S & H-S (Children), Re, Court of Appeal - Civil Division, June 06, 2018, [2018] EWCA Civ 1282

Resolution Date:June 06, 2018
Issuing Organization:Civil Division
Actores:S & H-S (Children), Re

Case No: B4/2018/0096/CCFMF

Neutral Citation Number: [2018] EWCA Civ 1282





Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 06/06/2018




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Alex Taylor and Giorgia Sessi (instructed by Ison Harrison Solicitors) for the Appellant (mother)

Gillian Irving QC and Zimran Samuel (instructed by Kirklees Council) for the Respondent

Joanne Astbury for the Respondent (children)

Hearing dates : Thursday 19th April

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  1. This appeal relates to a care order made on 21 December 2017 by Her Honour Judge Lynch with respect to a young girl who was then aged 2 ¾ years. The narrow, but plainly important, issue in the appeal solely relates to the judge's finding that the threshold criteria in Children Act 1989 [CA 1989], s 31 were satisfied with respect to L.

  2. The background to the proceedings is complicated firstly by the fact that L is one of a family of 3 children, with 2 older siblings aged 9 and 6 years at the time of the hearing and, secondly, by the fact that these proceedings followed earlier care proceedings issued in May 2015 and concluded in July 2016.

  3. The Appellant is the children's mother and the focus of the appeal is upon her relationship with the children, and particularly L, who is the sole subject of the appeal proceedings. Following her birth L lived with her two parents and the elder two children for some two months prior to being removed from her parents' care at that stage following discovery that she had sustained a fracture to her left femur. By the direction of the court, she was returned to her mother's sole care in about March 2016 and she remained there, subsequently subject to a supervision order made at the conclusion of the first care proceedings in July 2016, until her removal in March 2017 when the second set of care proceedings was instituted as a result of allegations that one or both of the two older children had been assaulted by their father.

  4. Finally, by way of introduction to the issue under appeal, HHJ Lynch, who was the judge with respect to both sets of care proceedings, found the CA 1989, s 31 threshold criteria satisfied with respect to the mother's care of L on the basis that L was suffering, and was likely to suffer, significant emotional harm.

    2016 Care Proceedings: Findings

  5. In the course of the 2015/2016 care proceedings the judge made factual findings under the following three headings:

    i) That the two older children had suffered emotional harm arising out of the significant domestic violence in the relationship between their parents (i.e their father, not the mother's subsequent partner who is the father of L);

    ii) L had suffered significant physical harm when she sustained a fractured femur, but this fracture was caused accidentally by her father. The father, nevertheless, failed to obtain prompt medical treatment thereby exposing the child unnecessarily to prolonged pain and distress and failing to meet her emotional needs;

    iii) All three children had suffered significant harm through neglect of their emotional and developmental needs, at times, although not exclusively, arising out of the drug use of the mother and L's father. The older children had been harmed by inconsistent school and nursery attendance. The mother's use of drugs when under stress put the children at risk of significant harm and they were likely to suffer significant harm of that nature in the future.

  6. At the conclusion of the 2016 proceedings, the two older children went to live with their father and L continued to live, alone, with her mother under a supervision order. She was also regarded as ``a child in need'', by the local authority and a range of modest support services were provided.

    The 2017 Proceedings

  7. The 2017 proceedings were commenced following allegations made by the mother that the two older children had reported being physically assaulted by their father, with whom they were living. The proceedings commenced on the 9 March 2017 and that date, therefore, is the relevant date for the consideration for the threshold criteria with respect to all three children, and particularly L.

  8. Partly on the basis of the mother's allegations and partly on the basis that these were supported, in part, by what had been said by the two older children, the local authority prosecuted findings of fact with respect to physical harm against their father. In addition, allegations of emotional harm to all three children were made.

  9. The hearing before Judge Lynch took place over the course of three weeks in December 2017. The Judge issued a reserved judgment which was circulated to the parties ready for handing down on the 21st December.

  10. A substantial part of the judgment, 24 of the 56 pages, is taken up with the judge's review of the evidence relating to the allegations of physical harm. The judge's ultimate conclusion was that the older children's father had chastised them by slapping them on their bottoms and legs, but that this did not cause them any injury and that such bruising that may have been seen on them was likely to have been caused accidentally in play or by the children fighting with each other. The father's discipline did not constitute over-chastisement. On that basis, therefore, the judge declined to make any threshold findings against the father.

  11. In the course of her evaluation the judge concluded that the mother held the strong view that these two children should be back in her care and that she had been unable to hide those views from the children when she spent time with them. Whilst the judge found that the mother had not deliberately caused the children to lie or exaggerate, her reaction to their complaints will have encouraged them to speak negatively of their father. Further, the judge expressly found that the mother had, herself, deliberately lied in order to bolster the accounts given by the children.

  12. The remainder of the judgment focussed upon the local authority's assertion that each of the three children was being caused significant emotional harm as a result of the mother's emotional personality.

  13. Although none of the three categories of finding made in the 2015/6 proceedings related directly to the mother's personality, the court in those earlier proceedings had had evidence of the mother's emotional functioning from a clinical psychologist who had described the mother (on the judge's description) as ``an emotionally reactive person, crying frequently with relatively little provocation, and that she presented all information with a positive bias''. She was said to be prone to give ``highly reactive emotional responses'' and was at times ``cognitively dysregulated''. The judge held that this accorded with her own, lay, description of the mother as ``a drama queen''.

  14. In the closing stages of a judgment given on 11 November 2015, although not directly relevant to the findings of fact relating to the threshold criteria, the judge went on to draw conclusions on the evidence of the mother's psychological health that had been presented to the court by that stage and, of course, from the judge's direct exposure to the mother during the hearing. At paragraph 122 the judge said this:

    ``I then have the benefit of the assessment by (clinical psychologist). Her conclusion from her meeting with the mother was that she had a cluster of difficulties that were at best conceptualised as personality disorder. She said that, in summary, personality disordered individuals demonstrate rigid patterns of functioning and difficulty in learning from experience that tend to lead them to make the same mistakes time and time again. She spoke of one feature of a personality disordered individual being a tenacious stability under conditions of subjective stress, making them susceptible to events which reactivate the past and make them vulnerable to new difficulties and disruptions.''

  15. The judge then records that the psychologist's description fits the judge's own impression of the mother as being ``someone with highly reactive emotional responses, having difficulties with episodic depression, anxiety and irritability, who experienced relationships in a way which may be chaotic, intense and marked with difficulties, but then found it extremely hard to let go of relationships.''

  16. Having cautioned herself that, as the mother was pregnant at the time of the assessment and as the clinical psychologist was not medically qualified, those factors may mean that the court would not rely upon a formal diagnosis of ``personality disorder'', the judge went on to hold that that diagnosis fitted entirely with the judge's own impression of the mother during the case. She said ``it also fits with so much other information available to me from the papers and from my impression of the mother in the witness box''. Behavioural therapy had been identified as a possible means of assistance to the mother, but, the judge held, to be effective this would require a significant amount of work on her part.

  17. In the final judgment in the 2015/6 proceedings, given on 4 July 2016, the judge returned to the topic of the mother's emotional health and stated ``the mother's emotional and psychological health has always been at the forefront of this case.'' Then, at paragraph 93, she revised her earlier conclusion in the following terms:

    ``Having now had the benefit of seeing (mother) more than six months on from the last hearing and at a time when she is not pregnant, I am satisfied that (clinical psychologist's) description of her is accurate. So much of what is in her report now fits with my impression of the mother.''

  18. In concluding that the two older children...

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