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McG v Neath County Borough Council [2010] EWCA Civ 821

Appeal by mother against care and placement orders. Appeal allowed, interim care orders made, finding made of sexual abuse in respect of one of the children was set aside. Transfer to the High Court for directions.

An appeal brought by a mother against care and placement orders made in relation to three children aged 7, 5 and 3. The appeal was supported by the Guardian and not opposed by the local authority.

The children had been in foster care since May 2009. The concerns in relation to the mother, who had learning difficulties, were described by the court as "a classic case of neglect on the part of a mother with a very limited understanding of good parenting". At the outset of proceedings, the parties had sought leave for the mother to undergo a psychological assessment and a specialist parenting assessment conducted by a person with special training in assessing parents with learning disabilities. In the event permission was only given for the psychological assessment and the parenting assessment was conducted by the allocated social worker. The outcome of both reports was negative.

When the matter came on for final hearing in March 2009, the care plan was for adoption, which plan was supported by the Guardian. At the final hearing the mother sought an adjournment for a specialist assessment. That application was made at the outset of proceedings but refused. However, in oral evidence the author of the psychological assessment report gave weight to the mother's argument that there should have been such an assessment. Nevertheless the judge dismissed the mother's application for an adjournment and made final orders.

Additionally, there had been a factual issue before the judge as to whether or not the five-year old child had been sexually abused. Examination revealed scarring to the anus of the child, but opinion differed between experts as to whether the scarring was diagnostic of sexual abuse. The judge had preferred the evidence of one expert over the others only on the mistaken belief that the preferred expert had seen scarring not observed by the other experts. This was not in fact the case.

The court granted permission and allowed the appeal, replacing the care and placement orders with interim care orders, setting aside the finding of sexual abuse and transferring the case to the High Court for directions.

Summary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers

Case No: B4/2010/0953
Neutral Citation Number: [2010] EWCA Civ 821
LOWER COURT NOS: SA09C00421, SA10Z00446, 7 and 8
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16/07/2010
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Between :

D Mc G Appellant

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Neath Port Talbot County Borough Council First Respondent

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LB Second Respondent

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C, H and S, Children, by their Children's Guardian Third, Fourth and Fifth Respondents

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Miss Susan Campbell QC (instructed by T. Llewellyn Jones, Neath) appeared for the Appellant.
Miss Alison Ball QC (instructed by West Glamorgan Joint Child Care Legal Service) appeared for the First Respondent.
The Second Respondent did not appear.
Mr Mark Allen (instructed by Cameron James Hussell & Howe, Port Talbot) appeared for the Third, Fourth and Fifth Respondents.

Hearing date: 12 July 2010
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Lord Justice Wilson:
1. This is the judgment of the court.

2. A mother has applied for permission to appeal against care and placement orders made in relation to her three children by His Honour Judge Dafydd Hughes in the Swansea County Court on 26 March 2010. The three children are all girls, namely C, who was born on 31 May 2003 and is thus now aged seven, H, who was born on 23 March 2005 and is thus now aged five, and S, who was born on 22 December 2006 and is thus now aged three.

3. The court directed that the mother's application for permission should be heard last Monday, 12 July 2010, on notice to the other parties and on the basis that, were permission granted, the substantive appeal would follow forthwith. The hearing duly took place before us on Monday. Somewhat to our surprise there was very little controversy. The main respondent to the proposed appeal sat on the fence, neither actively supporting it nor actively opposing it; and the other respondent actively supported it. At the end of the hearing we announced our decision; but it will make more sense if we explain it at the end of our judgment rather than at this stage.

4. The care proceedings were brought by Neath Port Talbot County Borough Council ("the local authority"). The first respondent was the mother; the second respondent was the father of H and S; and the third, fourth and fifth respondents were the girls by their guardian, Mrs Richards. The identity of the father of C is unclear.

5. The girls have been placed together in a short-term foster home since May 2009, when the care proceedings were launched. The case advanced by the local authority before the judge was that it was unrealistic to consider that they could return to live with the mother (or any other member of their biological family) and that a permanent alternative placement should be found for them. Notwithstanding the difficulty of placing three children for adoption in one home and the further difficulty of placing children as old as H and in particular as C for adoption and the yet further difficulty of placing children of whom at least one, namely S, has a significant degree of developmental delay probably of genetic origin, the local authority proposed to the judge that the girls should be placed as soon as possible in an adoptive home, if such could be found. In commending these proposals to the judge the local authority was actively supported by the guardian.

6. The mother lives in Neath with a new partner, Mr T. Their relationship began in June 2009, i.e. after the girls were removed into foster care; and the result is that, in effect, the girls do not know Mr T. The mother's ultimate aspiration is for the girls to be returned to her care but the aspiration articulated by Miss Campbell QC on her behalf before the judge was limited, namely that, before any final decision was made, there should be a specialist assessment of the mother conducted in the light of the fact that she is learning disabled. The absence of such an assessment (submitted Miss Campbell to him) precluded any decision that there was no real prospect that she could adequately care for the girls again.

7. The second respondent, namely the father of H and S, appears to have made a singularly negative contribution to the lives of the girls. He is a heroin addict and one of the judge's findings was that, while he remained living in the mother's home, the girls were exposed to drug-taking both by him and by his associates. He appears to have been in and out of prison and, at the time of the hearing before the judge, which proceeded for four days prior to his delivery of judgment on 26 March, he was in prison. He was brought from prison to court where, on instructions, his counsel put to the mother that she had had a series of affairs, being an allegation which appears to have bewildered her and which the judge certainly did not accept. He appears also to have given vent to verbal explosions in the back of the court. His proposal for the girls appears to have been that they should return to live with the mother but only on condition that Mr T did not continue to live with her. He has taken no part in the proceedings in this court.

8. The mother is now aged 25 and thus it was that, when she gave birth to C, she was aged only 18. Just prior to C's birth Dr Willner, a clinical psychologist, made a report on the mother to the local authority. He recorded that the mother had, when in school, been in a special needs class and, when in college, been in a special needs unit. He reported that her full-scale IQ was on the fifth percentile but that such was a combination of an extremely low verbal IQ, namely on the first percentile, and of a significantly higher performance IQ, namely on the seventeenth percentile. His conclusion was that she would need support to develop as a competent parent and that, in that her non-verbal abilities were much higher than her verbal abilities, she was likely to derive greater benefit from being shown how to do things than from being given written advice. He described her reading ability as equivalent to that of an average seven year old. He recommended that she would need support in developing as a competent parent and that there should be further assessment in that regard.

9. The result was that, upon birth, C was placed on the Child Protection Register as being at risk of neglect. She remained on the register until August 2004. By then the local authority had the benefit of a further assessment of the mother undertaken by Ms Jones, a social worker who had been working in conjunction with Dr Willner. Ms Jones reported that she had had three sessions with the mother, in which, at an extremely basic level, she had tried to discuss issues relating to keeping a child safe and clean and not exposing her or him to physical or sexual abuse. Apparently Ms Jones had had some difficulty in helping the mother to understand what was meant by sexual abuse. At all events Ms Jones' report was reasonably positive. She concluded that the mother was able to provide a degree of protection to C, who had apparently remained safe since her birth. Although Ms Jones indicated that the mother would continue to need professional advice and guidance, the local authority decided to remove C from the register.

10. The local authority appear to have had no active concerns about the mother and her growing family from August 2004 until March 2008. From March 2008 until May 2009, however, their concerns escalated to the point at which they issued the care proceedings. The threshold document put before the judge on behalf of the local authority at the final hearing recited concerns on a number of fronts; and the mother's oral evidence to the judge was so candid that, by the time when she came to make her closing submissions, Miss Campbell was unable actively to dispute that the threshold to the making of full care orders, set by s.31 of the Children Act 1989, had been crossed.

11. The local authority had collected their concerns under five main headings. First, neglect: the mother had failed to seek proper medical attention for the children; had failed to cause C and H to attend school punctually or to arrange for their punctual collection at the end of the day; had allowed them to attend school appearing grubby and dishevelled; had failed to create a proper routine within the home; and had unrealistically expected C and H to wash and dress themselves. Second, physical harm: between July 2008 and March 2009 there had been three occasions when S had sustained a burn as a result of absence of parental supervision and one occasion when she had been scalded. Furthermore in August 2008 H had sustained bruising on her face as a result, again, of absence of proper supervision. Third, sexual abuse and risk of sexual abuse: the mother had allowed both her own father and LB's father to have unrestricted contact with the girls notwithstanding concerns that each had presented a risk of sexual abuse. Furthermore, so the local authority contended, H had indeed been anally abused by someone unidentifiable: we return to this discrete allegation at [23] below. Fourth, a failure to cooperate with professionals: there was evidence, to which the judge was in our view right to attach significance, to the effect that the mother had felt no need for outside assistance in coping with her three young children and had spurned a number of attempts to provide her with it. Evidence to that effect was given not only by the health visitor and by the officer of a service entitled "Startwell" but also by the allocated social worker, who had unsuccessfully encouraged the mother to access Community Support. And fifth, exposure to drug use: LB had admitted that he was a heroin user, who injected twice a day, including in the family home. On a date just prior to the removal of the children into care the mother had reported that the father and two men were taking drugs in the attic of her home. But the mother's case, at any rate on paper, was that the drug-taking of LB, and of his brother who was a frequent visitor to the home, had not taken place in her actual presence nor in the presence of the girls.

12. It was not the local authority's case that the mother had ever acted in such a way as deliberately to cause physical or emotional harm to the girls. It was a classic case of neglect on the part of a mother with a very limited understanding of good parenting and thus (so Miss Campbell urged upon the judge) a classic case for an expert appraisal whether, with the appropriate help, her parenting could be raised to an adequate level within a time-frame apt to the needs of the girls.

13. On 21 May 2009, at the outset of the proceedings, there was a case management conference in front of Her Honour Judge Parry. The guardian, supported by the local authority and no doubt the mother herself, sought to persuade the judge that the court would be in need of two assessments of the mother, namely a psychological assessment and a specialist parenting assessment. By "specialist" the guardian meant that the person conducting the assessment should have had special training in making parenting assessments of persons with learning difficulties. The local authority, while having a learning disability team, conceded that they did not have any officer within the authority with the expertise with which to conduct such an assessment and that, were it to be directed, they would have to procure it from outside. In this regard reference was then (or at any rate is now) made to a Parenting Assessment Manual (PAM); and, although we have not been shown it,, counsel agree that it is a manual which, in whole or in part, guides those who undertake assessments of parents with learning disabilities. Thus, for example, it encourages the use of many more pictures in the conduct of assessments than would be put before parents not subject to such disability. There is also a publication by the Department of Health in 2007 entitled "Good practice guidance on working with parents with a learning disability": the guidance contains advice, for example, on the special need for plain language, for repetition, for recapitulation and, generally, for communication in a form which the parent will find accessible.

14. HHJ Parry ruled that permission would be given for one or other of the guardian's proposed assessments but not for both. She commented that the issues in the case transcended the mother's learning disability. In the event the advocate for the guardian opted for the psychological assessment. There was no attempt on the part of any party to appeal to this court against the judge's refusal to direct the specialist parenting assessment. Instead the allocated social worker herself conducted a parenting assessment of the mother. Her conclusion about the chance of the successful rehabilitation of the girls with her was pessimistic.

15. In November 2009 the psychological report on the mother came to hand. It was written by Mrs Campbell Hughes. She reported that the mother did not present with symptoms of mental illness or personality disorder; that however she exhibited schizoid traits which suggested that she was likely to lack warmth and sensitivity to the emotional needs of the girls; that, as a result of her learning difficulties, she did not have the ability to understand what was required of her; that there were concerns whether she could understand the emotional and physical needs of the girls; and that she ascribed the removal of the girls into care to LB's drug habit and failed to acknowledge any personal responsibility for it. In her report Mrs Campbell Hughes did not advert to the absence of a specialist parenting assessment of the mother.

16. In January 2010 HHJ Parry conducted the pre-hearing review. There was no renewed application, whether by the guardian, by the mother or indeed by the local authority, for a specialist parenting assessment. It seems to have been only shortly before the substantive hearing, when the brief for the mother was delivered to her, that Miss Campbell decided that the most promising argument for deployment before the judge was that there had been no specialist assessment. On 23 March, at the outset of the substantive hearing, she raised it. She contended that the judge should adjourn the main hearing for two to three months so that a PAM assessment could be undertaken or at any rate that the initial stages of such an assessment could be undertaken, following which, in either case, the court could discern, in the light of its result, whether to invest further of the girls' time in exploring the prospects of ultimate rehabilitation to the mother. Realistically Miss Campbell accepted that, at that subsequent stage, the court might well face an exceedingly difficult decision. She made clear that she was not asking the judge to direct a residential assessment of the mother with the girls and that she accepted that, during the period of assessment, the girls should continue to remain in their foster home; she pointed out, however, that the mother was having supervised contact with the girls on three occasions each week and that she trusted that the specialist assessor would see fit to conduct the assessment not just with the mother across a table but also by observation of, and participation in, some of the mother's contact sessions with the girls. But, supported by the guardian, the local authority successfully urged the judge not to adjourn the hearing: they said that, from the point of view of the girls, it had become too late to abort the hearing and to delay the final decision.

17. Thereafter, however, Mrs Campbell Hughes gave oral evidence; and it appears that, in respect of the absence of a specialist assessment, Miss Campbell, in cross-examination of her, made significant progress on the mother's behalf. Mrs Campbell Hughes answered that she had no specialism in the field of learning difficulties; that she would have expected there to have been a PAM assessment; that, had she been asked at an earlier stage, she would have recommended that it be undertaken; that the mother had been prejudiced by its absence; that the initial assessment would indeed take only about eight weeks but that, were the court thereupon to endorse further assessment, the work could take six to 12 months; that she was still sceptical about the mother's ability to engage with help; and that, while she was not confident that specialist assessment would cast a different light upon the mother's capacity, "you don't know unless you try".

18. The answers of Mrs Campbell Hughes afforded to Miss Campbell a springboard for a vigorous final submission to the judge that, even at that late stage, he should withhold judgment and direct a continuation of the proceedings in order to afford an opportunity for the specialist assessment. It is important to note, however, that, notwithstanding that they had heard the answers of Mrs Campbell Hughes, both the local authority and, perhaps in particular, the guardian decided to maintain, in their final submissions by their then counsel, the contention that the judge should proceed to give final judgment upon the applications.

19. On 26 March, apparently almost immediately following his receipt of final submissions, the judge delivered his oral judgment. He would be the first to accept that, under constraints of time, he was not able to compile a very well-organised judgment. We consider that we should be hesitant before criticising judgments in care cases made by Circuit judges and High Court judges under great pressure. It would however be very helpful to this court if, at the outset of a judgment in a care case, the judge were to introduce all the parties and to explain their different proposals for the future of the children; and then, before turning to the history (and later of course to analysis of the issues), if he were briefly to summarise the current circumstances of the children and of each of the adult protagonists. It is also obviously far preferable if the evidence in relation to particular areas of the case can be collected together rather than that, as this judge was constrained to do, he should, apparently from his notebook, work through – without much comment as to what he accepted and what he did not accept – the evidence given by each witness in the order in which he had received it. It is enough for us to say that, in the light of the facts that the girls had been in short-term foster care for ten months and that there were reports from a number of professional sources indicative of an absence on the part of the mother of any wish to receive external help, the judge concluded that the chance of rehabilitation without repetition of the physical and emotional harm (including neglect) which the girls had suffered in the mother's home was too small to warrant adjournment for the specialist assessment.

20. As we have implied at the outset of our judgment, the hearing of the mother's proposed appeal, primarily based on the judge's refusal to adjourn for specialist assessment, took a surprising turn. First, the local authority, which now instruct Miss Ball QC in place of counsel who appeared for them before the judge, sit on the fence: they feel unable actively to oppose the proposed appeal. Second, the guardian, who now instructs Mr Allen in place of counsel who appeared for her before the judge, actively supports the mother's proposed appeal. But what, we asked Miss Ball and Mr Allen, has changed since the hearing in March before the judge, apart from further delay of four months in which the girls have become slightly older and in which their future has continued to remain undecided? Their answer was in part that it was only the oral evidence of Mrs Campbell Hughes which had highlighted the significance of the absence of a specialist assessment. To this we replied that her oral evidence had not caused their predecessors, in their final submissions to the judge, to depart from their contention that there should be no adjournment for further assessment. The truth, it seems, is that both counsel before us, having come freshly to the case, have, with a fresh mind, appraised the mother's stance in a way which differs from that of their predecessors and which their professional clients are minded to accept; and that this has led to the otherwise inexplicable volte face from the stance adopted on their behalf before the judge.

21. But it remains for us to decide, for ourselves, whether the judge fell into appealable error in refusing to grant the adjournment. What our decision would have been in the absence of the stance now taken on behalf of the local authority and of the guardian is an open question. In our analysis we would be foolish not to weigh the concerns which the local authority and the guardian now harbour. It would be easy for us to express irritation at the fact that, had their current stance been articulated to the judge at the end of the hearing, he would have probably granted the adjournment and saved four months of further delay. Professionals must be entitled to change their mind; and the court should not discourage them from confessing that they have done so although it will assiduously enquire into the basis of it. The fact is that the care plans for the girls were not just that they should remain in permanent care but that they should be severed from the mother both legally and factually. In explaining our almost consensual disposal of the proposed appeal we see no need to cite authority for the proposition that so drastic a step should be undertaken only when all avenues towards rehabilitation have reasonably been explored. We are, frankly, concerned about the volume of evidence from various quarters that the mother is averse to receiving the professional help which she would so clearly need: but, says Miss Campbell with at any rate a moderate degree of conviction, the problem is that the mother's perceived aversion has been the verdict of professionals not adequately trained to appraise the stance of a learning disabled parent.

22. We should add in this regard that the judge did not make express reference to the rights of the mother and of the girls to respect for their family life under Article 8 of the ECHR. By her grounds, the mother has complained that the rights of all four of them were infringed; and in this regard Miss Campbell has brought to our attention the recent decision of this court, by judgments handed down after the date of the judge's judgment, in EH v. X London Borough Council [2010] EWCA Civ 344. She has shown us the arresting statement of Baron J, who gave the leading judgment, at [64], namely that:

"In a case where the care plan leads to adoption the full expression of the terms of Article 8 must be explicit in judgment …"

It is clear that Wall LJ, as he then was, agreed, at [98], with that apparent instruction of Baron J, albeit that, in giving a short final judgment, Smith LJ did not specifically associate herself with it. It goes without saying that, in making placement orders, a judge must not infringe rights under Article 8 and that in some cases the safest means of avoiding infringement may be for him expressly to consider the rights and the circumstances in which interference with them is permissible. We are also extremely conscious of the desirability that this court should speak with one voice, even beyond the realms in which the doctrine of binding precedent so dictates. That said, it is, of course, unusual for a judge to be required to include any particular set of words in his judgment. The more usual approach is to assume, unless he has demonstrated to the contrary, that the judge knew how to perform his functions and what matters to take into account: Piglowska v. Piglowski [1999] 1 WLR 1360, at 1372G, per Lord Hoffmann. Perhaps when the next appeal against a placement order arrives before us upon the basis of a complaint that there was no express reference to Article 8, we will have to consider whether, when considered in context, the instruction of this court in EH is as absolutist as it at first appears.

23. It will be for the judge who finally determines the applications for care and placement orders in the present case to decide which facts found by the judge should figure in his analysis and which areas of the case require further investigation. But there is one factual finding of the judge which is unfortunately in error; which the future judge should not adopt; and which we should formally set aside. The local authority were concerned that H had been sexually abused; and in April and May 2009 anal examinations of her were conducted separately by consultant paediatricians, Dr Barnes and Dr Watkeys. They found scarring of her anus which was in their view suggestive of sexual abuse but, in that it might have been the consequence of constipation, was not in their view diagnostic of it. But photographs taken of the anus by Dr Watkeys were submitted to a third consultant paediatrician, namely Dr Payne; and, following her study of the photographs, Dr Payne gave evidence that, in that the scarring extended to the perianal area, it could not have been the consequence of constipation and was diagnostic of sexual abuse. The judge preferred the evidence of Dr Payne, albeit that she had had access only to photographs described as not of high quality. Without being in any way able to identify the perpetrator of the sexual abuse or even to find that in any specific way the mother had exposed H to it, the judge thus made the finding of sexual abuse of H. On what basis did he do so? Of Dr Payne, he said:

"… her opinion, bearing in mind the [perianal] extension of the scar, was that it was diagnostic of penetration. That is something that was not observed, as I understand it, by Dr Barnes or Dr Watkeys, and that is something which Dr Payne found to be significant, and probably crucial so far as her diagnosis was concerned. For that reason, I prefer the evidence of Dr Payne …"

The words of the judge, namely "as I understand it", betray a degree of hesitation on his part. It was unfortunate that he did not, so we are told, check his understanding with counsel when they made their final submissions to him. For it is common ground that unfortunately his understanding was entirely mistaken. We have been shown Dr Payne's addendum report in which, in reference to Dr Watkeys' hand-written notes of her examination, she conceded that Dr Watkeys had recorded the scar as extending to the perianal skin. In that the alleged failure of Dr Watkeys and Dr Barnes to observe the extension of the scar was cited by the judge as the sole reason for his rejection of their evidence, the judge's finding that H had suffered sexual abuse cannot stand.

24. Such were the reasons why, at the end of the hearing on Monday, we announced that we had decided:

(a) to grant the mother permission to appeal;
(b) to allow the appeal;
(c) to set aside the judge's care and placement orders;
(d) to set aside the finding that H had been sexually abused;
(e) to make interim care orders in relation to the girls for the maximum period of 28 days;
(f) to transfer the proceedings to the High Court, Family Division, Cardiff District Registry;
(g) to direct that Mr Justice Roderic Wood, as the Family Division Liaison Judge for Wales, should, in London prior to the end of this current Trinity Term, hold a directions hearing, estimate one hour, at which he should be invited to give specific directions for a specialist assessment of the mother's parenting capacity (and thus to determine any particular controversy in relation thereto) and to set a timetable for the further despatch of the proceedings; and
(h) to make no order as to costs between the parties, save for a public funding detailed assessment of the costs of the mother and of the girls by their guardian.