Three years ago, in the pre-Covid times which now seem like a lifetime ago and that if you watched TV footage from 2018 everyone would be wearing kipper ties and dressed in maroon and brown, Mostyn J published a judgment about an application to discharge a Care Order.
It was one of those judgments that made the press
And the case itself
(which does indeed feature ice-cream’, but of course it was not the reason for the removal – but it was one of the only concrete examples of the mother failing to meet the child’s emotional needs that the social worker was able to give in evidence, and Mostyn J was perfectly right to be scathing about the weakness of that evidence)
Ms Tommason-James was asked to identify her best example of the mother failing to meet L’s emotional needs. Her response was that until prompted by the local authority mother had not spent sufficient one-to-one time with L and had failed on one occasion to take him out for an ice cream. This struck me as utterly insubstantial criticism, and indeed it must have struck the legal representatives of both the local authority and the guardian in the same way because this was not put to the mother in cross-examination by either of them. A further criticism in this vein was that the mother had failed to arrange for L’s hair to be cut in the way that he liked. Again, this is obviously inconsequential, and again it was not put to the mother in cross-examination. A yet further criticism was that on one occasion the mother allowed L into the house of Mr S, the father of A and K. The local authority’s case is that Mr S represents a risk to L, although this has not prevented them approving the placement of A and K with him. On the occasion in question the mother had gone up to Mr S’s house to get some money for A, and L was allowed to visit the downstairs lavatory while the mother was talking to Mr S outside the front door. How this is supposed to represent a failure by the mother to meet the physical or moral needs of L is completely beyond me. It does seem to suggest that objectivity and disinterested fairness is not being applied to the mother.
And I was SURE that I’d written about it, but I can’t find it. It had all the ingredients of something I would have written about – Mostyn J judgments are always worth a write-up, the ice-cream thing, the media coverage, a scathing attack on attachment theory. But I can’t find the piece, and I have to assume that I just didn’t do one.
The significance of the case, legally was this:-
In that decision it was stated that on an application to discharge a care order, while there is no formal requirement on the local authority to demonstrate the continued existence of the statutory threshold under s. 31 of the Act for the making of a care order, something close to a formal threshold requirement applies. It was further stated that a discharge application should not be refused unless it can be shown that the circumstances are exceptional and that the outcome is motivated by an overriding requirement pertaining to the child’s best interests
and the judgment was also highly critical of attachment theory and expert evidence about attachment theory
First, the theory, which I suppose is an aspect of psychology, is not stated in the report to be the subject of any specific recognised body of expertise governed by recognised standards and rules of conduct. Indeed, I asked the advocate for the guardian whether he was aware whether a student could undertake a degree in attachment theory, or otherwise study it at university or professionally. Mr Hussell was not able to answer my question. Therefore, it does not satisfy the first criterion for admissibility as expert evidence.
Second, the theory is only a theory. It might be regarded as a statement of the obvious, namely that primate infants develop attachments to familiar caregivers as a result of evolutionary pressures, since attachment behaviour would facilitate the infant’s survival in the face of dangers such as predation or exposure to the elements. Certainly, this was the view of John Bowlby, the psychologist, psychiatrist, and psychoanalyst and originator of the theory in the 1960s. It might be thought to be obvious that the better the quality of the care given by the primary caregiver the better the chance of the recipient of that care forming stable relationships later in life. However, it must also be recognised that some people who have received highly abusive care in childhood have developed into completely well-adjusted adults. Further, the central premise of the theory – that quality attachments depend on quality care from a primary caregiver – begins to fall down when you consider that plenty of children are brought up collectively (whether in a boarding school, a kibbutz or a village in Africa) and yet develop into perfectly normal and well-adjusted adults.
For my part I would say with all due respect that I do not need a social worker to give me evidence based on this theory to help me form a judgment about L’s attachments.
In her executive summary Cathy Webley says:
“On balance, I feel that the risks to L of a return home at this stage are too high and that he should have the opportunity to consolidate the evident progress he is making in his settled foster placement. My conclusion may have been different if L’s foster placement was unsuitable or was in danger of disrupting. However that is not the case. L is happy, settled on making secure attachments in the way that his care plan was designed to achieve. L is more resilient than he was but he remains more vulnerable than most children. I would be concerned about disrupting him again and moving him into an uncertain future with his mother.”
This opinion is based on supposed expert evidence, but it seems to me to be no more than a standard welfare officer recommendation, and one that does not place any weight at all on the principle of proportionality, or on the right to respect for family life, as explained by me above, let alone on the positive duty of the local authority to take measures to achieve a reunification of the blood family. Indeed, it is noteworthy that on page 15 of her report the very first matter relied on by the independent social worker against the mother’s case is in these terms:
“L has been told he will be staying long-term with [the foster parents] and has made an emotional investment in his new family. He would undoubtedly find separation for his foster family, whom he has learnt to love and trust, distressing, even if he appeared outwardly happy.”
If L has been told that he will in effect be staying permanently with his foster parents then that would be a major dereliction from the positive duty imposed on the local authority to seek to take measures to reunify this family. I cannot see how this factor can be relied on first and foremost by the independent social worker.
I cannot say that this so-called expert evidence has assisted me in reaching the decision I must make.
In my judgment, in any future case where it is proposed that expert evidence of this nature is adduced I would expect the court to determine the application with the utmost rigour, and with the terms of this judgment at the forefront of its mind.
It sometimes feels as though the Court of Appeal have a To-Do list which includes ‘keep an eye out for any case that comes before us where we can overturn an old Mostyn J judgment that we disagree with’ – of course they don’t. I’m being snarky – but I’ve seen quite a few cases now where the Court of Appeal allow an appeal from a different Judge and use as their decision-making framework an explicit overruling of a legal principle set out in a Mostyn J case, and it is pretty rare to see that happen with other Judges.
However, here the Court of Appeal were hearing an appeal about an application to discharge a Care Order where the Judge at first instance had been taken to the Mostyn J decision and applied it.
The Court of Appeal say in the early part of the judgment, when explaining why the appeal had been given permission
The mother sought permission to appeal, which I granted in part on 25 March 2021. In doing so, I noted that it was doubtful that any of the grounds of appeal had a real prospect of success, but that there was a compelling reason for the appeal to be heard as it offered an opportunity for this court to consider the correctness of the decision in GM v Carmarthenshire County Council
The Court of Appeal with reference to Carmarthenshire said this:-
In that decision it was stated that on an application to discharge a care order, while there is no formal requirement on the local authority to demonstrate the continued existence of the statutory threshold under s. 31 of the Act for the making of a care order, something close to a formal threshold requirement applies. It was further stated that a discharge application should not be refused unless it can be shown that the circumstances are exceptional and that the outcome is motivated by an overriding requirement pertaining to the child’s best interests. For the reasons given later in this judgment, these statements are not correct and should not be followed.
The reasons later begin at para 39
- I lastly turn to the decision in GM v Carmarthenshire. In that case a 5 year old child was taken into care in mid-2015 and a care order was made in February 2016. In August 2016, the child’s mother applied to discharge the care order. In November 2017, Mostyn J adjourned the application and directed that there should be a six month contact regime of a kind that he described as conventional in a private law dispute. At the final hearing in May 2018, by which time the child was 8¾ and had been with the foster carers for 2½ years, he granted the mother’s application. He described the local authority’s objections to the child returning to his family as inconsequential and trivial and he replaced the care order with a supervision order.
- The decision is clearly one that could have been taken on the basis of established principles, but Mostyn J instead approached s. 39 of the Act as if it was untrodden ground. At paragraphs 3 to 9 of his judgment, he developed a series of propositions based on In re KD (A Minor) (Ward: Termination of Access)  AC 806, Re B, and the Strasbourg authorities. In the course of this, he observed that:
- In their submissions in the present case, Mr Taylor and Mr Lord agree that this analysis is incorrect. In brief, they note that it does not refer to previous authority on the subject of the discharge of care orders. They submit that it is misleading and unhelpful to suggest that “something close to” a threshold applies to decisions about the discharge of care orders. The construct of a ‘near-threshold’ is imprecise, does not fit into any statutory framework, and distracts from a full and balanced welfare evaluation and proportionality check. Care orders exist in a wide range of circumstances and the approach to applications to discharge must be broad and flexible. The implication that there is a presumption in favour of discharge in anything other than exceptional circumstances is not right. The overall analysis is not sustained by any of the six decisions cited above, indeed it conflicts with them.
- With respect to Mostyn J, I agree with these submissions. I would only repeat that the reference in paragraph 198 of Re B to a “very strict” test arises, as Baroness Hale stated, in cases involving the “severing of the relationship between parent and child”. In the great majority of cases where there is no plan for adoption, there will not be a severance of this kind, and references to a “very strict” test or to “nothing else will do” are not applicable to an application for a care order, still less on an application to discharge such a care order.
- I would also add that the irrelevance of thresholds to decisions under s. 39 is seen in ss. (5), which allows for the making of a supervision order without proof of threshold.
In relation to the comments made by Mostyn J about attachment theory begin at paragraph 36.
- An independent social worker instructed with the permission of the court, had provided a report that referred to the child’s attachments. Mostyn J was critical of this evidence (paragraphs 16-21), and he described attachment theory as “only a theory” and “a statement of the obvious”. At paragraph 17 he stated his understanding that attachment theory is not the subject of any specific recognised body of expertise governed by recognised standards and rules of conduct and that it therefore does not qualify to be admitted as expert evidence, and he concluded:
- In making these observations, Mostyn J did not refer to other authority about attachment theory. In fact, the subject of attachment and status quo was considered in Re M’P-P (Children)  EWCA Civ 584 at paragraphs 47-51. In that case, where a birth family was seeking to recover children from prospective adopters, McFarlane LJ stated:
- McFarlane LJ returned to the topic in Re W (A Child)  EWCA 793, a case in which a child had been with foster carers who were interested in adopting:
- The issue of attachment theory does not directly feature in this appeal, but I refer to it because it was addressed in GM v Carmarthenshire. It is one thing to find that a particular witness may not be qualified to give specific evidence about a child’s attachments, but it is another thing to question the validity of attachment theory as a whole or to state that it cannot be admissible in evidence. Nor is it correct to say that, if a child’s attachment to substitute carers is so strong as to lead a court to refuse an application to discharge a care order, that would deprive s. 39 of meaning. That approach risks looking at matters from the point of view of the parent at the expense of a rounded assessment of the welfare of the child. The decisions to which I have referred in the two preceding paragraphs make clear that the court has to give appropriate weight to all the relationships that are important to a child, and that there may be a role for expert advice about attachment in cases of difficulty. Insofar as the observations in GM v Carmarthenshire suggest otherwise, they cannot stand.
The test for determining discharge of care order applications is therefore reset to Re S 1995 – has the parent shown that the order for discharge is better for the child than continuing with the status quo.
“159. I am now going to turn to the relevant law. The long-established test I have to apply is within section 1 of the Children Act 1989, the paramountcy of the children’s welfare. This was confirmed, for example, in the early case of Re S  2 FLR 639, Waite LJ at 634 making it clear that a parent does not need to establish that the threshold criteria no longer exists. That decision was followed in Re C  EWCA Civ 955 and it has not been doubted since.
- There is a burden on the applicant to show that the order – that is discharge – is better than not making the order. That follows from section 1(5) of the Children Act. It might be said that that is an evidential burden on the applicant. In the case of Re MD and TD  FL 489 [sic – the citation is from Re S] it was said that “the previous findings of harm would be of marginal reference and historical interest only and the risk to be considered would normally focus on recent harm and appraisal of current risk”. Of course, every case is different and the extent to which a previous finding is historical in the sense of no longer relevant or less relevant will vary case by case.