character are insufficient of themselves to support a finding on the threshold criteria.
v) Various findings made by the judge with respect to other aspects of the case are insufficient to support a finding of threshold with respect to L.
- The appeal is opposed by the local authority and the children’s guardian. L’s father takes a neutral stance.
- Looking at the mother’s appeal in more detail, it is, unfortunately, correct that both the judgment and the court order lack clarity with respect to the judge’s findings as to threshold relating to L. The following points are, in my view, established in the appellant’s favour:
- a) The judgment makes no reference to the judge’s previous findings as to the mother’s psychological well being set out in her judgments of 11 November 2015 and 4 July 2016.
b) The judge’s finding (paragraph 106) that “the attachment difficulties seen in the children…are evidence of emotional harm” does not expressly amount to a finding of “significant” harm as required by s 31.
c) Paragraph 107, which is lengthy, includes reference to material arising both prior to 9 March and, thereafter, during the proceedings. Again, the finding in that paragraph relates to “emotional harm” and not “significant harm”.
d) Although the phrase “significant harm” appears in paragraph 109, the judge there refers to “the other factor relevant to whether the children have suffered significant harm as a result of the mother’s presentation” and describes the emotional impact on the children of the mother raising the allegations of physical chastisement which, in turn, led to the institution of proceedings. Paragraph 109 does not make a finding that the children did suffer “significant harm” in this respect. The finding is that the mother’s past behaviour “cause(s) me to think she will continue to have anxieties about the care of her children and therefore potentially undermine any placement of the children away from her care”.
e) Paragraph 110 does include a finding that the mother’s emotional stability and her presentation are such that “the children have suffered from significant emotional harm”. The finding is not, in that paragraph, tied to the period prior to 9 March and there is no finding with respect to likely future significant harm.
f) As Miss Gillian Irving QC and Mr Zimran Samuel for the local authority before this court who did not appear below, reluctantly concede, the judge’s statement of “threshold findings” posted at the end of the judgment cannot, as a matter of law, be said to satisfy the requirements of s 31. The paragraph is confined to a summary of the judge’s findings as to the mother’s mental well being both now and in the future. The paragraph does not contain any explanation for the judge’s finding that as a result of the mother’s condition the children have suffered significant harm.
g) The court order, which simply records the making of care orders, fails to include any recital as to the court’s findings with respect to the threshold criteria.
The Court of Appeal were critical of the Judge’s failings in the judgment, particularly the conflation of emotional harm and significant harm, and linking the comments on harm to the wording of the Act.
- As the extracts that I have set out from Dr Hall’s written and oral evidence demonstrate, the attachment that these children, including L, had with their mother was compromised to a significant degree so that it was on the borderline of being characterised as disordered. Dr Hall’s opinion was that without secure attachment the children would suffer significant detriment, not only to their emotional and psychological functioning, but to the very development of their brain during infancy.
- The attachment, or lack of it, formed between L and her mother must relate to the period when L was in her mother’s care prior to 9 March 2017. It arose from core intrinsic elements in the mother’s psychological makeup, rather than arising from the recent collapse in the mother’s mental health. Dr Hall’s description of the mother being unable to control her emotional reaction to relationships and events with unpredictable and regular oscillation between the extremes of hyper-arousal and hypo-arousal, accords entirely, as she herself said it did, with the mother’s presentation as recorded by the previous expert in 2014.
- It is clear that the evidence upon which the judge relied, and her findings, relate to the mother’s long-standing condition and its impact on the children, rather than any deterioration that occurred during the proceedings.
- This material amply supports a finding that L was suffering significant emotional harm as at 9 March 2017 and would be likely to suffer significant emotional harm in the future as a result of the care provided by her mother were she to return to the mother’s home. Although, for the reasons that I have given, the judge’s judgment lacks precision and clarity, there is in my view, sufficient in paragraphs 106 to 110 of the judgment to identify the threshold findings made by the judge in this regard.
- In the circumstances, whilst accepting, as I do, the validity of the criticisms that Mr Taylor makes as to the lack of clarity and focus in the judge’s analysis, Dr Hall’s evidence and the judge’s previous findings as to the mother’s behaviour provided a very solid basis for finding the threshold established and it is plain that the judge adopted that analysis, which was in part based upon her own findings made two years earlier, in concluding that the threshold was crossed with respect to L in this case.
- For the reasons I have given, I would, therefore, dismiss this appeal and uphold the judge’s finding that the threshold criteria in CA 1989 s 31 was established as at 9 March 2017 with respect to L as a result of the care given by her mother on the basis that, at that date, L was suffering significant emotional harm and was likely to suffer significant emotional harm.
Note that even though the Court of Appeal are telling the Judge off for not using ‘is suffering’ as the test, they themselves slip readily into the language ‘was suffering’. It is almost impossible not to do it.
(I was somewhat surprised that this appeal didn’t succeed – on my reading there were enough failings in the judgment to overturn it, but the Court of Appeal felt that there was sufficient cogency to the judgment in full that they could apply a little bit of Polyfilla to the cracks, rather than declaring that it was so flawed it had to be reheard. I can see that they considered that it was slightly loose use of language rather than a failure to identify whether the children met the s31 test)
The Court of Appeal gave a coda of lessons to be learned (whilst not noting that they’d not followed their own lessons in the very same judgment, cough)
Lessons for the Future?
- Before leaving this case, and with Lady Hale’s more detailed judgment in Re B in mind, I hope it is helpful to make the following observations as to how the difficulties that have led to this appeal could have been avoided in practice.
- In the course of a necessarily long judgment covering a range of issues and a substantial body of evidence, where the threshold criteria are in issue, it is good practice to distil the findings that may have been made in previous paragraphs into one or two short and carefully structured paragraphs which spell out the court’s finding on threshold identifying whether the finding is that the child ‘is suffering’ and/or ‘is likely to suffer’ significant harm, specifying the category of harm and the basic finding(s) as to causation.
- When making a finding of harm, it is important to identify whether the finding is of ‘significant harm’ or simply ‘harm’.
- A finding that the child ‘has suffered significant harm’ is not a relevant finding for s 31, which looks to the ‘relevant date’ and the need to determine whether the child ‘is suffering’ or ‘is likely to suffer’ significant harm.
- Where findings have been made in previous proceedings, either before the same judge or a different tribunal, a judgment in subsequent proceedings should make reference to any relevant earlier findings and identify which, if any, are specifically relied upon in support of a finding that the threshold criteria are satisfied in the later proceedings as at the ‘relevant date’.
- At the conclusion of the hearing, after judgment has been given, there is a duty on counsel for the local authority and for the child, together with the judge, to ensure that any findings as to the threshold criteria are sufficiently clear.
- The court order that records the making of a care order should include within it, or have annexed to it, a clear statement of the basis upon which the s 31 threshold criteria have been established. In the present case, during the oral appeal hearing, counsel for the guardian explained that, following the judgment, she had submitted a detailed draft order to the court by email for the judge’s approval. We were shown the draft which, whilst in need of fine tuning, does provide a template account of the court’s threshold findings. It is most unfortunate that counsel’s email, which may not have been seen by the judge, did not result in further consideration of the form of the order and statement of threshold findings. Had it done so, the need for the present appeal may not have arisen.