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Law - UK Law - Munby Judgement
Mr James Tillyard QC (instructed by the Head
of Legal Services) for the applicant (the local
authority)
Mr Michael Keehan QC and Ms Ruth Henke (instructed by Avery
Naylor Wilson) for the first
respondent (the mother)
Mr Mark Allen (instructed by Graham Evans & Partners)
for the second and third respondents
(the maternal grandmother and step grandfather)
Mr David Crowley (of Howe & Spender) for the fourth respondent
(the child)
The child's father (MD) was neither present nor represented
Hearing dates (in Cardiff : 27 31 May 2002
Approved Judgment
Honourable The Mr Justice Munby Re C
Approved Judgment
I direct that pursuant to CPR PD 39A,: ar 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.
The Honourable Mr Justice Munby
This judgment was handed down in private on
1 July 2002. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict
understanding that in any report 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 children and the adult members of their family must be
strictly preserved.
The Honourable Mr Justice Munby Re C
Approved Judgment
Mr Justice Munby:
1. These are care proceedings under the Children
Act 1989 in relation to a little boy, L,
who was born on 6 April 2001. His mother and father were never
married. His father,
MD, plays no effective part in the proceedings. His mother,
D, was born on 20
September 1980. She had a previous child by another man, a
little girl, M, who was
born on 19 June 1997 and who died on 10 November 1997. In
the mean time, in about
August 1997, D had begun a relationship with an older man,
SC. That relationship
broke down in 1998.
2. Because of the circumstances in which M had
died it was decided at a Child Protection
Conference on 16 February 2001 that L should be placed on
the Child Protection
Register at birth. Care proceedings were started on 9 April
2001, three days after L
was born. Initially the plan was for L to be placed with D
at the home of the maternal
grandmother, S, and then in a residential unit. Within days
the plan was changed. An
interim care order was obtained on 12 April 2001 and L was
placed with foster carers,
Mr and Mrs J, with whom he has remained ever since.
3. In order to defend themselves against any
allegations that might be made in relation to
M's death, both SC and S were granted leave to intervene in
the proceedings.
4. Pursuant to directions given by Coleridge
J on 11 May 2001 and by Sumner J on 30
July 2001 a threshold hearing took place before Connell J
in November 2001. On 23
November 2001 D submitted to a consent order which recited
that it was made "on the
basis that [D] caused [M's] death" and provided that
the Court had found threshold
established on the basis of a "document submitted to
the Court and agreed by the
parties". SC and S were granted leave to withdraw from
the proceedings.
5. The agreed threshold document was in the
following terms:
"1 [D] accepts Professor Meadow's opinion
in that:
"No natural cause of death was identified.
That does not exclude possibility of natural disease but the
circumstances of her ([M]'s) sudden collapse and the presence
of previous injuries, characteristic of physical abuse, make
it more likely that the cause of death was from an unnatural
cause, such as smothering."
2 She therefore accepts that on the current
medical
evidence, and on the balance of probabilities:
a. [M]'s death was unnatural, and
b. It is likely that it was caused by suffocation.
The Honourable Mr Justice Munby Re C
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3 She however continues to assert that there
is possibility that [M]'s death was caused by a yet unascertained
natural cause.
4 [D] specifically and firmly denies that she
did anything that might have caused [M]'s death. She specifically
denies smothering [M].
5 However, given the factual circumstances surrounding
[M]'s death and the overwhelming current medical evidence,
she accepts:
a. That the Court will find the balance of
probabilities, that she caused [M]'s death, and
b. that any future assessment of her ability
to care
for a child will have to proceed on that premise.
6 [D] accepts that:
a. The rib fractures were non accidental and
were
caused by [M] being squeezed or gripped, and
b. the facial bruising was non accidental,
and that they both occurred whilst the child
was in her care, and that of [SC] and [S]. In the premise
she failed to protect [M] from injury.
7 Having regard to the matters set out above
on the balance of probability, it is accepted that the Court
will find that [D] caused significant harm to her child [M],
and as a result [L] is at risk of suffering harm whilst in
the care of his mother."
6. Both before and after the threshold hearing
the plan had been for D to be assessed with
a view to possible habilitation of L to her care. That plan
was abruptly terminated in
March 2002 following an unfavourable report from a Consultant
Child and Family
Psychiatrist dated 13 March 2002, amplified in a further report
by him dated 11 April
2002. An assessment of S and her partner P dated 25 March
2002 recommended
against placing L with them. The local authority's care plan
dated 7 May 2002 was
accordingly for adoption. Thus the general shape of the case
when it came on for
hearing in front of me on 27 May 2002.
7. Thus far the case would appear to be of a
type with which the court is, unhappily, all
too familiar. But to understand what it is that takes the
case somewhat out of the
ordinary and what it is that has given rise to the important
points of practice on which I
now give judgment I must first go back and recapitulate the
course of the proceedings
in more detail.
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Approved Judgment
8. On 3 May 2001 D applied for a direction under
section 38(6) of the 1989 Act for a
mother and baby assessment in a residential home. That application
was adjourned at
the hearing before Coleridge J on 11 May 2001. On 30 July
2001 Sumner J made an
order by consent giving leave to the local authority, D and
L's guardian "to jointly
instruct" the well known Consultant Child and Family
Psychiatrist Dr J "for the
purposes of providing a preliminary report to the Court upon
the potential avenues for
the management of this case after the November hearing".
Dr J is highly expert in cases
of this kind. His letter of instructions was dated 6 August
2001. In accordance with
Sumner J's order it had been drafted by the guardian's solicitor
and approved by the
other parties. It made it clear to Dr J that he was being
instructed on behalf of the local
authority, D and L's guardian. Appropriately it included this
reminder to Dr J:
"It is essential to your role as an independent
expert and to the parties' perception of your independent
status, that there are no informal unrecorded discussions,
or correspondence with any of the professionals or lay parties
involved in this case."
9. Together with his colleague Ms N, a Senior
Social Work Practitioner, Dr J assessed D
on 29 August 2001. Later the same day there was what was described
as a
"professionals meeting" attended by, inter alios,
Dr J, N, L's guardian and the local
authority's lead social worker, Mrs HD. D was neither present
nor represented. It
appears that no minutes of this meeting were taken. The only
record which has been
produced are notes taken by Dr J for his own clinical purposes:
they were not
disclosed to anyone until after the final hearing before me
had begun.
10. Dr J and N assessed D again on 14 September
2001. Dr J discussed the case with N on
24 September 2001. His note of the discussion recorded that
"our observations were
not positive, by and large". He provided an initial report
dated 3 October 2001. The
report stated that:
"[D] will need a high level of therapeutic
intervention both in relation to her own personal life story
and her parenting ability, if she is to be able to assume
care of [L] and offer him appropriate parenting . ... We feel
... that if a successful family unification were to be achieved
it would take longer than the Family Unit at [my] Hospital
is able to offer. Further psychiatric intervention therefore
would need to be linked with a longerterm residential mother
and baby type placement ... [my] Hospital would initially
offer a two week residential admission for [D] with [L]. The
aim of such an admission would be both to continue with a
more detailed assessment and also to consider whether [D]
is able to respond to parenting advice/support and individual
personal therapy . ... In summary, therefore, while we feel
that [my] Hospital Family Unit could have a further assessment
and treatment role with this family, we do not feel that this
service on its own would be enough to achieve a successful
family unification."
The Honourable Mr Justice Munby Re C
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11. On 19 October 2001 the guardian telephoned
N. The only record of this conversation
which I have been shown is N's note which records:
"Guardian ad litem and the social workers
involved with [L] have expressed concern following receipt
of the report from the ... Hospital, which they feel puts
a more optimistic slant on the assessment than was perhaps
shared at the professionals' meeting following the all day
assessment. Guardian ad litem and I discussed the fact that
[Dr J] and [N] had met with [D] for a second appointment as
planned, and had felt slightly more encouraged re the possibility
of her engaging in psychological work following that second
meeting. Hence this was reflected in the report that was submitted."
12. On 23 November 2001, as I have said, Connell
J made threshold findings.
13. On 4 December 2001 HD had a meeting with
D to discuss her reaction to the threshold
hearing. HD's contemporaneous note shows D saying
"she knew she hadn't caused the injuries
to [M], although she said she recognised she'd failed to protect
[M] from injury (but not death). She said "I did fail
to protect her, in a way"."
14. HD described this occasion in her subsequent
witness statement dated 7 May 2002:
"[D] had moved her position slightly in
that she felt responsible for taking [M] to live at [SC's]
home. She continued to deny that she caused any of [M's] injuries
prior to her death and denied any part in her death. I explained
that her lack of acceptance of any responsibility was a serious
block to her caring for [L] and of people feeling confident
that she could do so safely."
15. The essential accuracy of that summary is
borne out by HD's own contemporaneous
note and accords with a letter referring to the meeting which
D's solicitors wrote to
the local authority on 5 December 2001.
16. On 12 December 2001 Dr J and N again saw
D. Dr J's clinical notes state:
"Choices are admit for assessment or decide
that likelihood is too slim of rehabilitation."
17. On 18 December 2001 there was what was described
as a "professionals meeting", this
time attended not merely by Dr J, N, the guardian and HD but
also by the guardian's
solicitor and the local authority's solicitor. Again, D was
neither present nor
represented. Again, it appears that no minutes of the meeting
were taken. The only
records that have been produced are the notes taken by Dr
J for his own clinical
The Honourable Mr Justice Munby Re C
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purposes: they were not disclosed to anyone
until after the hearing before me had begun. The notes exist
in two forms: the manuscript notes taken by Dr J whilst the
meeting was in progress and a typed `process note' which he
dictated immediately after the meeting had ended. Each version
is consistent with the other; in some respects they usefully
complement each other.
18. Because the discussion at this meeting is
so central to an understanding of Dr J's
analysis of the case I must cite a number of extracts from
his two notes.
19. Dr J listed his assessment of "what
would need to change", that is, the "criteria with
which to gauge whether it was appropriate to move on to future
stages in the direction
of reunification". The list (which I derive from conflating
information in both of Dr J's
notes) is as follows:
1 A clearer understanding about what happened –
? the ABC of abuse
? appropriate psychological work on the consequences
of that new found acknowledgement
? a genuine empathic concern for [M]
? the understanding should extend to both the
physical
abuse over time, as well as the death itself
2 Development of attachment behaviour in the
child (L)
3 Improvement in parenting/care giving behaviours
4 Open and honest working relationships
• an improved working relationship with
professionals network social work especially includes taking
and generalising with advice
• more openness and honesty in relationships
generally.
20. In his oral evidence before me Dr J explained
that ABC stood for the Antecedents
Behaviour and Consequences of maltreatment.
21. In his `process note' Dr J included the
following observations:
"The situation is clearly difficult to
decide because there are several negatives, yet the case is
not as bad as some ..
... we all agreed that it was not possible to
be optimistic about the possibility for successful rehabilitation.
However, on the
The Honourable Mr Justice Munby Re C
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other hand, one could not write her off completely
because she has made some changes over the past several months
. .. .
We came to the conclusion that it would be inappropriate
to launch into a two week residential assessment because the
likelihood of emerging from it in the direction of further
plans towards reunification seem slim at this stage. Also
it was agreed that in this particular case there would need
to be a greater degree of acknowledgement of responsibility
on [D's] part for the harm to [M] in order to move forward
safely with respect to her parenting of [L]. That being the
case and because we are uncertain whether this is even feasible
([D] herself has made it clear that she did nothing other
than fail to protect, and was quite adamant with us in the
last session with us on this question), we feel that we must
have a preliminary phase of seeing whether there can be any
shift in this with [D] more intensively that can be achieved
in an out patient setting. Therefore, we agreed at the meeting
to have a three day assessment admission for [D] individually
... to see whether she will shift on the question of acknowledgement.
If she won't then, we will not move further forward towards
reunification. If she does, then we would propose a two week
assessment admission to include the baby. The difficult issue
is just how far she's got to go along the dimensions of acknowledgement
/admission.
For the three day admission, we will expect
there to be some significant movement with respect to acknowledgement
of responsibility for harm to [M] . ... Furthermore, we need
to have some beginnings of acknowledgement, at least of the
feasibility that she suffocated [M] (even if she feels she
can't remember it, etc). If she does not make progress with
acknowledgement of harm then it seems fairly clear that we
will not be able to move forward. If on the other hand she
does, then we will still be left with all the issues of social
isolation and questions about her personal capacity to use
psychological treatments effectively. Both of these will need
extensive thought and assessment in any rehabilitative plan.
In summary, it would be extremely unlikely that
she will be able to care for [L], but we feel it necessary
to be certain ..."
22. Now just pausing there, Dr J's approach
is clear enough. As the documents show, and
as Dr J in fact confirmed in the witness box before me, his
view was that if D was to
progress beyond the three day in patient assessment on her
own to the two week
residential assessment with L
i) There had to be a significant movement on D's part towards
a greater degree
of acknowledgement of her responsibility for having harmed
M.
The Honourable Mr Justice Munby Re C
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ii) That movement had to take place during or,
to be more precise, at the latest
by the end of the three day assessment.
iii) If by the end of the three day assessment
there had not been a sufficient shift by
D in this direction, then the process of moving towards reunification
would be
brought to an end and the two week assessment would not take
place.
iv) In other words, they key benchmark which
Dr J had identified as requiring to
be met if there was to be the two week residential assessment
of D with L was
a "significant" shift in D's acceptance of responsibility
for harming M.
23. In terms of his four point list as I have
set it out in paragraph [19] above, and again Dr
J confirmed this in the witness box, what needed to change
by the end of the three day
assessment was D's attitude in relation to item 1. If there
was change in relation to
item 1, then all well and good, and items 2, 3 and 4 could
be addressed subsequently. If
there was insufficient change in relation to item 1, then
that would be that. In particular
and this is a very important point no amount of change in
relation to items 2, 3 or 4
could make up for, or counter balance, an absence of change
in relation to item 1. So
although Dr J had, as it were, mapped out the overall programme
of change which
would be required before deciding that reunification was indeed
appropriate, the
critical determinant of any move to the two week residential
assessment was item 1,
and item 1 alone.
24. On 20 December 2001 the guardian's solicitor
(who had, of course, been present at the
meeting on 18 December 2001) wrote to D's solicitors. Referring
to the meeting he
said:
"Formal minutes were not taken. Its purpose was to conduct
a
Professionals planning meeting and to determine the next steps
that may or could be undertaken.
I do not intend to set out the views formed by [Dr J] at this
stage regarding your Client . ... Suffice it to say that active
consideration is being given to admitting your Client for
2 3
days for the purpose of intensive work focussing upon the
findings at the threshold hearing. I understand that there
will be
a further review immediately after that admission."
25. There was in fact a three day assessment
from 2 4 January 2002. On 3 January 2002 D
had two sessions with N. N's note of the first session begins
as follows:
"I began the session by explaining
to [D] why we had asked her
to come for the 3 day admission. She had very little idea
prior
to coming in. I explained to her that, in relation to her
making
decisions about [L] it was very important for us to know and
understand more about the circumstances leading to [M's]
death. I explained that, in relation to thinking about the
possible
The Honourable Mr Justice Munby Re C
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risks to [L], we would need to be very clear
about what had happened to [M] in order to make that assessment.
I acknowledged that it would be difficult for her to say more
than she had already talked with us about but encouraged her
that this was really the way forward for her in terms of the
possibilities of resuming care of [L]."
26. On 7 January Dr J chaired a staff group
discussion with N and the nursing staff who
had looked after D. His notes of the meeting include two comments
of some
importance:
"Observation of interactions here were not very impressive."
"Clear progress re empathy [and]
re lack of protection, not with
maltreatment itself."
27. That last comment neatly encapsulated the
essential issue and the dilemma facing Dr J
and his team. Given that, although there was clear progress
in relation to D
acknowledging that she had failed to protect M, there was
no progress in terms of her
acknowledging that she had herself harmed M, was there nonetheless
sufficient
progress overall so as to justify moving forward to the two
week residential
assessment of D and L?
28. The note expressed the meeting's conclusion
as follows:
"Although no progress made re direct actions
of abuse; there have been in other domains. (This is difficult
because the statement is agreed, rather than subsequent to
a hearing). Hence we will recommend a 2/52 trial/assessment
with meeting at 2/52 stage."
29. On 14 January 2002 Dr J provided a further
report for the court. Reporting on the
three day assessment he said:
"This was a successful admission
enabling us to clarify our view
as to whether we felt that further assessment and treatment
work within our Unit was indicated. The outcome is that we
think that it is and that there is sufficient indications
of a positive
nature to justify an initial assessment admission of [L] with
his
mother. We would not propose this way forward unless we
thought that there was a reasonable possibility that [L] could
be
cared for by his mother. Although I would not put the chances
of this much higher than possible at this stage, I think
nonetheless . . . there is a reasonable possibility
The overall proposal ... is for an initial two
week period of residential assessment for [L] and his mother,
followed by a further period of approximately four six weeks,
should the
The Honourable Mr Justice Munby Re C
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outcome of the first two week period be generally
regarded as successful . . .
... successful outcome in the direction of reunification
is by no means a certainty at this stage, but the aim of the
work proposed as an in patient at the Family Unit is in part
to clarify this conclusion ..."
30. Pausing there, and comparing the criteria
for `success' which Dr J had formulated at
the professionals meeting on 18 December 2001 with his evaluation
on 7 January 2002
of what had in fact been achieved by the end of the three
day assessment, one is
perhaps entitled to wonder whether, even on Dr J's own evaluation
of events, his
criteria had in truth been met.
31. The local authority was obviously doubtful,
for on 17 January 2002 HD drafted a letter
asking Dr J amongst other things to clarify and expand his
reference to "sufficient
indications". A copy of the draft letter was passed to
the guardian's solicitor who
telephoned Dr J the same day, indicating (according to Dr
J's note of the conversation)
that HD was "not happy" and was "very concerned
re this going ahead at all". Later
the same day the guardian's solicitor sent Dr J a copy of
the draft letter.
32. The next day (18 January 2002) the case
came before Holman J for directions. He
directed that Dr J was to reply to HD's letter as soon as
possible, that the local
authority was to indicate by 1 February 2002 whether it was
prepared to agree to and
fund the course of action proposed by Dr J if not, D's section
38(6) application was
to be heard on 13 February 2002 and that the matter was to
be listed for further
directions on 18 March 2002. A letter which the guardian's
solicitor wrote to Dr J on
22 January 2002 is illuminating:
"I duly appeared before Mr Justice
Holman ….
He was fully informed of the developments and his immediate
response was to say of you "he does not know of any other
Doctor in the field who demonstrates such a caring and
conscientious attitude". He was giving the Local Authority
a
very firm indication that they would be completely at odds
with
Judicial thinking if they went against advice that you tendered.
Counsel for the Local Authority accepted totally the position
that the Local Authority is in. The matter now is of convincing
the Social Worker."
33. On 23 January 2002 the local authority wrote
to Dr J enclosing a copy of HD's draft
letter and asking for his response as soon as possible.
34. Dr J reported on 24 January 2002. Responding
to the local authority's request for
elucidation he wrote:
The Honourable Mr Justice Munby Re C
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"[D] does not acknowledge having caused
direct harm to [L]. In fact she denies having done so However,
she was clear that she knew her partner must have done so
... but at the time she accepted his explanations and didn't
question him further. She is extremely remorseful about this
lack of action on her part in retrospect and chastises herself
for not having been more active on [M's] behalf. However,
there are other indicators which we think are significant,
besides those centering around direct acknowledgement of abusive
acts. For example [D] ... recognises that she did not care
for [M] adequately emotionally or in terms of cognitive stimulation
. ... In addition, she has expressed considerable empathic
feelings for [M's] plight, and experiences feelings of guilt
and personal responsibility for her failure to protect. She
states repeatedly and in different ways that she is responsible
for her death, in that sense and should have `read the signs'."
35. In his report Dr J also said this:
"If she can care for [L] safely then in
our view she should be given a chance to do so, and indeed
[L] should be given a chance to be cared for by his birth
mother, if the prospects for habilitation are reasonably good.
In order to gauge this, we propose a staged approach with
regular times in which the professional groups stop and think
and consider whether there is truly a reasonable prospect
of success. In that way we suggest that the balance .. does
tip in favour of an attempt at habilitation".
36. On 29 January 2002 D had contact with L.
The contact supervisor, Miss LH, made the
following record in the contact notes:
"[D] came out with a very strange comment
... She was talking about going to [Dr J] with [L] and what
the daily routine would be. [D] said, with a smile, that she
wouldn't be supervised all the time and that "there are
no cameras in the rooms so they can't see me all the time".
This shocked me because of the way it was said the tone of
[D's] voice as if in a "smug" tone and with a smile
on her face ... I felt uncomfortable by this comment."
37. On 4 February 2002 a representative of the
local authority spoke to Dr J, raising a
number of queries arising out of his report of 24 January
2002. The note of the
conversation prepared by the local authority recorded that
Dr J:
"wished to make clear ... that [D] had
only made a partial acknowledgement and she has not made a
complete acknowledgement .. . of what has happened to [M].
He felt that it was important for people to know that, whilst
[D] had
The Honourable Mr Justice Munby Re C
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conceded the Threshold Criteria at the Finding
of Fact hearing, she had still not acknowledged this in full
to him.
Dr [J] felt it was important for the parties
to know at this stage of this "partial acknowledgement".
He felt that [HD] had raised a very important point in asking
for this to be clarified."
38. The local authority obviously felt that
note to be sufficiently important to send it to Dr
J under cover of a letter dated 7 February 2002 asking him
to sign it as confirmation
that he agreed with it. For some reason, and despite Dr J's
reference to the importance
of "the parties" knowing of these matters "at
this stage", the note was not copied to D
or her solicitors or, so far as I am aware, to anyone else.
39. Be that as it may, later on the same day
as the telephone conversation (4 February
2002) the local authority wrote to the guardian's solicitor
to confirm that it was
prepared to agree to and fund the course of action proposed
by Dr J. The same day it
communicated the same information to D's solicitors.
40. On 5 February 2002 Dr J telephoned the guardian's
solicitor to say that he wanted to
meet with HD, her team manager and the guardian prior to D's
admission. It appears
from a letter which the guardian's solicitor wrote to Dr J
on 7 February 2002 that the
purpose of the meeting, as he understood it, was that:
"[Dr J] would like to try and secure
a meeting of minds before
we actually embark upon the work."
41. On 6 February 2002 the guardian's solicitor
wrote to Dr J enclosing a copy of the local
authority's letter of 4 February 2002. He added:
"Perhaps we can also now consider future
issues such as the professionals' meeting ... together with
exploration of contingent planning to handle a residential
placement should the matter progress to that point."
42. On 7 February 2002 the guardian's solicitor
wrote to D's solicitors telling them that Dr
J wanted to meet with HD, her team manager and the guardian
prior to D's admission.
They replied the next day (8 February 2002):
"Our client is happy that the meeting
will proceed as Dr [J] has
suggested ... Ideally, our client would wish to be present
at
such a meeting, as she was excluded from the previous meeting
which was held on the 18th December 2002 [sic].
Our client's understanding is that the Local
Authority have agreed to pursue with Dr [J's] recommendations
and she is concerned that they will now retract such an agreement
. ..
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Our client would like it noted that [we are]
aware that in the meeting on the 18th December 2002, no formal
minutes were taken of that lengthy discussion. We would, therefore,
ask that minutes are taken of the next meeting and will be
made available to all parties."
43. That letter obviously found its way to the
local authority. On 13 February 2002 the
guardian's solicitor replied:
"I am only concerned to have feedback
from Dr [J] following
the meeting. Formal minutes will not be kept. The presence
of
your client and any representative on her part would not assist
the purpose identified by Dr [J]."
44. On 15 February 2002 the local authority
responded:
"With regard to the meeting between Dr
[J], the Guardian and the Social Worker we would point out
that this is a professionals meeting, which has been requested
by Dr [J]. The reason that your client was "excluded"
from the meeting held on 18 December 2002 is that she is not
one of the professionals involved in this case.
With regard to Dr [J's] recommendations, as
you will know the Local Authority have indicated ... that
they agree with Dr [J's] recommendations and agree that the
course of action which he advises should be pursued. Kindly
reassure your client that it is not the intention of the Local
Authority to "retract such an agreement"."
45. The meeting had been planned to take place
on 18 February 2002 but had to be
cancelled because Dr J was ill. It was re fixed, as D's solicitors
were informed on 4
March 2002, for 7 March 2002. The result was that D's admission
was also delayed, a
matter that understandably caused her worry and that led to
her solicitors writing to
the local authority on 28 February 2002. The guardian's solicitor
responded on 4
March 2002 and the local authority on 6 March 2002, both saying,
in effect, that they
were completely in Dr J's hands and could not dictate to him
when she should be
admitted. The guardian's solicitor added:
"Admission will no doubt be considered
by Dr [J] at the meeting
on the 7th of March."
46. On 7 March 2002 the meeting took place.
Those present were Dr J, HD and the
guardian. D was neither present nor represented. Yet again,
it appears that no minutes
of the meeting were taken. Again, the only records that have
been produced are the
notes taken by Dr J for his own clinical purposes. These exist
in two forms: the
manuscript notes taken by Dr J whilst the meeting was in progress
(not disclosed to
anyone until after the hearing before me had begun) and typed
`notes' which he
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dictated immediately after the meeting had ended
(not disclosed until 11 April 2002
see paragraph [65] below).
47. For the purposes of the meeting HD had asked the contact
supervisor, LH, to prepare
summaries, based on the contact records, of what were listed
as `Aspects in relation to
parenting'. One, headed "positives", listed five
numbered points:
"1 Mum is always there for contact
never misses.
2 Is willing to change contact times as long
as she has her
time.
3 Interacts quite well at times with [L], using
appropriate
"baby talk".
4 Can provide some basic care.
5 Appears happy to see [L] at contact times."
48. The other, headed "negatives",
listed no fewer than sixteen numbered points:
"1 Will not accept advice from anyone in
relation to [L]'s
care.
2 Does not change [L]'s nappy unless dirty,
or is reminded
to.
3 Does not buy anything for [L], or provide
for him in any
way.
4 Repeatedly told to buy reins for highchair
to feed [L],
even though H. V. has said not to feed him in walker [D]
continues to do it.
5 Does not contact carers to ask about [L]'s well being.
6 [D] does not ask workers about [L]'s progress
or well
being when contact has not taken place, i.e. over the weekend.
7 [D] constantly complains about [L]'s clothes
and the
care that he is receiving complains about Social Services.
8 Poor relationship with mother and [P] Flack
continued
squabbling in presence of [L].
9 [D]'s present life style is visiting local
pubs that are rough and known to the locals, and the police,
as places to take drugs.
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10 [D] prefers to buy [X] her boyfriend gifts,
spending money on socialising, meals out, going to the pub,
visiting cinemas, etc., rather than prioritising [L]'s needs.
11 [D]'s continual denial of her relationship
with [X].
Repeatedly saying that [X] was just a family
friend when in fact she has been making comments to works
that indicate that this relationship is more than "just
friends", and has actually been going on for 5 6 months.
I.E. [D] told supervised contact worker at Christmas time
that [X] has "finished" with her, and that [X] wanted
his freedom. [D] says that [X] knows all about "her business",
and that he will "wait for her" if she goes to [the
Hospital].
12 [D]'s continual variations of the "truth",
e.g.
[D] would deny drinking any alcohol when going
out to pubs, and Clubs. However, she admitted to the contact
worker to having a headache one contact session. When questioned
to see if [D] was ill, she replied, smirking, "It's a
hangover more like". [D] also talks to the contact worker
about various alcoholic drinks that she has consumed, and
recommends which ones to try!
13 [L]'s lack of eye contact with [D], and turning
away
from her when she tries to kiss him.
14 Unexplained bruises on [D]'s stomach before
Christmas
2001.
15 [D]'s personal hygiene, body odour, and cleanliness
of
the house, not good.
16 Inappropriate chastisement, e.g. repeatedly
pointing her
finger in [L]'s face, and saying in a very loud voice "No"."
49. HD took these documents to the meeting and
handed them to Dr J as she was leaving.
It is apparent from Dr J's notes, however, that although they
were not specifically
referred to she used them in part as `speaking notes' for
her contributions to the
discussions during the meeting.
50. As indeed in the case of the professionals'
meetings on 29 August 2001 and 18
December 2001 no formal agenda had been prepared for the meeting
on 7 March
2002. On this occasion the omission was to have very unfortunate
consequences. The
guardian and HD had arrived at the meeting assuming it would
seem with some
justification that the matters to be discussed, and on which
Dr J was seeking a
meeting of minds, were the two questions which Dr J's notes
identified as having been
formulated by the guardian's solicitor: (i) when was D's admission
to Dr J's unit likely
and (ii) what contact between D and L should there be in the
run up to the proposed
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admission (a topic which D's solicitors had
raised with the local authority in their letter of 28 February
2002)
51. No sooner had they arrived, however, than Dr J announced
that, as he put it in his oral
evidence, "I want to go back a step". As Dr J's
typed note then records:
"We established that the primary agenda,
prior to addressing the above two questions was to seriously
consider the current situation affecting [L] and his mother,
and to stop and think at this point in order to review the
process by which the current decision point to admit had been
reached; to consider whether this remained the correct decision;
and to review case progress in relation to the original criteria
which we had established through which to gauge progress.
All present agreed that this was the most important area to
discuss prior to considering whether to admit and what to
do about contact in the interim."
52. The guardian's evidence was that she and
HD were "very surprised" when they heard
Dr J's agenda. She was unaware that prior to the meeting Dr
J had already begun a
process of revision of his earlier conclusions: this had not
been communicated to her,
to her solicitor, Mr Crowley, or, to the best of her knowledge,
to the local authority.
She had assumed that the purpose of the meeting was to plan
the timing and
management of D's admission. Dr J agreed in his oral evidence
that both HD and the
guardian had been surprised at the line he was taking at the
meeting.
53. Following a discussion of events since his initial involvement
Dr J then summarised his
position:
"the .. team were becoming increasingly
concerned about the direction of the case, as the move in
the direction of reunification continues, yet with seemingly
insufficient progress with respect to key criteria, which
we had established during the early stages of working with
[L] and his mother. [Dr J] explained that we were doing everything
possible to give [D] space and room to make the appropriate
changes and that had probably explained the difference between
the tenor of our original oral feed back after the first assessment
at the ... Hospital, compared with that in the report that
we subsequently wrote. We clarified, therefore, that our intent
had been to provide an opportunity for change and attempt
to enable [D] to get into a position where a rehabilitative
approach might be feasible.
In our meeting subsequent to the finding of
fact hearing, we thought there were some, albeit small, signs
that [D] was shifting in her position concerning harm to [M].
However, that optimism had not been subsequently confirmed."
The Honourable Mr Justice Munby Re C
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HD then listed some "new and recent concerns"
which to judge from Dr J's notes reflected items 1, 3, 5,
6, 8, 9, 11, 13 and 16 on LH's list of "negatives".
She referred also to concerns about D's capacity to work co
operatively with professionals, particularly the local authority,
and about the very different views of D's own childhood given
by D and by her mother, S.
55. Dr J's typed note then summarises the discussion
in a long passage that I ought, I
think, to set out verbatim:
"In the light of these concerns
we discussed the current plan to
proceed with an assessment in the direction of continuing
to
assess the viability of re unification, with [Dr J] raising
a series
of concerns which he and fellow team members had been
debating amongst themselves.
In the first place we are concerned that an
assessment admission
may involve considerable disruption for [L] in relation to
his
current attachment and relationships with substitute carers.
The
overall view was that one would need to be reasonably sure
that
an initial assessment period would lead in a positive direction,
in
order to justify the harm caused by disruption to [L]. In
our
view there would have to be a reasonable likelihood of success.
However, the disruption caused might not be too great if there
was a programme of visiting from his substitute carer during
the
admission. However, notwithstanding this, the .. Hospital's
policy has been not to admit children from foster care with
their
parents unless there is a reasonable likelihood of proceeding
forward towards re unification.
We next therefore considered the family's progress
in relation to the original criteria we established for considering
re unification. Firstly [D] has not moved significantly on
the issue of abuse. This is seen as a significant stumbling
block to re unification particularly in view of the clear
cut nature of the Findings of Fact.
With respect to co operation with professionals,
there has been a marked tendency to misinterpret what professionals
are feeding back to her. The example was provided of her difficulties
in respect to a male contact worker.
There are also continuing concerns about lack
of empathy shown towards [L] and accompanying egocentricity
demonstrated by [D]. In short, a concern that [D] consistently
places her own needs ahead of [L]'s. It is clear that there
is a significant discrepancy between what was apparently accepted
in the High Court and the finding of fact hearing and [D]'s
real position with respect to taking responsibility. It is
clear that she accepts little, if any, responsibility for
the harm to [M] and only barely acknowledges that she failed
to protect and even then
The Honourable Mr Justice Munby Re C
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excusing herself from any responsibility, either
through lack of awareness or through claiming she was the
victim of abuse from her partner.
Continuing concerns about lack of acceptance
of advice and feedback. For example that gave surrounding
[L]'s eczema.
Overall we agreed that our team need to balance
the likelihood of success against the harm to [L] caused by
disruption and potential exposure to continuing abuse and
neglect if there was no significant change in [D].
Lastly, HD confirmed that her experience with
many clients, including significantly deprived, difficult
and hard to reach people, was that she was normally able to
build and keep good quality casework relationships. This had
not been possible in respect to [D] and we agreed that this
factor too needed to be taken into account when considering
future likelihood of successful re unification."
56. I should add that, although this was for
some reason omitted from the typed note, Dr
J's manuscript note records HD as raising during this part
of the discussion the
question:
"But how much has [she] been coached
by her legal adviser?"
57. Dr J summarised the outcome as follows: I
"Overall, I indicated that our grave reservations
about pursuing the assessment and treatment work in the direction
of reunification had not been allayed by this meeting. In
fact, if anything, our concerns were now heightened. I would
therefore be writing an additional psychiatric report in readiness
for the next Directions appointment before the Court, which
was scheduled for 18 March 2002, before Mr Justice Munby.
[Dr J] indicated concern that the position was a change in
opinion, compared with the last session [Dr J] had with [D]
and anticipated she would be distressed at the change in the
[Hospital]'s view. HD and [the guardian] agreed to discuss
this with [D] and convey the option of a face to face meeting
here at the [Hospital] in order to explain our reasoning further
if this would assist."
58. On 8 March 2002 the guardian telephoned
Dr J to say that D was still minimising the
extent of her relationship with her boyfriend and to tell
him that he was about to be
sent a copy of the notes of D's contact with L on 29 January
2002. They were in fact
sent to Dr J by HD on 11 March 2002.
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59. Dr J's report was dated 13 March 2002 but
was not in fact sent to the guardian's
solicitor until 15 March 2002 the Friday before the directions
hearing due to take
place before me on Monday 18 March 2002. He said:
" ... I have now had further time to reflect
upon the situation and have had the benefit of further discussions
with [HD and the guardian] on 7 March 2002. I have also discussed
[L] and his family situation with members of the multi disciplinary
team here ... The outcome of these processes is that I now
wish to revise my opinion about the best way forward, having
re evaluated the prognosis for a safe outcome for [L] with
respect to an attempted return to the care of his mother.
In doing so I
have taken into account a wide range of issues including:
• The severity of the prior abuse to [M].
• The lack of acknowledgement by [D] concerning
the full
range of harm which the Court found [M] to have suffered.
? Lack of empathic concern for [M's] suffering.
? On going concerns about parent child interaction,
based on
contact observations.
? Problems in the level of co operation, which
do not bode well for the ability of [D] and the involved professionals
to be able to work together in partnership.
• [D's] relative social isolation and lack of family
support.
• In addition it is clear that both primary
health care, Health Visitors and the Social Work Team have
major reservations from their perspectives and this factor
too I feel should be taken into account when considering the
prospects for the successful return of [L] to his mother's
care .
... only if the prospects for successful reunification
were sufficiently high would it be appropriate to subject
[L] to the potential uncertainty involved in residential assessment
here at the Family Unit. I was originally persuaded, but only
on the finest of balance points, that it would be appropriate
to move towards that plan, as reflected in my previous two
reports. However, I have rethought the situation and feel
now that the balance is tilted in the other direction, notwithstanding
the fact that there are some positives in this situation.
On that basis, I really do not feel in a position to recommend
a period of inpatient assessment and possible treatment work,
because the likelihood of success is insuffciently high.
I have not been able to discuss our change of
position with [D] herself, I anticipate that she will be distressed
... "
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60. The guardian's solicitor telephoned Dr J
the same day. His note records Dr J as
acknowledging that he would need to explain in greater detail
why he had departed
from his earlier recommendations. It also records Dr J as
saying that he did not need to
see D before producing a fuller report:
"When he makes reference to seeing her
... that is for the purpose of explaining his view direct
to her. It is not an assessment."
61. Thus the state of affairs when the directions
hearing started before me on 18 March
2002. Not surprisingly D was exceptionally distressed. Dr
J's report of 13 March 2002
had come to her as a bolt from the blue. It must have come
as a terrible blow
shattering her hopes of being able to keep L. I adjourned
the hearing until 22 March
2002 to give D's solicitors an opportunity to see whether
the Cassel Hospital which
Dr J had recommended for this purpose would be able to consider
assessing D. Her
solicitors wrote to the Cassel on 20 March 2002. The Cassel
replied on 21 March 2002
indicating that it would need to see the papers before taking
the matter any further
forward.
62. The guardian's solicitor wrote to Dr J on
20 March 2002 inviting him to begin the
preparation of a fuller report and requesting (no doubt in
the light of discussions which
had taken place at court between the parties) that in that
report Dr J inter alia (i)
identify what documents he had received and from what source
between 14 January
2002 and 13 March 2002, (ii) explain the reason why he requested
the meeting which
took place on 7 March 2002, (iii) explain why the two week
assessment referred to in
his report of 14 January 2002 did not proceed and (iv) set
out the reasons that had led
him to depart from the conclusions in his earlier report.
In the course of his letter the
guardian's solicitor commented:
"The Local Authority at this stage
will have to work on the
basis of the advice that you have provided. There is an obvious
inevitability that their plans will now exclude mother as
a
potential carer."
63. At the adjourned directions hearing on 22
March 2002 I directed that Dr J's further
report was to be filed by 12 April 2002 "setting out
in more detail the reasons behind
his change of position and any recommendations he may have
as to the future progress
of the case". I gave D leave to disclose the papers to
the Cassel, directed that there
was to be a further directions hearing before me on 20 May
2002 and fixed the final
hearing, also before me, to start on 27 May 2002.
64. On 26 March 2002 the guardian's solicitor
wrote to Dr J to tell him that D's solicitors
now asked that his further report also identify what oral
information he had received
between 14 January 2002 and 13 March 2002, and from what source,
and that he
produce any minutes which had been taken of the meeting on
7 March 2002.
The Honourable Mr Justice Munby Re C
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65. Dr J's final report is dated 11 April 2002.
Attached to it was a copy of Dr J's typed
note of the meeting on 7 March 2002. Having identified, as
requested, both the oral
information and the documents he had received between 14 January
2002 and 13
March 2002, he then turned to deal with the key questions
that had been identified by
the guardian's solicitor in his letter of 20 March 2002.
66. The relevant passage is very long but in
the circumstances I think I should set it out in
full :
"I requested the meeting because I had developed major
concerns about proceeding with the rehabilitation plan. I
am not
able to date precisely the sequence of my thinking about this
matter except to confirm that it involved a continuing process
of
steadily increasing doubt about the direction of decision
making
following my meeting with [DJ in the aftermath of the Finding
of Fact hearing in November 2001. The Local Authority's
request for further information was an important, but not
determinative component to the sequence of decision making.
I
became aware from [HD]'s letter of 17 January 2002 of the
depth of the level of the Local Authority's misgivings about
the
direction of case planning. This acted as a spur to cause
me to
reconsider the matter further though I stress that I had already
had discussions with colleagues within my team. In these,
we
were debating correctness of the decisions made thus far and
the
directions we were planning. After receiving the letter of
the 17
January, and notwithstanding the formal reply of the local
authority as set out in the .. . letter of 23 January 2002,
I felt it
was important to have a further professionals meeting to review
decision making and the direction of planned attempts towards
rehabilitation.
I then reviewed our case record and clinical
history and
observations against the criteria we had set down as a means
for
gauging progress in this case. I had reached the preliminary
conclusion that it was probably not appropriate to offer
residential admission, prior to the meeting on 7 March 2002.
The meeting on 7 March, served to both confirm that view in
my own mind and further underline the depth of the Local
Authority's misgivings. As a result of that meeting I was
clear in
my mind that it would not be appropriate to offer residential
admission for further assessment and/or treatment with the
possibility of re unification in this particular case. I remain
of
that view now.
This case is one of only two family situations
in the last few
years in which I have changed my opinion halfway through the
process of planning assessment and intervention. Naturally
it is
regrettable when such a situation occurs because of the distress
caused to a parent who quite reasonably was expecting a
different outcome. However, I am hopeful that the reasons
and
The Honourable Mr Justice Munby Re C
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basis for this change of mind will be evident
from this report. I stress that our primary concern throughout
has been to ensure the most appropriate welfare outcome for
[L].
Our policy at the Family Unit is to offer residential
assessment and treatment work where there is a reasonable
prospect of reunification occurring. We do not offer a residential
placement where, in our view, this is a mere possibility.
These are the issues we take into consideration:
• To avoid disruption to the child
• To prevent exposing the child to potential
significant harm.
• To avoid raising the expectations of
parents/carers and extended family, and indeed the children
themselves, in situations where the prospects for success
are not reasonably good.
• To avoid establishing a situation wherein
the momentum inevitably established through residential care,
leads incrementally to reunification, especially in cases
where the decision to re unify is marginal. Thus we seek to
avoid the situation where the momentum carries the case through
to reunification rather than more objective decision making.
• In cases where the decision to re unify
is delicately poised rather than more clear cut, we rely on
an amalgam of factors to enter the decision making matrix,
as set out below. One aspect of this inevitably includes the
prospect of health and social services agencies being engaged
in work with the
family, such that there is a sufficiently wide network of
professionals to have confidence that continuing assessment
and intervention work will keep the child safe and his or
her
welfare needs assured.
• It would be inappropriate to use scarce
health and social work resources for cases where the likelihood
of success is relatively slim, as compared with those cases
with better prospects. In our view where the other factors
listed above are tending in a positive direction, however,
it is an appropriate use of expensive resources to press ahead
and attempt to achieve family reunification.
I turn now to the factors which I took into
consideration when considering the likelihood of success in
this individual case.
When considering the prospect for a safe and
successful reunification the evidence indicates that it is
preferable to consider a matrix of groups of factors which
are able to be linked with eventual outcome for the child
... This approach
The Honourable Mr Justice Munby Re C
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was applied in this particular case. These factors
can be grouped into the following domains:
? Factors associated with the abuse
? Parent Factors
• Parenting and caregiving
• Aspects of the relationship between
parent and child
• Family dynamics and relationships
• Factors related to the neighbourhood
and support therein
• Professional factors
• Social support
When applying this matrix in [L]'s case, we
established that the following factors were key ones with
respect to gauging the appropriateness and success or otherwise
of work in the direction of family reunification:
1. To obtain a clearer understanding about the
abuse and neglect that [M] had suffered including any antecedent
factors, the behaviour including assault or neglect, and any
consequences thereof.
2. Psychological progress on working through
the implications of any fresh acknowledgement of maltreatment
which could be expected to occur with [D].
3. The emergence of genuine empathic concern
for [M] within [D].
4. The maltreatment needed to include the full
range of abuse and neglect established during the Finding
of Fact hearing. This should include physical abuse on more
than one occasion, the death of [M], and the issue of neglecting
to protect her (in whatever proportions were revealed to be
appropriate, once acknowledgement had been established).
5. Development of attachment behaviour in [L]
towards his mother.
6. Improvement in parenting caregiving behaviour
by [D].
7. The establishment of a greater degree of
openness and honesty in [D]'s relationships, particularly
with professionals, but also with her extended family.
The Honourable Mr Justice Munby Re C
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8. Overcoming social isolation both with respect
to extended
family and within her neighbourhood.
9. The establishment of improved working relationships
with
the professional network, particularly social work. This to
include both taking advice and using it in order to generalise
to other equivalent situations.
There has been insufficient progress to indicate
that progress
might be made within a reasonable period of time (i.e., one
commensurate with [L]'s developmental needs) such that a
recommendation to pursue reunification would be safe and
appropriate, in our view. I had already established, in December
2001, that a necessary pre condition for reunification would
be
a greater degree of acknowledgement of responsibility on [D]'s
part for having caused harm to [M], in order to be able to
conclude that [L] should be returned to her care. The aim
of the
admission on 2 January 2002 was to see whether this level
of
acknowledgement could be advanced. Although our report in
the wake of this admission were (sic.) initially in the direction
of
the proposed plan for assessment and treatment of reunification,
I have re evaluated the prognosis for a safe outcome now and
this does involve a revision of my original opinion about
the best
way forward. This opinion is shared by colleagues within the
multi disciplinary team which whom I work. The particular
points which concern us and lead us to this conclusion are
the
following:
• The severity of the prior maltreatment
of [M], eventually
resulting in her death.
• The lack of acknowledgement by
[D] concerning the full
range of harms which the Court had found [M] to have
suffered.
• The lack of empathic concern,
in retrospect, for [M]'s
suffering before her death.
• Continuing concerns about parenting
and parent/child
relationships during present contact with [L].
• [D]'s social isolation and lack
of support from her own
extended family.
• Lack of engagement with health
and social work
professionals and concerns about the level of co operative
work which has been able to be established.
• The reservations of health and
social work professionals are
an added factor to take into consideration if a reunification
plan were to be set in motion."
The Honourable Mr Justice Munby Re C
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67. On 18 April 2002 the Cassel wrote to D's
solicitors:
"There is absolutely no reason for me to
offer a new assessment ... Dr [J] has given a very clear report
which gives the reasons for his decision. [D] has simply not
made enough progress to warrant rehabilitation."
68. In the meantime, on 25 March 2002, as I
have mentioned, HD had produced her
assessment of S and her partner P, concluding that it would
not be in L's best interests
to place him with them.
69. On 30 April 2002 HD had another meeting
with D her first since their meeting on 4
December 2001. In her subsequent witness statement
dated 7 May 2002 HD says of D
on this occasion:
"she informed me she only felt responsibility
for taking [M] to
[SC's] home. She continues to deny any responsibility for
the
actual injuries or [M's] death ... "
70. On 7 May 2002 the local authority filed
its care plan and HD's witness statement. The
care plan was commendably clear and to the point:
"The aim of this plan is to place
[L] for adoption . . . adoption is
the only option left for him ... direct contact [with his
birth
family] would [not] be in [L's] interests once he is placed
for
adoption."
71. In her statement HD said, hardly surprisingly,
that the local authority "must be
guided by" Dr J's latest report.
72. On 13 May 2002 L's name was placed before
the Adoption Panel, which approved
adoption as being in his best interests.
73. On 20 May 2002 I made an order in agreed
terms requiring the local authority to
disclose various documents, including:
i) all the contact notes;
ii) HD's "positives" and "negatives"
documents (the existence of which had first
come to light only as a result of their being referred to
in the typed note of the
meeting on 7 March 2002 attached to Dr J's report of 11 April
2002); and
iii) all documents relating to each of the various
"concerns" of the local authority
as referred to in the typed note of the meeting.
The Honourable Mr Justice Munby Re C
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74. Disclosure took place in accordance with
my order on 23 May 2002. Only then did D
for the first time see the contact notes for 29 January 2002
(which the local authority
had felt sufficiently important to send to Dr J on 11 March
2002) and the "positives"
and "negatives' documents handed to Dr J on 7 March 2002.
This disclosure did not
include (because my order had not included) any of the materials
held only by Dr J.
Nor at this stage had the local authority disclosed its note
of the telephone
conversation with Dr J on 4 February 2002 that was not disclosed
until shortly after
the final hearing had begun.
75. On 10 May 2002 the guardian's solicitor
had written to Dr J asking him to produce all
his clinical notes. Eventually on 24 May 2002 this was the
Friday before the final
hearing was due to start on Monday 27 May 2002 Dr J responded,
with some
exasperation, pointing to the strain it would put on his "very
stretched" resources.
More revealingly he added:
"However, more importantly, what
is the purpose behind this
request? If merely a fishing exercise then I feel the request
would be wasteful and should be resisted strongly."
76. Thus the state of affairs when the case
was opened before me on 27 May 2002. By
then the parties had available to them the documents disclosed
by the local authority.
But the parties and more particularly D did not have, with
the sole exception of Dr
J's typed note of the meeting on 7 March 2002, any of Dr J's
clinical notes. These did
not become available until the second day of the hearing.
The consequence of this was
that until the second day of the hearing neither D nor her
representatives had seen such
important documents as Dr J's notes which were of course the
only notes of the
meetings on 29 August 2001, 24 September 2001, 19 October
2001, 12 December
2001, 18 December 2001, 3 January 2002 and 7 January 2002,
his manuscript notes of
the meeting on 7 March 2002 and his note of the telephone
conversation with the
guardian on 8 March 2002.
77. The local authority was represented by Mr
James Tillyard QC, D by Mr Michael
Keehan QC and Ms Ruth Henke, S and P by Mr Mark Allen and
the guardian by her
solicitor, Mr David Crowley. I am grateful to all of them
for the very great help they
gave me and, I do not doubt, their respective clients in a
case which, no doubt for
differing reasons, cannot have been easy for any of them.
78. The hearing began, as I have said on 27
May 2002. It concluded on 31 May 2002
when I reserved judgment. On 13 June 2002 I handed down a
short judgment
announcing my conclusions (i) that there should be no further
assessment by Dr J of
either D or L and (ii) that the amended care plan which had
been lodged on 31 May
2002 should be approved. I indicated that I accordingly proposed
to dismiss D's
application under section 38(6) of the Act and to make a care
order in relation to L,
but at the same time to adjourn the local authority's application
issued on 23 May
2002 for an order under section 34(4) of the Act terminating
all direct contact
between D and L. I now (1 July 2002) hand down my full judgment.
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79. I heard oral evidence from (in this order) the lead social
worker, HD, the health visitor,
Ms MC, one of the contact supervisors, LH, and then, on 29
May 2002, Dr J. I next
heard evidence from the team leader of the local authority's
family placement team, Ms
SN, and from the foster carer, Mrs J. Finally, on 30 May 2002,
I heard evidence from
D herself and then from the guardian. Neither D's mother,
S, nor P gave evidence. I
shall refer to all this evidence, to the extent that is necessary,
in due course.
80. I am not concerned with threshold. That
was dealt with by Connell J on 23 November
2002. I am concerned only with what is conventionally, if
unfortunately and, as I feel,
all too often insensitively, referred to as disposal.
81. D opposes the application for a care order.
The primary submission made on her behalf
by Mr Keehan and Ms Henke is that there should be an assessment
of her ability to
care for and protect L, as had indeed previously been the
plan envisaged by all parties.
82. At the forefront of his arguments in support
of that primary submission Mr Keehan
puts the complaint that in the circumstances as I have described
them there were what
he calls wholesale breaches of good practice, the cumulative
effect of which was, he
says, to deny D any or any adequate involvement in the decision
making process and
any proper or fair opportunity to present her case in court
during the hearing before
me. He submits that the breaches which had occurred before
the hearing, and their
consequences, were so serious that they could not be remedied
either wholly or
sufficiently during the hearing.
83. Understandably Mr Keehan focussed on articles
6 and 8 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms.
He says that D has
been denied her right to a fair hearing under article 6 and
denied respect for her right
to family life under article 8. It is, accordingly, to the
Convention that I turn first.
84. Article 6, so far as is material for present
purposes, is in the following terms:
"In the determination of his civil rights
and obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established
by law. Judgment shall be pronounced publicly but the press
and public may be excluded from all or part of the trial in
the interest of morals, public order or national security
in a democratic society, where the interests of juveniles
or the protection of the private life of the parties so require,
or to the extent strictly necessary in the opinion of the
court in special circumstances where publicity would prejudice
the interests of justice."
85. Article 8 is in the following terms:
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"1 Everyone has the right to respect for
his private and
family life, his home and his correspondence.
2 There shall be no interference by a public
authority with the exercise of this right except such as is
in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety
or the economic well being of the country, for the prevention
of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others."
86. I make no apologies for beginning with my
own recent judgment in Re B (Disclosure
to other parties) [2001] 2 FLR 1017, where I reviewed a number
of the relevant
authorities. I do not propose to set out again what I said
in that case. Suffce it to say
that at pp 1028 1030 (paras [35] [39]) I referred to the principles
relevant to article 6
to be found in Golder v United Kingdom (1979 80) 1 EHRR 524,
Ruiz-Mateos v
Spain (1993) 16 EHRR 505, Dombo Beheer BV v The Netherlands
(1994) 18 EHRR
213, McMichael v United Kingdom (1995) 20 EHRR 205 and McGinley
and Egan v
United Kingdom (1999) 27 EHRR 1.
87. At pp 1030 1031 (paras [40] [42]), referring
to W v United Kingdom (1988) 10
EHRR 29, McMichael v United Kingdom (1995) 20 EHRR 205 and
TP and KM v
United Kingdom (2001) 34 EHRR 42, I pointed out that where
article 8 rights are
engaged, unfairness in the trial process may involve a violation
not merely of a parent's
rights under article 6(1) but also of his or her rights under
article 8. As the Court said in
McMichael at p 239 (para [87]):
"Whilst Article 8 contains no explicit
procedural requirements,
the decision making process leading to measures of interference
must be fair and such as to afford due respect to the interests
safeguarded by Article 8."
88. But the protection afforded in this respect
by article 8 goes further, for it is not
confined to unfairness in the trial process. As the Court's
decision in TP and KM v
United Kingdom (2001) 34 EHRR 42 and Holman J's recent decision
in Re M (Care:
Challenging Decisions by Local Authority) [2001] 2 FLR 1300
show, article 8
guarantees fairness in the decision making process at all
stages of child protection.
89. Referring to the decision of the Court in
W v United Kingdom (1988) 10 EHRR 29
(the report of his judgment erroneously gives a reference
to R v United Kingdom
[1988] 2 FLR 445), Holman J at p 1308G said:
"the European Court of Human Rights
clearly determined that,
although there are no explicit procedural requirements within
Art 8 of the Convention, the quality of a local authority's
decision making process nevertheless itself engages Art 8.
The
court said in para 62 of its judgment:
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"It is true that art 8 contains no explicit
procedural requirements, but this is not conclusive of the
matter. The local authority's decision making process clearly
cannot be devoid of influence on the substance of the decision,
notably by ensuring that it is based on the relevant considerations
and is not one sided and, hence, neither is nor appears to
be arbitrary. Accordingly, the court is entitled to have regard
to that process to determine whether it has been conducted
in a manner that, in all the circumstances, is fair and affords
due respect to the interests protected by art 8."
As a result of that reasoning the court went
on to hold at para 63 that:
"The relevant considerations to be weighed
by a local authority in reaching decisions on children in
its care must perforce include the views and interests of
the natural parents. The decision making process must therefore,
in the Court's view, be such as to secure that their views
and interests are made known to and duly taken into account
by the local authority and that they are able to exercise
in due time any remedies available to them.""
90. I see no reason in principle why the requirements
of fairness mandated by article 8
should not also apply to the other persons and agencies involved
in child protection
work as they apply to the local authority after all, many
of the decisions which most
directly impact upon parents are properly taken at multi disciplinary
meetings.
Collective decision making surely carries with it collective
responsibility and a
collective duty to act fairly.
91. The significance of this aspect of article
8 is further enhanced when one considers the
remedies which it affords to a dissatisfied parent even if
there are no other proceedings
(eg care proceedings) on foot:
i) Judicial review, by a judge of the Family
Division sitting either in the
Administrative Court and/or in the Family Division, may be
available: see A v A
Health Authority; In re J; R (S) v Secretary of State for
the Home Department
[2002] EWHC 18 (Fam/Admin), [2002] 3 WLR 24. This will, though,
usually
be a remedy of last resort: cf Re C (Adoption: Religious Observance)
[2002] 1
FLR 1119 at p 1134 (para [51]).
ii) More importantly, a breach of article 8,
if it involves a "public authority" within
the meaning of section 6 of the Human Rights Act 1998, can
be remedied in
free standing proceedings brought, either in the County Court
or in the High
Court, in accordance with sections 7 and 8 of the Act: Re
W and B; Re W
(Care Plan) [2001 ] EWCA Civ 757, [2001 ] 2 FLR 582 at pp
608 610 (paras
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[71] [76]), R (P) v Secretary of State for the
Home Department [2001] EWCA Civ 1151, [2001] 1 WLR 2002 at
p 2037 (para [120]), not affected on this point by In re S
(Minors) (Care Order: Implementation of Care Plan) [2002]
UKHL, 10, [2002] 2 WLR 720. Holman J's decision in Re M is
an illuminating example of this jurisdiction in operation.
92. I return to article 6. The starting point
is the Court's recognition in Golder v United
Kingdom (1979 80) 1 EHRR 524 at p 536 (paras [35] [36]) that
what article 6 confers
is an effective right of access to a court.
93. That said, the fundamental principle is
clear. As the Court said in Mantovanelli v
France (1997) 24 EHRR 370 at p 383 (para [34]):
"The Court has ... to ascertain whether
the proceedings considered as a whole, including the way in
which the evidence was taken, were fair".
94. This approach has consistently been adopted
by the Court in the context of family
proceedings: see Elsholz v Germany [2000] 2 FLR 486 at p 500
(para [66]) and Sahin
v Germany; Sommerfeld v Germany; Hoffmann v Germany [2002]
1 FLR 119 at pp
146, 161 (Sommerfeld para [62], Hoffmann para [62]).
95. A fair trial is an adversarial trial in
which there is `equality of arms'. In Ruiz-Mateos v
Spain (1993) 16 EHRR 505 at p 542 (para [63]) the Court said
that:
"the principle of equality of arms
is only one feature of the
wider concept of a fair trial, which also includes the fundamental
right that proceedings should be adversarial."
96. In Dombo Beheer BV v The Netherlands (1994)
18 EHRR 213 at p 229 (para [33])
the Court said that:
"certain principles concerning the
notion of a "fair hearing" in
cases concerning civil rights and obligations emerge from
the
Court's case law. Most significantly for the present case,
it is
clear that the requirement of "equality of arms",
in the sense of a
"fair balance" between the parties, applies in principle
to such
cases as well as to criminal cases. The Court agrees with
the
Commission that as regards litigation involving opposing private
interests, "equality of arms" implies that each
party must be
afforded a reasonable opportunity to present his case including
his evidence under conditions that do not place him at a
substantial disadvantage vis a vis his opponent."
97. These principles have been explicitly recognised
by the Court in the context of family
proceedings: Buchberger v Austria (2001) 20 December (para
[50]).
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98. Two aspects of "fairness" are
particularly germane for present purposes. The first is
long established. As the Court said in W v United Kingdom
(1988) 10 EHRR 29 at p
50 (paras [63] [64]):
"The decision making process must therefore
.. be such as to secure that [the parents'] views and interests
are made known to and duly taken into account by the local
authority and that they are able to exercise in due time any
remedies available to them . ... what therefore has to be
determined is whether, having regard to the particular circumstances
of the case and notably the serious nature of the decisions
to be taken, the parents have been involved in the decision
making process, seen as a whole, to a degree sufficient to
provide them with the requisite protection of their interests.
If they have not, there will have been a failure to respect
their family life and the interference resulting from the
decision will not be capable of being regarded as "necessary"
within the meaning of Article 8."
99. More recent statements of this principle
in the context of children proceedings are to
be found in Elsholz v Germany [2000] 2 FLR 486 at p 498 (para
[52]), TP and KM v
United Kingdom (2001) 34 EHRR 42 at p 82 (para [72]), Sahin
v Germany;
Sommerfeld v Germany; Hoffmann v Germany [2002] 1 FLR 119
at pp 129, 142, 158
(Sahin para [44], Sommerfeld para [42], Hoffmann para [44])
and Buchberger v
Austria (2001) 20 December (para [42]).
100. Decisions of the Court have made it clear
that there may be circumstances where a parent will not be
sufficiently involved in the decision making process in the
absence of appropriate expert evidence: see Elsholz v Germany
[2000] 2 FLR 486 at pp 498, 500 (paras [52] [53] and [66])
and Sahin v Germany; Sommerfeld v Germany; Hoffmann v Germany
[2002] 1 FLR 119 at pp 143, 146 (Sommerfeld paras [43] [44]
and [63]).
101. The other aspect of fairness is equally
well established. As the Court said in Ruiz-Mateos v Spain
(1993) 16 EHRR 505 at p 542 (para [63]):
"The right to an adversarial trial means
the opportunity for the parties to have knowledge of and comment
on the observations filed or evidence adduced by the other
party."
102. Likewise in Mantovanelli v France (1997)
24 EHRR 370 at p 382 (para [33]) the
Court said that:
"one of the elements of a fair hearing
within the meaning of Article 6(1) is the right to adversarial
proceedings; each party must in principle have the opportunity
not only to make known any evidence needed for his claims
to succeed, but also to have knowledge of and comment on all
evidence adduced or observations filed with a view to influencing
the court's decision."
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103. Again, this principle has been explicitly
recognised by the Court in the context of family proceedings:
Buchberger v Austria (2001) 20 December (para [50]). The leading
authority is McMichael v United Kingdom (1995) 20 EHRR 205
where there had been care proceedings in which social services
and medical reports were given to
the court, but not disclosed to the parents, though the contents
were made known to
them. Holding that there had been violations of both article
6(1) and article 8, the
Court at p 237 (para [80]), having commented on the special
nature of care
proceedings, said:
"Nevertheless, notwithstanding the special
characteristics of the adjudication to be made, as a matter
of general principle the right to a fair adversarial trial
"means the opportunity to have knowledge of and comment
on the observations filed or evidence adduced by the other
party". In the context of the present case, the lack
of disclosure of such vital documents as social reports is
capable of affecting the ability of participating parents
not only . to influence the outcome of the children's hearing
in question but also to assess their prospects of making an
appeal to the Sheriff Court."
104. In this connection it is also important
to recall, as Mr Keehan observes, what the Court said in Sahin
v Germany; Sommerfeld v Germany; Hoffmann v Germany [2002]
1 FLR 119 at pp 129, 143 (Sahin para [48], Sommerfeld para
[43]):
"Correct and complete information ... is
an indispensable prerequisite for ... striking a fair balance
between the interests at stake."
105. Moreover, article 8 imposes positive obligations
of disclosure on a local authority. As the Court said in TP
and KM v United Kingdom (2001) 34 EHRR 42 at p 85 (paras [82]
[83]):
[82] The Government have submitted that there
was nothing to stop the first applicant from applying to the
High Court for disclosure of the interview at any point. The
applicant responded that she had no reason to suspect that
the interview disclosed an error of identification by the
professionals or that it would make a difference to her position.
The Court considers that the power of the High Court in its
wardship jurisdiction to take decisions concerning the welfare
of the child in local authority care is an important safeguard
of the interests of parent and child. However, this is not
an instance where it should be the sole responsibility of
the parent, or lie at his or her initiative, to obtain the
evidence on which a decision to remove their child is based.
The positive obligation on the Contracting State to protect
the interests of the family requires that this material be
made available to the parent concerned, even in the absence
of any request by the parent. If there were doubts as to whether
this posed a risk to the welfare of the child, the matter
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should have been submitted to the court by the
local authority at the earliest stage in the proceedings possible
for it to resolve the issues involved.
[83] The Court concludes that the question whether
to disclose the video of the interview and its transcript
should have been determined promptly to allow the first applicant
an effective opportunity to deal with the allegations that
her daughter could not be returned safely to her care. The
local authority's failure to submit the issue to the Court
for determination deprived her of an adequate involvement
in the decision making process concerning the care of her
daughter and thereby of the requisite protection of their
interests. There was in this respect a failure to respect
their family life and a breach of Article 8 of the Convention."
106. So much for the general nature of what
is meant by a fair trial.
107. But Mantovanelli v France (1997) 24 EHRR
370 illustrates an important aspect of
fairness for the purposes of article 6 which has, as it seems
to me, significant if thus far
wholly unrecognised implications for procedure in family cases.
108. The case involved what in this jurisdiction
would be called a clinical negligence claim against a hospital,
the CHRN, arising out of the death of the applicants' daughter.
The trial court (p 374, para [18]) appointed a medical expert
who examined the hospital's files and interviewed five members
of the hospital staff before producing a report whose conclusions
(adverse to the applicants) were (p 375, para [20]) adopted
by the trial court in dismissing the claim.
109. The applicants complained (p 381, para
[30]) that:
"neither they nor their counsel had been
informed of the dates of the interviews conducted by the expert.
The expert had also referred in his report to documents which
they had not seen and which it had been pointless to ask the
hospital management to produce.
They had thus been deprived of the opportunity
to examine the persons who gave evidence to the expert, to
submit comments to him on the documents examined and on the
witness evidence taken and to ask him to carry out additional
investigations.
Admittedly, the expert report had later been
communicated to the applicants, who could thus have challenged
it in the Administrative Court. They had nevertheless been
prevented from participating on an equal footing in the production
of the report."
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110. The Commission supported the complaint (p 382, para [31]):
"The Commission submitted that compliance
with the principle of adversarial procedure meant that where
a court ordered the production of an expert report, the parties
should be able to challenge before the expert the evidence
he had taken into account in carrying out his instructions.
There were three reasons for this: an expert report of this
kind, produced under a court's authority for its own enlightenment,
was an integral part of the proceedings; as the court was
unable to assess for itself all the technical issues considered,
the expert's investigation tended to replace the taking of
evidence by the court itself; and merely being able to challenge
the expert report in court did not permit an effective application
of the adversarial principle as the report had become final
by then."
111. The Court acknowledged (p 383, para [35])
that:
"In the present case it was not disputed
that the "purely judicial" proceedings had complied
with the adversarial principle."
112. It nonetheless held that there had been
a breach of article 6, saying (p 383, para [36])
that:
"while Mr and Mrs Mantovanelli could have
made submissions to the Administrative Court on the content
and findings of the report after receiving it, the Court is
not convinced that this afforded them a real opportunity to
comment effectively on it. The question the expert was instructed
to answer was identical with the one that the court had to
determine, namely whether the circumstances in which halothane
had been administered to the applicants' daughter disclosed
negligence on the part of the CHRN. It pertained to a technical
field that was not within the judges' knowledge. Thus although
the Administrative Court was not in law bound by the expert's
findings, his report was likely to have a preponderant influence
on the assessment of the facts by that court.
Under such circumstances, and in the light also
of the administrative courts' refusal of their application
for a fresh expert report at first instance and on appeal,
Mr and Mrs Mantovanelli could only have expressed their views
effectively before the expert report was lodged. No practical
difficulty stood in the way of their being associated in the
process of producing the report, as it consisted in interviewing
witnesses and examining documents. Yet they were prevented
from participating in the interviews, although the five people
interviewed by the expert were employed by the CHRN and included
the surgeon who had performed the last operation on
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Miss Mantovanelli and the anaesthetist. The
applicants were therefore not able to cross examine these
five people who could reasonably have been expected to give
evidence along the same lines as the CHRN, the opposing side
in the proceedings. As to the documents taken into consideration
by the expert, the applicants only became aware of them once
the report had been completed and transmitted.
Mr and Mrs Mantovanelli were thus not able to
comment effectively on the main piece of evidence. The proceedings
were therefore not fair as required by Article 6(1) of the
Convention."
113. I derive from Mantovanelli two principles
of particular importance for present purposes:
i) First, that the fair trial guaranteed by
article 6 is not confined to the "purely
judicial" part of the proceedings. Unfairness at any
stage of the litigation
process may involve breaches not merely of article 8 but also
of article 6. This
is potentially very important bearing in mind that, as I explained
in Re B
(Disclosure to Other Parties) [2001] 2 FLR 1017 at pp 1035,
1038, 1039
(paras [56], [64], [67]), whereas rights under article 8 are
inherently qualified
and can be and often have to be balanced against other rights,
including
other rights under article 8, a parent's right to a fair trial
under article 6 is
absolute. It cannot be qualified by reference to, or balanced
against, the child's
or anyone else's rights under article 8. The right to a fair
trial under article 6
cannot be compromised or watered down by reference to article
8.
ii) Secondly, that where a jointly instructed
or other sole expert's report, though
not binding on the court is "likely to have a preponderant
influence on the
assessment of the facts by [the] court" there may be
a breach of article 6 if a
litigant is denied the opportunity before the expert produces
his report (a)
to examine and comment on the documents being considered by
the expert and
(b) to cross examine witnesses interviewed by the expert and
on whose
evidence the report is based in short to participate effectively
in the process
by which the report is produced.
114. In Mantovanelli itself the Court held that
the earlier defects in the procedure were not cured by the
litigants' ability to make "submissions to the [trial]
court on the content and findings of the report after receiving
it" because that did not afford them "a real opportunity
to comment effectively on it". A fortiori, and perhaps
hardly surprisingly, in Buchberger v Austria (2001) 20 December
the Court held (paras [43] [45], [51]) that there had been
breaches of both article 6 and article 8 where, in what we
would call public law proceedings, reliance was placed on
a report of the Youth Welfare Office which was never seen
by the applicant mother. It made no difference (para [48])
that the report related to a meeting with the applicant herself
and that accordingly it could be said that she knew the facts
mentioned in the report.
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115. Mantovanelli and Buchberger can be contrasted
with Sahin v Germany; Sommerfeld v Germany; Hoffmann v Germany
[2002] 1 FLR 119 at pp 152, 158, 161 (Hoffmann paras [10]
[14], [43] [46] and [63]), where the Court, in what we would
call private law proceedings relating to contact, held that
the applicant father, represented by counsel, had had a sufficient
opportunity at trial to comment on the various reports which
had been prepared on the question of contact.
116. Now in the present case the relevance of
Mantovanelli is obvious. Indeed, as I have already noted,
not merely did the local authority feel that it had to be
guided by Dr J, the guardian not surprisingly treated Dr J's
volte face in March 2002 as creating an "obvious inevitability"
that the local authority's plans would now exclude D as a
potential carer for L.
117. But the wider implications of Mantovanelli
for children's cases seem to me to require more detailed consideration
than there has been hitherto. Indeed, so far as I am aware,
this is the very first occasion when anyone, judge or commentator,
has even referred to Mantovanelli in this context. The principles
to be found in the case may, as it seems to me, have significant
implications for the way in which guardians, welfare officers,
CAFCASS officers and the like go about producing reports,
both in private law and even more so in public law proceedings.
I say that not least bearing in mind the principle, expounded
in cases such as Re CB (Access: Attendance of Court Welfare
Officer) [1995] 1 FLR 622, S v Oxfordshire County Council
[1993] 1 FLR 452, Re W (A Minor) (Secure Accommodation Order)
[1993] 1 FLR 692, Re C (Section 8 Order: Court Welfare Officer)
[1995] 1 FLR 617, Re V (Residence: Review) [1995] 2 FLR 1010
and Re J (children) (residence: expert evidence) [2001 ] 2
FCR 44, that although the court is not bound to follow the
recommendation of a children's guardian, a welfare officer
or a children and family reporter, it must give careful consideration
to any argument advanced by him and, where it differs, must
explain its reasons carefully. After all, in many cases such
a report is, surely, "likely to have a preponderant influence
on the assessment of the facts by [the] court".
118. Now this is not the time, and this is not
the occasion, to consider the wider implications of Mantovanelli
in any great detail. That is something for a future and more
appropriate occasion. But Mantovanelli cannot, as it seems
to me, be confined to experts appointed under CPR 35.7. It
extends, in my judgment, to any jointly appointed or other
sole expert whose report is "likely to have a preponderant
influence on the assessment of the facts by [the] court".
It may be I express no view on the point that it goes further.
Be that as it may, it clearly applies, in my judgment, to
Dr J's role in the present case. Dr J was, after all, a sole
expert jointly instructed by all the parties with the sanction
of the court.
119. Before leaving the Convention jurisprudence
there are two final points.
120. The first is this. Many of the cases I
have referred to, albeit family law cases, were what we would
call private law cases. But as W v United Kingdom, McMichael
v United Kingdom and other cases show, the principles are
equally applicable in public law proceedings. Indeed, if anything,
what the Court has called "stricter scrutiny" is
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called for in cases such as this where what
is being proposed is that the family relations between a parent
and a young child will effectively be curtailed: see Elsholz
v Germany [2000] 2 FLR 486 at p 497 (para [49]) referring
to Johansen v Norway (1996) 23 EHRR 33 at pp 67 68 (para 64)
and K and T v Finland (2000) 31 EHRR 484 at p 512 (para 135),
Sabin v Germany; Sommerfeld v Germany; Hoffmann v Germany
[2002] 1 FLR 119 at pp 128, 142, 158 (Sahin para [41], Sommerfeld
para [39], Hoffmann para [41 ]) and Buchberger v Austria (2001)
20 December (para [39]).
121. As the Court said in W v United Kingdom
(1988) 10 EHRR 29 at p 49 (para [62]):
"The Court recognises that, in reaching
decisions in so sensitive an area, local authorities are faced
with a task that is extremely difficult. To require them to
follow on each occasion an inflexible procedure would only
add to their problems. They must therefore be allowed a measure
of discretion in this respect. On the other hand, predominant
in any consideration of this aspect of the present case must
be the fact that the decisions may well prove to be irreversible
... This is accordingly a domain in which there is an even
greater call than usual for protection against arbitrary interferences."
122. The final point is this. As Mr Tillyard
correctly points out, the words "considered as a whole",
when used in Mantovanelli in the phrase "whether the
proceedings considered as a whole ... were fair", are
crucial. There will be cases where a parent's exclusion from
meetings or from access to documents is so significant as
to make the whole proceedings unfair: see, for example, in
addition to Mantovanelli, the facts in W v United Kingdom
(1988) 10 EHRR 29 at pp 32 33 (paras [10] [15]) and, more
recently, the facts in Re M as analysed by Holman J and in
Buchberger as analysed by the Court at paras [43] [45]. But
that will not always be so: see, for example, the facts in
Hoffmann to which I have already referred.
123. In this connection Mr Tillyard drew my
attention to Scott v United Kingdom [2000] 1
FLR 958 at p 969 where the Court, rejecting an argument based
on article 8, said this:
"As regards the decision making process,
the Court notes that the applicant, who had the benefit of
legal aid, was legally represented before the Reading County
Court, which on 31 October 1994 decided to dispense with her
consent for freeing her child for adoption after having examined
her complaint that she had not been allowed to participate
at the meeting of 22 September 1993 and other complaints concerning
that meeting. The Court recalls that, among the matters raised
by the applicant before it, the county court's decision dispensing
with the applicant's consent was the only measure formally
affecting the applicant's rights. Moreover, the Court notes
that the applicant took part in or was invited to a series
of meetings organised by the local authority concerning her
child's future. Not an insignificant number of those took
place after June 1993.
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As a result, the Court considers that, overall,
the applicant was given a proper opportunity of making her
views known to the authorities.
The Court recognises that the meeting of 22
September 1993, which the applicant was not invited to attend,
was of special significance since it was on that occasion
that the local authority decided to abandon the rehabilitation
option. However, the applicant had been invited to, but did
not attend, the previous meeting of 19 August 1993 when it
was decided that long term plans needed to be made urgently
for the child's future. Moreover, between the two meetings,
a community worker visited the applicant with the intention
to discuss the matter with her and convey her views to those
attending the meeting of 22 September 1993. Most importantly,
the meeting in question was an administrative internal meeting,
the aim of which was to formulate the local authority's strategy.
Other such meetings occurred in the applicant's absence both
before and after 22 September 1993. Moreover, the strategy
decided at that meeting was not legally irrevocable. Finally,
the applicant was promptly informed of the outcome of the
meeting and had ample opportunity to attempt to change the
course of events by making appropriate representations to
the local authority and having resort to the domestic court
that had been seized of the matter.
In the light of all the above, the Court considers
that it has not been established that the decision making
process was unfair or that it failed to involve the applicant
to a degree sufficient to provide her with the requisite protection
of her interests."
124. As against that Mr Keehan points to the
reasons why in Re M Holman J held the local authority's actions
to have been in breach of article 8. In that case a full care
order had been made on 10 November 2000. The care plan dated
23 October 2000 which had been approved by the court contemplated
rehabilitation of the child to the mother or, if that failed,
and subject to assessment, to the father. At a meeting on
23 April 2001 the local authority decided fundamentally to
change the care plan, abandoning all plans for rehabilitation
with either parent and approving contingent plans for adoption.
Holman J held that the local authority had acted unlawfully
on 23 April 2001 because, as he put it at p 1311A,
"in the particular circumstances of this
case, the decision making process seen as a whole did not
involve the parents to a degree sufficient to provide them
with the requisite protection of their interests, and ...
it was objectively (but unwittingly) unfair."
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125. Holman J explained why he had come to that
conclusion in ten numbered paragraphs (pp 1311B 1313D). I
will not set them out in full. But I draw attention to three
of them, paragraphs (v), (vii) and (x). At p 1311G he said
this:
"In the event, the meeting on 23 April
proved to be the decisive meeting in the decision making process,
and neither parent had any opportunity to address it, or to
clarify any factual issues with the persons participating
at the meeting."
126. At p 1312A he said:
"Both parents say that in the record of the meeting of
23 April
there are a number of errors of fact with regard to the state
of
their relationship and to whether they were now putting
themselves forward effectively as joint carers for T or as
alternative sole carers. At para 31 the minutes state: `It
was
acknowledged that Mr M had not put himself forward as the
sole carer ...'. He says that that is simply wrong, although
at
para 5.2(ii) of her statement of 22 June 2001 Ms Doyle says
that
on 12 April 2001 the father told Helen Richards and Jerry
Tremaine that their intention was to reunite. I do not know
where the truth of the matter lies; but the critical meeting
of 23
April disabled itself from trying to clarify the position
face to-
face with the parents.
Further, the father says that the meeting was misinformed
as to,
or misunderstood, the extent of his progress with abstinence
from drugs. Paragraph 10 of the minutes records that `Mr M
has
not fully addressed his quite severe long term drug abuse'.
He
says that inquiry of the drugs project at Trengweath would
have
showed that he had. Paragraph 21 of the minutes records that
`Mr M is now on heroin substitute which he intends giving
up in
time'. He says that in fact by 23 April he had already ended,
or
was on the point of reaching the end of, his prescribed treatment
with heroin substitute. Again, I do not know the truth of
the
matter; but it is not clear that the meeting reliably informed
itself."
127. Finally, at p 1313C Holman J said this:
"I have heard nothing at all to satisfy
me that there was any necessity to deny each parent an opportunity
to attend at, and address, this critical meeting."
128. Now reported cases are, of course, authority
only for the propositions of law that they establish. Disputes
are not to be resolved simply by comparing the facts of more
or less similar reported cases and selecting the case that
appears to be closest on the facts. That said, one can see
why Mr Keehan draws attention to Holman J's reasoning. From
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Mr Tillyard's point of view it might be thought
that the facts of the present case are uncomfortably closer
to the facts of Re M than to the facts of Scott.
129. Be that as it may, the essential principle
is clear. At the end of the day fairness is something to be
assessed whether for the purposes of article 6(1) or article
8 having regard to "the particular circumstances of this
case" (Re M emphasis added). And one has to evaluate
the process or the proceedings (as the case may be) "considered
as a whole" (Mantovanelli), assessing matters "overall"
(Scott) and "having regard to all circumstances"
(Buchberger).
130. So much for the Convention jurisprudence.
But Mr Keehan also took me to important domestic authority,
to which I must now turn. It relates to two topics that are
central in the present case: the role of the single jointly
instructed expert and the issue of disclosure by the local
authority and guardian.
131. Extensive guidance in relation to the involvement
of experts in children cases is given in authorities such
as Re G (Minors) (Expert Witnesses) [1994] 2 FLR 291, Re C
(Expert Evidence: Disclosure: Practice) [1995] 1 FLR 204,
Re CB and .IB (Care Proceedings: Guidelines) [1998] 2 FLR
211 and, most recently, Re R (Care: Disclosure: Nature of
Proceedings) [2002] 1 FLR 755. I do not propose to rehearse
again matters dealt with in those cases so fully, and so much
better than I could do, by Wall J, Cazalet J and Charles J.
For present purposes I confine myself to quoting two extracts.
132. The first is from the judgment of Wall
J in Re CB and JB at p 224F where, having referred to the
draft letter of instructions to jointly instructed experts
contained in the Children Act Advisory Committee Annual Report
for 1994/95, he said:
"The mischief which the letter is designed
to prevent is an informal discussion between experts which
is either influential in or determinative of their views,
and to which the parties to the proceedings (including perhaps
other experts) do not have access.
The watchword of the Family Division is openness.
Although the proceedings are confidential and held in chambers,
nothing which affects the conduct of the proceedings must
be done in secret. Everything must be above board. It is absurd
in my view, and quite contrary to the spirit of the Children
Act 1989, if experts are to feel constrained by their instructions
from entering into discussions, informal or otherwise, which
may assist in informing their opinion of the case. But if
experts do have informal discussions about a case, perhaps
because they share the same premises, or meet at a conference,
or simply because they wish to inform each other's opinions,
it is of course essential that they make a record of all such
discussions (however brief) and, in their reports or otherwise,
inform those instructing them that such discussions have taken
place. It is
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equally important that they should state how
(if at all) those discussions have influenced their thinking
about the case.
For my part, therefore, I would delete the word
informal from the passage in the draft I have cited. Furthermore,
I would put the sentiments the other way round. I would say:
"It is expected that you will have meetings
with the parents, children (where leave is given), social
workers and the guardian ad litem. You are also, of course,
at liberty to discuss the case with any of the other experts
instructed if you feel that would assist you in writing your
report. It is, however, essential both to your role as an
independent expert and to the parties' perception of your
independent status, that if you do have informal discussions
or correspondence with any of the professionals or the lay
parties involved in the case, you should make a note of all
such discussions. You should also disclose the fact that you
have had them when you write your report, and explain what
influence, if any, such discussions have had upon your thinking
and your conclusions.""
133. At p 228F Wall J added this:
"It is of the greatest importance that
a proper record is kept of all meetings of experts. This,
in my experience, is best done by the guardian, although in
complex cases is may be appropriate to employ a shorthand
writer.
It is, however, even more important that the
results of the meeting itself are distilled into a statement
or similar document to which the experts can put their names
and which thus acquires evidential standing.
Like every other aspect of procedural innovation,
where experts' meetings are necessary, set up with care and
conducted with intellectual rigour and discipline, they can
save an enormous amount of court time and reduce the costs
of a case substantially. Where, however, such meetings are
unfocused or badly conducted, they can obfuscate rather than
clarify issues, thereby lengthening a case and increasing
costs.
In my judgment, therefore, the parties' lawyers
and the guardian ad litem have a particular duty to ensure
that such meetings are only called when necessary; that they
are appropriately constituted, have clear and relevant agendas,
are sensibly conducted and properly minuted; and that the
outcome of such meetings is as clear as the subject matter
allows."
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134. The other is from Re R where at p 795G
Charles J said:
"All involved in giving joint instructions
should take a full part at all stages and thus attend meetings
with the relevant experts, or at least comment in respect
of them."
135. I conclude on this aspect of the matter
with a reference to Peet v Mid Kent Healthcare Trust (Practice
Note) [2001] EWCA Civ 1703, [2002] 1 WLR 210, where the Court
of Appeal had to consider whether, in the context of a clinical
negligence case, it was proper for a single jointly instructed
expert to have a conference with the claimant in the absence
of the defendant. The Court of Appeal held unanimously that
it was not. Lord Woolf CJ said at p 214H (para [21]):
"One of the experts whose expertise is
nursing has interviewed the parents of the claimant for the
purposes of the preparation of her report. There can be no
objection to that. A single expert is perfectly entitled to
interview the parents for the purposes of preparing a satisfactory
report. There was no suggestion, as I understand it, for the
defendant to be represented when instructions of that sort
were being taken by the expert, and I would not expect the
defendant to raise any objection to what happened in this
case. That is one thing; but the idea of having an experts'
conference including lawyers without there being a representative
of the defendant present, as was suggested by the claimant's
solicitors, in my judgment is inconsistent with the whole
concept of the single expert. The framework to which I have
made reference is designed to ensure an open process so that
both sides know exactly what information is placed before
the single expert. It would be totally inconsistent with the
whole of that structure to allow one party to conduct a conference
where the evidence of the experts is in effect tested in the
course of discussions which take place with that expert."
136. He added at p 215C (para [22]):
"I would see no objection to consultation,
as long as it takes place where both sides are aware of what
happens within that consultation . ... There is nothing objectionable,
subject to both sides being present, in such a discussion
taking place. But the idea that one side should be able to
test the views of an expert in the absence of the other party
is clearly impermissible."
137. Simon Brown LJ at p 216E (para [32]) put
the point bluntly:
"When, if at all, should one party, without
the consent of the other party, be permitted to have sole
access to a single joint expert, ie an expert instructed and
retained by both parties? In common with Lord Woolf CJ, I
believe that the answer to this question must be an unequivocal
"Never"."
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138. Buxton LJ at p 217E (para [38]) added this:
"the whole idea of separate and private
approaches (and I emphasise private) to a joint expert is
wholly inconsistent with the reasons for the introduction
of a regime of joint expert evidence. It is unfair to the
expert himself who cannot properly judge how he should deal
with the matters in the consultation. And if it is known to
have been engaged in, it is likely to undermine the degree
of reliability which the court itself can place upon the evidence
which the expert eventually gives."
139. Although it is right to record that I have
heard no argument on the point (the case having come to my
attention only after the conclusion of submissions) I find
it difficult to see that the principle can be any different
in the Family Division, merely because the Family Division
is not the Queen's Bench Division or because the proceedings
are regulated by the Family Proceedings Rules rather than
by the Civil Procedure Rules. The approach in Peet is, as
it seems to me, entirely consistent with the approach to be
found in the other authorities including the family cases
to which I have referred. Dare one say, it is in any event
mandated by the very concept of fairness which lies at the
root of article 6.
140. So far as concerns disclosure I start with
a passage from the judgment of Cazalet J In Re C at pp 208B,
209G:
"In R v Hampshire County Council ex p K
[1990] 1 FLR 330 it was held that a local authority who brought
care proceedings has a duty to disclose all relevant information
in its possession or power which might assist parents to rebut
allegations being made against them, save for that which is
protected by public interest immunity . ... In my view it
is the responsibility of the local authority actively to consider
what documents it has in its possession which are or may be
relevant to the issues as they affect the child, its family
and any other person who is relevant in regard to an allegation
of significant harm, and to the care and upbringing of the
child in the context of the welfare checklist issues. The
local authority should not content itself with disclosing
the documents which support its case, but must consider itself
under a duty to disclose in the interests of the child and
of justice documents which may modify or cast doubt on its
case. The particular concern should relate to those documents
which actually help the case of an opposing party. If there
is any doubt about whether the information is relevant, consideration
should be given to notifying the affected parties of the existence
of the material. Whilst the temptation to invite costly, intrusive
and pointless fishing expeditions should be avoided, there
should be a presumption in favour of disclosure of potentially
helpful information. If documents are obviously relevant and
not protected from disclosure by public interest immunity,
then the local authority should initiate disclosure."
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141. More recently, in Re R, the topic has been
considered at some length by Charles J in a judgment arising
out of contested care proceedings which, if I may be permitted
to say so, deserves and repays the most careful study and
with which I am respectfully in entire agreement. The relevant
part of the judgment is at pp 772G 779F, with a coda at pp
785H 787G. The passages require to be read in full. For present
purposes I must be selective.
142. Charles J began with this general observation
at p 772G:
"It was rightly accepted that all parties
are under a duty to make full and frank disclosure. Initially,
this places a heavy burden on a local authority when presenting
their case ... it is also their duty ... to confine issues
and evidence to what is reasonably considered necessary for
the proper presentation of the case. A proper presentation
is, naturally, one that is fair and that has a proper regard
to Art 6 of the Convention.
That heavy burden arises in all cases where
public law orders are sought because of the nature of the
proceedings."
143. At pp 774F 775A he emphasised that:
"all respondents and their advisers ...
have mirror duties and responsibilities to those [of] the
local authority ... All the above duties of all the parties
continue with appropriate modifications throughout the preparation
of the case".
144. At p 775A he continued with this important
observation:
"In relation to disclosure, there seems
to be a general reluctance of many involved in family proceedings
to disclose documents. In part, this is justifiably based
on the nature of the procedure which, like judicial review,
is based on statements and the obligation of the public body
involved and other parties to make full disclosure. This leads
to the discouragement by the courts of fishing expeditions
for discovery or applications for discovery that can be described
as Micawberism ...
However, it seems to me that, additionally,
this reluctance is also often incorrectly based on views relating
to confidentiality and an assertion that records of the local
authority are subject to public interest immunity ... issues
relating to confidentiality and public interest immunity in
the context of Children Act proceedings are regularly misunderstood
and asserted as a reason why disclosure has not been made,
or for refusing a request for disclosure made of a local authority,
a guardian ad litem and experts in connection with proceedings
under the Children Act 1989."
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145. At p 776B he said:
"something over and above or in addition
to the simple assertion of confidentiality is needed to lead
to a conclusion that disclosure of material that passes the
relevant threshold test for disclosure can be refused in proceedings."
146. Having then sought to dispel a number of
misunderstandings about the doctrine of public interest immunity,
Charles J continued at p 778C:
"Both local authorities and guardians ad
litem should be more willing than they seem to be at present
to exhibit their notes of relevant conversations and incidents
that are relied on as evidence for findings at the threshold
or welfare stage of proceedings, rather than to embark on
what is a time consuming and difficult exercise of preparing
summaries of those notes"
147. In a passage starting at p 779A which I
need not set out in full he made it clear that guardians should
be more willing than many guardians are at present to disclose
contemporaneous notes when asked for by other parties. At
p 779B he commented that:
"the role and status of the guardian did
not warrant the failure to disclose the notes requested."
148. I agree entirely with everything said by
Charles J. And I wish to emphasise that I associate myself
entirely not merely with the detail but also with the more
general thrust of his observations.
149. Too often in public law proceedings both
the level of disclosure and the extent of a parent's involvement
in the crucial phases of the out of court decision making
processes fall short not just of the well established requirements
of domestic law just how consistently are the principles so
clearly articulated by Cazalet J in Re C, by Wall J in Re
CB and JB and by Charles J in Re R actually observed in practice?
but also of the standards which are now demanded by articles
6 and 8 of the Convention. The present case is in many ways
an all too characteristic example of an all too frequent phenomenon.
Not the least important of the many important messages which,
as it seems to me, we all need to absorb from what Charles
J has so clearly told us in Re R is the need for change in
the prevailing culture a culture of reluctant and all too
often inadequate disclosure.
150. The fairness which articles 6 and 8 guarantee
to every parent and also, of course, to every child in public
law proceedings imposes, as Charles J recognised, a heavy
burden on local authorities. But it must never be forgotten
that, with the State's abandonment of the right to impose
capital sentences, orders of the kind which judges of this
Division are typically invited to make in public law proceedings
are amongst the most drastic that any judge in any jurisdiction
is ever empowered to make. It is a
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terrible thing to say to any parent particularly,
perhaps, to a mother that he or she is to lose their child
for ever.
151. The State, in the form of the local authority,
assumes a heavy burden when it seeks to take a child into
care. Part of that burden is the need, in the interests not
merely of the parent but also of the child, for a transparent
and transparently fair procedure at all stages of the process
by which I mean the process both in and out of court. If the
watchword of the Family Division is indeed openness and it
is and must be then documents must be made openly available
and crucial meetings at which a family's future is being decided
must be conducted openly and with the parents, if they wish,
either present or represented. Otherwise there is unacceptable
scope for unfairness and injustice, not just to the parents
but also to the children. For as I pointed out in Re B at
p 1041 (para [68]), referring to what Lord Mustill had said
in In re D (Minors) (Adoption Reports: Confidentiality) [1996]
AC 593 at p 615F about `the interest of the child in having
the material properly tested':
"It is not only the individual litigant's
right to a fair trial which may point in the direction of
disclosure of the documents to him. The interests of the other
litigants may well point in the same direction, for the children
and other parties also have a right to a fair trial and, as
part of their right to a fair trial, the right to have the
forensic materials properly tested. It may well be that only
if there is disclosure to all concerned can the children and
other parties to the proceedings be confident that the materials
have been properly tested. So it may often be that disclosure
of the documents to the individual litigant is not merely
for his benefit but also for the benefit of the others and
the children in particular."
152. So much for the various authorities to
which I was referred.
153. I do not propose even to attempt to summarise
all this learning, let alone to formulate a comprehensive
statement of good practice in cases such as this. That is
a task for others. But there are certain principles of practice
in public law cases, particularly pertinent perhaps in the
circumstances of this case, to which attention can usefully
be drawn. What follows is based in large measure on the closing
submissions carefully crafted by Mr Keehan and Ms Henke, for
whose assistance in this respect, as in others, I am grateful.
154. If those involved in cases such as this
are in future to avoid the criticisms which, understandably
and, as it seems to me with no little justification, have
been levelled against some of those involved in the present
case they would be well advised to bear the following precepts
in mind:
i) Social workers should, as soon as ever practicable:
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a) notify parents of material criticisms of
and deficits in their parenting or
behaviour and of the expectations of them; and
b) advise them how they may remedy or improve
their parenting or
behaviour.
ii) All the professionals involved (social workers,
social work assistants, children's
guardians, expert witnesses and others) should at all times
keep clear, accurate,
full and balanced notes of all relevant conversations and
meetings between
themselves and/or with parents, other family members and others
involved with
the family.
iii) The local authority should at an early
stage of the proceedings make full and
frank disclosure to the other parties of all key documents
in its possession or
available to it, including in particular contact recordings,
attendance notes of
meetings and conversations and minutes of case conferences,
core group
meetings and similar meetings. Early provision should then
be afforded for
inspection of any of these documents. Any objection to the
disclosure or
inspection of any document should be notified to the parties
at the earliest
possible stage in the proceedings and raised with the court
by the local
authority without delay.
iv) Social workers and guardians should routinely
exhibit to their reports and
statements notes of relevant meetings, conversations and incidents.
v) Where it is proposed that the social workers
and/or guardian should meet with
a jointly appointed or other sole expert witness instructed
in the case (what I
will refer to as a `professionals meeting', as opposed to
a meeting of experts
chaired by one of the legal representatives in the case usually
the children's
guardian's solicitor):
a) there should be a written agenda circulated
in advance to all concerned;
b) clear written notice of the meeting should
be given in advance to the
parents and/or their legal representative, accompanied by
copies of the
agenda and of all documents to be given or shown to the expert
and
notice of all issues relating to or criticisms of a parent,
or a non-
attending party, which it is intended to raise with the expert;
c) the parent, or non attending party, should
have a clear opportunity to
make representations to the expert prior to and/or at the
meeting on the
documents, issues and/or criticisms of which he or she has
been given
notice;
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d) a parent or other party who wishes to should
have the right to attend
and/or be represented at the professionals' meeting;
e) clear, accurate, full and balanced minutes
of the professionals meeting
(identifying in particular what information has been given
to the expert
and by whom) should be taken by someone nominated for that
task
before the meeting begins;
f) as soon as possible after the professionals'
meeting the minutes should
be agreed by those present as being an accurate record of
the meeting
and then be immediately disclosed to all parties.
155. I emphasise that these are not intended
to be comprehensive guidelines. Nor are they intended in any
way to water down, let alone replace, anything said by Wall
J, Cazalet J and Charles J in the cases to which I have referred.
I build on those earlier analyses. I intend, simply by way
of supplement, to draw attention to some particular aspects
of proper procedure which need to be observed if in future
other parents are to be spared the unfairness to which D was,
as it seems to me, subjected in this case and if in future
proper regard is to be paid not merely to what domestic law
and practice have long recognised as appropriate but to what
articles 6 and 8 now require if there is to be proper compliance
with what the Convention demands.
156. On one point, however, I have to part company
with Mr Keehan. He submitted that the local authority's disclosure
should be by way of a list of all relevant documents. In this,
it seems to me, he goes too far.
157. General discovery for that is what this
would amount to has never been the practice in children cases,
not even when wardship was still in Chancery: In re D (Infants)
[1970] 1 WLR 599. As Harman LJ said at p 601E, speaking of
his vast experience in the Chancery Division:
"giving discovery in a wardship case ...
is quite contrary to practice."
He added at p 601 C:
"in my experience I have never heard of
discovery of documents in such a case."
158. Karminski LJ, no doubt with his extensive
experience in what is now the Family Division, agreed at p
601 H:
"Speaking only from my own experience,
I have no recollection of any such order ever having been
made."
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159. Now of course practice and procedure in
such cases has moved on enormously since 1970, not least under
the spur of the Convention and, since 2000, the Human Rights
Act 1998: cf Re M (A Minor) (Disclosure of Material) [1990]
2 FLR 36. But the fact remains, as Charles J mentioned in
the passage in Re R at p 775A which I set out in paragraph
[ 144] above, that what (to use pre Woolf terminology) one
might call automatic general discovery by list is not, and
never has been, part of the procedure in cases under the Children
Act 1989 neither in private law proceedings nor even in public
law proceedings. CPR 31 does not, after all, apply to such
cases.
160. Disclosure as referred to by Charles J
in Re R and as I have referred to it in paragraphs [149],
[151] and [154] above is one thing and a very necessary thing.
Automatic or routine general discovery by list is another
thing and, in my judgment, at least at present neither a necessary
nor a desirable thing.
161. I return to the circumstances of the present
case.
162. Mr Keehan complains, as I have said, that
in the circumstances as I have described them there were what
he calls wholesale breaches of good practice. The cumulative
effect of these was, he says, to deny D any or any adequate
involvement in the decision making process and any proper
or fair opportunity to present her case in court during the
hearing before me.
163. First, he says, and of the greatest concern,
is the mention by Dr J for the first time in his report of
11 April 2002 of a necessary pre condition for re unification,
namely "a greater acknowledgement of responsibility on
[D's] part for having caused harm to [M]". Although as
we now know this had in fact been identified at the meeting
on 18 December 2001, D, according to Mr Keehan, was never
told of this pre condition. It is not, says Mr Keehan, referred
to in any of Dr J's previous reports of 3 October 2001, 14
January 2002, 24 January 2002 and 13 March 2002. It was never
notified to D or her legal representatives, in writing or
otherwise. At no time, says Mr Keehan, was D ever told plainly
as, according to him, she should have been that a greater
acknowledgement on her part of responsibility for the injuries
inflicted on M was an essential pre condition to any further
assessment and thus to any possibility of reunification with
L.
164. More generally, Mr Keehan identifies a
long list of what he says were serious shortcomings indeed,
wholesale breaches of good practice in the procedures adopted
by the various professionals in dealing with D. According
to Mr Keehan:
i) D was not informed, and there was never any
discussion with her:
a) of the changes required to be seen in her,
as identified at the meeting on
18 December 2001; nor
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b) save for relatively minor matters, of the
concerns and criticisms of her
care held by the social workers or the guardian, many of which
were
then raised with Dr J at the meeting on 7 March 2002 eg, her
failure
to acknowledge her role in M's death, her inappropriate disciplining
of
L, her attending rough and drug ridden public houses and clubs
and her
falsely presenting bottled milk for L as breast milk.
ii) D was not offered in an appropriate manner
and at an appropriate time:
a) guidance or support on how she might correct
or remedy the defects identified; or
b) counselling or support to move forward in
her acceptance and understanding of her role in M's death.
iii) Record keeping was seriously deficient:
a) The guardian failed to make any notes of
her conversations with D, with
the other parties and with Dr J.
b) No minutes were kept by the social workers
or the guardian of their
meetings and discussions with Dr J.
c) The minutes or notes kept by Dr J were not
contemporaneously agreed
by the other participants, nor (with the exception of his
typed note of
the meeting on 7 March 2002) were they disclosed to the parties
until
after the commencement of the final hearing.
iv) So far as concerns the meetings on 18 December
2001 and 7 March 2002:
a) D was denied the opportunity to attend or
have a representative present
at the meetings.
b) No agendas were prepared.
c) No proper minutes were taken or circulated.
d) The lead social worker, HD, raised with Dr J a large number
of issues
the majority of which had not been raised with D and many
of which
were inaccurate, exaggerated or unsupported by any evidence.
The Honourable Mr Justice Munby Re C
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d) D had no opportunity to respond to or counter
those issues.
f) Despite the letter from her solicitors dated
8 February 2002, D was
allowed to remain under the impression that there were no
minutes of
either meeting; she received no record of the meeting on 18
December
2001 until after the hearing before me had begun and no record
of the
meeting on 7 March 2002 until she was given a copy of Dr J's
report of
11 April 2002.
v) Correspondence passing between the local
authority and/or the guardian and Dr
J was not disclosed at the time to D or her legal representatives.
All but one of
the letters referred to in Dr J's report of 11 April 2002
had still not been seen
by D or her legal team prior to the start of the hearing before
me, nor had the
lists of "positives" and "negatives" handed
to Dr J at the meeting on 7 March
2002.
165. What then were the consequences for D of
all these alleged breaches? According to Mr Keehan D had no
opportunity to understand or react to the criticisms of her
parenting or care of L. She was thus denied the opportunity
to seek help, ask for advice or otherwise demonstrate to the
professionals, to Dr J and, vitally, to the court that she
could improve her parenting, or change her approach or sustain
it. She was given no support or assistance to change her approach
to the death of M and her role in it which support was identified
by Dr J in his oral evidence as a matter of first importance.
All these handicaps, says Mr Keehan, still exist. She was
denied an opportunity to correct inaccurate or false information
which was given to Dr J at various stages through his involvement
and at crucial times when he was formulating his views about
her and about her prospects ultimately decided on a fine balance
of successfully parenting L.
!,, 166. Mr Keehan criticises both the social
worker, HD, and the guardian. HD, he says, made
none of the efforts or approaches normally to be expected
of a social worker,
particularly in so difficult a case, to work and build a relationship
with a mother. HD
was allocated to the case in July 2001. It is a fact that
she has observed only four
contact visits between D and L the last some eight months
ago and that her last
two visits to D were on 4 December 2001 and 30 April 2002.
It is, says Mr Keehan, a
lamentable approach. The local authority, he says baldly,
has failed D in seeking to
assist and support her to care for L.
167. The approach of the social worker, HD,
and the guardian, suggests Mr Keehan, is graphically illustrated
by their failure to invite D to explain her observations to
the contact supervisor, LH, on 29 January 2002 but nonetheless
to assume the most sinister and worst possible construction
and communicate it to Dr J. In the event, as he points out,
the guardian in her evidence accepted as wholly plausible
the explanation that D had given in her evidence to me (see
further paragraph [208] below).
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168. It is manifestly unfair, in breach of natural
justice and in breach of articles 6 and 8, says Mr Keehan,
that D should be unaware of documents given to or discussed
with an expert witness in the case, unaware of criticisms
or allegations to be made against her in discussions with
that expert (the majority, at least, of which she had no prior
knowledge) and thus be deprived of any opportunity to counter
the matters raised or to explain them. An opportunity at a
final hearing to cross examine the expert or other witnesses
cannot, he submits, be any substitute for making contemporaneous
representations before such an important decision was made
as not to admit D and L to Dr J's hospital. As Mr Keehan correctly
points out, neither the local authority nor the guardian has
even sought to suggest, let alone to establish, that there
were any proper grounds for failing to disclose documents
or criticisms and allegations to D in advance of their meetings
or discussions with Dr J.
169. Moreover, as Mr Keehan asks rhetorically,
Why could D and/or her legal representative not have attended
the meetings, even if only as observers?
170. Summarising D's case, Mr Keehan submits
that L's interests are best met by being raised by his mother,
D, if at all possible, but the refusal to continue any further
with an assessment of D's ability to care for L effectively
ends any hope that he could live with
', and be raised by his mother. Mr Keehan recognises, as he
must, for there is much
Strasbourg and indeed domestic jurisprudence to this effect,
that L's best interests
his right to respect for his private and family life may in
appropriate circumstances
override D's right to respect for her family life. But, he
says, such an interference with
L's and D's respective rights to respect for their family
life can only be justified if it is a
necessary and proportionate response to L's needs. Moreover,
the procedure by which
such plans and decisions are made must be manifestly fair
and must allow the
involvement of D in the decision making process to a degree
sufficient to provide her
with the proper protection of her interests. In fact, he says,
D has been excluded from
the decision making processes in this case and those processes
have been seriously
flawed.
171. Furthermore, says Mr Keehan:
i) None of the various matters raised by the
social worker, HD, the guardian or
Dr J, individually or collectively, provide any objective
basis for Dr J's change
in his original clear recommendation.
ii) D has made substantial changes in her life
since M's death, the evidence as a
whole speaks positively of her abilities to care for him and
of her, as he would
have it, unwavering commitment to prove herself a good and
safe parent, and in
all the circumstances she and L should be given the opportunity
for further
assessment before final plans are made for his future.
172. I must return to consider the first of
these points in due course. But it is convenient at this stage
to elaborate Mr Keehan's submissions in support of his second
point.
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173. Of course, he says, D was found to have
caused M's death. Of course, he says, that finding is a very
grave one. But D was then only 16; now she is 21. She has
demonstrated great commitment to L and to caring for him.
She expressed breast milk for some five months in the belief
it would be best for him. She has never failed a contact with
him or, save on one occasion, complained of alterations in
the contact arrangements. She has enjoyed a good relationship
with L's foster carers, Mr and Mrs J, and been polite and,
in the main, co operative with LH and the other contact supervisors.
She has co operated fully with the health visitor, MC, and
with Dr J and his team. Four times, and under her own steam,
she has made the long and difficult journey by public transport
to Dr J's hospital: not once was she late.
174. Moreover, there have been improvements,
he says, since the beginning of this year. Dr J and his team
noted progress during the assessment in January 2002. The
guardian also seems to have thought there was some improvement
and indeed claims to have said as much at the meeting on 7
March 2002 though there is no record of it in either of Dr
J's notes: "I put forward my view that [D] had moved
forward ... [Dr J's] notes do not reflect my comment about
[D's] progress." (Unfortunately this only emerged after
Dr J had left court having given his evidence, so there was
no opportunity to explore this issue with him. Mr Keehan suggests
that Dr J's failure to note this important comment of the
guardian shows that he omitted to take account of her views.
This was, he submits, a significant omission in Dr J's assessment
of D's ability to progress on these issues.)
175. Finally, says Mr Keehan, there is much
evidence, particularly from the contact supervisor, LH, to
show that contact between D and L has very significantly improved
since Easter this year. There are no longer any significant
criticisms. On the contrary, HD in her oral evidence described
the last few weeks' contact as more relaxed; LH said that
the quality of the contact between D and L had changed since
Easter 2002. And on top of all this, D's relationship with
her mother, S, is also much improved.
176. So all in all, says Mr Keehan, I ought
to conclude that D has not had a proper opportunity to prove
or demonstrate her ability to move forward in her views about
M's death, that the commitment she has demonstrated to L augers
well for their future together and that she ought properly
in all the circumstances to have an opportunity in a renewed
assessment to prove her ability to care safely for him. In
this regard he suggests that the combination of his continued
contact with the foster carers and his improved contact of
late with his mother reduces significantly the possible, albeit
temporary, adverse effects on L of placing him with D during
an assessment in Dr J's hospital.
177. Thus Mr Keehan's submissions.
178. At the outset of the hearing the local
authority's stance, as outlined in Mr Tillyard's position
statement dated 26 May 2002, was that these complaints were
"wholly without merit". By the end of the hearing
the local authority's position had moderated. Tacitly, at
least, it accepted some of Mr Keehan's criticisms, though
stoutly maintaining that overall, and assessing the case as
matters stood at the end of the
The Honourable Mr Justice Munby Re C
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hearing, the decision making process had been
fair. Mr Crowley was more forthcoming in acknowledging the
deficiencies of the pre trial decision making process but
joined with Mr Tillyard in asserting that, overall at the
end of the day, fairness had been achieved.
179. I return to Mr Keehan's first submission,
that D was never told of the necessary precondition for re
unification, namely a greater acknowledgement of her responsibility
for having harmed M.
180. Whatever may have appeared to be the position
before the hearing began, and before all the relevant documents
had been disclosed, it can now be seen quite clearly in my
judgment that there is no substance in this complaint. It
is difficult to see how D can have been in any real doubt
as to what was required following her meeting with HD on 4
December 2001. Be that as it may, matters could hardly have
been made much clearer than they were by N on 3 January 2002.
181. Moreover, N's notes, the relevant parts
of which I have quoted in paragraph [25] above, need to be
seen in a wider context. One part of that wider context is
Dr J's own identification of the purposes of D's assessment
in January 2002, both as set out previously at the meeting
on 18 December 2001 and subsequently at the meeting on 7 January
2002. The other is that the nursing staff who were also part
of the team looking after D during the assessment in January
2002 had been carefully briefed in advance as to the purpose
of the exercise. The nursing notes clearly identify that purpose.
In one such note the `reason for admission' was said to be
in part:
"to offer [D] intensive individual work
with the wider team to work on her acknowledgement of her
responsibility for the death and abuse of her 1st child [M]".
182. In another the `goal' was:
"For [D] to use her formal and informal
individual work to explore and acknowledge her involvement
and responsibility for her first child's death by suffocation
and physical and emotional abuse."
183. Describing the required `nursing interventions'
the same document explained:
"nurses should attempt to build a relationship
with [D] in which she may feel safe enough to talk about her
experiences."
184. Now true of course it is that D was not
privy to what had gone on at the meeting on 18 December 2001
and to every detail of Dr J's thinking or (I am prepared to
assume) to the precise nature of the instructions given to
the nurses. But the assessment between 2 4 January 2002 was
very intensive and, as the clinical notes show, involved not
merely intensive work with the more senior members of the
team but also extensive
The Honourable Mr Justice Munby Re C
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interactions between D and the nurses. Given
the thought that Dr J had given to it, and given how very
carefully every member of the team had been briefed, I find
it almost impossible to imagine how D could have got through
the process without becoming very well aware of where the
focus of all the effort was being directed. It seems to me
quite inconceivable, not least having regard to her conversations
with HD and N, that D can have been left in any doubt as to
what the assessment was driving at namely the extent to which
she was or was not able to move forward towards an acknowledgement
of her responsibility for having harmed M.
185. Observation of a conversation on 3 January
2002 recorded in the nursing notes is
revealing and sadly telling:
"Staff' spent over an hour with
[D] chatting ... she was very
chatty “
186. The conversation turned to M:
" ... She also said that after [M]
died [SC] was violent towards her & this made her think
who had he been hitting before her. She said `even though
I never laid a hand on her I was in a way responsible for
her death."'
187. This could hardly be clearer, as it seems
to me, both of the fact that D must have been aware of what
the purpose of the assessment was and also of how wholly unable
in fact she was to move forward. The note stands as eloquent
if saddening testimony to the accuracy of the team's overall
analysis of D's progress as summarised in Dr J's notes of
the meeting on 7 January 2002, the key passage in which I
have set out in paragraph [26] above.
188. In the course of his oral evidence Dr
J made an important point which I have borne very much in
mind when considering Mr Keehan's submissions. Dr J explained
that for clinical purposes it was important to avoid being
too prescriptive, too precise, in telling a patient in D's
position exactly what was required of her. There was a difficult
balance to be held, but it was not appropriate to spell it
out in terms of "unless you do so and-so, this will happen".
Otherwise an assessment such as that in January 2002 would
simply become a process of setting up a hoop and inviting
the patient to jump through it, "success" in passing
through the hoop being judged merely by the not necessarily
sincere mouthing of formulaic phrases.
189. Commenting on N's note of her discussion
with D on 3 January 2002 Dr J said that N
was attempting and in his opinion successfully to steer a
course between, on the
one hand, being too explicit with D and, on the other hand,
not sufficiently attempting
to engage successfully with her. In other words, to formulate
the necessary pre
condition with that degree of precision and explicitness which
tends to appeal to a
lawyer might, in Dr J's view, be clinically counter productive.
I agree. There was a
careful and difficult balance to be held. It was for Dr J
and his team, exercising their
The Honourable Mr Justice Munby Re C
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clinical judgment, to decide how the balance
was to be held. They seem, if I may be permitted to say so,
to have held the balance admirably.
190. In any event, and this is what matters
at the end of the day, I am entirely satisfied that D can
have been left was left in no real doubt as to what the assessment
was all about and what it was that was expected from her.
It is quite apparent that she was given every possible chance
to show that she was indeed able to move forward. Very sadly,
despite being given every opportunity, and for whatever reason,
she signally failed to do so. In the course of his oral evidence
Dr J told me that his team made clear to D that they had to
understand what had happened to M. I am sure they did. He
told me that in his view there can have been no doubt in D's
mind as to the need for acknowledgement. I agree.
191. In any event Mr Keehan's contention, whatever
substance there might have been in it down to that time, cannot
have survived the point on 30 May 2002 at which D finished
giving oral evidence before me. For the simple fact is that,
despite being given every conceivable opportunity to do so,
both while giving her evidence in chief and whilst being cross
examined, D conspicuously failed to give the slightest indication
that she was able to move forward at all from the position
she had adopted in submitting to the threshold document on
23 November 2001 and when speaking to HD on 4 December 2001.
192. Indeed, from one point of view her oral
evidence might even be thought to represent a step backwards.
For D suggested under cross examination that it was SC who
had caused M's death, something which Mr Tillyard was able
to demonstrate had not been D's contention either at or prior
to the threshold hearing in November 2001 (in the threshold
document, as we have seen, she sought to attribute M's death
to "a yet unascertained natural cause"). D's position
at the end of her evidence was that, although she blamed herself
for failing to protect M, she had not herself harmed her,
let alone caused her death. "I'm not trying to blame
[SC] but it wasn't me." "If someone suffocated her,
it was [SC] certainly not me." "I was not responsible
for her broken ribs whoever did it would have known I know
it wasn't me." In answer to questions from Mr Crowley
she agreed that the guardian had asked her if it was possible
she had put her hand over M's mouth. "I said it wasn't
possible." In this respect D's attitude in the witness
box was really no different from that recorded by HD at their
meeting on 30 April 2002: according to HD's evidence, which
I have absolutely no reason to doubt, D continued to deny
any responsibility for the actual injuries or for M's death.
193. I agree with Mr Tillyard when, in his closing
submissions, he suggested that, although there is some acceptance
of some responsibility for what happened to M, D is now trying
to dissociate herself more than she was in November 2001 from
having been the cause of M's death. I agree with Mr Tillyard
when he submits that there has been little if any acknowledgement
by D of her responsibility for what happened to M the injuries
and, more importantly, her death and when he also submits
that nor is there likely to be in the foreseeable future.
As he says, she has had every opportunity to change her position.
She must have known in my judgment she did know that Dr J
The Honourable Mr Justice Munby Re C
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and his team were hoping she would change. She
certainly knew that the court regarded it as being of the
utmost importance when she gave her oral evidence. Mr Tillyard,
in my judgment, is entirely correct when he says that D is
entrenched in her view and that there is no evidence that
it is likely to change.
194. It may be convenient to record here a revealing
comment that D made in the witness box, this time in answer
to questions from Mr Tillyard. "I didn't harm [M], so
I don't need therapy to protect [L] from me." Something
else she said rightly attracted the worried concern of the
guardian, who commented that D's reference to M "passing
away" did not reflect the fact that she had died by suffocation.
As the guardian said, "I am deeply concerned that [D]
is still at that point today."
195. In answer to a question I put to her the
guardian described D as very bright but emotionally somewhat
flat an assessment which entirely accorded with the impression
I gained having had the opportunity to observe D's body language,
facial expressions and general demeanour not merely whilst
she was in the witness box giving evidence but as she was
sitting in court throughout the hearing.
196. For these reasons I reject Mr Keehan's
first submission. In my judgment D knows perfectly well she
knew perfectly well during the assessment in January 2002
that the necessary pre condition for re unification with L
was and is some real acknowledgement of her responsibility
for having harmed M. But, sadly, the reality is that, for
whatever, reason D is either unable or unwilling to accept
such responsibility.
197. There is, however, very much more substance
in Mr Keehan's other and more wide-ranging submission, namely
that D has been denied a fair opportunity to participate in
the decision making process.
198. For reasons that will become apparent in
due course I think it convenient first to consider the question
by reference to how matters stood immediately before the final
hearing began on 27 May 2002.
199. The simple fact, in my judgment, is that
Mr Keehan's catalogue of complaints is in very large measure
entirely justified. Indeed much of it is well nigh irrefutable.
To take only three of the most obvious failures to comply
with well recognised and elementary requirements of good practice
and fairness:
i) No agendas were prepared for the meetings
on 29 August 2001, 18 December
2001 and 7 March 2002 (the omission on the last occasion having,
as we have
seen, the most serious consequences).
ii) Record keeping was in many respects abysmal
notes taken for clinical
purposes are simply no substitute for properly prepared, agreed
and circulated
minutes.
The Honourable Mr Justice Munby Re C
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iii) Disclosure of important documents to D
was neither volunteered nor prompt.
200. The consequences of this are all too apparent:
i) There was misunderstanding between the participants
as to the purpose of what
in the event emerged as the crucial indeed decisive meeting
on 7 March
2002.
ii) Dr J, whose clinical notes turned out to
the only contemporaneous records of
crucial meetings, was cast in the unfortunate and unfair position
of being
seemingly criticised for not giving earlier disclosure of
minutes of meeting
which it was not his function to take when these so called
minutes were
simply his clinical notes. His notes would probably not have
attracted the
attention which, faut de mieux, was given to them had there
in fact been proper
minutes of the meetings.
iii) Time was taken up unnecessarily at trial
whilst witnesses who had not
previously had an opportunity to study Dr J's notes were asked
whether they
agreed them as accurate records of meetings which had taken
place some
months previously.
201. But more serious than all of this is the
fact that D was afforded, almost from beginning to end, what
in my judgment was a wholly inadequate involvement in the
decision-making process. This failure is exemplified by the
following features in particular:
i) D and her legal representatives were wrongly
excluded from meetings on 18
December 2001 and 7 March 2002 to which she should have been
invited and
one of which on 7 March 2002 she had specifically asked to
attend.
ii) D was given no opportunity to answer the
criticisms of her that, without her
knowledge, were put to Dr J both at and after the meeting
on 7 March 2002.
iii) The failure to disclose a whole series
of documents, including correspondence
and other communications passing between the local authority
and the guardian
and Dr J, meant that she was kept significantly in the dark
as crucial events
unfolded.
iv) The lack of direct contact between D and
both HD and the guardian merely
exacerbated her marginalisation in the decision making process,
particularly
during what turned out to be the period in the early part
of 2002 when crucial
decisions about her future were being taken.
202. Some of these points require further elaboration.
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203. There is a striking contrast between, on
the one hand, the exemplary notes of the contact between D
and L taken by the contact supervisors, in particular LH (the
mainly typescript records of contact between 16 July 2001
and 3 May 2002 fill some 170 pages), HD's exemplary note of
her meeting with D on 4 December 2001 and the more than adequate
minutes of the Core Group Meetings held on 26 March 2001,
8 June 2001, 24 July 2001, 4 September 2001, 5 October 2001,
16 November 2001, 20 December 2001 and 23 April 2002, the
Child Protection Case Conferences held on 3 August 2001 and
30 January 2002 and the Looked After Review / Core Group Meeting
held on 22 January 2002, and, on the other hand, the entire
absence of any minutes, notes or records (other than Dr J's
notes taken for clinical purposes) of what in the event turned
out to be the two crucial meetings the professionals' meetings
on 18 December 2001 and 7 March 2002.
204. What is also striking (to put it no higher)
is the fact, as she was forced to admit in the witness box,
that from beginning to end of her involvement in this case
the guardian kept at best only "very minimal" notes
of her meetings and discussions. She said that she relied
on her memory to write her reports. Whatever notes she did
keep, none were ever produced for inspection.
205. In assessing the extent to which D was
actually allowed to be involved in the decision-making process
it is also important to bear in mind the striking fact that
during the crucial period between 23 November 2001, when the
threshold findings were made by Connell J, and 18 March 2002,
when the matter came before me for directions,
i) apart from at the Core Group Meeting on 20
December 2001, the Looked
After Review / Core Group Meeting on 22 January 2002 and the
Child
Protection Case Conference on 30 January 2002 (none of which
were attended
by the guardian), D had seen HD only once on 4 December 2001;
and
ii) D had seen the guardian only once on 7 December
2001 when she arrived
unannounced to observe D's contact with L.
206. Indeed, as she readily acknowledged in
the witness box, HD had only met D a total of six times in
the last ten months. The last time she saw D and L together
was on 26 September 2001. Court hearings, Core Group and similar
meetings apart, since the threshold hearing in November 2001
she has seen D only twice: on 4 December 2001 and on 30 April
2002. And during the same period she appears to have written
to her only once: on 6 February 2002.
207. The failure to raise with D, whether before
or after the meeting on 7 March 2002, the
various concerns listed in LH's list of "negatives"
is bad enough. But it does not
appear to have been an isolated phenomenon. LH, whose contact
notes are the quarry
from which many of the local authority's reported concerns
seem to have been
extracted, did not herself ever raise any of these concerns
with D. Her understanding,
as she explained in her oral evidence to me, was that it was
not her place to do so. She
The Honourable Mr Justice Munby Re C
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did raise some of her concerns, she said, with
HD. She did not know whether HD had in turn raised them with
D.
208. It is apparent, not merely from the limited
extent of her direct involvement with D but also from what
she said in her oral evidence, that HD does not seem to have
been particularly astute at any time to discuss such matters
with D. Nor is it clear to what extent the guardian did so.
It would be tedious, and in the event no real purpose would
be served, if I were to go through this aspect of the case
in any great detail. Two examples suffice, but they are painfully
revealing:
i) HD accepted in her oral evidence that she
did not raise with D the local
authority's concerns about her lifestyle and her frequenting
of local pubs known
for drug dealing. It is concerning, to say the least, that
an issue as important as
this, an issue which, after all, was felt by the local authority
to be sufficiently
relevant and important as to require to be brought specifically
to Dr J's
attention, should never have been discussed with D by the
main social worker.
ii) The other example relates to the comments
made by D during contact on 29
January 2002, comments felt to be so significant that, as
we have seen
(paragraph [58] above), both the guardian and HD specifically
drew Dr J's
attention to them following the meeting on 7 March 2002. Yet
when the point
was put to her in cross examination the guardian was prepared
to accept D's
explanation that her comment had been flippant. It is apparent
that this
obviously important incident was never discussed with D. Had
it been, an
incident which both the guardian and HD saw as potentially
significant and
indeed sinister would have been seen for what it was, an innocent
piece of
flippancy.
209. But when all is said and done, quite plainly,
in my judgment, the single most serious failure to involve
D adequately in the decision making process the single most
fundamental deficiency in the entire process relates to her
exclusion from the meeting on 7 March 2002. And the unfairness
D suffered by having been wrongly excluded was simply compounded
by what then took place in her absence indeed to all intents
and purposes behind her back. I do not propose to go into
the details the matter was understandably explored at some
length in the evidence before me but the simple fact is that
in a number of important respects the information given to
Dr J at the meeting on 7 March 2002, without any prior warning
to D and without D being given any opportunity to challenge
it or put it in context, was, as Mr Keehan submitted, either
inaccurate or exaggerated.
210. There was no justification for refusing
D's request to attend the meeting. This was not a meeting
of experts. It was a meeting at which a jointly appointed
expert, whose decision, as Mr Crowley very properly accepted,
was effectively going to be determinative, was discussing
the case with two of the parties in the absence of the third.
That, in my judgment, was a plain breach of the principles
of fairness and openness articulated in cases such as Re CB
and JB and Peet and mandated by articles 6 and 8. And D's
right to attend such a meeting is not affected by the fact
that it was
The Honourable Mr Justice Munby Re C
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described as a professionals' meeting. No doubt
it was, but the fact is for this purpose immaterial. One of
two parties who have jointly appointed an expert cannot justify
an ex parte approach to the expert in the absence of the other
merely because he is, or appoints as his delegate someone
who is, professionally qualified. And the excuse cannot in
any event explain what happened at the so called professionals'
meeting on 18 December 2001, given that it was attended not
merely by the guardian and HD but also by the local authority's
solicitor and the guardian's solicitor, Mr Crowley. Why, if
they were invited, was not D's solicitor also invited? I can
think of no justification for the omission and Mr Crowley,
much to his credit, accepted that there was none.
211. Given what took place during and immediately
after the meeting on 7 March 2002, and
given the centrality of Dr J's role and the fact that his
opinion was likely to be
determinative both of the local authority's stance and, indeed,
of the ultimate decision
the court is required to make, there was here in my judgment,
just as there was in
Mantovanelli and for much the same reasons, a clear failure
to meet the standards of
fairness mandated by articles 6 and 8.
212. Looking to all the circumstances of the
case, assessing matters as they stood immediately before the
final hearing began on 27 May 2002, I have come quite clearly
and without any hesitation to the conclusion that the decision
making process seen as a whole had not been such as to involve
D to a degree sufficient to provide her with the requisite
protection of her interests. I am not suggesting for a moment
that anyone set out to treat her unfairly. But in my judgment
her treatment by the local authority and, in particular, the
events surrounding, and her exclusion from, the meeting on
7 March 2002 were, however unwittingly and unintentionally,
unfair on any objective view.
213. There had been, as Mr Keehan correctly
submitted, wholesale breaches of good practice. Whether judged
by well established principles of domestic law or by reference
to the domestic and Strasbourg jurisprudence in relation to
articles 6 and 8, the process, as matters stood immediately
before the final hearing, had been unfair to D and, I might
add, to precisely the extent that it had been unfair to D
it was unfair also to L.
214. Moreover, Mr Keehan's criticisms of the
social work in this case (see paragraphs [ 166] [ 167] above)
seem to me unhappily to be well founded. "Lamentable"
his epithet may be unduly harsh in its description of HD's
work with D, but the shortcomings in the local authority's
treatment of her are apparent. Not merely was she insufficiently
involved in the crucial stages in the decision making process;
D did not receive from the local authority the social work
assistance and support that one would have hoped to see.
215. Thus matters when the final hearing began.
216. Mr Keehan, as we have seen, submits that
nothing which took place during the final hearing did indeed
could cure the previous deficiencies in the decision making
process.
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217. Mr Tillyard and Mr Crowley disagree. Their
submission, as put by Mr Tillyard, is that, looked at as a
whole and assessed at the end of the hearing as I agree it
must be the decision making process has been fair and such
as, overall, to afford D the requisite protection of her interests
as required by articles 6 and 8. In particular, says Mr Tillyard:
i) D has now had sight of all the relevant case
records and the records of all the
professionals' meetings.
ii) She has had the opportunity to cross examine
both the professionals who spoke
to Dr J at the meeting on 7 March 2002 HD and the guardian
and also LH,
the author of the lists of "positives" and "negatives".
iii) She has had the opportunity to cross examine
and put her case to Dr J,
including, as it were, putting to him, "what if you had
been told this ... would
your view have been different?"
218. In other words, says Mr Tillyard, the situation
here is very different from that in Mantovanelli. True it
is that Dr J's views even if not determinative are likely
to have a preponderant influence on the court. But, says Mr
Tillyard, D, in contrast to the litigants in Mantovanelli,
has, albeit only at trial, had access to, and been able to
cross-examine all the relevant witnesses on, the documentary
and other material laid before Dr J and has been able to cross
examine not merely Dr J but also the witnesses on whom it
might be said he relied in coming to his final conclusion.
Moreover, as Mr Crowley points out, in contrast to what happened
in Mantovanelli, it is not as if D has not in the past had
substantial access to Dr J and thus had every opportunity
prior to 7 March 2002 to put her case over to him. In that
sense, he suggests, D was on an equal footing with the local
authority and the guardian.
219. These are, I entirely accept, important
and significant distinctions between the two cases, but the
ultimate question remains the same: looked at overall, has
the decision-making process, particularly as it relates to
the formulation by Dr J of his final position, been fair?
220. Mr Tillyard and Mr Crowley say it has been.
In this connection Mr Crowley makes an important point. Nothing
that had happened down to the meeting of 7 March 2002, he
says, could be said to have involved any unfairness so far
as concerns Dr J's role in the decision making process. And,
says Mr Crowley, whatever happened at and in connection with
that meeting it was not that which in the final analysis led
Dr J to change his mind. In his evidence, he says, Dr J maintained
that a correct account of D at the meeting on 7 March 2002
would not have changed his provisional decision to refuse
a residential assessment of the mother, contrary to his initial
decision. The negative events as reported to him merely heightened
his concerns but did not bring about his change of mind.
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221. This last point is crucial. It is therefore
important to analyse closely Dr J's oral evidence in the witness
box.
222. Dr J made it quite clear in his oral evidence
that the "key" factor was D's acknowledgement of
responsibility. He made the important general point that at
the more serious end of the spectrum of abuse, and particularly
where the abuse had resulted in a child's death, one needed
some degree of acknowledgement if there was to be any prospect
of a successful rehabilitation. In his experience, where there
had been a successful rehabilitation following a death there
had usually been both a partner who was supportive and D,
of course, has no such partner and a level of acknowledgement
greater than there had been in D's case. As I understood his
evidence, if there was to be any realistic prospect of success
Dr J would expect more by way of acknowledgement than there
had so far been from D. His appraisal was that there had been
no movement by D in relation to M's death. In relation to
the basic facts of what had happened to M, D had never moved
beyond the admissions in the threshold document.
223. So far as concerned the meeting on 7 March
2002 Dr J was able to reconstruct his
approach in detail and with what seemed to me convincing clarity.
His account in the
witness box accorded in all material respects with the accounts
given in his reports
dated 13 March 2002 and 11 April 2002. Prior to the meeting
taking place he had
reached the conclusion that the assessment should not go ahead.
Although this
represented, as he frankly admitted, a change of mind, he
was now very clear, he had
made his mind up subject to this, of course, that if either
HD or the guardian had
anything positive and persuasive to report he would have to
consider it carefully. He
thought it unlikely they would.
224. Not surprisingly, Dr J was probed in some
detail on this last point.
225. If there was a sea change in relation to
D's acknowledgement of responsibility, then he
would certainly have to listen to that that would be a very
different position.
However the simple fact was that there was no such change
to report.
226. But what if there was change only in other
areas, for example the change to which I
have already referred in relation to the quality of D's contact
with L in recent months?
That was something which he would want to know about it was,
in his view, both
"interesting" and a "surprise" to him
but, as Dr J made quite clear, and I
unhesitatingly accept his evidence on this point, it would
not change the balance or
make him reverse the view he had formed by the time of the
meeting on 7 March
2002.
227. And what if the account of D he had been
given on 7 March 2002 had been the "true"
and accurate account the account he would have had if D had
been able to attend the
meeting and give her version of events rather than the over
stated and in some very
important respects significantly inaccurate account summarised
in LH's list of
"negatives"? Dr J's answer to this absolutely crucial
question was quite clear, and
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again I have no hesitation in accepting it.
Even if he had been given an absolutely accurate version of
events it would not have made any difference to his decision
not to carry out the assessment.
228. Now if one stands back and looks at the
case in the round, and if in particular one remembers Dr J's
analysis of the case both in December 2001 and in January
2002 (see in particular paragraphs [22] [23] above), there
is nothing at all surprising about this. If D was to progress
beyond the three day in patient assessment on her own to a
two week residential assessment with L, there had to be a
significant movement on D's part towards a greater acknowledgement
of her responsibility for having harmed M. If there was then,
as I have said, all well and good. But and this is the key
point if there was not, then progress in other areas would
not suffice to swing the balance.
229. In other words, the critical swing point,
if Dr J was to be persuaded at the meeting on 7 March 2002
to reverse the decision to which he had gradually come since
his reports of 14 and 24 January 2002, and persuaded to revert
to the position as set out in those reports, was a demonstration
that in relation to acknowledgement of responsibility D had
in fact moved forward since he had last seen her in January
2002. Positive further progress in relation to acknowledgement
of having caused M's death had to be demonstrated if he was
to be justified in reverting to his earlier view. And the
simple fact, in his view, was that there had been no progress
in this respect.
230. I have no hesitation whatever in accepting
Dr J's evidence which was given with complete frankness. The
short point, and he did not seek in any way to shirk it, was
that he had gradually come to the conclusion, mulling things
over in his own mind and discussing the case with his team,
that he had come to the wrong decision in January 2002. On
reflection he had realised that there simply was not sufficient
of an acknowledgement on D's part to justify moving forward
to the next stage of the process. I do not find that particularly
surprising (cf paragraph [30] above). But and this is the
vital point that was a conclusion he had come to his own and
before the meeting on 7 March 2002. It was not anything he
was told on 7 March 2002 that made him change his mind. The
determining factor was simply D's lack of acknowledgement
of responsibility. It is therefore, with all respect to him,
entirely beside the point for Mr Keehan to say that none of
the matters raised by the guardian and HD justified Dr J's
change of mind. I agree, but it is not Dr J's evidence that
they did or could.
231. It is to be noted that from beginning to
end Dr J has never moved on the fundamental point that unless
there was appropriate acknowledge there could be no further
assessment. His only change of view has ever been as to the
extent to which (if at all) there has in fact been a sufficient
acknowledgement.
232. The most skilled cross examination by Mr
Keehan who has with great skill done everything that any advocate
could have done for D entirely failed to shake Dr J on this.
233. Mr Crowley helpfully identified a series
of questions I should ask myself:
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i) Was the information given to Dr J on and
after 7 March 2002 inaccurate or
exaggerated?
ii) If so, what impact did it have on Dr J?
iii) Did it influence his decision?
iv) Did it impinge upon his independence?
234. I have already answered question (ii) at some length.
The answers to the others can be stated very shortly. The
answer to question (i) is yes, to both questions (iii) and
(iv) no.
235. Now this is all very well, says Mr Keehan,
but, he submits, what D has lost as a result of her exclusion
from the meeting on 7 March 2002 is the opportunity, as it
were, to put her own case to Dr J, the opportunity herself
to demonstrate to him the progress she had made, the opportunity
herself to persuade him to continue with the assessment. It
is no good, he says, that D may have been given the opportunity
of persuading me that she has made progress. For this purpose
the crucial decision maker the person who has to evaluate
whatever progress D may have made is, submits Mr Keehan, the
expert, Dr J, and not the judge. And D should have the opportunity
to put her case to Dr J in a more friendly and supportive
setting than a court room. Moreover, says Mr Keehan, Dr J
has been deprived of the opportunity to exercise his professional
judgment in the light of and having regard to all the relevant
material. Indeed, as he points out, Dr J gave his oral evidence
before D had given hers.
236. I can agree with Mr Keehan to this extent.
If there was anything to suggest that there had been even
at this very late stage any sign of a change in D's position,
any sign of a greater willingness on her part to acknowledge
her responsibility for M's death, then it would, as it seems
to me, have been for Dr J sitting in his consulting room,
and not for a judge sitting in a court, to evaluate the significance
of that change and, in particular, to decide whether that
change was significant enough to justify a continuation of
the assessment. But in my judgment one does not get to that
point unless I can be satisfied and the plain fact is that
I cannot be and I am not that there is indeed some sign of
such a change. That is not just my view. It accords entirely
with the considered opinion of Dr J, who said that unless
the court found a greater degree of acknowledgement he would
not want to go down the route he had contemplated in January
2002. And his own view, as we have seen, is that there had
in fact been no such change.
237. Mr Keehan sought to justify D's failure
in the witness box by saying that there was no point in her
making any further acknowledgement at such a late stage. She
was, he suggested, damned if she did not but equally damned
if she did, for any acknowledgement now would inevitably be
condemned as insincere. That, I am afraid, simply will not
do. There is no reason why I cannot assess her sincerity or,
if I think it
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appropriate, leave it to Dr J to evaluate what she is saying.
She could have made a further acknowledgement. The sad fact
is that she is either unable or unwilling to do so.
238. In my judgment Dr J was entirely justified
in placing the emphasis he did on an enhanced acknowledgement
of responsibility by D as the pre requisite to any possible
move towards rehabilitation. Dr J is very expert in this field
and I accept his professional analysis without any hesitation.
Research data which he summarised for the court shows clearly
that, particularly where the abuse is very severe, rehabilitation
is more likely to fail if there is lack of parental compliance
and denial of problems and more likely to succeed if there
is compliance, lack of denial, acceptance of the problem and
acknowledgement of responsibility.
239. Mr Tillyard submitted that if I were to
accept the evidence of Dr J which I do I would inevitably
have to conclude (a) that there is no reasonable prospect
of D assuming the care of L within a time scale that meets
his needs and (b) that there should not be any further assessment
of D. I agree. I agree further with Dr J's view that the local
authority's plan to place L for adoption forthwith is in the
child's best interests. In my judgment a further assessment
is not in L's best interests; on the contrary, the delay which
it would be likely to engender might well imperil his interests.
Nor, bearing in mind the false hope that it would almost certainly
create in D's mind, would a further assessment really be in
her interests.
240. For all these reasons I am satisfied that,
assessing matters overall as I must as at the end of the final
hearing, the earlier unfairnesses in the decision making process
have been overcome. D has, overall, been involved in the decision
making process to a degree sufficient to provide her with
the requisite protection of her interests. Despite the very
serious shortcomings in the process as matters stood immediately
before the hearing before me commenced I am satisfied that,
overall, D has had the fair trial to which she is entitled
under articles 6 and 8.
241. D has, albeit very late in the day, had
full access to all the relevant documents. Here, in contrast
to what happened in Mantovanelli, D was able to cross examine,
in court and before a judge at the final hearing of the matter,
not merely the key expert, Dr J, but also each of the people
HD, LH and the guardian whose information and views had informed
the decision he took following the meeting on 7 March 2002.
Insofar as the earlier breaches of D's rights under articles
6 and 8 may not in certain respects have been fully cured
by the trial process I am satisfied that the deficiency is
immaterial. For any such breaches do not go to what, I am
satisfied, is at the end of the day the key issue, namely
whether or not D has to a sufficient degree acknowledged her
responsibility for M's death; they go, if at all, to matters
which do not bear on that determinative point.
242.At the end of the day, the question I have
to ask myself is whether, assessing matters as they stand
at the end of the hearing before me, the decision making process
and the proceedings, considered as a whole and having regard
to all the circumstances, were fair. In my judgment they were.
Mr Keehan's challenge on this ground fails.
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243. Before leaving this part of the case there
is one final matter that I need to deal with. In the light
of my conclusions in relation to Mr Keehan's fundamental submissions
the point does not in fact arise for decision but I ought
nonetheless to make some reference to it.
244. Had I, contrary to the decision to which
I have in fact come, concluded that D's rights to a fair trial
had been sufficiently impaired as prima facie to require an
adjournment of the proceedings so as to enable her to be further
assessed then, says Mr Keehan, her right to be assessed a
right protected by article 6 would properly take priority
over L's rights under article 8.
245. Implicit in this is the further submission
that, in determining the question of whether or not there
should be an adjournment for this purpose, L's rights are
not paramount. With that last point I agree. These are of
course, within the meaning of section 1(2) of the 1989 Act,
"proceedings in which [a] question with respect to the
upbringing of a child arises", so in deciding whether
or not to adjourn I would be required to "have regard
to the general principle that any delay in determining the
question is likely to prejudice the welfare of the child".
But the question that I would be having to "determine"
whether there should be an adjournment for an assessment is
not, within the meaning of section 1(1)(a), itself a "question
with respect to . . . the upbringing of a child". So
the `no delay' principle operates, but the child's welfare
is not for this purpose the court's paramount consideration.
246. In support of his more general submission
Mr Keehan relied in this context also upon W v United Kingdom,
in which, as he pointed out, referring to p 35 (para [20]),
the parents whose complaint was ultimately upheld by the Court
had been prejudiced by delay. In relation to this the Court
at p 50 (para [65]) said:
"Contrary to the Government's submission,
the Court considers that in conducting its review in the context
of Article 8 it may also have regard to the length of the
local authority's decision-making process and of any related
judicial proceedings. As the Commission has rightly pointed
out, in cases of this kind there is always the danger that
any procedural delay will result in the de facto determination
of the issue submitted to the court before it has held its
hearing. And an effective respect for family life requires
that future relations between parent and child be determined
solely in the light of all relevant considerations and not
by the mere eflluxion of time."
247. Mr Crowley's riposte was to point out,
correctly, that L too has rights protected not merely by article
8 but also by article 6 including in particular the right
guaranteed by article 6 to a hearing "within a reasonable
time". He relied on an unreported extempore judgment
which I gave on 22 March 2002 in a case called Re H. That
was a case in which I was asked to remove a guardian in public
law proceedings on the grounds that she had pre-judged the
case and in consequence so lost the confidence of the father
and grandmother as to compromise her standing both with the
parties and with the court. The father and grandmother relied
upon article 6, asserting that they could not
The Honourable Mr Justice Munby Re C
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have a fair trial unless a new guardian was
appointed. The local authority and the guardian resisted the
application, pointing out that, quite apart from anything
else, the appointment of a new guardian would cause very substantial
delay and, in consequence, damage to the children. They too
relied upon article 6, asserting that the delay caused by
the appointment of a new guardian would breach the children's
rights to a hearing within a reasonable time.
248. Dealing with these submissions I said this
(paras [43] [45]):
"[43] ... this case, like so many cases,
insofar as one chooses to analyse it in terms of the Convention
and in terms of article 6 rights, is a case where the difficulty
arises because, whereas [the father and grandmother] lay stress
upon one aspect of their article 6 rights that is to say,
the aspect which guarantees them a fair, unbiased and uncompromised
guardian [the guardian] and the local authority, not surprisingly,
lay emphasis upon a different aspect of the children's and
the other parties' article 6 rights: that is to say, the right
to a speedy trial. It has to be borne in mind that not merely
is the right to a speedy determination of proceedings of this
sort a principle mandated in domestic law . . by section 1(2)
of the Children Act; it is also .. . one of the bundle of
rights comprised in article 6. Moreover, it is a right or
an aspect of the article 6 right which Strasbourg jurisprudence
has long told us is of particular and pressing importance
in the context of cases involving children."
249. This, I might add was a reference to cases
such as H v United Kingdom (1987) 10
EHRR 95 at p 111 (para [85]) and Johansen v Norway (1996)
23 EHRR 33 at p 75
(para [88]) which call for "exceptional diligence"
in this context. I continued:
"In other words, in just the same
way as section 1(2) of our
domestic Act identifies delay as being something inherently
contrary to the interests of children, so does well established
Strasbourg jurisprudence in relation to article 6.
[44] If one chooses to analyse the case in
this way, this is in
the final analysis a not untypical situation in which some
litigants
relying upon article 6 press upon the court the deleterious
…
consequences of the delay which article 6 guarantees the
litigants should be protected from, whereas another group
of
litigants point to the need, as they would have it, to take
a step
which will necessarily cause delay. In that sense, the article
6
rights or, to be more precise, the arguments derived from
the
article 6 rights of the various litigants before me stand
in stark
and opposing conflict. How, in that situation, is the matter
to be
resolved?
[45] ... I have to evaluate and weigh the conflicting
rights
and interests. Although this may be conventional language,
it is
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not merely a balancing exercise. It is a process
of judicial evaluation of the factors which stand in the one
scale, a judicial evaluation of the factors which stand in
the other scale and a final balancing of those various factors
in accordance with Convention jurisprudence and having regard
overall to Convention principles of proportionality."
250. I might add that I had previously had to
consider analogous tensions between the conflicting article
6 rights of different litigants in Clibbery vAllan [2001]
2 FLR 819 at pp 871, 872, 875 (paras [139 140], [143] [145],
[152]) a part of my judgment which, as I read their judgments,
received the approbation of the Court of Appeal: see Clibbery
v Allan [2002] EWCA Civ 45, [2002] 2 WLR 1511 at p 1536H (para
[82]). At para [140] I said:
" ... the conflict between apparently competing
rights can only be resolved by reference to the overriding
Convention principle of `proportionality', assessed in the
context of the Convention's commitment to the needs of democratic
society."
251. I added at para [145]:
"the ultimate resolution of the problem
with which the court is faced is to be found by striking what
in Z v Finland (1997) 25 EHRR 371 at p 407 (para [99]) was
called `a fair balance' and what in Douglas, Zeta Jones and
Northern & Shell plc v Hello! Ltd [2001] 1 FLR 982 at
p 1018 (para [135]) Sedley LJ called `the proper balance'."
252. I also referred at para [143] to the passages
in Sedley LJ’s judgment at p 1019 (paras
[136] and [137]) in which he had said that the balance is
to be struck:
" ... articulated by the principles of
legality and proportionality which, as always, constitute
the mechanism by which the court reaches its conclusion on
countervailing or qualified rights .. tested by, among other
things, the standard of what is necessary in a democratic
society ... the outcome ... is determined principally by considerations
of proportionality."
253. I agree with Mr Crowley's analysis. Had
the point arisen I would have been faced not
just with a conflict between D's article 6 rights and L's
article 8 rights a conflict in which, as I pointed out in
paragraph [113] above, D's rights would in the final analysis
have had to prevail over L's. I would have been faced with
the need to resolve the countervailing, indeed in one sense
the conflicting, article 6 rights of both D and L and that
conflict would not necessarily have had to be resolved in
D's favour. Its resolution would, as it seems to me, have
had to be in accordance with the principles as I sought to
explain them in Clibbery v Allan and in Re H.
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254. How I should have resolved that conflict
had the point arisen for decision is a question that in my
judgment it is neither appropriate nor profitable to consider.
It might have been resolved in D's favour, but possibly it
might not.
255. So much for Mr Keehan's main case.
256. Having thus failed on his primary submission
how then does Mr Keehan seek to meet the local authority's
case? Although he made no formal concessions I did not understand
him to be putting forward on this footing any reasoned case
against the making of a care order. Realistically he confined
his submissions to two points:
i) First, he submitted that if, contrary to
her primary case, I were to find that D is
unable to care for L, he should be placed with her mother,
S, and her partner,
P, alternatively that he should continue living with his foster
carers, Mr and Mrs
J.
ii) Secondly, he sought to resist the local
authority's application for an order
under section 34(4) of the Act terminating all direct contact
between D and L.
257. If I may be permitted to say so Mr Keehan
was, I think, wise to take this course. If it is once accepted
that there is to be no further assessment of D as a possible
carer for L and that is the decision which I have made the
case for a care order is overwhelming, indeed to all intents
and purposes irrefutable. I do not in the circumstances have
to go into this aspect of the case in any detail. It is enough
to look at what is said by the local authority in its evidence,
by the independent social worker, Ms R of SMT, in her very
detailed assessment dated 7 September 2001, by Dr J in his
various reports and his oral evidence and by the guardian
in her report dated 24 May 2002 the whole of which material
remains, in all its essentials, totally unscathed by anything
that has happened during the hearing.
258. The sad realities which underlie this case
were put very clearly, and in my judgment entirely accurately,
by the guardian in her oral evidence. She said that although
D has started the process she has a considerable way to go
to become a safe parent; she has a long journey to make. The
guardian recommended against any further assessment: the prospects
of success were not such as to justify it and it was not likely
to produce anything within L's timescale, given the long journey
that D has to undertake.
259: Very sad indeed deeply distressing though
it must be for D, it is in my judgment plain and obvious in
the light of all this material that there must in principle
be a care order. Mr Keehan did not contend to the contrary.
260. Moreover, a placement with S and P is simply
not realistic. They had applied on 14 May 2002 for leave to
apply for a residence order in respect of L. On 20 May 2002
I gave them leave to apply. But they were faced, of course,
with the negative assessment that HD had prepared on 25 March
2002, an assessment endorsed by the guardian in
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her report dated 24 May 2002. Bravely in the
circumstances they decided not to pursue their application
Their position was succinctly summarised in the position statement
dated 23 May 2002 prepared by Mr Mark Allen on their behalf:
"They have decided that if the substantial
case proceeds to be heard on Monday 27th May 2002 they will
not pursue their application for residence. They would, however,
seek to continue to have contact with [L] if he remains in
his present placement, although they accept that this would
be infrequent. It is their view that maintaining a link with
his natural family would be in [L's] interests and that this
can be best achieved by occasional contact. They accept that
[L] is being extremely well cared for in his present placement
and are fully supportive of it if it is the Court's decision
that he should not live with a family member."
261. In these circumstances there are only two
remaining live issues. The first has to do
with the position of the foster carers, Mr and Mrs J.
262. In the events which have happened, and given the conclusions
I have come to thus far,
both D and her mother, S, are at one in saying that L should
remain with Mr and Mrs
J. In that they are in fact joined by Mr and Mrs J themselves,
who want to adopt L a
possibility which was indeed first canvassed with them by
the local authority itself in
about December 2001 (see paragraph 9.3 of the guardian's report
dated 24 May
2002).
263. The local authority's final care plan dated
7 May 2002 was, as I have said, for adoption
outside the birth family. Mr and Mrs J were quite plainly
identified as possible
adopters. Paragraph 2.3 of the care plan (paragraph 4.2 was
to very much the same
effect) read:
"The Social Worker, Family Placement
Officer, Health Visitor
and Foster Carers have observed that [L] is happy and
contented in his present placement. His foster parents have
expressed a wish to be considered as his adoptive parents
and
this is under consideration. It is likely that there will
also be
other suitable couples who will also be considered."
264. Thus the local authority's position on
7 May 2002. But within a fortnight to be
precise, on 21 May 2002 HD filed another statement that seemed
to indicate, though
without saying so in as many words, that Mr and Mrs J were
no longer being viewed
by the local authority as possible adoptive parents.
265. This was a matter that understandably concerned
the guardian. In a passage in
paragraph 9.3 of her report dated 24 May 2002 which is too
long to quote but which
requires to be read in full the guardian was justifiably in
my judgment critical of the
local authority and of the way in which it had dealt with
Mr and Mrs J.
The Honourable Mr Justice Munby Re C
Approved Judgment
266. Quite apart from anything else, given the
history of their dealings with the local
authority as summarised by the guardian, Mr and Mrs J would
be entitled to feel that
they have not been well treated by the local authority, indeed
that they have been
treated unfairly. If they do not, that is no thanks to the
local authority but rather
testimony to their own generosity of spirit and their concern
for L. The fact is that, as
Mr and Mrs J correctly put it, the local authority has `moved
the goal posts'. It did so,
moreover, after Mr and Mrs J moved into a larger house as
the local authority had
indicated would be necessary if they were to adopt L. Indeed,
the guardian reports that
Mr and Mrs J have sought legal advice about the predicament
they now find
themselves in and have indicated that they are seriously considering
challenging the
local authority. Her view is that Mr and Mrs J may be in a
position to challenge the
local authority by virtue of section 31(1) of the Adoption
Act 1976, that they satisfy
section 13(2) and that they could themselves apply for an
adoption order: see Re C (A
Minor) (Adoption) [ 1994] 2 FLR 513 .
267. Be that as it may, the guardian made her
own views very clear in her report:
"It would be a great shame if these
foster parents are not
formally considered as adopters for this child as [L] will
benefit
from remaining with the carers he has been with since birth.
I
would note that these are not foster parents who have tried
to
adopt by the back door, as it was the Local Authority who
initiated the idea of keeping [L] located within their family."
268. She concluded:
"I am perturbed that the Care Plan placed before the
court does
not now truly reflect the actual plan of the Local Authority.
I am
of the view that I cannot endorse the current Care Plan as
being
acceptable at this stage."
269. Precisely so. I am not surprised that the guardian felt
it necessary to express such
views.
270. In the position statement dated 25 May 2002 that Mr Crowley
filed on her behalf the
guardian made it clear that if the local authority was not
minded voluntarily to address
the issue she would consider inviting the court to make an
order under section 38(6) of
the 1989 Act directing an assessment of L with Mr and Mrs
J so that the court would
have before it such information as it needed before making
a final care order.
271. The guardian's recommendation to the court
was as follows:
"I do not at his stage recommend
the making of a full Care
Order. I would recommend that the Local Authority formally
consider the positive benefit of [L] remaining with his current
carers."
The Honourable Mr Justice Munby Re C
Approved Judgment
272. At the start of the hearing the local authority's
position, as set out in Mr Tillyard's position statement dated
26 May 2002, was that Mr and Mr J were not the local authority's
"preferred choice".
273. Shortly after the hearing began before
me, SN, the team leader of the local authority's family placement
team, made a statement in which she said:
"I do not consider Mr and Mrs [J] as suitable
adoptive parents for [L] as it became evident to me though
the supervision process, as early as December 2001, that these
relatively new and inexperienced foster carers were very emotionally
involved with [L]."
274. In her oral evidence, which I have to say
was in some respects not very compelling, she was emphatic
that she would resist any suggestion from the court that Mr
and Mrs J should be assessed as potential adoptive parents.
275. Not the least worrying of the many worrying
features of this case is the plain indication that the local
authority's left hand either did not know or did not care
about what its right hand was doing and thinking. SN's evidence
both written and oral was put before me by the local authority
and as part of its case. SN, as I understand it, had managerial
responsibility for the local authority's planning in relation
to adoption although it emerged that she herself had had little
if any contact with either Mr or Mrs J prior to the hearing!
Given that SN's views appear to have been formed as long ago
as December 2001, how could the local authority put forward
its care plan on 7 May 2002 a care plan suggesting a quite
different assessment of Mr and Mrs J's possible suitability
than that at which SN had apparently arrived? The answer,
it would seem from SN's evidence, is that there was no effective
communication between her and HD. She (SN) was not aware of
the contents of paragraphs 2.3 and 4.2 of the care plan and
had not spoken to HD about them although she accepted in cross-examination
that they should have done. According to SN, whose evidence
on this point I have no reason to doubt, it was only a few
weeks before the hearing that she first learned from HD of
her (HD's) discussions with Mr and Mrs J.
276. Understandably, and with considerable justification,
Mr Keehan was scathing of the local authority. Correctly,
as it seems to me, he submitted that the discrepancy between
the written care plan as presented to the court and the plan
as presented in oral evidence was deeply troubling and that
the divergence between HD and SN must give the court grave
cause for concern. He went too far, however, in suggesting
that it must raise doubts about the bona fides of the local
authority and of any further plan put before the court. I
am satisfied that the local authority indeed that all concerned
have from beginning to end acted throughout in complete good
faith and from the best of motives. What is more questionable
is the competence with which the local authority has handled
what, to be fair to it, and to put the case into its true
perspective, was, I do not doubt, an exceptionally difficult
case.
i
The Honourable Mr Justice Munby Re C
Approved Judgment
277. The point is really elementary but obviously
bears repeating. L is not in the care of the
social services department of the local authority, let alone
of that part of the social
services department in which HD is based. The care plan is
not the care plan of the
social services department or of that part of it that employs
HD. L is in the care of the
local authority. The care plan is or ought to be the care
plan of the local authority.
It is depressing and worrying that the local authority should
be putting before the court
at the beginning of the hearing a care plan which it is obvious
had never been properly
discussed with, and which in a most important respect was
to all intents and purposes
repudiated by, one of the local authority's own `key players'.
The sad reality is that this
appears to have been a local authority which not merely failed
adequately to `work
together with' D; it is a local authority which in at least
one vital respect seems to have
been unable to `work together with' itself.
278. It was not until the final morning of
the hearing, as Mr Keehan was about to start his
closing submissions, that the local authority's amended care
plan dated 31 May 2002
and representing its final position was placed before the
court. Paragraph 2.3 now
reads:
"The Social Worker, Family Placement Officer, Health
Visitor
and Foster Carers have observed that [L] is happy and
contented in his present placement. His foster parents have
expressed a wish to be considered as his adoptive parents
and
the Local Authority agree to undertake an assessment of [L's]
current carers. The Local Authority will endeavour to complete
this assessment within a period of three months."
279. Paragraph 4.2 of the amended care plan
reads as follows:
"There will be a delay of 3 months whilst
an assessment of the current carers is carried out. There
will be no change of placement for [L] whilst this assessment
is undertaken. It would be proposed that if a positive recommendation
cannot be made for [L's] long term future with [Mr and Mrs
J] then a suitable alternative couple would also be presented
to the panel in order that there is no further delay. If a
positive recommendation can be made matching [L] with [Mr
and Mrs J], they would be the only couple presented to the
panel."
280. On this basis the guardian and the local
authority were, by the end of the hearing, in agreement. The
guardian made it clear that she endorsed the amended care
plan only on the basis that (a) Mr and Mrs J will be assessed
as potential adopters, (b) if Mr and Mrs J are approved as
adopters they will be placed before the panel on their own
and (c) a specific timescale has been identified. On this
basis she supported the making of a final care order.
281. Essentially for the reasons given by the
guardian, whose opinion on this aspect of the matter I entirely
share, I agree that the amended care plan can and should be
endorsed, but only on the basis identified by the guardian.
The Honourable Mr Justice Munby Re C
Approved Judgment
282. I think I ought to add this. I had only
a comparatively brief opportunity to see and hear Mrs J giving
evidence in the witness box but she impressed me very favourably
indeed, coming over as a warm, sensible, caring and down to
earth woman devoted to L. I hope that her evident qualities
are considered very carefully indeed in the course of her
assessment as a potential adopter for L.
283. The one other remaining issue relates to
contact.
284. The guardian in paragraph 11.3 of her report
made these important observations:
"Having considered all the issues in this
case, and noted mother's stance I would consider that indirect
contact for [L] with his birth mother would be tenable in
the future. I also consider that I would be supportive of
the grandmother having irregular direct and indirect contact
with [L], for [L's] identity needs. Such contact would also
reassure his mother that [L] is developing well and reaching
his full potential in a happy settled environment. I am of
the view that if the court does endorse the plan to place
[L] for adoption, neither mother nor grandmother would wish
to jeopardise the permanency of his future family life."
285. In her oral evidence the guardian said
that the issue of direct contact should be reviewed at the
time of the freeing or adoption hearing.
286. In paragraph 2.5 of the amended care plan
the local authority sets out its plans for future contact
between L, D and S. Direct contact will be reduced and then
cease following a farewell visit arranged once an adoptive
placement has been approved. Following adoption there will,
subject to the views of the prospective adopters, be some
limited indirect contact. The local authority's view as set
out in the amended care plan, is that direct contact between
L and S once he is placed for adoption would not be in L's
interests. But the amended care plan records in paragraph
3.1 the local authority's awareness of the guardian's view
that limited direct contact with S may be in L's interests.
287. In his closing submissions Mr Tillyard
made it clear that the local authority was not pursuing its
section 34(4) application in front of me but, on the contrary,
was inviting me to adjourn it generally, to be restored once
an adoptive family had been identified and a freeing or adoption
application had been filed.
288. I agree that this is the right course to
follow. The precise details of D's and S's continuing indirect
contact with L, and the question of whether S should continue
to have some, albeit limited, direct contact with L, are matters
to be determined and determined, as it seems to me, by the
court, and having regard to the views of the prospective adopters
once L's adoptive parents have been identified.
The Honourable Mr Justice Munby Re C
Approved Judgment
289. The result is that, with the sole exception
of that part of paragraph 2.5 of the amended care plan which
relates to the issue of S's continuing direct contact with
L following his placement for adoption, I approve the amended
care plan dated 31 May 2002, I dismiss D's application under
section 38(6) and I make a care order in relation to L. The
local authority's application under section 34(4) is adjourned.
Before parting with this case one final
comment is, I think, in order. This is not the first case,
and I doubt it will be the last, to reveal the extent to which
there are still on occasions more or less serious shortcomings
in the decision making processes in public law cases, shortcomings
which on occasions deny parents the openness and fairness
in procedure which articles 6 and 8 guarantee them. There
are painful lessons to be learned by the various professions
from Holman J's judgment in Re M, from Charles J's judgment
in Re R and, I dare to think, from my own judgment in this
case.
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