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B (A Child) [2006] EWCA Civ 486

B4/2006/0226, B4/2006/0268

Neutral Citation Number: [2006] EWCA Civ 486





Royal Courts of Justice


London, WC2

Friday, 24th March 2006

B E F O R E:



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(DAR Transcript of

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MR J AGEROS (instructed by Messrs Deborah Baxter & Co, 9 Church Street, Reading, RG1 2SB) appeared on behalf of the appellant father.

(instructed by Messrs Clifton Ingram, 22-24 Broad Street, Wokingham, RG40 1BA) appeared on behalf of the appellant mother.

MS J MITCHELL (instructed by Woking District Council and Messrs Ratcliffe Duce & Gammer, 86 Rose Street, Wokingham, RG40 1XU) appeared on behalf of the child.

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(As Approved by the Court)

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Crown copyright©

1. LORD JUSTICE WALL: This is an application by the parents of a little boy called S, who will be two years old on 27 March, for permission to appeal against the refusal of HHJ McIntyre to make an order in care proceedings relating to S, that they should have permission to show the papers to and instruct a particular organisation to advise about the ability of the parents to care for S in the short term.

2. The background is that S suffered two serious injuries when he was very small. The first, when he was about eight months old, was a fracture of the skull. The second, at the beginning of April 2005, was when he suffered a fracture to his shinbone. Because the parents were unable to produce a satisfactory explanation for either injury, the local authority took care proceedings. S went to live with his maternal grandparents, where he still is, and as is often the case the court conducted a causation, or fact-finding, hearing. The reason for that is that a child can only be the subject of a care order or supervision order if the threshold criteria in section 31 of the Children Act 1989 are met; that is, the child has either suffered or is likely to suffer significant harm effectively caused by his parents. Plainly if there was a satisfactory accidental cause for S's injuries the care proceedings would fall at that stage. There was therefore a lengthy causation hearing before the judge which culminated in a judgment which we have, dated 2 December 2005. The judge found that both injuries were non-accidental; that both had been caused whilst S was in the care of his parents; that there was no satisfactory accidental explanation for the injuries; and accordingly that the threshold criteria under section 31 were satisfied. There is no application for permission to appeal against those findings.

3. The case then had to move to the second stage, the welfare stage, where the court has to decide what should to happen to the little boy. It is a curious feature of this case that prior to the causation hearing, the case management of it had included an order made on 15 August 2005 by Judge Ellie, that Doctor Emma Williams, a psychologist, should file and serve a report by 17 October, that is before the causation hearing. Unfortunately the documentation does not demonstrate clearly on what basis Doctor Williams was to be instructed or what precisely was to be her brief. There is some suggestion that it was to include the question of propensity, but Mr Ageros rightly points out that if that was the case it should not have been, because propensity was not an issue that was material for the judge who was deciding a pure issue of fact.

4. What in fact happened was that Doctor Williams did produce her first report prior to the hearing before the judge. It is dated 12 October, and she lists what her instructions were. They were to assess and describe the cognitive functioning of the parents; the attachment of S to his parents; his parents' capacity to provide consistent nurturing and safe parenting for him; to identify any changes that would be required to enable the parents to resume his care; what the timescale for that was; and, if she did not think the parents were able to care for him, what alternative placement there should be.

5. Doctor Williams produced, as I indicated, her first report and in my judgment it is an extremely good report. It contains a thorough investigation of both parents (with psychometric testing) but of course, as Doctor Williams was the first to recognise, this opinion, or any opinion she was seeking to express, was expressed in advance of the finding of fact hearing. The parents denied injuring the child, and therefore clearly it was not possible for Doctor Williams to form a final opinion until such time as the finding of fact hearing had been completed. Therefore she said that the remaining issues would be addressed by her once she had had the opportunity to see the judgment in the causation hearing.

6. She goes on to say that in relation to the second, welfare aspect of the case:

"… the acceptance of responsibility would be a fundamental requirement. The level of parental of acceptance responsibility for the injury/injuries as opposed to continued denial is a crucial factor in considering the likely success of reunification following serious non-accidental injury."

That was her first report. She reported for the second time on 1 January 2006 after the causation hearing had taken place. Once again she produces a concise description of her assessment of the parents, and she answers the question, "What is the level of their acceptance?" in these terms:

"The parents do not accept the findings. Both parents were vehement that the findings were biased and wrong. [The mother] interpreted the findings as 'being blamed' and the implications of the findings as 'having a lot of changes to make to prove him wrong'. [The mother] found it hard to believe that the judge had found the injuries to be non-accidental and caused whilst in their care."

She went on then to answer the question:

"In the light of the above what risks does either or both parents pose to S?"

and she says this:

"There is currently an impasse; the judge has found that both of the baby's fractures were caused non-accidentally, and whilst in the care of his parents, either one of whom might be the perpetrator. The parents continue to state that the tibia fracture was caused whilst under Claire Davis's care [that is a maternal aunt] and the skull fracture was accidental but without known cause. The risk of returning S to an environment in which he has twice sustained non-accidental injury, the antecedents and cause of which remain unknown, is considerable."

7. She goes on, when asked the question "What is their motivation, commitment and capacity to effect what changes are needed?" to report:

"Currently both parents stake strong commitment to wanting S to return to their care and are expressing some motivation to change. However the relevance of the changes proposed is not known; [the mother] cites stopping alcohol and cannabis use as important. [The father] said that he has reduced his use of alcohol at the request of his partner but felt that cannabis helped him to relax. The pertinence of these factors to the non-accidental injuries is unclear, and other potential factors remain unacknowledged and therefore unaddressed.

"Whilst mindful that the exact nature of the necessary changes is, as yet, unclear, there are no major impediments to either parent's capacity to change."

She then goes on, when asked about the therapy that would be required, to say that:

"… the following changes would be necessary. (1) Acknowledgment of the injuries as non-accidental thereby enabling (2) Admittance of causation of the injuries by the perpetrator (3) Understanding of factors involved in the incident, (4) Treatment or management of those factors. This might include the following types of intervention; practical parenting skills, cognitive- behavioural therapy (for example to challenge thinking errors, misattribution), emotional control (for example anger control training), examination of relationship problems and related difficulties, e.g. jealousy, and management of personality characteristics."

8. So that was the state of the expert evidence, as it were, when the matter came back before the judge on 2 December. He directed that Doctor Williams should complete her assessment of the parties in the light of the court findings and file and serve her final report in January.

9. By this stage the parents had come to the view, on advice, that what they needed evidentially in the proceedings was an investigation and assessment by an individual or organisation which would not start on the premise that if parents failed to acknowledge responsibility for injury, they were effectively precluded from resuming the care of their child. What in fact the judge did, when the matter came back before him on 23 January – and this is the order that is under appeal – was to give permission to the parties jointly to instruct a suitably qualified expert to carry out an assessment of S's current and likely future attachment to his parents and maternal grandparents, and that report must be filed and served by 17 March 2006.

10. As it happens, the expert selected for that joint exercise was Doctor Arnon Bentovin, who is an extremely well known child psychiatrist previously at Great Ormond Street Hospital, but now retired and essentially in private practice. No doubt because he has retired, he was able to produce his report in good time and that report is before us. What the parents sought before the judge on 23 January was that they should have permission to show the papers to an organisation called Resolutions. The form of the order that they sought was that there should be permission for them jointly to instruct a Mr Gumbleton of Resolutions to carry out a viability assessment in relation to the parents' capacity to care for S. Such a report was to be filed by a specified date, and the letter of instruction would be prepared by the parents' solicitors. The costs of the assessments were to be borne in equal shares by the parents relating as a disbursement on their selective public funding certificates. In the alternative, if the judge was not prepared to give them permission there and then, the request was that they should disclose the papers to Mr Gumbleton to enable him to advise the judge on the appropriate form of investigation.

11. A certain amount of information from Resolutions was placed before the judge. The philosophy of Resolutions is, I think, neatly summarised at page 48 of our bundle on the first page of what might be called a Resolutions flyer, where they say:

"Our view is [this is where there are injuries for which parents are not accepting responsibility] that while denial is a significant risk factor, it does not necessarily rule out rehabilitation. After assessment to ascertain the appropriateness of rehabilitation, we may also be able to offer therapeutic work to enable children to return home in as safe a way as possible"

The proposal was that, in order to qualify for a Resolutions assessment, the parents would have to acknowledge that the professionals in the case had legitimate concerns even if the parents did not agree with them. Resolutions recognised that whilst denying that they have injured their children, parents often say that they can understand why professionals are concerned given the medical evidence before the court. Secondly, the parents must be willing to work in partnership with professionals in an open and honest manner. They must be willing to examine the way in which they care for their child, and must be willing to make changes to care routines in order to help ensure their child's safety. They must be willing to accept a high level of professional support and monitoring of the child's welfare, and it is also helpful to have a wider support network composed of safe extended family members or friends who are willing and able to be involved in helping to ensure the child's safety.

12. Attached also was an article written by Mr Gumbleton and his colleague. Finally, and although this was not before the judge it is in my view of some significance, there was a letter from Resolutions dated 25 January 2006 answering questions from the mother's solicitor, during the course of which Mr Gumbleton says this:

"When we first began developing the Resolution programme approximately 14 years ago the response of most professionals was that it was not possible to work with situations where parents were deemed culpable for injuring their child but would not admit it. Professional opinion has moved on over the years and some of the most eminent practitioners in the field now accept our view that it is possible in some cases to work positively with such presentations. For example, Doctor Bentovim states when assessing child protection situations: 'the conclusions must take into account all aspects of the family's functioning and not focus exclusively on the presence or absence of denial, which is only one element of a much larger assessment'".

13. It is perhaps ironic in this case that the psychiatrist whose work Mr Gumbleton quotes is Dr Bentovim, who of course has now reported in this case. Dr Bentovim's report, which is available to us, is a lengthy and thorough document. It is of course true that Dr Bentovim was first and foremost invited to consider the question of attachment, but he does not consider the question of attachment in isolation. He considers the question of attachment within the wider scale of the family dynamic. In order to do that, he very properly saw all the relevant family members, including the maternal grandparents and the mother's two children by a former partner, who happens to be the father's brother, and the result of that assessment is very clear. I will not cite substantial extracts from it, because it will plainly be before the judge when the judge hears the evidence of Dr Bentovim, and the judge will have to make up his mind about it.

14. What Dr Bentovim was essentially saying was that this child had had a very unsettled first year of life because of what was on any view undoubtedly a very volatile relationship between his parents; both parents abusing cannabis, the father in particular abusing alcohol, regular arguments between them and occasional violence. As a consequence of this, the little boy had an insecure attachment with his parents. On the other hand, with his maternal grandparents he had developed a secure attachment and he looked to them essentially for comfort and support. Because Dr Bentovim took the view that S was in a crucial phase of his development, when he was making attachments, and when it would be dangerous to break the attachment to his maternal grandparents in order to replace it with an attachment with his parents, his opinion was that it would be dangerous to take that course unless it was entirely safe for S to be returned to his parents. Dr Bentovim, as I say, examined the matter in the round and looked at the family dynamics and looked at the question of safety; and of course one of the questions of safety had to be, as Dr Williams identified it, the question of the parents' lack of recognition of any degree of responsibility for the injuries which S had suffered.

15. Dr Bentovim, again in a very subtle way, demonstrates from his observations of the parents and what he says about them, that in his opinion they were at the very early stages of recognising that their relationship, in the early stages of S's life, was likely or may well have had an effect on S and may well have exposed S to situations of danger of which at the time they may themselves not have been properly aware. Dr Bentovim saw that as the first sign of the parents moving towards a recognition of what had happened to S, and therefore being able to appreciate that he may have been in danger, so that they needed to change their arrangements in order to ensure his safety.

16. That in my judgment is an assessment in the round, not merely of attachment, but of safety, but it is in no sense really inconsistent with what Dr Williams is saying. I do not read Dr Williams' report as being dogmatic, that no parent who fails to recognise that he or she has injured the child is ever capable of having a child back. It is an important factor in the equation. It is a factor which Dr Bentovim explicitly recognises and indeed which Mr Gumbleton also recognises.

17. So the position, it seems to me, that we reach is this; that if the court were to invite Mr Gumbleton to report, one of two things would be likely. First of all, he might well defer to Dr Bentovim. Alternatively he may well say that Dr Bentovim's and his approach to the matter are pretty similar, even though Dr Bentovim essentially was dealing with attachment and Mr Gumbleton would be dealing with recognition of behaviour on the part of the parents. This was, it seems to me, the point most forcibly made by Mr Ageros on behalf of the parents, that Dr Bentovim was looking at a different issue, not the issue which Mr Gumbleton would be looking at. With great respect I do not agree, but even if I am wrong about that, as we discussed during the course of argument Mr Ageros will have the opportunity during the course of Dr Bentovim's evidence to put to him the Gumbleton approach and the Gumbleton recommendation. And if Dr Bentovim is of the view that the sort of work which Mr Gumbleton recommends is capable of being undertaken, no doubt Dr Bentovim will say so.

18. It seems to me at the moment that Dr Bentovim's essential thesis is one which effectively has covered the work which Mr Gumbleton might himself do, and in these circumstances it seems to me that the parents are not forensically disadvantaged by the absence of a report from Mr Gumbleton. Mr Ageros will be able to cross-examine Dr Bentovim on the Gumbleton approach and the Gumbleton advice and, as we gather from the local authority, the local authority itself has a relatively open mind as to the terms of its care plan. They wish to keep this child within the wider family. They certainly think that for the time being, for the foreseeable future, he should live with his maternal grandparents, but under what structure, whether it is a care or supervision order; and what work should be put in place and so on, are all matters for argument before the judge and decision by the judge on Wednesday or whenever he comes to give his judgment.

19. Of course, local authorities work on the basis that wherever possible children should remain in their natural families; wherever possible children should be cared for by their own parents. It seems to me that it is open for argument in this case that although the argument may well be, both from the local authority and from the guardian, that this child should for the foreseeable future stay with his maternal grandparents, the door is by no means closed to the parents to resume his care in the future. But in order to do so, even on Mr Gumbleton's analysis, they will have to recognise a degree of responsibility for what has happened, the first glimmerings of which, as I indicate, are demonstrated in the report of Dr Bentovim.

20. So it seems to me that the judge was plainly right, in the circumstances, to refuse to allow the parents to have a further expert. If we were to remit the matter now to the judge to reconsider the point, I am quite satisfied that in the light of Dr Bentovim's report he would inevitably reach the same conclusion particularly, as I indicated, if it is open to the parents to cross-examine Dr Bentovim along the lines that I have indicated.

21. During argument, I hope not facetiously, I indicated from my own experience as a first instance judge that in my experience it was extremely rare for parents to recognise that they had injured a child. There were all sorts of reasons for this. There was the social stigma; there was also the risk of prosecution. It by no means follows that because a parent is unable to recognise that he or she has injured a child that he or she is debarred for all time for caring for that child, but the experts are in fact united in their view that the inability to recognise that a child has been injured by one or both of them is an important factor in the safety equation, and until one can be satisfied that a child is going to be safe in a household the child cannot simply be returned. If one does not know what happened to a child, if one does not know how a child has been injured, one does not know that it is not going to happen again. So I do not see Dr Williams taking a doctrinaire view. I certainly do not see Dr Bentovim taking a doctrinaire view. To the contrary, Dr Bentovim is taking a principled stand on the basis of his observations of the parents and his considerable expertise.

22. So in my view, everything is up for argument next Wednesday. The judge was in my view plainly right on the facts available to him, and as they have transpired now with Dr Bentovim's report, to refuse to grant permission for a further expert and in those circumstances, having given permission to appeal, I myself would dismiss this appeal.

23. LORD JUSTICE MAY: I agree that this appeal should be dismissed for the reasons which Wall LJ has given. In my judgment it was well within the competence of Judge McIintyre to decide that it was disproportionate to direct the involvement of Mr Gumbleton and Resolutions in this case. This is reinforced, I think, and as I think Mr Ageros in effect says, by the more recent report of Dr Bentovim, who I understand will be available with Dr Williams to give evidence and be cross-examined at the hearing arranged for next Wednesday.

24. S will be two on Monday and these proceedings in relation to him need to move forward. His welfare, which is the court's concern, did not and does not speak in favour of the length of delay which the involvement of Resolutions would predicate if the parents' position were to receive material evidential support. More importantly perhaps, the judge was entitled, in my view, to conclude that the volume and nature of evidence that will be before the court is sufficient for the court to make such decisions as are to be made in relation to S's welfare.

Order: B4/2006/0226 – Permission to appeal granted. Appeal dismissed.

B4/2006/0268 – Permission to appeal granted. Extension of time granted. Appeal dismissed.