RSS Feed

Tag Archives: leeds city council v m 2015

Only just over the threshold

 

I am tending to think that there’s a repositioning of the threshold criteria going on at the moment. It is a little hard to call, since there’s always been the unspoken background that what constitutes threshold in Liverpool doesn’t necessarily be the same things that consitute threshold in Torquay. But it feels that Re A and Re J are a subtle raising of the bar.

When a bar is raised, it can be tricky to work out exactly where that bar now is. We know that on the facts of Re A, threshold was not made out, but we don’t know if it was miles short or inches short.

Which is why when the President decides a case and says that the threshold criteria was satisfied but only just, it gives us some potentially useful information.

 

Leeds City Council v M and others 2015   http://www.bailii.org/ew/cases/EWFC/HCJ/2015/27.html  is the follow-up to the President’s judgment on Female Genital Mutilation (you may remember, this was the case where that was alleged, and the President had to decide (a) if it had happened (no) (b) whether it could amount to threshold (yes) (c) Would it amount to risk of harm to a male child (no) and (d) if it had happened, would it by itself justify adoption (no)

 

https://suesspiciousminds.com/2015/01/14/fgm-an-important-authority/

The President’s first judgment pre-dated Re A, which is what makes me think that there’s a shift in thinking. The President here didn’t seem to be struggling with the idea that domestic violence, even if not of the most serious nature could amount to significant harm:-

 

“(i) The local authority is unable on the evidence to establish that G (as I shall refer to her) either has been or is at risk of being subjected to any form of female genital mutilation.

(ii) There was a greater degree of marital discord than either M or F (as I shall refer to them) was willing to admit to. There was also, I am satisfied, some physical violence on the part of F, though neither very frequent nor of the more serious variety.

(iii) Given all the facts as I find them, including but not limited to (i) and (ii) above, threshold is established.

The President had said in the first case that adoption, the LA’s plan, was not proportionate, and was seeking an alternative resolution. This case is that resolution.

In giving his final judgment, the President identified four key areas where the LA contended threshold was met:-

1. Mother’s mental health

2. Domestic violence

3. Neglect and physical abuse

4. Lack of cooperation / engagement

Remember, the President concluded that threshold WAS met, but only just.

I am prepared to accept, in the light of my findings, that threshold is established, though not by a very large margin.

So, looking at things in detail

 

1. Mother’s mental health

The psychiatrist, Dr T, made the diagnosis that mother had ‘schizo-affective disorder’, currently in remission, but a lifelong condition vulnerable to relapse caused by stress. Dr T said at least 12 months’ stability in M’s condition was essential if B and G were to be safe in her care and that the necessary period had not yet elapsed. If stability and compliance could not be maintained over that length of time, it would be “very risky” for them to be returned to her care

The Judge accepted Dr T’s evidence and opinion.

 

  • I accept that there has been improvement in M’s mental health. But Dr T’s evidence, which I accept, is clear, compelling and withstood all challenge. It would be irresponsible not to heed and give effect to it. In my judgment, M is not at present able to look after B and G.

[You might look at that and say that this in and of itself is sufficient to cross the threshold – there’s a factual matrix which allows the Court to establish that there is a risk of significant harm – remember that if a factual matrix is established, the risk itself does not have to be more likely than not, it is sufficient to be a risk which cannot sensibly be ignored, as decided by the House of Lords in H and R 1996. ]

 

2. Domestic violence

 

The mother had made allegations of domestic violence against the father, but later retracted them. The Court had heard evidence from mother and father.

My conclusion, having carefully considered the mass of material put to me and the helpfully detailed submissions from counsel, is that there was, as I have said, a greater degree of marital discord than either M or F was willing to admit to. There was also, I am satisfied, some physical violence on the part of F, though neither very frequent nor of the more serious variety. It was, as Mr Ekaney submits, at the lower end of the scale. Beyond that it would not be right to go.

 

Remembering that the definition of ‘harm’ was expanded in the Children Act 1989  to include the words in bold  “harm” means ill-treatment or the impairment of health or development [including, for example, impairment suffered from seeing or hearing the ill-treatment of another];     – the words being added in the Adoption and Children Act 2002. So a child being exposed to domestic violence, or at risk of being so exposed can be considered to have suffered harm, or risk of such harm – the issue really being whether it is significant.  The President does not, in his judgment, specify whether his conclusion about domestic violence here amounted to significant harm or the risk thereof.  The best we can do is go back to this bit

“(i) The local authority is unable on the evidence to establish that G (as I shall refer to her) either has been or is at risk of being subjected to any form of female genital mutilation.

(ii) There was a greater degree of marital discord than either M or F (as I shall refer to them) was willing to admit to. There was also, I am satisfied, some physical violence on the part of F, though neither very frequent nor of the more serious variety.

(iii) Given all the facts as I find them, including but not limited to (i) and (ii) above, threshold is established.

 

 

and suggest that domestic violence was part of the factual matrix that led the President to conclude that threshold was crossed, though not by a very large margin.

 

3. Neglect and physical abuse

 

This is the section where you get to see the Re A dynamics play out. There are facts established to show what happened to the children

There were two very specific allegations of neglect, amongst more general complaints

in October 2013, G was taken to nursery with spare clothes that were damp, soiled and smelled of urine; much more significant, on 7 November 2013 M, it is said, abandoned G in an alleyway in the city centre, where she was found cold, wet and very distressed. 

[The mother accepted the abandonment. G was born in July 2011, remember]

 

There is no doubt that B and G experienced instability and inconsistency of care, brought about by M’s recurrent mental health difficulties and F’s limited ability to cope with them. There were the specific instances of neglect I have already referred to.  To the extent that there was marital discord between F and M, B and G were exposed to it. I think it is probable that on a few occasions B and G were exposed to mild chastisement – but nothing more serious.

 

But as Re A showed us, establishing a contested (or accepted fact) as being proven is only half of the story. The next stage is for the Local Authority to satisfy the Court that what happened caused the children harm.

In this case, the Guardian considered that the children did not present as having been damaged by their experiences

“Without exception these two children have been described in very positive ways; it is clear they are delightful and endearing children who make a good impression on anyone who meets them. It is also clear that the first impressions of these children did not signify children who had been exposed to neglect, or an abusive home environment. They appeared to have been protected from the worst excesses of the mother’s mental health challenges. They have experienced positive parenting.”

 

The President says

I entirely agree. The guardian’s analysis accords with everything I have read and heard.

What is important, however, is the fact that, as I have already found, none of this seems to have had any significant or prolonged impact on either B or G – so nothing they have been exposed to can have been that serious.

 

The President doesn’t say so explicitly (which is somewhat vexing for those of us who are trying to decipher the Delphic offerings), but I think that that final remark can be read to mean that he did not accept that the threshold was made out on the basis of the neglect aspects.

Frankly, I think abandoning a 2 1/2 year old child in an alleyway is significant harm, but it appears that I am wrong about that.

 

Firstly, this troubles me because that sort of thing also feeds into risk of future harm, and of course a child isn’t yet showing the ill-effects of future harm. This approach seems to ignore future harm entirely.

The other thing that concerns me about this approach is that I can forsee that we are ending up with a different threshold criteria for a resilient child, who is exposed to poor parenting but has inner qualities that allow them to cope, and a fragile child whose reaction to the same parenting is marked and plain to see.  And it also requires that the child is showing the effects of the harm that they have suffered in a very visible and measurable way – I know that the neuroscience is controversial, but there is at least some evidence to suggest that neglect has much longer repercussions than the immediate visible impact.

 

4. Lack of cooperation / engagement

 

Here the parents made concessions

 

 

  • M admits poor engagement with professionals due to her mental health problems.
  • F accepts that, prior to the children being taken into care, he failed to engage and co-operate with the local authority and that this led to him adopting what was understandably perceived as a controlling attitude towards M. This, I accept, was driven by the two factors to which Mr Ekaney drew attention. The first was F’s perplexity about the family situation, largely caused by his failure to recognise the nature and extent of and inability to understand M’s mental health difficulties. The other was F’s desire to protect his family and his fear, from his perspective well-founded fear, that B and G would be removed from their care. Since B and G were taken into care, F’s attitude has changed. There has been, as Mr Ekaney puts it, a high level of co-operation and engagement with the local authority, coupled with a high level of commitment to B and G. And, as I accept, this is not due to any compulsion; it reflects F’s growing realisation and acceptance of the underlying realities.
  • Given M’s and F’s concessions, which appropriately reflect the reality of what was going on, there is no need for me to make any further findings.

 

[Well, there is a slight need – again, I am assuming that this was not found to have amounted to significant harm or the risk of significant harm, but it is rather difficult to say for certain, because the judgment doesn’t outline it.  To be honest, I do not envy the Local Authority advocate who had to draw up a final settled threshold based on this judgment. I THINK that the totality of the judgment suggests that findings of fact were made across points 1-4, but only those in points 1 and 2 amounted also to findings of significant harm. But I would not race to Paddy Power with bundles* of fivers to back that conclusion. My actual bet would be that over the next year, the number of cases where threshold is agreed rather than fought out will dramatically reduce. And as we can’t have fact finding hearings any more, thresholds will be fought out at final hearings. How’s that going to work out for 26 weeks, I wonder?]

 

 

The President ruled that whilst mother could not care for the children now or within their timescales, the father could and should be given that opportunity, and the children would be placed with him under Supervision Orders.

So there we have it, on these facts, the case crossed the threshold, but not by a very large margin.

 

 

*IF I did happen to be going to the bookies with bundles of fivers, I would ensure that in accordance with Practice Direction 27 there were (a) no more than 350 of them (b) They were A4 sized  and (c) that they were printed only on one side. Which explains why Paddy Power doesn’t want me going in there any more.

 

Advertisements