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High Court admonishes Guardian, psychiatrist and (to a lesser and interesting extent) Child’s Solicitor

Re F v H and Another 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/3358.html

This was a knotty and horrendous private law case in which parents separated and mother made a series of grave and utterly unfounded allegations that the father had sexually abused the child. She persuaded a series of doctors to undertake intimate examinations of the child and later left the country with the child when the Court hearings were going against her. The Family Court then placed the child with the father and directed that there should be a psychiatric evaluation of the mother to see if there was any prospect of contact taking place.

The judge said that “the court cannot envisage a situation whereby it could be considering looking at direct contact again other than where she has received extensive psychological therapeutic help.” The decision of the judge in respect of the need for the 1st Respondent to receive treatment prior to contact taking place or to any reintroduction of her mother was based on the welfare of B and the evidence of the 1st Respondent’s behaviour. It was wholly justified.

During the period where mother was awaiting criminal trial for the child abduction, she continued to make a series of allegations about father to professional agencies, all unfounded. Mother received a four month sentence for the child abduction offence, suspended for six months.

When the psychiatric report finally emerged, it wasn’t terribly useful, since the psychiatrist had decided to do the report without reading the judgment from the family Court about her behaviour that had led to the need for the report… And he believed everything that the mother said and recommended strongly that the FATHER was the one who needed a psychiatric assessment.

Safe to say that Ms Justice Russell was unimpressed by that approach.

28.There was no psychiatric assessment of the 1st Respondent so that on the 20th March 2017 when there is a further hearing before the judge this issue remained outstanding as the reports ordered by the court on 29th February 2016 and 25th May 2016 have not been produced. In March 2017, the Court again “made it clear” that this is 1st Respondent’s last opportunity to cooperate with a psychiatric assessment and she did not attend the next appointment arranged for her, her application would be dismissed and a s91(14) (CA) order would be made for a period of two years.

29.Finally, on 25th May 2017 the 1st Respondent was seen by a psychiatrist, Dr Oyebode, who filed a report on 5th June 2017. For reason that are far from clear to this court and to the court below Dr Oyebode conducted his assessment of the 1st Respondent without reading the court documents provided to him, including the judgments; instead he read and relied on the documents given to him by the 1st Respondent and the report of Dr Beider (who had not seen the documents or had access to them at all). Thus, his assessment was partisan, based on the 1st Respondents version of the history of events and on psychiatric evidence obtained outside the family court proceedings and without the permission of the judge.

30.Moreover, not only had Dr Oyebode had not challenged the 1st Respondent on the basis of the court documents or judgement (because he had failed to read them) he also accepted her assertion that the 1st Respondent had made no further allegations since 2014; this was patently untrue as she had made allegations in 2016 and sought to defend the criminal case on the basis of duress and necessity. He neither referred to or considered the 1st Respondent’s behaviour which led the court to make non-molestation injunctions against her. In direct contradiction of the judgment of the court he reached the conclusion that the 1st Respondent was a capable mother who had genuine concerns for her daughter’s welfare. He suggested that the Appellant undergo psychiatric treatment, having accepted the 1st Respondent’s version of events. Quite rightly the judge, at the hearing on the 9th August 2017, described Dr Oyebode’s report as offering the court no assistance and as being “completely flawed”.

That psychiatric assessment being worthless, the case then took a significantly wrong turn.

31.At a further hearing before the judge on 21st June 2017 B was joined as a party to the proceedings and on 5th July 2017 Catherine Callaghan (a Cafcass officer) was appointed as her guardian. Ms Callaghan was provided with some limited papers, consisting of parents’ last statements and Dr Oyebode’s report on 7th July 2017. She met the Appellant and B briefly on 19th July 2017. The guardian spent some two hours with the 1st Respondent on 26th July 2017. She did not receive the court papers, which include the judgments, until 28th July 2017. She could not have been, and was not in, a position to challenge the 1st Respondent’s version of events when she met her; and her views at the time would have be based on what she knew then, which included the flawed and inadequate report of Dr Oyebode. The Guardian did not see the parties or the child again. Although she had had sight of the case papers before preparation of her position statement this was not until after she had seen the parties and her meetings with them to place in ignorance of the circumstances of this case.

32.At six o’clock in the evening of 8th August 2017 the guardian’s solicitor sent her position statement to parties which included the recommendation that there should be direct supervised contact for the 1st Respondent with B. I shall return to her position below; but she had not prepared any analysis or report for the court, which considered the welfare of the child with reference to the statutory provisions contained in s1 of the CA 1989; nor did she explain to the court what form the contact would take; any details of the explanation of what was to happen, and by whom, would be given to the child. She did not proffer any advice to the court as to what would happen if, on the receipt of competent psychiatric assessment of the 1st Respondent, it was found that the risks to B of further harm was considered to be high, without some prior professional intervention. The judge did not hear any oral evidence.

33.The next day on 9th August 2017 the judge, in what she described as a finely balanced decision, which from her judgment, was a decision based largely on the oral submissions made on behalf of the guardian, acceded to the application made on the instructions of Ms Callaghan and made an order which provides for direct contact between B and the 1st Respondent supervised by the guardian herself. The judge stayed the order for direct contact until 30th August to allow for the application for permission to appeal to go before the High Court. In her short judgement, the judge set out her reasons for reaching the decision that some supervised contact should go ahead which, as previously observed were based largely, if not wholly, on the guardian’s recommendations.

34.The precondition for any reintroduction of contact, which the judge had repeatedly reiterated, was not only that the 1st Respondent’s mental health had to be assessed, but also that there should be some treatment with her commenced to avoid repetition of her previous harmful behaviour towards B. Following the oral submission of the guardian (who is not qualified to assess the 1st Respondent’s likely psychiatric or psychological response to any reintroduction to B) the judge reversed the decisions she had made previously. The decisions she had previously made were properly based on the evidence before the court that there should be prior assessment and treatment (as set out above) there was no evidence before the court which supported a reversal of that decision. Moreover, as a result of the inadequacies of the psychiatric report, on 10th August 2017 an agreed letter of instruction was sent to Dr Datta to carry out a further assessment of the 1st Respondent. This letter, agreed by the parties, contained the instruction that the “Mother continues to be of the view that [B] is not safe in her father’s care.”

Ms Justice Russell sets out in detail why the Judge was wrong to have resiled from her earlier position that contact could not be countenanced until there had been a proper psychiatric evaluation of the mother, and largely blames the Guardian for persuading the Judge to do so, and moreover, to have fallen into much the same trap as the psychiatrist – in conducting investigations and reaching conclusions without having properly engaged with the source material.

The father, obviously, appealed and that is how the case came before Ms Justice Russell.

37.The history of this case has been set out at some length as it forms the background to the decision the judge made on 9th August 2017. When viewed as a whole the harm caused to this child by her mother was significant. Not only was she found to have repeatedly subjected to intimate examinations, solely at the behest of her mother, she was prevented from having uninhibited relationship with her father as an infant. On any view, the repeated invasive intimate examination, as found by the judge and set out in her judgment, were in themselves abusive and any long-term effects on B, along with any emotional trauma that may have been at the time, has never been investigated or assessed.

38.The guardian has seen this child on one occasion for a brief period yet she has seen fit to reach conclusions as to the child’s resilience and current psychological and emotional status and ability to deal not only with the re-introduction of her mother but also with the possible, if not probable, cessation of contact should that prove to be necessary. There is no analysis of how she reaches these conclusions, no details of her qualifications to do so and no application of the welfare checklist in reaching her conclusions. Consequently, the judge was wrong to rely on them and to effectively reverse her previous decisions on what amounts to flimsy evidence.

39.The emphasis and assumptions of the guardian are apparently based on the need to reintroduce contact with the child’s mother. If so this is a misinterpretation of the law; although that the amendments to section 8 of the CA and section 1(2A), introduced by the Children and Families Act 2014 emphasised the presumption that unless the contrary is shown, involvement of a parent in the life of a child will further the child’s welfare, this presumption is subject to the requirement that the parent concerned may be involved in the child’s life in a way that does not put the child at risk of suffering harm. This case includes findings of abusive behaviour towards B by her mother, which, if repeated would compromise the child’s safety and reintroduce the possibility of further harm, both physical and emotional.

40.B is a young and vulnerable child whose first few years of life were blighted by her mother’s irrational, abusive and harmful behaviour culminating in an B’s unlawful abduction. The courts can and should consider ordering no contact when the child’s welfare and safety demand it

(illuminating to compare and contrast with the Court of Appeal stance on the transgender father v ultra-Orthodox jewish community case earlier this month…)

Get ready for the pain

Conclusions
47.While it is understandable that the judge acceded to the guardian’s application, it is the decision of this court that she was wrong to do so. The guardian was quite simply not qualified or equipped to reach the conclusions that she did in respect of this child’s psychological and emotional resilience. She was even less qualified to assess the 1st Respondent’s mental state and her ability to conduct herself appropriately when B spent time with her. She had carried out anything other than a cursory consideration of the history, evidence and court documents before she briefly met the child with her father; little wonder failed adequately to explain the basis of her conclusions.

48.In a case such as this with a protracted, complex and convoluted history it is incumbent on the professionals who are called on to proffer advice and recommendations to the court, be they Cafcass officers or others concerned with child welfare, to fully inform themselves about the case and, at the very least, read through the judgments before they commence their investigations. Nor should they consider experimenting or trying out with contact for the child or children concerned against a background of previous harmful behaviour and abduction; in this case the guardian even accepted that contact may prove to be unsuccessful and be terminated or suspended again. Any contact that took place would have provided little or no useful evidence for the court as the guardian is unqualified properly to assess this mother’s ability to deal with and contain her behaviour. For that reason, and for those set out above this appeal will be allowed.

That’s a serious burn. Is it fair and justified? Well, I will leave that to the reader to decide.

The bit that interested me was this, however.

In relation to the position statement filed on behalf of the Child’s Solicitor (bear in mind that the child in question is 4 1/2, so absolutely no prospect of the child being competent to give instructions or even to give their views to the solicitor independently) the Court said :-

There was and are no submissions on behalf of the guardian as to why and on what basis she purported to have reached this conclusion on behalf of this child. A child who as, on any view, be subjected to repeated intimate physical intrusion, flight to Israel and had been fed misinformation about her father throughout her infancy. The solicitor for the child has, apparently, acted solely on the instructions of guardian and failed to include any separate analysis of the child’s position in her position statement.

I’ll give you the last bit again

The solicitor for the child has, apparently, acted solely on the instructions of guardian and failed to include any separate analysis of the child’s position in her position statement

I suspect there are many solicitors for children saying to themselves, well of course the solicitor acted solely on the instructions of the guardian. The child was 4 1/2.

Is it the place of the solicitor for the child to disagree with the instructions of her professional client (where the lay client is not in a position to give instructions?) – is it the place of the solicitor for the child to lay out in a position statement a case wholly in the alternative to that the Guardian is instructing should be pursued?

That seems a stretch to me. I think it is acceptable that the solicitor for the child ask the Guardian to address some of the consequences of the course recommended and provide analysis as to why, despite any adverse consequences it is the preferred option. But if the Guardian sticks by her course, I don’t think the solicitor for the child can advance in a position statement an argument contrary to her instructions.

(Of course, if the Guardian is making a mistake in law, or there is authority contrary to the position being advanced the solicitor for the child has to draw this to the Court’s attention, but I’m not sure that’s the case here. That possibility is raised earlier, so I may be misreading. It seems to me though that this is an issue not as to law and principle but a welfare and risk analysis by the Guardian. If the child’s solicitor and the Guardian disagree about welfare and risk analysis then they should thrash it out in discussions, sure, but ultimately it is the view of the Guardian that goes into the position statement and is advanced at Court, not the view of the child’s solicitor. )

I shall keep an eye out as to whether this theme recurs.

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Criticism of professionals – two cases

These aren’t earth-shattering judgments (though I think that both are very well written and constructed, and worth sharing for that alone) and they aren’t precedent authorities for any points, but both raise practice issues which are valuable, and they also show that Judges are prepared to call out faults when they see them.

They also both have happy endings for the families concerned, and that’s nice to see.

 

The first is in relation to a Guardian,

Re R (Care proceedings :Rehabilitation) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B193.html

 

It involved two children, one nearly 8 and one 4 1/2. The Local Authority final plan was for both children to be returned to their mother’s care, the Guardian opposed that and wanted the children to be made the subject of a Special Guardianship Order and to live with their current foster carer (a family friend).

 

This is what the Judge said about the Guardian’s evidence and report.

217 There are two aspects of the guardian’s final report that concern me. I have noted that in his analysis of the advantages of being brought up by a natural parent the guardian said very little about the benefits of that, although it is universally accepted by professionals and the courts. He provided helpful answers when I specifically asked him about it, and Miss Shah in her oral submissions suggested that the advantages are so obvious that the guardian did not need to set them out in his report. In my view, that is not the appropriate or just approach to the analysis by a guardian who, in a final report, asks the court not to return the children to their mother’s care, and it would be a pity if that omission perpetuated the mother’s impression that the guardian remained set in his views against her.

218 I also found it remarkable that in his final analysis the guardian did not mention Miss Jones’ report. There was no summary, no analysis, nor any explanation of his reasons for rejecting the views of a jointly instructed expert. That he does reject her views is obvious from his position, and he had raised questions with her at an earlier stage. Nevertheless I consider that a serious omission.

219 Further, I noted that the guardian described the carer as a member of the children’s family and argued for a different approach to the right to family life on that basis, although he had previously described her as a “family friend”. Also in his oral evidence he referred to the children’s attachment to their mother as “insecure”, although he had previously described it in his report as “secure”.

220 These two matters have raised a concern that at the final hearing aspects of the guardian’s case have been overstated in an effort to support his argument that the children should remain in the care of the carer.

221 The guardian considers the case as finely balanced, but ultimately prefers the “status quo”, the continuation of the children’s placement with the carer under a special guardianship arrangement. He considers the local authority’s final care plan to be “high risk”. I accept that if the mother does relapse and the rehabilitation plan breaks down it would be catastrophic for the children. I have considered the other risks. I am persuaded that the mother will deal with them with support robustly.

 

And in case you think that as a Local Authority lawyer, I’m just reporting a Guardian getting a hard time for my own amusement, the next case involves a Judge seriously criticising social workers.

 

This is Re EH (Supervision Order) 2014

http://www.bailii.org/ew/cases/EWCC/Fam/2014/B78.html

This case involves a girl aged 6 1/2. The final order made was a Supervision Order , which means that the girl would live with her father.

This is what the Judge had to say about the complaints that the parents made about the way they were treated by the Local Authority.

 

63. a) I deal with this issue here, not because the local authority’s capacity to care for EH arises, but because its approach has had an evident impact on all those discussed above, and with the agreement by all parties that there should be a Supervision Order it is clear that the Local Authority’s future conduct of the case will have an important effect upon EH’s future care.

(b) The parents, Mr and Mrs B and the Guardian have all raised concerns about the approach taken by the Local Authority in general and this Social Worker in particular.

(c) I am aware that it can be said that parents are bound to criticise a Social Worker involved in child protection proceedings relating to their child, and that the Social Worker is in a no-win situation, but it is not as simple as that. The roles a social worker and a local authority play are crucial and must demonstrate a real effort to work in partnership with a family, a readiness to try and rebuild a family and identify support to do so, a fair and robust analysis of all the information available, and sensitive interaction with the family to support all the above.

(d) I have already noted a number of concerning features earlier in this judgment: a failure by the Social Worker to include and consider carefully all the available evidence of the Father’s relationship and interaction with EH, and particularly her own s37 analysis; an unquestioning acceptance of the extreme analysis of the FAST assessor; a failure to include in the social work analysis of EH’s presentation during the FAST assessment crucial information that the Mother had told EH she might be removed into foster care and other potentially relevant factors; a failure to provide any adequate analysis of EH’s needs in terms of her close and loving relationships with her parents and the impact upon her of being removed from their care with limited contact; and an excessively rigid and negative reaction to the concerns raised in Mr and Mrs B’s viability assessment.

(e) As already mentioned, the downturn in the Local Authority’s approach and the parents’ relationship with the Local Authority and the Social Worker appears to have begun with the angry response received by the Social Worker and Practice Manager Jenny Jones in mid-March 2013 when Father was requested at short notice to extend his weekend staying contact. The negative viability assessment of Mr and Mrs B by the Social Worker followed in May 2013. This appears to have been communicated excessively bluntly and negatively to Mr and Mrs B, according to their account to the Guardian (E125). I take into account that they were not questioned directly about this while giving evidence and so I have to rely on the Guardian’s account of her conversation with them, but I also note that they were not challenged that this had been their experience, and I find that they had no reason to lie about this to the Guardian and they came across as entirely honest and helpful witnesses. I have subsequently seen an entirely proper letter, sent on 5.6.13 shortly after these conversations took place, setting out advice to Mr and Mrs B as to what steps they could take. By then however, that damage was done.

(f) The proceedings were then issued and first steps taken to progress the case. On 21.8.13 a FAST planning meeting took place between the Social Worker, Ms Mayet the FAST assessor and the Father. I have already found that his approach was hostile and unhelpful in trying to arrange dates for the FAST assessment. However, it was followed by the Social Worker, later at the same meeting, pressing Father to sign adoption medical consent and parental health forms. I accept the Guardian’s evidence that this was poor professional practice, and in any event it lacked sensitivity or any awareness of the meaning of these proceedings and assessments for the parents. A meeting about the Local Authority’s plan for adoption (even if a parallel plan) should not ride immediately on the back of a meeting that is about the assessment of that parent’s parenting. It will instantly undermine the parent’s faith in that assessment, particularly where the Local Authority is the assessor, and will appear to be grossly insensitive and as if the Local Authority are approaching the case with a closed mind. A separate meeting with a proper explanation of the parallel planning process should have been conducted.

(g) A similar and wholly unnecessary pressure and insensitivity was evident in the Social Worker’s actions on 8.11.13. On that date DJ Pilling’s judgment relating to the parents’ and Guardian’s applications for further assessment by ISWs was awaited from the contested hearing the day before on 7.11.13, and was handed down by email on the afternoon of 8.11.13. However, the Social Worker persisted with a meeting with Mother on 8.11.13, with the approval of her manager Jenny Jones, at which she sat with her for a lengthy period of time persuading her to complete parts of the Child Permanence Report which covers the views of the parent in relation to the proposed plan for adoption and contains a section relating to what information the parent would like the child to know in the future if adopted. I have seen that document. Understandably, the Mother described herself as intensely distressed by this exercise. The excuse for putting this highly vulnerable Mother through this was that the Social Worker had to prepare documents for the Agency Decision Maker to consider the Local Authority’s plan for adoption and that she would have been in trouble if the documents were not ready. However, she of course conceded that as soon as an assessment is to be carried out an ADM is not in a position to approve a plan for adoption, and of course it turned out that DJ Pilling’s judgment confirmed that both the Father and Mr and Mrs B should be further and independently assessed. Simply waiting one day for that decision would have saved the Mother a great deal of unnecessary distress and saved the Social Worker a waste of her time on preparing wholly unneeded documents. I could not fathom what drove the Social Worker and her manager to continue with this course of action in those circumstances. It cannot but have led the family to be convinced that the Local Authority was not prepared to think supportively and openly about the possibility of EH remaining in her family, and that the Social Worker was prepared to put the Mother through an intensely distressing experience come what may.

(h) Given that one of the key criticisms of the Mother was that she was failing to engage with the Social Worker, and of the Father was that he was aggressive and abusive to the Social Worker, I find it astonishing that she should take (or have been advised to take) such insensitive steps that cannot but have worsened the prospect of improving her working relationship with each of them.

(i) The Guardian was also concerned that the Social Worker called the police twice to EH’s home, in summer 2013 and February 2014. She considered that this was excessive and heavy-handed, particularly where a child is attending school and contact with another parent, and she could be seen through the window in summer 2013. It had a frightening impact on EH and again must have led the family to feel that the Social Worker had an excessively negative attitude towards the family.

(j) I note and accept that the Social Worker has agreed with hindsight in her oral evidence that some of these steps were not best practice and expressed regret through the Local Authority’s advocate for some of these actions. However, the matter unfortunately goes a stage further.

(k) In her final statement dated 21.2.14 at C143 the Social Worker reported a comment of the Mother’s that she had not in fact wanted the Father to spend Christmas with her and EH. The Social Worker then used this comment to suggest that the Father was again being inappropriately overbearing and that the Mother was being excessively weak, with consequent damaging exposure of EH to their relationship difficulties. However, during her oral evidence the Social Worker let slip that the Mother had in fact invited the Father to come for Christmas as EH had requested it. This is wholly absent from her written account and as a result it becomes a distorted and wholly misleading version of what occurred. Nowhere is the Mother’s willing and appropriate response to her daughter’s request mentioned. I am astonished that this could be characterised by the Social Worker as the Father overlooking the Mother’s feelings and the Mother being too uncomfortable to assert her wishes against him, when it was clearly nothing of the sort. This level of distortion to fit the Local Authority’s case is unhelpful in the extreme, unprofessional and frankly a misrepresentation of the true situation.

(l) Additionally, last week the Social Worker concedes that she answered Mother’s questions about what would happened at the end of this case by openly discussing in front of EH the need to pack a bag for EH. I fail to see how this should have arisen at all. The Social Worker should have either had this discussion long before with the Mother or should have deflected her questions so as to have the conversation in EH’s absence. This was a hugely insensitive and potentially destabilising discussion for EH to overhear. It is frankly flabbergasting to hear that that a child protection professional has acted this way. It is as if the child’s feelings are invisible.

(m) I must express my disappointment at having to consider these examples of the Local Authority failing to approach this case sensitively and with the aim of truly working in partnership with a family, and I consider that the family’s concerns as to the insensitive and negative approach they have been treated to are justified. Some examples appear to be the responsibility of the Social Worker and some of her management within her team. The attitudes betrayed by these examples must change for the Supervision Order to be properly administered by the Local Authority in EH’s interests. This is particularly the case given my findings in relation to EH and her Father that do not follow the Local Authority’s position adopted thus far.

(n) I am very grateful to the Local Authority for the addendum document dated 13.3.14 which adds to their care plan. I am also grateful for the Local Authority’s decision of which I have been informed this morning: to change the team which will be responsible for the Supervision Order. The Local Authority had originally confirmed that the Social Worker would change but that the team would remain the same and the manager Jenny Jones would remain in direct charge of the case. The Guardian had expressed the view that it would be preferable for the team and the manager to change. While aware of the limitations on my powers, I concurred and I had invited the Local Authority to think carefully and creatively about how to achieve the fresh start that it appears from the concerns set out above are urgently required to serve this family fairly, to enable the Local Authority, the Senior Social Worker and the Professional Assistant to look at these parents with a fresh eye, and to be able to work in partnership with them successfully. I had reminded the Local Authority to consider the guidance of Sir James Munby P in Re BS (2013) at §29 in terms of doing what is necessary to make the orders of the court work and not to be limited by resource arguments.

 

It is important, and in saying this, I’m aware that my own words might come back to haunt me in the future, that where parents have not been treated fairly and professionals have not behaved as they should, that Judges properly call them out on this, as these two Judges have done. Care proceedings are terrifying and confusing for parents and the very least that they can expect is that professionals treat them fairly and with dignity.

Machetes, body armour and social work bashing

 

Oh, that’s a clickbait title if ever there was one. The case in question does contain all of that stuff though.
Re IMA (care proceedings :no threshold) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B110.html

This is a set of care proceedings heard in Manchester County Court, but it raises some important issues of wider importance.

It was a case in which the Local Authority obtained an Emergency Protection Order removing IMA in August 2013, and after that Interim Care Orders sanctioning IMA remaining in foster care, up until the final hearing, which took place in August 2014 a year after the initial removal.

The Local Authority had been seeking a plan of adoption, supported by the Guardian, but this had changed to permanent placement with a relative. It is of note that the plan of adoption had been supported by the Agency Decision Makers (whose job it is to assess separately to social workers whether the circumstances of an individual case mean that adoption is the right plan)

The Judge at final hearing found that the threshold criteria were not made out, and thus the child would be going home and no statutory orders would be made.

The threshold criteria was based on the risk of the child being exposed to domestic violence (which is, on the revised wording of the Children Act 1989 a matter which on its own is capable of meeting threshold). That had two aspects really (i) Was father a risk of violence or violent behaviour and (ii) was the child in mother’s care going to be exposed to the father.

The fact that the Judge found that threshold was not met therefore was significant. This wasn’t a case with a suspicious injury which on full investigation was found to be an accident or a peculiar medical condition, but rather that the child ought never really to have been removed. The Judge was not saying that the threshold HAD been met but due to changes the risks had dissipated or become manageable, but that the situation of this family had NEVER crossed the section 31 threshold.

And the Judge had advised the Local Authority in a number of hearings that he was concerned that the section 31 threshold was not made out on the evidence that they had presented and was giving them the opportunity to flesh out their evidence if they had more information which was not before the Court. He told them that on 17th February 2014, 14th April 2014 and 23rd June, before making it official at the final hearing by ruling that threshold was not met.
The Judge starts off scathing and continues in that vein

These proceedings concern a new born baby who has never suffered any harm in his parents’ care. If he has suffered any harm to date, it is the loss of the relationship with his mother during the first year of his life due to the fact that he was removed from her care when he was a week old.
The Court did say that the LA were not wrong to have brought the case, but hints strongly that they were wrong not to have taken stock after any of those hearings where the Court indicated that they considered satisfying s31 threshold to be an issue.

133. There is no suggestion that the local authority has not acted in good faith in seeking to bring the proceedings relating to IMA before the court. The court accepts that the local authority was bound to consider and act on the information provided by the police. The question, however, arises as to whether a more experienced social worker would have acted with greater circumspection and sought to clarify the factual basis for the “intelligence” he was given and its accuracy. This should have been apparent when the father was released from custody and bailed for further enquiry on the 19th August and should have resulted in the social worker re-evaluating the Children’s Services position. None of the information provided by the police as disclosed to this court and the parties appeared to establish that he was a direct risk to a child or children and, it seems to me, on my analysis of the evidence available open to question as to what the “emergency” was that justified the application for the Emergency Protection Order.

A major part of the Local Authority’s case was that the father’s convictions established that first part of their threshold – that he presented a risk. [In large part, that was because there was no evidence of any domestic violence in the relationship between mother and father – no injuries, no police call outs, no referrals from neighbours, no allegations from either of them] They were relying on two things – firstly the father’s convictions and secondly the history of domestic violence in his previous relationship
The Judge took a very different view as to whether the criminal convictions in themselves established that father was a risk. A major part of that was that offences which looked on paper very serious received such light sentences that the Judge (who sits as a criminal Judge) brought his experience to bear in saying that one had to treat the offences on paper in the light of the very light sentences – they cannot have been at the high end of the spectrum of those offences.
51. In reviewing the evidence, it is I think pertinent to remind myself that both the mother and the father have criminal records. The records for the mother appear at F6-12 and F131-137 in the bundle and for the father at F13-19 and F124-130. The mother has convictions for robbery and racially threatening and abusive behaviour in December 2007 in respect of which she received a custodial sentence of a 12 month Detention and Training Order. She was then aged 15. She is now 22. Her subsequent convictions are for what might be property described as minor offences and failing to comply with the requirements of community orders imposed as sentences. It is self-evident from the nature of the convictions, that she is not likely to respond well when attempts are made by those in authority to impose on her. It is unclear to me whether the social worker ever appreciated that.

52. The father has 3 convictions between 2000 and 2006 for offences involving possession of offensive weapons for which he has received sentences of a fine and community orders. None of those could properly be described by anyone who has a knowledge and understanding of criminal justice as serious offences. He has other convictions for disorderly behaviour and driving offences which demonstrate that he is something of a social nuisance. In 2010 he was sentenced to two separate terms of suspended imprisonment for dangerous driving and benefit fraud. In May 2011 he was sentenced to 12 months imprisonment for offences of possession of class B controlled drugs – cannabis – with intent to supply. Finally, there is a conviction for an offence of harassment on the 10th December 2013 in respect of which he was made the subject of a community order with an unpaid work requirement and a restraining order. This conviction relates to his former partner, RK. I will say more about this later. These convictions are of course a matter of record and are not disputed by either the mother or the father. The issue, as will become apparent, is how they have been interpreted and relied on by the local authority to substantiate the ‘threshold criteria’ it contends for.
By the time of the final hearing, the Local Authority’s threshold document was as follows (I commend the Judge for including it in full, it is extremely helpful when this is done, as one can then see the basis on which the case is put)

MAA is the father, JG the mother.
142 “The nature of the likelihood of harm alleged is expressed as “(i) Impairment to the child’s physical, intellectual, emotional, social and behavioural development; (ii) Impairment to the child’s physical and mental health; and (ii) Impairment suffered from seeing or hearing the ill-treatment of another.
(1) The father, MAA, has an extensive criminal history. This includes:-

(a) Possession of a machete in 2001;
(b) Arrested 8 February 2006 in possession of a knuckle duster, wearing body armour and in a car with 4 other men similarly equipped; drugs found at his home
(c) Drugs offences including possession, intent to supply and cultivation of cannabis for which he served a 13 month prison sentence in 2011
(2) On 19 August 2013, the day of IMA’s birth, MAA was arrested at the hospital in relation to an offence which took place on 29 November 2012 when he and two other males were alleged to have attacked an acquaintance and driven off in his car with the victim’s legs hanging out of the open door; a considerable quantity of cannabis was found in the boot. The case was not proceeded with by the CPS

(3) In 2013, MAA pursued a campaign of harassment against his ex-wife, involving regularly attending at her home threatening her, threatening violence to any new boyfriend, and stating he would persuade Children’s Services to remove her children from her
(4) She was so frightened that she moved into a women’s refuge with her children for 4 weeks in August 2013. (On a further 10 occasions recorded between 2 September and 8 October 2013 he visited her home and made similar threats)
(5) MAA was arrested on 13 October 2013 and charged with harassment. MAA’s ex-wife gave a police statement in which she stated that he had been violent towards her during their relationship as well as extremely controlling and she had been “terrified” by him.
(6) Following a strategy meeting on 13 August 2013, when JG was identified as a vulnerable person who may be at risk from MAA, a joint police and social work visit caused further concern when MAA would not provide his name, and refused to accept any concerns or co-operate with any form of assessment. JG took the same position. It was therefore not possible to obtain a clear assessment of any risk posed by MAA due to the failure of the parents to engage with Children’s Services either during the first visit or thereafter. This attitude of complete non-co-operation continued.
(7) JG failed to allow social workers into her home to discuss the issues, minimised the seriousness of previous domestic violence incidents and criminal drugs history involving MAA and refused to sign a working agreement.
(8) Although she agreed to reside at her parents’ home following her discharge from hospital with IMA in August 2013, neither JG nor IMA were at home when agencies visited on 3 consecutive days between 9am and 10am.
(9) JG’s refusal to engage in assessment or to accept any possibility of risk, despite information provided to her, demonstrated that she was unable and/or unwilling to prioritise IMA’s safety and protect him.
(10) Following the making of an emergency protection order on 23 August 2013, JG and MAA evaded the attention of police and Children’s Services until 25 August 2013 when they were eventually found at a property in Prestwich. Both their families colluded in the family hiding from agencies.

(11) There is evidence that the parents were involved in drug dealing activity at least up until IMA’s birth, as also found at the property in Prestwich were a further quantity of cannabis, drug paraphernalia and paperwork implicating the couple in fraud and money laundering offences. Although the CPS have not proceeded against MAA, JG faces criminal charges in relation to intent to supply cannabis, 165g having been found at the property.
Whilst that looks, on the face of it like a pretty decent threshold to establish that MAA (the father) posed a risk of harm -there’s a recent offence, offences including weapons, violent and controlling behaviour towards a former partner and that being recent, we already know that threshold was not found. So we need to see why.

The Judge deals with those matters in the following way (that is, in short, to reject all of them as being made out)

143. In respect of this amended threshold document I make the following observations and findings based on my assessment of all the evidence which has been put before the court –
(1) The father’s convictions are a matter of record which, absent specific offences involving harm to children or violence to women with whom he is or was in a relationship, have no relevance for the purpose of threshold and relate only to the character and personality of the father and not to parental care. This paragraph should be struck out.
(2) Given that the police took no further action against the father in respect of these allegations and did not prosecute him, none of what is alleged in this paragraph can be established as a fact. This paragraph should be struck out.
(3) So far as paragraphs (3), (4) and (5) are concerned, the issues cited post date the local authority intervention in respect of IMA. The issues raised relate to the father’s character and personality and not directly to any aspect of parental care relevant to IMA. These paragraphs should be struck out.
(4) A refusal to co-operate with Children’s Services (or the police) as identified at paragraphs (6), (7), (8) (9) and (10) does not go to threshold as there is no legal duty to co-operate unless the threshold is crossed. See Lady Hale at paragraph 207 of In the matter of B (A Child). These five paragraphs should be struck out.

(5) In respect of paragraph (11), any evidence of alleged drug dealing cannot go to threshold unless there is clearly established factual link to demonstrate that there is likelihood that a child will suffer harm resulting from a failing in parental care arising from such activity. There is no such evidence against either parent it being noted that, in any event, the father has not been charged with any offences arising from the circumstances related. This paragraph should be struck out.
If you are keeping count, the Judge struck out every paragraph of the Local Authority’s final threshold document. The whole lot, gone.

(The Local Authority did not appeal this decision. I think that they COULD have done on points 3, 4 and 5 – these are surely ‘risks that cannot sensibly be ignored’ and they go to the heart of ‘is the father a risk of domestic violence’)

I have reviewed the evidence in this case and have borne in mind all the guidance for the Supreme Court set out above in arriving at my conclusion which is that I do not find the ‘threshold criteria’ established for the purposes of section 31.
I am acutely aware of the consequences of any finding that the ‘threshold criteria’ is not made out and especially in proceedings which have been ongoing for as long as these because of the impact and implications such a finding has for the child and parents. On any view, a finding that the ‘threshold criteria’ is not made out self evidently means that not only has a considerable disservice been suffered by the parents and the child but also an injustice given the way in which these proceedings have been conducted and the length of time the proceedings have been ongoing. That, however, is no basis to shrink from doing what I consider to be right for the child, IMA, on the basis of the evidence before me which I can properly accept.
The Judge did identify that there were issues and concerns, but that these fell short of satisfying the threshold

47. Both the local authority and the children’s guardian rightly have criticisms in relation to the parents’ failure to co-operate and their lack of openness and honesty in their dealings with professionals. In fairness to the mother it has to be said that she did engage with the proceedings and the assessment undertaken by the psychologist and co-operated with the children’s guardian in his enquiries. She engaged with the local authority assessment and attended al the sessions as required despite her apparently limited understanding of what the assessment was for. She has made a very strong commitment to contact with IMA albeit there have sometimes been issues around her timeliness. She has been available at contact if the social worker has ever wanted to contact her and I have some difficulties now reflecting on the evidence as to why the social worker did not on occasions make more effort to go to see her at the contact venue if he needed to discuss issues with her. It is, I think, very clear that the mother has had issues around her relationship with the social worker and communication. However, these are not issues which go to threshold and, as Ms Kilvington observed in her submissions the mother’s lack of honesty on occasions or the lies she admits to having told do not denote harm.

48. The social worker and the children’s guardian were both clearly very troubled by having no clear understanding of how the mother and the father might conduct their relationship in the future. Let me say that I entirely agree that the father as demonstrated by him in his evidence is a very unprepossessing, and unappealing character based on what he said about the conduct of his relationships with women and the children he has. Having said that there is no reliable evidence before this court to indicate that he has ever harmed any child or posed any risk of significant harm to a child. I accept the submission made by Ms Kilvington that it is a matter for the mother and the father how they might conduct their relationship and whether they should be part of the same household or not. It is not for this court or others to judge or interfere with parental relationships unless it can be properly established that there is an identifiable risk of harm for the child or children.

 

The Judge was very critical of the written and oral evidence of both the social worker and the Guardian

 

61. [The social worker] gave evidence over nearly one and half days. He was subjected to lengthy and challenging cross-examination around many issues including his assessment of the mother. He was also questioned about his understanding of the police intelligence and information upon which he had acted and formed his views about the parents and the risk he considered they posed to IMA. He was uncertain about some specific dates and unable to demonstrate from the written records available some of what he was saying. His lack of experience as a social worker was evident.

69. He became very defensive in reply to Ms Kilvington asserting in very strong terms that it was a “very thorough assessment” when she sought to explore some of the issues in respect of it. That was a worrying response which smacked of the over confidence of someone who did not have the knowledge and experience to demonstrate a degree of circumspection and humility since it was clear, to me at any rate, that the thoroughness of the assessment was not evidenced in what has been produced to the court. [The social worker’s] response on the issues raised in connection with the conduct of the assessment and the confirmation of the unreliability of his evidence in respect of the assessment process was profoundly worrying.

155. I have real concerns about how the local authority responded to the initial referral and subsequent information given by the police. I do not understand why the PLO pre-proceedings procedures were apparently never initiated when dealing with a young, first time mother who should have been encouraged to seek early legal advice which might, and I cannot put it any higher, have resulted in a different direction being taken in respect of the removal of IMA from her care under the Emergency Protection Order when he was a week old. The social worker was not able to give an adequate explanation for not implementing the relevant procedures.

156. I was also troubled by the Child and Family Assessment record and the process of the assessment undertaken by the social worker. I have commented above on the timing of the relevant sessions with the mother which demonstrates what I would consider a real training issue which needs to be addressed with the social worker. However, I was also troubled by the electronic record of the assessment which appears to make no provision to actually describe what questions were actually asked of or explored with the mother in circumstances where this social worker failed to keep any contemporaneous notes which he was able to produce when being challenged about it. This is a practice issue which the local authority and its managers need to consider and address since it is likely to arise as an issue in many cases which are brought before the courts.

157. There are I think real issues about this social worker and his role in these proceedings which largely emanate from his lack of experience. The view I formed of him was that he was an inexperienced but highly intelligent and articulate young man who was committed to trying to promote and safeguard the welfare of IMA in circumstances which he found to be extremely challenging. He unfortunately appeared to me to have a lack of understanding and awareness of how to communicate with the mother in particular at a level which was basic enough to enable her to engage effectively. There were times in his evidence where he became very confused and resorted to saying things he was unable to properly substantiate. That was regrettable since it undermined his reliability so far as this court was concerned.
The social worker’s manager also takes some flak

158. I should also add that I am troubled by the role of the social worker’s manager in relation to steps taken within the proceedings. It was clear from the social worker’s evidence that many of the decisions made had not been his but those of his manager. The clearest example being in relation to the decision not to continue with any rehabilitation proposal or plan in or around the 7th May 2014. I found it surprising that the local authority did not consider it either appropriate or necessary to ask her to provide a statement or indeed to invite her to attend at court to provide an explanation.
And in relation to the Guardian

106. The guardian also premised his conclusions in respect of the mother on the basis of an acceptance of the risks that the father may pose to the child as if that had an established factual basis which is not evident in the evidence before the court at that time. This is evident at E37 where he asserts that
“the father in my view presents serious risk to IMA”.
107. However, he later goes on to say at E39

“In view of the father’s lack of engagement in the local authority’s assessment, the risks that the father presents to IMA remain unassessed. His criminal history and his relationship history raise understandable concerns. He appears to play a peripheral role in the lives of his other children. It is unclear what role he would play in IMAs life if he was placed in his mother’s care……. I share the local authority’s view that the potential risks presented by the father to IMA remain as relevant as at the outset of these proceedings”.

108. His report proliferates with references to the risk the father presents to IMA as being “unassessed”.

113. At paragraphs 106 to 114 of his report the guardian purports to address the ‘threshold criteria’ and refers to having considered the judgment in Re B. His approach has been to ask three questions – (i) what is the risk of harm? (ii) is it significant?; and (iii) how likely is it to happen? The answers he purports to give are both unsatisfactory and confusing, in my judgement. The suggestion that the risk of harm is that IMA will be a member of a household in which his emotional and social development is impaired is not evidence based on any factual foundation before the court. The suggestion that the father’s circumstances provide a “potential for disagreement and tension” with the mother that does not provide “a sound basis for a stable and harmonious household” does not appear to be factually founded. It is speculative and ignores the fact that there is no evidence of any domestic violence between the mother and the father

114. At paragraph 110 he says he “finds it difficult to assess whether the risk of harm is significant or not” and that “it may be significant or it may not.” He then asserts that he is satisfied that the “risk may be significant” but he then goes on to consider that the parents’ ability to work openly and honestly is relevant to the assessment of whether the risk, as opposed to the harm, is significant which misses the point. His conclusion at paragraph 113 that

“there is a real possibility of IMA suffering significant harm. There is a real possibility of him living in a household characterised by instability, disharmony and the use of intimidating or threatening behaviour. There is a risk of his emotional and social development being impaired if he is living in such an environment”

appears to lack any factual basis evidenced in the information available to the court to satisfy the ‘threshold criteria’ at the time the local authority implemented it protective measures for the child.
[The scattering of the  ‘unassessed risk’ phrase is quite reminiscent of the case that Ryder LJ recently granted permission to appeal on – Ryder LJ’s remark there was “We are ALL unassessed risks”. Is there an issue with professionals confusing absence of an assessment due to non-engagement with evidence of risk?]
The Judge was also very critical of the ‘chinese whispers’ and assertions being repeated and reported as fact, particularly around the police intelligence
150. There are real issues in this case about the Children’s Services reliance on police “intelligence” as a basis for the actions taken by the social worker and others. The “intelligence” referred to has never been produced to this court or the parties and it is unclear as to exactly what information has been given by the police to the social worker or others within Children’s Services. There are two written documents before the court from the police which I found to be worrying within the context of these proceedings. There is an e-mail which appears at C1 in the bundle dated the 28th August 2013 which follows some meeting with the police on the previous day after the recovery of IMA and the arrest of his parents on the 25th August. I can understand how a social worker as inexperienced as Mr Baker reacted the way he did to this. However, I question the validity of the police risk assessment in relation to contact made by this police officer which, as I understand it, was put before the court when it was considering the extension to the Emergency Protection Order and the court was invited by the local authority to refuse contact between the mother and IMA until after a risk assessment had been undertaken. Fortunately, the court refused the local authority application.

151. Perhaps more worrying though is a statement from a CD Acton at F208 dated the 24th March 2014 which was written in response to a request for clarification as to why it was thought that the father was a risk to women and children. She describes that the case was deemed as high risk according to a DASH assessment. DASH assessments are based on a victim’s self report in answer to set questions. They are not objectively evidence based. That is an issue in this case given that the father has never been prosecuted for any offences of actual violence against his former wife, RK. This statement is I think very much open to question in respect of much of its content but for the present purposes I simply make the final observation that the assertion that the father “has been arrested in regards to sexual offences against females as well as violent offences against this victim” is not evidenced on the basis of any information before this court and appears demonstrably unreliable. It calls into question the reliability of any of the “intelligence” given to this social worker and how he responded to it.