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Re K [2008] EWHC 540 (Fam)

Applications by local authority to, among other things, discharge an order requiring that the mother of an infant should take part in a residential assessment and requesting an order preventing contact between the mother and her infant son. Applications allowed.

Munby J had initially found that mother's child (K) had been removed unlawfully at judicial review proceedings heard in public. The care proceedings were then transferred to the High Court, in the course of which, Munby J made a orders that the mother (G) should undergo a residential assessment at the Cassell Hospital, with her child to join her if the first stage was considered successful.

In the event, the local authority reported fights with father of the child in view of hospital staff and during contact. G also left the Cassell unit and informed them that she would not return. They therefore applied for the order requiring assessment to be discharged and contact between G and K to cease as K was at risk.

In allowing the local authority's application, Munby J found that the order should be discharged because of the mother's attitude and because the Cassell were no longer prepared to accept her. On the issue of contact, he did grant an order under s34(4) of the Children Act, even though he set the bar very high saying the circumstances for granting such an order should be "extraordinarily compelling". It was this reasoning that led him to refuse the local authority's request that the order should endure until the final hearing; instead he made an order that would expire on the date of the case management conference, following transfer back to the county court. He also pointed out that such an order

"only "authorises" the local authority to refuse to allow contact. It does not forbid such contact and a local authority, even if clothed with authority under section 34(4), is, of course, under a continuing duty to keep matters under review and to allow contact to resume as soon as it is safe and appropriate to do so."

__________________

Neutral Citation Number: [2008] EWHC 540 (Fam)

Case No: NG08C00185
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18 March 2008

Before :

MR JUSTICE MUNBY
- - - - - - - - - - - - - - - - - - - - -
In the matter of K (dob 30.1.2008)
And in the matter of the Children Act 1989

Between :

NOTTINGHAM CITY COUNCIL (Applicant)

- and -

(1) G
(2) K (by his children's guardian)
(3) C (Respondents)

- - - - - - - - - - - - - - - - - - - - -

Ms Rachel Rowley (instructed by Nottingham City Council, Legal Services) for the Applicant (local authority)
Mr Brian Jubb (instructed by Bhatia Best) for the First Respondent (G)
Ms Maria Mulrennan (instructed by Jackson Quinn) for the Second Respondent (K)
Ms Beryl Gilead (instructed by Sheltons) for the Third Respondent (K's father)

Hearing date : 14 March 2008
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.


.............................

MR JUSTICE MUNBY

This judgment was handed down in private but the judge hereby gives leave for it to be published in this form.

The judgment is being distributed on the strict understanding that in any publication no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the child and the adult members of his family must be strictly preserved.

Mr Justice Munby :
1. These care proceedings (NG08C000185) were last before me on 18 February 2008. I heard them immediately after I had heard the related judicial review proceedings (CO/532/2008). Following the hearing I handed down judgment on 5 March 2008: R (G) v Nottingham City Council (No 2) [2008] EWHC 400 (Admin). I need not repeat what I said in that judgment, most of which relates to the judicial review proceedings; paragraphs [80]-[85] deal with the care proceedings.

The plan on 18 February 2008
2. The order which I made following the hearing on 18 February 2008 provided for a residential assessment at the Cassell of G and K (and possibly also K's father, C). It was contemplated that the process would fall into three stages:

i) First, G was to attend the Cassell on her own for a fortnight's assessment. This had originally been planned to commence on 26 February 2008 but in the event was re-arranged for 4 March 2008. At the end of this part of the process the Cassell was to provide an interim report for the court in time for the directions hearing which I had fixed for 14 March 2008.

ii) Secondly, and subject to the outcome of the first stage, K would be placed with G at the Cassell.

iii) Thirdly, and subject to the outcome of the local authority's assessment of him (to be completed by 10 March 2008) and a viability assessment of him to be carried out by the Cassell (by 12 March 2008), C would join G and K at the Cassell.

3. It will be appreciated that the purpose of the directions hearing on 14 March 2008 was (a) to decide, in the light of the interim report from the Cassell, whether K should join his mother there and (b) whether, in the light of the assessments of him to be carried out by the local authority and by the Cassell, they should also be joined there by C.

Events since 18 February 2008
4. Unhappily the planned assessment at the Cassell has completely broken down:

i) G attended at the Cassell on 4 March 2007 and remained there until 7 March 2008, when she returned, as planned, to Nottingham for the weekend to have contact with K. She did not return to the Cassell on 10 March 2008, as planned, and told the local authority that she did not intend to return. She has not been back to the Cassell since.

ii) Although the local authority offered C two appointments so that he could be assessed, he failed to engage. Two further appointments have been offered to him but he has still not engaged.

5. There have been two further unwelcome developments since the last hearing:

i) On 21 February 2008 there was an incident involving G and C at the hospital where K had been taken for treatment. I do not propose to go into detail (the details are recorded in the documents referred to in paragraph [8] below) but suffice it to say that the medical staff took the decision that G and C could not stay. Security had to be called. On 25 February 2008 the local authority applied for an order that the hospital disclose its records relating to the incident so that the Cassell could see what had happened. I dealt with the matter as a paper application and made the order sought the same day.

ii) On 12 March 2008 there was a fight between G and C during their contact with K. The police had to be called. (I return to consider this incident in more detail below).

6. On 12 March 2008 the local authority issued an application seeking (a) the discharge of the order for the assessment at the Cassell I had made under section 38(6) of the Children Act 1989 on 18 February 2008, (b) an order pursuant to section 34(4) of the Act authorising the local authority to refuse to allow contact between G and K, (c) an order transferring the proceedings back to Nottingham County Court and (d) an order abridging time so that the local authority's applications under (a)-(c) could be heard on 14 March 2008.

7. The same day I made an order abridging time for service to 24 hours, directing that paragraphs (a)-(c) of the local authority's notice of application be listed for hearing before me on 14 March 2008 and giving the local authority leave to file evidence in support of its application.

The hearing on 14 March 2008
8. The local authority filed, and I read, a 'chronology of significant events' since the hearing on 18 February 2008 and the 'running record' of its dealings with the case since 7 December 2007. Particularly important in the context of the local authority's application was that part of the record detailing events since 18 February 2008. The local authority also filed, and I likewise read, the relevant 'contact notes'.

9. In addition, the local authority filed statements by Ms SJ, the team manager, and by Ms AJ, the family support worker who, with others, had had the responsibility of supervising G's and C's contact with K.

10. Ms SJ's statement, which was not tested in cross-examination, said that "the quality of the contacts has largely been very poor. K's needs have been secondary to the parents' own needs." Ms AJ's statement was directed in particular to the incident on 12 March 2008.

11. In addition to the material filed by the local authority I had reports from the Cassell dated 13 March 2008. The consultant child psychotherapist recorded that:

"Unfortunately, it has not been possible to put together a report as originally planned as G did not feel able to continue with the assessment after the first week."

As he pointed out, the preliminary reports which had nonetheless been prepared by various professionals at the Cassell:

"reflect the genuine effort that G made to engage in an assessment process to be able to care for K although the reality for her of what it would involve proved too difficult for her."

12. Counsel in the case were able to discuss matters further on the telephone with the Cassell during the course of the hearing. I need not go into details of what I was told. For present purposes it suffices to say that the Cassell did not, for its part, see the door as irrevocably shut, although it made clear that it would not be able to assist further were I to find that the events which had taken place on 12 March 2008 were indeed as alleged by the local authority.

13. In these circumstances, Mr Brian Jubb who, as on the previous occasion, appeared for G, understandably and appropriately indicated that he would wish to cross-examine Ms AJ about the events of 12 March 2008, before calling G herself to give evidence.

14. I proceeded to hear evidence from Ms AJ.

The incident on 12 March 2008 – Ms AJ's evidence
15. Contact on 12 March 2008 began at about 9.30. From then until 10.15 it was supervised by Ms SF and Mr MJ; from 10.15 it was supervised by Ms SF and Ms AJ. Ms AJ made a detailed note of the events she had witnessed the same day and within hours of them happening.

16. The note prepared by Ms AJ describes in some detail the build up to the point at which Ms AJ telephoned Ms SJ "to inform her that the situation was escalating and that K was becoming distressed." Following on from that, C, who was holding K, threw G's mobile phone charger at her. G "threw it back at him just missing K's head." G then "grabbed" K from C and "continued to fight with C." In her oral evidence, Ms AJ confirmed that this was a physical fight; they were hitting one another with K in the middle. "Suddenly she thrust K with force into the baby bouncer" then "roughly swooped K back out of it and continued to fight" – that is, as Ms AJ confirmed, to fight physically. Ms SF said to G "give me the baby" and G "threw him at her from a distance of about 18 inches." Ms AJ comments that although Ms SF caught him "G had carelessly thrown him without due care of where he was actually going to land and without supporting his head" – I interpolate that K was only 6 weeks old. Ms AJ's account continues: "G and C continued to fight and at this point Ms SF and I took the opportunity to remove ourselves and K". They went to a locked room for safety while the police were called.

17. I have no hesitation in accepting Ms AJ's evidence as both truthful and accurate. She was a careful, thoughtful, reliable and patently honest witness who was not shaken by Mr Jubb's cross-examination. Her note, as I have said, was made only hours after the incident and her oral evidence was being given only two days later. Her note is an accurate and balanced record of what was, in my judgment, a profoundly disturbing incident.

18. G, in the event, declined to give evidence and indeed left the court-room, although remaining in the building. During Ms AJ's evidence she had made a number of comments more or less under her breath. At one point, she called her a "lying bitch".

The assessment at the Cassell
19. It is sadly all too obvious that the assessment at the Cassell cannot continue. There are two quite separate reasons for this:

i) In the first place it has become all too sadly apparent that G's attitude towards the assessment has at best been deeply ambivalent. I am not going to go into details. Anybody who reads the local authority's 'running record' will know exactly what I mean. She failed to return to the Cassell on 10 March 2008 and has not been there since. At the hearing on 14 March 2008 it was far from clear that she would return even if given the opportunity. Even were she to do so, the prospects of her 'staying the course' seem, sadly, to be slim indeed. I am driven to agree with the local authority's submission, as articulated by Ms Rachel Rowley, that the prospects of G succeeding in any residential assessment are minimal.

ii) Secondly, and in any event, the opportunity for her to return to the Cassell is no longer available, given my findings as to the events of 12 March 2008. The Cassell, as Mr Jubb accepted, would not be prepared to have her back in the light of those findings.

20. In these circumstances, the local authority is entitled to an order discharging the order for the assessment at the Cassell I had made under section 38(6) of the Children Act 1989 on 18 February 2008.

Transfer back to the County Court
21. Ms Rowley submits that, in the events which have happened, the time has now come to transfer the care proceedings back to the County Court. I agree.

22. The judicial review proceedings are now, in large measure, at an end. There is not to be any further assessment at the Cassell. The rationale which underlay the Court of Appeal's decision to transfer the care proceedings to the High Court, and my decision on 18 February 2008 to retain the proceedings for the time being in the High Court, accordingly no longer exists. Stripped of those aspects, the case, as Ms Rowley correctly submits, is not a complex case of the kind justifying the involvement of the High Court.

23. In my judgment, the care proceedings should now be transferred back to the County Court, where there will need to be a case management conference as soon as possible. Judge Inglis tells me that he can accommodate the case in his list in the first week in April. I shall make an order accordingly.

Contact
24. The local authority does not seek, at this stage, to terminate C's contact with K, but it does seek an order under section 34(4) authorising it to refuse to allow contact between G and K. This is not merely because contact has, in Ms SJ's (untested) opinion been "very poor" and, in Ms AJ's opinion, undergone a "recent deterioration." It is essentially because of what happened on 12 March 2008, though that is only the culmination of what appears to have been a steadily deteriorating situation.

25. It is a very drastic thing indeed to interfere with a young mother's contact with her newborn baby, and his contact with her, particularly at a time when 'threshold' (see section 31(2) of the Act) is yet to be established. It is an even more drastic thing to deny contact altogether, and something which lies at the very extremities of the court's powers. Extraordinarily compelling reasons must be shown to justify an order under section 34(4) at this early stage in the proceedings.

26. Mr Jubb submitted that, whatever view I took of events on 12 March 2008, the case was not made out for an order under section 34(4). An order under section 34(2), defining appropriate contact arrangements, and more particularly imposing appropriate conditions entitling the local authority to terminate or discontinue further contact in the event of any breach, would, he submitted, suffice to protect K. Alternatively, he submitted, any order under section 34(4) should be limited in its duration so that the question can be re-visited by Judge Inglis at the forthcoming case management conference.

27. Ms Rowley for her part submitted that I should here and now make an order which, unless varied on application made by G in the meantime, should last until the final hearing of the proceedings.

28. I confess that I have not found this an altogether easy question to resolve. I am quite satisfied that, at least in the short-term, there must be an order under section 34(4). In the light of what happened on 12 March 2008, K's safety imperatively demands that I make such an order. The more difficult question is whether I should make that order so that it lasts only until the next hearing or whether I should make it so that it lasts until the final hearing.

29. Ms Rowley, contending for the latter, submits that it is idle to imagine that things will have changed sufficiently over the next two or three weeks to allow contact then to be resumed – and in any event, she says, whatever order I make there will be nothing to prevent G applying to vary or discharge it. Furthermore, an order under section 34(4) only "authorises" the local authority to refuse to allow contact. It does not forbid such contact and a local authority, even if clothed with authority under section 34(4), is, of course, under a continuing duty to keep matters under review and to allow contact to resume as soon as it is safe and appropriate to do so.

30. I can see the force of Ms Rowley's submissions, but having reflected on the matter over the weekend I think that an order in the terms she seeks would be too drastic and that it might very well send out quite the wrong 'message' to all concerned. Accordingly, I will make a section 34(4) order, but limited to expire on the date of the case management conference before Judge Inglis.

31. This will allow the dust to settle and give G another opportunity to show that she can put K's needs before her own problems. But I do not want there to be any misunderstanding. The onus will very much be on G to demonstrate to Judge Inglis that contact, no doubt carefully supervised and, it may well be, subject to stringent conditions, is something that should be allowed to resume. The next two or three weeks will give G a breathing space to show, if she can, that she is willing and able to work together with the local authority, to take on board the local authority's concerns about her behaviour during contact, and to demonstrate as best she can that she is going to behave herself if contact resumes. If she is able to do this, then it may be that Judge Inglis will be persuaded that contact between G and K can safely and appropriately resume. If, however, she is not able to do this, then in all probability the order I have made will be extended and continued by Judge Inglis.

Other matters
32. A number of other matters were canvassed in front of me in relation to the future conduct of these proceedings. There is no need for me to discuss them in this judgment. I have made the necessary directions, which are set out in the order I made at the end of the hearing.

Anonymity
33. I repeat and draw attention to what I said in my previous judgment.

34. The hearing before me on 14 March 2008 took place in chambers – in private. Reporting of the proceedings accordingly continues to be subject to the restrictions imposed by section 12 of the Administration of Justice Act 1960 and section 97 of the Children Act 1989.

35. In the particular circumstances of this case, and not least in the light of all the previous publicity, I have decided to release this anonymised judgment for publication, so that the public can be aware of how this stage in the proceedings has turned out. But the case will, from now on, be continuing like any other care case being heard in the County Court. Those aspects of the case which are of particular public interest have now, it would seem, come to an end. It should not be assumed, therefore, that Judge Inglis will see any need to make public disclosure of further steps in the proceedings, though it may be that he will think it appropriate to announce the eventual outcome. All that, however, is entirely a matter for him.