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Re C (A Child) [2015] EWCA Civ 221

Appeal against care and placement orders where the first instance judge had had to determine the level of the risk posed to the mother and child by the father, who is the subject of a s41 Mental Health Act hospital order, and whether the risk could be managed.

The father was subject to a s41 Mental Health Act hospital order as a result of an incident in which he caused a very serious head injury to a previous partner in the presence of children, by beating her over the head with a baseball bat.  The father had a longstanding diagnosis of paranoid schizophrenia and dissocial personality order.  The father had never accepted the diagnosis.  He and the mother challenged the final orders on the basis that any risk posed by the father could be managed.

The appeal was dismissed.  The judge correctly and carefully considered the appropriate question which was whether the father posed a current risk of significant harm to the child, and whether that risk could be managed.  The judge took account that the mother did not consider the father posed any risk to her or their child at all.  The judge made a finding that the mother had facilitated illicit contact between the child and the father, and that the grandmother had colluded in that.  The judge accepted the expert evidence that even when the father was under tight medical control as facilitated by the hospital order and he took his medication and was psychosis free, there still remained a risk of violence arising from his personality disorder.  When giving permission to appeal, the court had also permitted the disclosure of fresh evidence but there was nothing contained in that fresh evidence that substantially changed the evidence available before the trial judge or supported the unusual step of ordering a reconsideration of the case.

Summary by Martina van der Leij, barrister, Field Court Chambers

Case No: B4/2014/3711
Neutral Citation Number:
[2015] EWCA Civ 221

ON APPEAL FROM Clerkenwell & Shoreditch County Court
Her Honour Judge Atkinson

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 17/03/2015



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Between :

Re C (a child) 
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RW & MC the Appellants in Person assisted by their McKenzie Friend
Judith Charlton
(instructed by London Borough of Barking & Dagenham Council Legal Services) for the Respondent

Hearing date: Tuesday 24 February 2015
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Lady Justice King:
1. This is an appeal against care and placement orders made by Her Honour Judge Atkinson on the 24 October 2014 in relation to JC, born 11 February 2014 (12 months). The appeal is brought by RW (the mother) aged 23 and MC (the father) aged 41.

2. The issue to be determined in the case at trial was as to the level of the risk posed to the mother and JC by the father who is the subject of a s41 Mental Health Act hospital order, and whether such risk could be managed, either in the context of the mother and father living as a family unit with JC, or alternatively with JC living with her maternal grandmother under a special guardianship order. The judge concluded that the risk could not safely be managed and made the care and placement orders now appealed.

3. Between her birth and the hearing (by which time JC was 8 months old), JC lived with her mother and maternal grandmother. The father was allowed only supervised contact. The mother's relationship with the father continued and continues. It is apparent from the papers and judgment that not only was the grandmother largely responsible for JC's day to day care but she had significant difficulties in her relationship with, and of "managing" the mother.

4. Immediately following the judgment, the mother and father abducted JC. The grandmother did nothing to prevent her removal. The parents and JC were found 5 days later. JC was well but was described as subdued; both the flat in which they were living and JC smelt strongly of cannabis. The father accepts he had been smoking cannabis. The parents say that the abduction was a sign of their desperation not to lose their child.

5. Central then to the case which was heard over 7 days and to this appeal, is the father's mental health. The primary ground of appeal presented by the father as a litigant in person, is that the judge was "wrong" in concluding that risk the father posed could not be managed. The court he says was not in receipt of the full medical reports. In support of that contention, the father attached a report/minutes of a meeting to his grounds of appeal from his treating psychiatrist Dr Cadinouche dated 6 November 2014, some days after the conclusion of the trial.

6. Permission to appeal and leave to adduce new evidence was given by Gloster LJ on 17 December 2014.

7. The father has a longstanding diagnosis of paranoid schizophrenia and dissocial personality disorder. At no stage has he accepted the diagnosis. Between 1997 and 2002, he had six admissions to hospital under the Mental Health Act. When examined by Dr Matthew Castle, a psychiatrist acting on joint instructions within care proceedings, the father maintained that each of those admissions had been inappropriate.

8. In 2004, the father assaulted his then girlfriend hitting her four times over the head with a baseball bat in the presence of his baby and the victim's young child. The judgment of the judge sets out in some detail the life threatening injuries sustained by the victim which included a depressed skull fracture, fractured cheek bones, and which required her to be placed in an induced coma for a period of time. The attack marked the culmination of a number of assaults on the victim. The father maintains that he was provoked by the victim. 

9. At the conclusion of the subsequent criminal proceedings, a hospital order pursuant to s41 of the Mental Health Act was made in respect of the father; discharge from such an order only occurs following a hearing before a mental health tribunal. The father remained in a medium secure unit for 5 years, prior to being discharged to supported accommodation and then, by the date of the trial, semi-supported accommodation. Since the trial he has moved into independent living with the mother.

10. The father remains subject to the hospital order and his application to discharge the same was refused on the 24 June 2014 by a mental health tribunal, acting upon the advice of his mental health team.

11. In addition to his mental health history, the father has a substantial criminal record with convictions for 30 offences with 10 different aliases; most recently, he served 18 months in 2012. The father acknowledged to Dr Castle his previous significant cannabis, crack cocaine and heroin habit. He maintains that his drug use is now limited to the occasional joint of cannabis to help him to sleep. Drug use is a strong contra indicator for continued stable mental health.

12. In drawing together his views for the court, Dr Castle noted that whilst the father had exhibited no active psychosis since 2006 this was, in his opinion, only because of the high level of regulation and supervision to which he was subjected. Dr Castle was of the view that if the father stopped taking his medication, then there would be a high likelihood of relapse, which should be regarded as likely to result in dangerous and high risk behaviour. Without the regulation and supervision which is part of a hospital order, Dr Castle believed that the father would become non-compliant immediately.

13. In addition to his mental health difficulties, Dr Castle also considered the father's anti-social personality disorder. This is a long term condition and is a separate issue from the paranoid schizophrenia. The personality disorder is characterised by emotional volatility, intermittent offences and marked aggression to carers and professionals. Significantly, within assessments of the father whilst he was an inpatient and free from psychosis, it was recorded that there was a history of violence and dissocial behaviour preceding the onset of psychosis. The assessment concluded that the father could still be violent and aggressive in a planned way in response to certain situations when he felt threatened or insecure or trapped.

14. During the course of the assessment with Dr Castle, the father was adamant that he did not suffer from any mental health disorder. Unfortunately, the father refused to meet with the guardian; when asked in evidence why that was, his response (which was a cause of considerable concern to the judge), was that the guardian has the same surname as the victim of the violent assault in 2004. The father said to the judge he could not understand why 'they' had not given him a guardian with a different name.

15.  In addition to the evidence of Dr Castle, the judge also had the evidence of a psychologist, Dr Newman, who specialises in domestic violence risk assessment. Dr Newman told the court that the father, having attended two sessions of a domestic violence course, had been asked not to return. Dr Newman expressed the opinion given the severity of the father's past offence on his then girlfriend, that even a moderate likelihood of re-assault needed to be taken very seriously.

The Judgment
16. The parents' case was that JC was not at risk of future significant harm, the judge therefore had to hear evidence and make findings in that regard. In considering the statutory threshold, the judge carefully applied the law, reminding herself that prediction of future harm has to be founded on proven facts. The judge underlined that the diagnoses of the father did not in themselves present an automatic bar to his being able to care for his child, nor did the fact that he committed a violent offence 10 years ago. The question she properly posed for consideration was whether the father currently presented as a risk of significant harm to the child.

17. In considering the threshold overall, the judge accepted the evidence of Dr Castle that the father remained psychosis free only because he is compliant with the medication and subject to strict regulation and supervision. Importantly, she accepted that when the father takes his medication and is psychosis free, there still remains a risk that he will be violent and aggressive as a result of his enduring personality disorder.

18. The judge properly took into account that the mother was of the view that the father presents no risk and that, in spite of warnings to the contrary, she had regularly stayed overnight at the all male hostel for men with mental health problems at which the father was living. The mother too minimised the attack on the victim on the basis that the father had been provoked. The judge, whilst accepting that the mother had only known the father as a non-violent partner, found that she was unable to be a protective factor for JC, and the judge found the threshold to be "easily crossed".

19. Having found the threshold criteria satisfied the judge turned to consider the issue of JC's future. She reminded herself that a placement order is a draconian order and carefully went through as what has become known as the Re BS exercise. The judge analysed the welfare history, which included an assessment of the parents by an independent social worker. The assessment concluded that placement in the care of the mother or father would "significantly compromise JC's safety and would result in her not receiving good enough parenting". Further, having seen and heard the mother, father and grandmother each give evidence, the judge made the critical finding that illicit unregulated contact had been taken place between the father and JC, facilitated by the mother. Notwithstanding her allegedly protective roll, the grandmother did nothing to stop the contact and had tried to cover up on behalf of the mother.

20. It was apparent from the judgment that the judge would have wished to have been able to conclude  that JC's best interests lay in remaining in the care of her grandmother;  and it must be right that, if the parents could not care for JC and  a risk assessment concluded that the grandmother could protect JC from the risk posed by her parents, then  a special guardianship order in favour of the grandmother would undoubtedly have been the best outcome for JC,

21. The judge carefully considered a positive assessment of the practical parenting skills of the grandmother carried out by a social worker Fabian Bunani. This assessment had initially led to the local authority to favour the making of a special guardianship order in favour of the grandmother. Unfortunately that assessment was defective in that it was not a risk assessment but a pure parenting assessment. When the independent social worker and the guardian each considered the issue of risk, (as opposed to the practicalities of caring for a young child), each concluded that the grandmother would not be able to protect JC from the risk presented by the father. The judge recorded carefully in her judgment why ultimately she concluded that a special guardianship order in favour of the grandmother was untenable. One can only feel for the grandmother, who, as a result of an early inadequate assessment, had had her hopes raised believing that she would be able to bring up JC, only to have them dashed.

22. Having seen and heard the mother give evidence, the judge concluded that she is unwilling to accept that the father is a risk. The judge said that: "the dogged and almost truculent manner in which she ignores the considered views of the experts and maintains that the father is no danger because she has not seen him be so demonstrates she has an enormous deficit of insight into the risk".  The judge was faced with the evidence of Dr Newman which was to the effect that if the mother was living with the father, she would either not see the signs of the father descending into a mental health relapse, or if she did she would ignore them; in doing so, Dr Newman said, she would expose herself and JC to a real risk of physical and emotional harm.

Mental Health Evidence

23. The judge's frustration at the lack of direct evidence from the father's mental health care team was evident. The father had refused to allow his mental health team to be involved in the care proceedings. The judge had to direct the disclosure of information about his recent application to the mental health tribunal for the discharge of the hospital order. Although there was no report available as a consequence of the father's stance, Dr Castle had a discussion with Dr Cardinouche, the father's psychiatrist as did the father's solicitor who relayed the contents of this conversation to Dr Castle.. Dr Cardinouche said that if the decision of the court was that the father could care for his child the mental health team would try to support him in that. Counsel on behalf of the father argued at trial that this should be regarded as evidence that the father was ready for progression to independent living with JC living with him. The judge "profoundly disagreed", her interpretation was that the mental health team took the view that in the event that the court considered the father should care for JC, the care team charged with the responsibility for ensuring the management of his condition and the safety of the public would have to respond and put a package in place.

24. Dr Cadinouche told Dr Castle that the father believed that the care proceedings had been 'caused' by his mental health social worker. This had resulting in the father having been aggressive towards him, and the social worker having to be replaced. Dr Cadinouche explained that the mental health team's report to the tribunal had opposed a discharge of the hospital order and had expressed the view that without the input of the team, the father was at high risk of relapse especially because he is in a relationship and "they have to remember that the index offence was in the context of a family".

25. The judge having carefully analysed all the evidence, factual and medical, concluded that placement with either of the parents or the grandmother would bring with it a real risk of serious harm for JC. Having made findings of lying, deceit and illicit contact in respect of the family in relation to the period of time JC had been living at home, it must have been inevitable that, absent any understanding or acceptance by any of the three main protagonists of the risks posed by the father, the judge would conclude, as she did, that no safeguards or support services could be put in place to reduce the risks to JC of future physical and emotional harm..

26.  The judge reminded herself of the necessity for any Article 8 interference to be proportionate, but concluded that based on her findings there was no prospect of there being any changes sustained by the parents and grandmother within a timescale that met JC's needs for permanence.

The Grounds of Appeal
27. Setting aside for a moment the first ground of appeal, (the medical evidence),  the parents complaint in relation to Ground 2 that the favourable special guardianship assessment completed by Fabian Bunani was "thrown out of court" due to the judge saying it wasn't acceptable. In my judgment, this ground must be dismissed; the favourable assessment was a parenting assessment only and was not a risk assessment. When the necessary risk assessment was carried out by the independent social worker, it revealed amongst other things the worrying concern as to whether or not the grandmother had been condoning illicit contact; a finding which was ultimately made by the judge and cannot be challenged.

28. The judge considered with care whether the risks to JC could be managed within the context of a placement with her grandmother, and with regret, concluded that they could not. There is no basis upon which it could be said that that decision was wrong.

29. The third ground of appeal is that adoption should be the last resort where nothing else will do. This ground too fails. As indicated above, the judge carefully carried out the necessary balancing act, evaluation and assessment before concluding that adoption was in JC's best interests and represented, in the circumstances of this case, a proportionate interference in family life. I can see no basis upon which an argument that the judge did other than conduct a fair and appropriate welfare evaluation with JC's best interests as her paramount consideration can succeed.

30. That leaves then the first ground which relies on the absence of what the mother and father refer to as the "full medical reports". The first thing to bear in mind in this regard is that the father made a deliberate decision to frustrate the involvement of his mental health team in the care proceedings. That tactical decision was undoubtedly to prevent the damaging evidence that as recently as June, a mental health tribunal, on the advice of his treating psychiatrist, had declined to discharge the hospital order. 

31. Whilst the judge did not have direct evidence from the treating psychiatrist, she had the up to date oral opinion as detailed above which included the information that the team had opposed the discharge of the father from his hospital order at the recent tribunal and that they were of the view that without the input of the team, the father was at high risk of relapse.

32. Notwithstanding the father's efforts to prevent the court having the full picture in relation to his mental health, it became available through the conduit of Dr Castle.  The father cannot now complain if his deliberate attempt to frustrate the forensic process (which process was directed solely to a consideration of the welfare of his child), did not produce the results he sought. In addition his behaviour in relation to the medical evidence would only serve to reinforce the concerns of all involved as to the prospects of his future co-operation or openness with social services in the event that JC was to live within the family.

33. The case was not about whether the mental health team would support the father in independent accommodation, the case was about risk and the critical information which was available to the judge was that:

i)  The treating team had recently opposed the discharge of the hospital order and remained of the view that without the regulation of the father by the mental health team under the hospital order, he was at high risk of relapse.

ii) Even when the father was psychosis free, his personality order in itself meant that there was a risk of his being violent and aggressive particularly in a relationship setting.

34. The absence of a full written report from the treating team did not result in there being a lack of relevant medical information available to the court; the judge had all necessary information with which to reach the conclusions she did. Ground 1 will therefore be dismissed absent some additional evidence admitted under the principles in Ladd v Marshall [1954] 1 WLR 1489, leading the court to conclude that the case must, in JC's interests, be re-examined.

Events since the trial/fresh evidence

35. In granting permission to appeal, Gloster LJ  granted the father permission to adduce fresh evidence and to file statements in relation to the following:

i) Some character evidence

ii) A statement by the parents setting out the circumstances in relation to their abduction of JC.

iii) A note of a CPA meeting which took place on the 6 November 2014, some days after the conclusion of the hearing. It is this upon this document in particular that the parents rely and to which they refer when speaking of the 'full medical reports'. On reading it, it is largely a written note of the information given orally to Dr Castle by Dr Cadinouche

36. Given that there are in my judgment no grounds of appeal which can be sustained on the evidence that was before the judge at trial, the only remaining issue is as to whether the fresh evidence should, unusually, lead to a reconsideration of the case as a whole.

i) Character evidence takes the matter no further. One of the makers of the character statement attended at court and was permitted to speak. Her loyalty to the parents is to be commended but nothing she said affects the outcome of the case.

ii) Each of the parents has filed statements seeking to excuse the abduction of JC, then an 8 month old baby. The fact of the abduction  only serves to confirm the findings made by the judge, namely that the grandmother could not be relied upon to protect JC, that the mother is wholly in the thrall of the father and that the father represents a danger to JC and the rest of his family, he having orchestrating the abduction.

iii) Minute of 6 November 2014

37. That then leaves the contents of the notes of the CPA meeting on the 6 November 2014. Present at the meeting was the father, Dr Cardinouche and the forensic community psychiatric nurse. The social supervisor was not present due to the father's attitude and expressed anger towards him. The report confirms that there was currently no evidence of psychosis or mood disorder. Significantly it notes that despite his treating team's offer to provide information for the care proceedings, the father had refused.

38. The minutes record that the father had presented as increasingly irritable and hostile in his interactions with the social worker, whom he regarded as colluding with the children and family social services. He blamed the social worker for restrictions in his contact with JC; the hostility continued despite the team's numerous attempts to explain to him that they had a statutory duty to liaise with social services. This is again an example of the father's attitude towards statutory bodies which bodes ill for future co-operation with social services if JC was to remain in the family. The report, contrary to the father's submission, does not unequivocally support the father living with JC, it says:

"At the moment the team is not of the view that he poses a direct risk of harm to his child. He has consistently expressed a wish to care for the child. None the less, the team is also mindful that the child could have been indirectly harmed through the act of her parents being on the run having taken her illegally. Overall, for the team to be able to form an accurate view of his risks to his child or partner it would be very useful to have the full assessment reports and conclusions from the children and family social services outlining M's behaviour and compliance with the restrictions they have put in place during the last 8 months since the child's birth.

Such assessments would include not only the experts' reports but the judgment including the finding that the father had been having illicit contact with JC.

39. Similarly in relation to the application for independent housing, the minute makes it clear that support for this was dependent upon a number of matters. The father told the court that he and the mother now live together independently. This new arrangement continues to be under the auspices of the Section 41 hospital order as the team is of the view that the risk of a relapse would increase without the framework of the hospital order.

40. It follows therefore that all that information to be found within the minute of 6 November 2014 relevant to a determination by the court of the issues before it, was in fact before the court following the discussions between Dr Cardinouche, Dr Castle and the father's solicitor. In my judgment there is nothing in the minute which would found a basis for a reappraisal of the case as a whole or would serve to undermine the judge's careful assessment of risk.

41. I would accordingly dismiss the appeal.

Lord Justice Bean:
42.  I agree.

Lady Justice Arden:
43. I also agree.