RSS Feed

Tag Archives: significant harm

Smokey and the Bandit – “boy adopted due to smoky house”

 

This story appeared in the Guardian yesterday.  Two year old boy from smoky house to be placed for adoption.

http://www.theguardian.com/uk-news/2015/jun/01/two-year-old-boy-adoption-cigarette-smoke

 

It relates to a case decided by a Circuit Judge (in Hull)- so the case is not binding authority for later cases*, but it is still of public interest.  (* the reason it is not binding is because it was decided by a Circuit Judge, not because it was decided in Hull)

Re AB 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B58.html

 

The author of the Guardian story had clearly read the judgment, and read it carefully, because it draws out all of the many, many references to the smoky atmostphere in the house being a concern. This is a continuing theme throughout the judgment.

  the most graphic testimony came from health visitor Julie Allen, who told the judge that the family’s living room was “so smoke entrenched that I had difficulty breathing”.

“On entering the living room Allen described being able to see a visible cloud of smoke surrounding the father and [the boy],” said the judge. “[The boy] was asleep on the sofa and had been unwell for some time by this point.

“Ms Allen described the room as ‘so smoke-entrenched that I had difficulty breathing’. She immediately expressed concern to the parents as to the impact of such smoke on [the boy], who had already been prescribed an inhaler within the previous month to help his breathing.

 

That’s obviously the public interest debate, because it raises a spectre that a parent doing something lawful (smoking) can find themselves in care proceedings, and could ultimately find the child being adopted. If that was right, it would obviously worry people, and be thin end of the wedge material.

Remember that in establishing threshold, one has to not only show that X event happened and that the child suffered significant harm as a result (or is likely to) but that X is a type of behaviour that one wouldn’t expect from a reasonable parent or care that it would not be reasonable to expect a parent to provide for him.

 

Of course, reasonable is always a difficult concept. It ties into the Illusory Superiority concept – just as everyone considers that they are above average (in terms of intelligence, sense of humour, looks, driving ability), everyone considers that THEY are reasonable, and they assess other people’s behaviour as reasonable or unreasonable based on their own standards.

A non-smoker, or anti-smoker might hold that no reasonable parent would smoke within the same building as their child. Someone who smokes twenty a day might hold that a reasonable parent would smoke, but try not to blow smoke into the child’s face.  Someone else might think that a reasonable parent would try to smoke in a different room to the child, and so on.  What consitutes reasonable parenting is a really subjective issue.  (And it may well be part of the problem of care proceedings, since a social worker assessing reasonable parenting does so from the mindset of  (a) someone who was concerned enough about children to go into a profession aimed at safeguarding their welfare (b) has a degree and (c) is working in a culture where protection of children is the paramount concern)

I personally would prefer that a parent smoked outside, but I wouldn’t consider it unreasonable if they decided to smoke in their own home, or to give up entirely and insist that no visitors to their home smoked whilst there. I have a pretty broad spectrum of what is reasonable in terms of smoking near children. I know others who would have a much narrower band of what’s okay and what is unreasonable.

 

{My experience may be coloured by the fact that (a) I was able as a child to go to my ice cream van and buy cigarettes for my grandmother, something you can’t imagine today and that (b) when I was about twelve, our sweet shop sold a product called Skoal Bandits – sachets of tobacco that you would put in your mouth and suck, till they were banned  – I see that you can still buy them in America and other places and I suppose (c) that I began my childhood smoking on cigars, so I never ended up becoming a regular smoker}

 

"Smokey and the Bandit Two - Smokey IS the Bandit!"

“Smokey and the Bandit Two – Smokey IS the Bandit!”

When looking at smoking, and a smoky atmosphere, I would argue that it would need to be a very very high level of smoking to amount to threshold – since smoking, even heavy smoking in your own home is a type of behaviour that some parents would think was abhorrent and some would think was normal. It would be hard, I think,  to categorise even a sixty-a-day habit as behaviour that would amount to threshold.   (There might be exceptions – for example, if your child has a lung disease and has to breathe with the assistance of an oxygen tank, or suffers with life-threatening asthma attacks then a reasonable parent would take steps to prevent him being exposed to smoke)

 

So if the smoky house was the sole, or main reason for the decision, the decision would be very questionable and probably wrong.  We need to see if that WAS the sole, or main reason.

 

The Guardian piece does say several times that smoking was one of a number of concerns, and touches on some of the others during the article.

To provide some of that context, the Judge sets them all out as bullet points

  • potential drug paraphernalia observed at the parents property on 2 occasions
  • Mother failing to engage with DVAP and the freedom programme
  • the lack of involvement of the father in AB’s care
  • outstanding therapy for the father
  • concerns re the father’s mental health
  • parents responding aggressively/defensively to challenge
  • a decline in the parents engagement with agencies whose role was to support them in their care of AB
  • the amount of smoke in the home of the parents and AB
  • risks within the household including objects left in AB’s reach and electric wires being within his reach
  • dirty, smelly and unhygienic home conditions
  • the parents and AB presenting as dirty and with an unpleasant odour
  • father testing positive for cocaine in October 2014 and subsequently failing to fully engage with hair strand testing

 

So it is certainly true that the smoky atmosphere was part of the Local Authority case, but there were other matters – probably the most serious one being the use of drugs.

 

The Guardian piece doesn’t cover this much, but actually the electrical wires were put as a high concern by the Health Visitor

A further risk that Ms Allen documents is the issue of trailing wires which she described as being a strangulations risk, running across the room directly over AB’s toybox. It was put to her in cross-examination that she was perhaps exaggerating in describing this as a strangulation risk but she was very clear on this point. She showed clear frustration and exasperation as to why the parents did not address and rectify this issue, describing that it took them some 8 weeks to remove this risk. She described how they were clearly capable of addressing risks when they were identified as they had dealt with a similar concern in their previous home. She described that all it would have taken to make the wires safe was to buy some inexpensive tacks to secure the wires to the wall.

 

That’s one of those common bugbears. Yes, wires running over  over a child’s toybox have a strangulation risk, but what effort is made to quantify that risk?  Risk isn’t binary – something is either completely safe, or there’s a risk that X could happen which is not worth taking.  Human beings take risks every day. Every time they cross a road, or put food in their mouths, there’s a risk that this activity could lead to serious injury or death. But we weigh up that the risks are very very small, and the consequences of trying to lead a risk free life (by avoiding say, the risk of choking on some food, by not eating, or liquidising all your meals in a blender) are more problematic than taking a slight risk.

I’ve no doubt that seeing electrical wires dangling over a toybox doesn’t feel nice, that you’d feel much more comfortable if it was fixed and it seems a small thing to ask, but when you describe it as a strangulation risk without quantifying that the risk there is very very small, for me, it is over-stated.  For example, if I let a pet python sleep in a baby’s cot, that is a strangulation risk, and one that most people would think was more risky than overhead wires.  You lose sense of risk and risk management if you describe both the wires and the python scenarios as ‘risk of strangulation’

[It is a not unreasonable point to respond by saying ‘it would be very easy and relatively painless to remove that small risk entirely, so why not do it in this case?’ ]

 

A lot of the evidence about home conditions was contested and challenged, so the Judge had to reach conclusions.

 

  1. I find that I prefer the evidence of the health visitor, Julie Allen and the support workers, Emma green and Janine Potts in terms of their observations of the home conditions and I find that the recordings of Laura Gill provide further corroboration of these matters. I find that the home conditions were sometimes extremely dirty, unhygienic, and placed AB at risk of exposure to germs and contracting illness. I further find that he was at risk of sustaining serious injury or possible strangulation through clutter in the home and the failure to deal with unsecured wires. AB himself was exposed to these conditions and his personal care was sometimes inadequate with him being dirty and on occasions smelling of smoke. I find that there were numerous occasion when AB was exposed to excessive levels of smoke in the home that will have had an impact on his health and wellbeing.
  2. I find that his weight plateaued when he returned to the care of his parents and that he dropped by one centile on the growth charts. I find that his diarrhoea and general unwellness is likely to have been impacted on by the lack of cleanliness and unhygienic home conditions. When a child is suffering as AB was and there are simultaneous concerns about his lack of weight gain, the advice of the health visitor to maintain hygienic and clean home conditions should have been prioritised.
  3. As a general observation, I find that the parents do not accept or follow advice if they do not agree with the advice (both parents disputing the strangulation risk identified by Julie Allen and the risk from cigarette smoke identified by several professionals).
  4. I also find that the parents failed to engage fully with the support services that were available and provided for them, in particular the family links programme, the safety workshops, the children’s play sessions and freedom programme for the mother. I am afraid that whilst I accept that these parents had a lot going on, these courses and programmes were important and needed to be prioritised, if the mother was to attend, the father had a responsibility to ensure that she was supported and encouraged by him in attending. Even if he was working long hours, he needed to be staying on top of the housework when he returned if the mother had been unable to attend to it during the day. This plan for AB to be cared for by his parents needed these parents to work together and support each other to ensure that AB’s needs were fully met.
  5. I find that the father struggles in managing his levels of anxiety and that sometimes this can manifest itself in him presenting as aggressive or confrontational, as recorded by the health visitor and the social worker. Whilst I am pleased that the father is now receiving some appropriative assistance with this, it is clear that this is at an early stage of what will be a long therapeutic process. I also find that as a way of managing stress the father has reverted to illicit drug use on at least one occasion and I find that this is an ongoing risk for the future. I find that the communication between the parents was extremely poor with the mother not knowing about the father’s heightened stress levels and the fact that he reports he was reducing his anti anxiety medication (I cannot understand why he would be doing that just after AB had been removed from his care) and the father not knowing that the mother was failing to attend the courses and groups that were expected of her.
  6. When considering the evidence in relation to the care that AB has received and is likely to receive, I have found it helpful to consider in some detail the documents from the care proceedings and in particular the assessments. I also find that is of real significance that the parents, having achieved their aim of a plan for AB to be placed in their care, were then unable to motivate themselves sufficiently to ensure that the home conditions were suitable for him to be placed. The standard that was needed was simply good enough, I would have thought it would not have been too much of a sacrifice for the parents to stop smoking (or at least to stop smoking in the home) and to ensure that the home was clean and tidy. In addition, I accept that the parents delay in seeking the courses that had been recommended and were to some extent part of the plan for AB to be placed in their care, demonstrates a lack of organisational skills and lack of commitment. Following the court approving a plan for AB to be cared for by his parents, I would have expected the parents’ commitment and motivation to be at its very highest.

 

The Judge had to analyse both harm, and whether the parents were able to meet the child’s needs to a ‘good enough’ standard, and if not whether they could be supported to do so.

  1. Has he suffered harm? I am afraid that I find that he has. Those changes in placement will themselves have been harmful and I think it will have been harmful to him that his return to his parents care was delayed by 4 months, a significant contributory factor to that delay was the parents’ lack of action and motivation. In addition he has been placed at real risk of injury to his health and wellbeing by his exposure to hazards in the home, lack of appropriate supervision and unsuitable and dirty living conditions. The impact on a child’s self esteem as they get older of being dirty and smelly should not be underestimated. They can be isolated from their peers and struggle to form friendships.
  2. The father still has some issues with managing his moods and with a risk of reverting to illicit drug use when he is under stress. The mother on her own, without significant support from the father cannot consistently meet AB’s needs. Dr Parsons found that and there is no evidence that this has changed since his assessment. Therefore the father’s difficulties are all the more significant. He has not been able to compensate for the mother’s own limitations and indeed some of the recent issues in relation to his mental health and anger issues and drug use actually heighten the risks. I do not accept that the issue is as simple as him now being available as he in no longer working.
  3. Are the parents capable of meeting his needs? Yes they are. At times it is clear that they are able to recognise and prioritise his needs. They have shown that they can maintain a clean and suitable home; they can show commitment to AB by attendance at contact and consistent care within contact. However, I must consider the evidence in relation to their actual care of AB when he was living with them and was due to be living with them. Sadly, I find that this fell well below the level that I would say is good enough. I really don’t know why this was.
  4. The parents are entitled to support in their parenting. Having considered the evidence of all parties I consider that the level of support offered to the parents was extremely high (indeed the mother reported the support worker visiting “every day”). Not all of the support that was available was taken up. Given the significant concerns that then arose, it is apparent that support from the LA or other services unable to redress the parents’ difficulties in meeting AB’s needs. It is hard to see what other or further services could have been offered. The level of support offered through Janine Potts visiting all day and every day is simply unsustainable in the longer term and ceases to be “support” and instead becomes substituted parenting.
  5. I think that the mother is right when she recognises that some of the problems that the couple experienced were due to immaturity. This couple needs to be able to care for themselves and maintain an appropriate home, manage their finances and address the issues in their relationship in respect of communication and The father needs to be much further on with this therapeutic work before they would be in a position to take on the care of a dependant child. In my view they still have some way to go with this.
  6. I am afraid that all of these matters lead me to an unavoidable and difficult conclusion that the risks to AB in being placed once again with his parents are far too high. The parents have given me no confidence in their written or oral evidence that they have sufficient understanding and awareness in relation to the processionals concerns to ensure that such concerns would not arise again in the future. Adoption really is the only option now available to AB, in my view, nothing else will do. I therefore refuse the parents application for discharge of the care order and make a placement order authorities n the LA to place AB for adoption.
  7. I want AB to know that in my judgement his parents loved him very much and tried very hard but due to their own difficulties and difficult backgrounds, they were simply not able to meet his needs.

 

 

This is a difficult one – it isn’t the most overwhelming case for adoption that I’ve seen, but the Judge does do what the Court of Appeal have commanded – to grapple with the issues and weigh up both sides of the argument, and the Judge makes conclusions. I don’t think that it is a judgment that is vulnerable to appeal (which is not to say that the Court of Appeal might view that differently if asked) but there are no obvious flaws in the decision making.

If the case had been solely on the basis of the smoking and smokey atmosphere, then I don’t think it would have had this result, and if it had, it would have been successfully appealed.  As part of the large number of issues, its evidential importance becomes less significant.

 

I think that there’s an argument or debate about whether too much emphasis appears in the judgment on the smoking, but looking at the analytical portion of the judgment (as opposed to the passages where the Judge is quoting what the witnesses said), I don’t think that the Judge puts particular emphasis on the smoking – it is mentioned, but not disproportionately so.

Does this bit of the findings go too far?

I find that there were numerous occasion when AB was exposed to excessive levels of smoke in the home that will have had an impact on his health and wellbeing.

 

He probably was exposed to excessive levels of smoke on the evidence. It is whether there was evidence that this exposure caused him harm, that might be more problematic. There is the evidence that the child had been prescribed an inhaler to help with his breathing a month earlier, so if the evidence before the Court was that the child had breathing difficulties, which would be causing him harm or discomfort, there could be a caustive link that the cigarette smoke, if excessive, was impacting adversely on his well being.  (In light of the President’s comments on Re A, I think that if there is to be a finding that the parents smoking caused him significant harm, the link needs to be very explicit)

Nor do I think that the report in the Guardian was misleading or distorted – its a very good summary of the case and certainly when you read the judgment, it is possible to see it being largely about smoking, too much so on first reading.  It was only when I read the analytical sections with close inspection that the case became more balanced than first appeared.

 

It is also worth noting that the Judge was critical of the Local Authority – when this case was first listed for final hearing,  it was only really in the mother’s evidence, that it became apparent that there were pfoessionals who had been frequently visiting the home for whom the Court had no records and no statements.The records were produced the next day. .  The parents wanted time to prepare their case and also wanted these witnesses to be called. In the event, those witnesses turned out to be key witnesses. The adjournment had to be granted. The Judge criticised the Local Authority for not having addressed their mind to the case that they were trying to prove and that these witnesses should have had statements prepared and served much earlier.

It was a shame that the Guardian (and the other advocates) had not grasped the significance that there was valuable evidence in the knowledge of potential witnesses who had not been called.  This case highlights that Guardians now very rarely read the primary evidence – the social work files and records, and are urged by CAFCASS not to do so – on the basis of ‘proportionate working’   (I’d sarcastically comment that where the order sought or contemplated is one that leads to adoption, that it would be proportionate for the independent representative of the child to look at the files, but that would be beneath me)

 

25. I queried whether the Guardian had considered the LA records and seen the significant involvement of these other workers. I was told that the guidance from Cafcass, in line with proportionate working, is that LA files will only be inspected if it is necessary. Sadly, in this case I think it was. I also made it clear to the LA that in my view the Presidents guidance, whilst helpfully sending out a clear message, is not new law. It is always for the LA to prove its case and it must do so on the best evidence available. It is unfortunate that no-one within the LA took a step back to assess what case it was trying to prove and what evidence there was to support such a case and then what witnesses could give that evidence. For example, a large plank of the LA case is that the home conditions were frequently dirty and cluttered and that the home was very smoky and smelly. Ms Tomblin had only visited on one occasion prior to AB’s removal and what she observed on that date whilst raising some issues, was not the picture that had been recorded by others of a home situation that was unsafe and unsuitable. Thought should have been given to what evidence she would actually be able to assist the court with and whether there were others who were able to give more direct evidence of the matters that the LA was seeking to prove.

  1. This became even more stark when I was told at the resumed hearing of this matter that the LA had actually obtained a statement from Emma Green who was heavily involved with the family at the relevant time and who’s evidence was highly relevant, but for some inexplicable reason this had not formed part of the bundle, nor had it been served on the other parties.
  2. I reminded all of the representatives, that I saw a collective responsibility between them to consider the evidence that it was proposed the court would be asked to consider and whether further evidence was needed, whether to support a party’s case or to enable an effective challenge and to alert the Judge to the fact that there may be evidential difficulties. Applications can be made on short notice and consideration could have been given to whether further witness evidence was necessary. It is disappointing that the parties have held a number of advocates meeting and as I have already said, the case has been listed for final hearing previously, yet these matters have never been raised. Nevertheless, the parents’ right to a fair trial undoubtedly required them to have the opportunity to see direct evidence and to have the ability to challenge such evidence. Inevitably therefore a further adjournment was necessary. I was also concerned that there should be no abuse of process and that the matter needed to be heard as soon as possible and therefore directed that the final hearing would be adjourned to commence afresh. I directed that the LA file evidence from those professionals who had been involved with the family during the rehabilitation period, specifically the Family Support workers and the Health Visitor. These documents have now been filed and all parties have had the chance to consider and respond to them. The parents have filed a further statement in which they perhaps go a little further in acknowledging some of the concerns.

 

 

 

Advertisements

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.

 

Proportionality and harm

 

Holman J has given judgment in an appeal, London Borough of Ealing v JM and Others 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1084.html

 

The appeal is not concluded (the Judge has asked for some more information about the placement proposals and family finding) and I hesitated a bit about writing at it whilst it is still ongoing, but the judgment was published, and it does raise one interesting aspect, which I don’t think we have seen the last of.

Now that the European jurisprudence about proportionality has been echoed by our Supreme Court and Court of Appeal, the underlying context to that is that when deciding whether adoption is proportionate one has to be looking to what would happen or be likely to happen to the children at home.

In this particular case, the mother tried unsuccessfully to run a “Kenneth Williams defence”   (Infamy, infamy, they’ve all got it in for me)

 

  • The sad and worrying part about this case is that, between her decision and judgment in mid July 2013 and the outcome hearing which began in late November 2013, the district judge had deliberately afforded a significant period of time within which there could, amongst other matters, be an assessment of the mother by an expert in order to try to find out why she had injured her two children in the ways described. Unfortunately, the mother did not cooperate with, or properly participate in, that assessment and therefore it is not possible to know whether she injured the children as a result of manageable stress or some other force of circumstances which could be recognised and managed in the future, or whether she did so out of, frankly, callousness or brutality. Unfortunately, the reaction of the mother to these proceedings and to the fact finding decision of the district judge in July has effectively been one of almost total denial. Instead of acknowledging and facing up to what she had done and seeking help about it, the mother adopted what the district judge was later to describe as a “conspiracy theory”. She has said and continued to say that the allegations had been fabricated; hospital documents, including photographs of the injuries, faked or forged; and she has said even that the examining doctor at the hospital is a non-existent person.

 

The part of the appeal that I am going to focus on relates to the findings of harm, and the case run by the parents that even if those findings were correct, this was not the sort of harm that justified adoption. (In effect that there are two separate thresholds – “significant harm” in the context of s31 of the Children Act,  but then the sort of significant harm which would make adoption a proportionate response).  Almost certainly what was in their mind was the finding of the original judge that the injuries to the children had been ‘relatively minor’

 

 

  • As I understand it from the judgment of the 7th January 2014, these children were living together with both their parents who were, and still are, themselves living together. In October 2012 the daughter, then aged three-and-a-quarter, said certain things at the children’s nursery which led to the children being examined first at the nursery and later at a nearby hospital. The hospital observed and recorded a number of scratches and other minor injuries on them, and the daughter gave what was described as “a vivid account” of how they had happened and blamed her mother. In the upshot, after the five-day hearing during June and July 2013, the judge concluded that the perpetrator of all the injuries was the mother. She concluded that the daughter had sustained nine minor injuries to her body, and the son had sustained five minor injuries to his body, all of which were caused non-accidentally. In other words, no less than 14 minor injuries, essentially scratches, had been deliberately caused to these two children by their mother. Additionally, and seemingly of even greater concern, the mother had caused two non-accidental -that is, deliberate – boot mark injuries to the shoulders of her daughter.

 

 

 

 

  • The district judge herself very clearly acknowledged and recognised, as had the children’s guardian, that the injuries themselves were not of a serious kind nor requiring any medical treatment. She said, at paragraph 122 of her outcome judgment of the 7th January 2014:

 

 

 

 

“The injuries … were not very serious. They were relatively minor.”

 

 

And this is how the parents developed that argument

 

As proposed ground 6 of the proposed appeal (namely at paragraph 41 of their skeleton argument for today) Mr and Mrs Haines have argued that:

 

 

“This placement order is made as a result of injuries to [the girl] which were very much on the lower end of the scale, to the extent that they did not even require any medical treatment, and it is submitted that a placement order is a disproportionate response to such injuries.” 

 

That is a point which Mrs Julie Haines further developed and submitted this afternoon. It does not, in my view, afford the slightest ground of appeal. First, as I have observed, the district judge herself was well aware that the injuries in question were not very serious and were relatively minor. Second, it is not actually correct to limit the injuries only to those to the daughter, for, as I have said, it clearly emerges from paragraph 9(1) of the outcome judgment that there were also five minor injuries to the son. So the picture here is of deliberate infliction of injury, albeit minor, to both children. Third, although overall the injuries may be described as “minor” they do include non-accidental, that is, deliberate, boot mark injuries to a girl who was at the material time aged about three. All this is evidence of a deliberately abusive attitude by a mother to both her young and vulnerable children.

 

And as you can see, Holman J, simply wasn’t convinced by that as a ground of appeal at all.   IF Re B ever gets to the European Court of Human Rights, this issue might be revisited. For the time being, crossing the threshold is sufficient, without needing a two tier significant harm test (one for orders that involve the child not being permanently separated, and one for orders that do)

When parents aren’t parents

The unusual features of Re BB (A Minor) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2747.html

It is not unusual within care proceedings to be arguing whether a child’s parents are good parents, or whether they could be brought to the point of being good parents. It is not THAT unusual to be arguing about whether one of the parents is, in fact, not a birth parent of the child and that paternity lies elsewhere. It is pretty unusual to be arguing that NEITHER person claiming to be the child’s parent is in fact their parent.

That’s what happened here. The parents claimed that the mother had had a child in Ghana in 2006, and then that the father brought that self-same child into this country in 2010.

The immigration officers, however, had concerns that he appeared to be older than his given age. UK Border Agency records produced for these proceedings show that F asserted in the course of interviews with immigration officers that B was then five years old and he had been in the womb of his mother for twelve months and had always been big for his age ever since

When the child went to primary school, professionals became concerned that he was much older than his documented age, a paediatrician who examined him when he was ostensibly aged 5 instead concluded that he was 10.

Care proceedings began, no doubt with a view to getting to the bottom of all of this.  DNA testing showed that neither parent was the biological parent of the child. There was a suggestion that the child might be related to the father in some other way.

 

All of this was problematic, since the child had been brought into this country by deception, and that deception rendered the decision by the UK Border Agency to allow him in null, thus meaning that he was here illegally and could be removed from the country, through no fault of his own.

    1. Pursuant to a further direction of the court, the parties then obtained an opinion from counsel specialising in immigration law to advise on the immigration status of F, C and B in the light of documents produced by the UK Border Agency under the earlier direction. In her report dated 25th February 2013, Ms Catherine Cronin, counsel, advised that the deception perpetrated to bring about B’s admission to this country tainted any immigration applications made by or on behalf of C and B. The deception rendered B’s entry into this country illegal and as such he was liable to be removed from the country. Furthermore, the deception provided the UK Border Agency with grounds for refusing not only the application for further leave to remain but also curtailing any leave which had already been obtained as a result of the deception. In addition, Ms Cronin pointed out that criminal offences may have been committed. If the evidence shows that F had been complicit in the deception, then it was possible, advised Ms Cronin, that his British citizenship granted on 1st May 2012 might be in jeopardy Recent amendments to the British Nationality Act 1981 allow the Secretary of State to deprive a nationalised British citizen of his acquired citizenship if satisfied that “deprivation is conducive to the public good.”

 

    1. On the other hand, Ms Cronin advised that immigration courts recognise that children should not be punished for the actions of their parents or their carers and that their welfare and best interests, whilst not determinative of an immigration application, are regarded as important and primary considerations. In this respect, Ms Cronin drew attention to a number of authorities and in particular the decision in Nimako-Boateng [2012] UK UT 00216 in which the upper tribunal stated inter alia:

 

“The problem facing immigration judges is that, although they must attach weight to the best interests of the child, in many cases they will often not be able to assess what those best interests are without the assistance of a decision of the family court. The family court has, amongst other things, procedural advantages in investigating what the child’s best interests are independent of the interests of the parent as well as the necessary expertise in evaluating them. An informed decision of the family judge on the merits and, in some case at least, the material underlying that position is likely to be of value to the immigration judge.”

    1. Further to that advice from Ms Cronin, the parties, with the court’s permission, obtained a report from an expert in Ghanaian law, Professor Kofi Koufuor, who advised that the practice of not registering births in Ghana was still very common although registration of deaths was now much more a matter of routine.

 

  1. As this hearing approached, a particular concern was identified by the local authority and the guardian about how B was to be informed of the truth as to his paternity and age. This process was delayed unfortunately by reason of the ill-health of the guardian who was in due course advised to stand down and has been replaced by another guardian. Eventually a meeting was arranged to take place on 17th April at which the social worker and the guardian were due to speak to B. According to F and C, however, they were unaware that this meeting was to take place. Prior to the meeting F warned the social worker that B would not believe her if she told him about the DNA test and would only believe it if he told B himself. When the social worker and the guardian spoke to B and told him that F and C were not his parents, but that it was more likely that F was his brother, B indeed replied, “I don’t believe you,” and maintained that position throughout the interview.

 

Findings were sought on the following issues :-

(1) how old is B; (2) to what extent have F and C been deceptive as to his age and paternity; (3) has B suffered any significant harm as a result of this deception or, more generally, as a result of the care provided by F and C; and (4) what is the likelihood of B suffering significant harm in the future as a result of the deception perpetrated by F and C and/or their general care of him?

 

On age, the Court determined that B was 14 years old, having been born in April 1999  (some seven years older than the parents, at the time of the hearing, claimed)

The parents had lied about his age and paternity and blurred such memories as the child did have, causing him significant emotional harm. The Court were scathing about that, whilst accepting that for B, the best thing would be for him to live with F and C under a Residence Order and for them to be honest with him in the future.

    1. I find that the deception perpetrated by F and C has caused B very significant emotional harm. I accept that their physical care of B has been good. I also accept that they may have acted with good motives if it is the case that B’s mother died and they agreed to take on B’s care but, because of their extreme deceitfulness, I cannot make any finding to that effect. Other more sinister explanations for their behaviour are equally tenable. Once again, however, I avoid speculation. I am, however, very clear that by pretending that B was someone he is not, by pretending that he is much younger than he really is, they have caused B significant emotional and psychological harm. On the balance of probabilities I think it more likely than not that to some extent they have involved B actively in that deceit but I cannot make any detailed findings about the extent of his involvement. More may become clear about that in due course. To deny a child his true identity is likely to cause very considerable emotional and psychological damage, particularly when, as here, it is probable that he has a memory as to his true identity. The extent of the psychological damage is unclear because, as yet, there has been no psychological assessment, but I think it is almost inevitable that B will require at least counselling and possibly psychotherapy to help him deal with the difficulties he now faces.

 

    1. It is important to stress in this context that the harm does not end with this judgment. I accept the unanimous recommendation of the professionals that it is in B’s interests to remain in the care of F and C under a residence order. To uproot him from the home where he has received a generally good standard of physical care and where he is settled and where he is settled at school would not be in his best interests but that course brings with it certain acute and persisting difficulties. Unless and until F and C start telling the truth about his background, the true narrative of his past life, which starts with this judgment, will continue to be distorted by the lies they have told. That will merely add to B’s emotional and psychological harm and may in due course promote a crisis.

 

  1. There is a further factor that complicates this picture. The false account that F and C have given concerning B now jeopardises the immigration status of all three individuals as explained by Ms Cronin in her advice to this court cited above. That jeopardy is likely to influence the course that F and C now take. Their position is, frankly, very difficult and as a result B faces the possibility that he will now be deported. I accept Ms Cronin’s advice that there may be ways in which the situation can be salvaged for B but there is no guarantee that that will happen. For all these reasons there is a strong likelihood, in my view, that B will continue to suffer emotional and psychological harm for the foreseeable future.

 

The Court also made a Supervision Order.  Sadly for my inner law geek  (my inner law geek is just millimetres below my outer exterior, to be honest) the Court did not debate this interesting question.

s31 (2) of the Children Act 1989 sets out the threshold criteria – the test that must be crossed if a Court is to be able to make a Care Order or a Supervision Order

A court may only make a care order or supervision order if it is satisfied—

(a)that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)that the harm, or likelihood of harm, is attributable to—

(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)the child’s being beyond parental control.

 

The significant harm here is not in doubt, there’s a clear judgment about the emotional harm that lying to a child about his age, background and identity and seeking to conceal that from those around him would cause, and it would not be reasonable to expect a parent to do this.  But this couple were not parents. Is there an implied link in that ‘reasonable to expect a parent to give to him’ which means that the harm or likelihood of harm HAS to flow from a parent.  (Admittedly that can often take the form of the parent exposing the child to, or failing to protect the child from, AN ADULT other than a parent who harms him).  But here, whoever B’s parents were, it wasn’t them who harmed him, but the people who took on a parenting role.

It is very legal nit-picky, but that’s who I am.  In previous cases, I have seen the harm established as a result  the PARENT  exposing the child to or failing to protect from the adult who did harm the child, or in the cases where the injury might have been caused by a child-minder, either exoneration of the parents (if they could not have predicted any risk) or a Lancashire finding (if the parents could not be excluded)

If there IS no implied link between significant harm and it being the parent who caused it, can significant harm (for s31 purposes) be caused by the child being at school and a teacher hitting or molesting the child? My heart says no, that unless there was a failing on the part of the child’s parents, whilst the child has undoubtedly been significantly harmed, the ‘harm being attributable’ limb is not made out.  But a case like this makes me wonder a little.

[I think that the Court could have said, for example, to all extents and purposes, these people behaved as though they were parents, and will be treated as such for the purposes of s31 (2)  – it is their actions in being his primary care-givers that places them in the context of ‘parents’]