This is a tricky case. It involves an appeal to the Court of Appeal about the Judge’s making of an Interim Care Order in relation to four children aged between 8 and 2 1/2
Re W-J (children) 2015
The mother in the case has what appears to be a form of personality disorder. She accepts that there are times when she is utterly unable to control her temper and can fly into an unmanageable rage. Generally during these rages, she takes it out on inanimate objects. She describes that the things that can set off these rages can be very trivial, giving the example of someone eating a packet of crisps loudly.
3…In short terms, from time to time she loses control of her behaviour, loses her temper, and the trigger for this is often a trivial matter which would not affect other people. On one occasion, for example, she describes losing her self control simply because she was irritated by the noise of someone eating a packet of crisps.
4. When she does lose control, she behaves in a physically violent way, normally towards inanimate objects, utensils in the kitchen, other matters of that sort. Sometimes she can detect the onset of these symptoms and make arrangements for the children, if they are at home, to go outside the house or go to be with someone else. On other occasions she is not able to have such foresight and it is plain from what the children have said that they have witnessed the distressing spectacle of their mother behaving in this way
Whilst that must be distressing and upsetting, what prompted the proceedings was that on two occasions, things went further than that.
what led to the proceedings being issued by the local authority were two instances relatively close together where the children reported on separate occasions being injured as a result of the mother’s behaviour. The first occurred on 2 February 2015, when the mother threw a shoe and it hit one of the older children. She accepted that and she indeed accepted a caution at the police station as a result of that behaviour. She accepted that she had thrown the shoe and thrown it at the child but she asserted that she was not deliberately intending to hurt him. She said she had lost control. The second occasion on 20 March 2015 was when the mother’s foot came into contact with the 7 year old girl. The judge heard some evidence about that. The mother accepted that, physically, her foot came into contact with her daughter but was not accepting that this was deliberately in order to cause injury. The child nevertheless was injured, albeit not very seriously. Following the second of those two outbursts, the local authority issued the proceedings.
What the Court had to do at that interim care order hearing was to determine whether the test for separation had been made out, and whether the risks could be managed in another way, applying the least interventionist principle.
Three of the children were found placements within the family, which were a decent compromise. That left one child, T, and a decision had to be taken about whether she could stay with mother, somewhere, or go into foster care.
There is a law geek point about whether the Court could have made an injunction under the Human Rights Act 1998 to make the LA manage the risk by keeping mother and child together. The Court of Appeal closed this down by saying that it wasn’t sufficiently argued before the Judge to be an appeal point, so it is not resolved (for my part, I think that the order that the Court can make in that regard is the straightforward Interim Supervision Order OR to compel them to place in residential assessment, a section 38(6) direction, and there’s no need to monkey around with esoteric HRA injunctions, but there may be a better case where the point really does arise)
10. In the course of the robust and constructive representation that the mother had at the hearing provided by Ms Kochnari, her counsel who represented her before the judge and before this court, Ms Kochnari drew attention to the jurisdiction that the Family Court may have in certain circumstances under the Human Rights Act 1996 to grant an injunction requiring a local authority to take a particular course of action. That jurisdiction in part is based upon, obviously, the wording of the Act itself but also decisions of this court, in particular Re: H (Children)  EWCA Civ 1009 and a decision of the High Court: Re: DE (A child)  EWFC 6. In short terms, Ms Kochnari’s submission was that the judge should grant an injunction requiring the local authority to keep the mother and child together, leaving it up to the local authority how that should be achieved.
11. That describes the position of the parties, mother and local authority, before the judge. The children’s guardian has plainly given this matter a great deal of anxious consideration. Both the guardian and the judge (and it is particularly important to stress that this was the judge’s perspective) saw the value for young T, particularly at the age she currently has reached, in remaining together with her mother. They have a good attachment and it would be seen as a detriment to that attachment, and a detriment to that important aspect of her best interests, for mother and child to be separated for any significant period at this juncture of her life.
12. But the question was how a maintenance of maternal care could be achieved. The guardian indicated that she would support a placement of the mother and child together in a foster home or some other form of residential accommodation if that could be achieved. The judge agreed with the guardian. The judge apparently said during the course of submissions that “heaven and earth” should be moved by the local authority to try to find a suitable placement and indeed an hour and a half or so was allowed during the course of the court day for the local authority to make enquiries. Those enquiries failed to identify any placement on the local authority’s books that could provide a mother and child placement at that stage. The local authority, however, took a more principled stand in addition to the practical difficulty of finding a particular placement. Their submission to the judge was that it was simply inappropriate to consider a mother and child foster home for this sort of case, this sort of case being one in which there is no real concern about the mother’s ability to provide day to day, hour to hour ordinary parenting, the concern being about her mental well being and the local authority indicated that it would be difficult to find a foster carer who would be prepared to accept the risk of having an adult, namely the mother, in the foster home when what is said about her behaviour is being said and is being said in the current period of time.
13. So the judge did not have an option before him for a mother and baby placement if he was to make an interim care order.
That left a rather stark choice
1. Grant the ICO and separate T from mother
2. Make no order / ISO and the child remains with mother at home
3. Make no order, but adjourn for fuller enquiries about a placement that might have allowed a section 38(6) application for residential assessement to get off the ground.
The Court of Appeal set out why option 3, the adjournment, was not feasible
20. Dealing with the question of adjournment, the position before the judge is not altogether plain. It is clear that Ms Kochnari invited the judge in her closing submissions to afford more time for a more comprehensive search to be undertaken. She, in her submissions to us, urges us to interpret that as being really a request for the judge to consider adjourning the case for a period of a day or more to allow the sort of search that has now been undertaken to be conducted. The judge may have interpreted it simply as a matter of a further short time. For my part, given no doubt (although we have not got information about this) that that submission was made late during the course of the court day because this process will have taken up most of the court day, a request for more time almost inevitably meant more time when office hours are open and therefore another day, so in Ms Kochnari’s favour I assume that was the import of her submission to the judge.
21. But, in my judgment, the judge had to face up to the application before him and he did so without any consideration that another day or two could change the landscape and produce a firmed up and clear alternative for him to consider. He, with the reluctance that the choice of words that he used in his judgment clearly demonstrates, considered that it simply was not safe for this child to be at home with the mother for any period of time after the day on which he was giving judgment. In my view, he was entirely justified in coming to that view. I have referred to the psychiatric evidence, such as it was, that was available to him. He had evidence of the two recent episodes where the mother’s behaviour had flared up to the detriment of the children. A factor that I have not mentioned is that the older children had indicated a clear wish not to return to their mother’s care. He will have understood that for children, even if they were not physically injured by any particular deterioration in the mother’s behaviour, simply to watch their mother, the person upon whom they relied, behaving in this way, will have been totally bewildering and frightening. The judge did expressly take account of the fact that the older children had been able to be protected by the actions of the local authority because they had spoken up, they had gone to school or they had gone to other carers and said that their mother had behaved in the way that is now established she had behaved. But young T, aged two and a half would not be in a position to blow the whistle, as it were, on any such behaviour.
22. The final factor, and to my mind it is the crucial factor, is that it is impossible for an outsider to predict whether the mother will or will not flare up at any particular moment of any particular day. It is not a risk that can be predicted, contained or controlled, either by the mother or by any outside agency.
23. With all of those factors in mind, the judge was, in my view, entirely justified in saying that the risk was not one that could be taken in T’s best interests and immediate separation was required. So, even on the basis that a fully formed application for an adjournment had been made, in my view the judge’s decision not to adjourn but to make the order that day could not be said to be wrong and indeed on his analysis of the evidence it would seem hard to justify an alternative conclusion.
What could, perhaps, have been done but that wasn’t expressly considered here was for the Judge to make a short order – say a week, to allow that search for an alternative placement to take place and then revisit if there was any way to safely manage mother and child together.
The Court of Appeal, whilst acknowledging how difficult a situation this was and expressing hope that a longer term solution to mother’s difficulties might be found so that the other very good aspects of her parenting could prevail, were driven to conclude that the Judge’s decision to make an Interim Care Order was not only not wrong but actively right.
27. We are therefore left with the judge’s decision to make the interim care order in the circumstances that he did. This is a worrying case. I explained the basis of the worry at the very beginning of this short judgment. It is a case that will require very careful evaluation by the authorities and by the court over the course of the next 2 or 3 months as material is prepared for a final hearing. Crucial will be a full psychiatric assessment of the mother’s underlying mental health difficulties. At the end of the case, a judgment will have to be made as to the long term welfare of these children and as part of that judgment the many positives that can be said about this mother will come into play. But all that the judge was doing and, all that we are contemplating, is making a decision about the child’s welfare for the very short term under the interim order. In that context, important though the decision is, I regard the judge’s determination as being unremarkable. It was a decision made carefully by a judge on the correct legal test, supported by the evidence and one which amply was justified by the welfare of this young child.
I’m sure that all of us would wish this mother well for the future and hope that a solution can be found that would let her parent in the way that she would wish to and be free of what must be a terrible inability to control those outbursts.