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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.
The Honourable Mr Justice Munby Re C
Approved Judgment
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:
The Honourable Mr Justice Munby Re C
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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:
The Honourable Mr Justice Munby Re C
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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
The Honourable Mr Justice Munby Re C
Approved Judgment
[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]).
The Honourable Mr Justice Munby Re C
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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."
The Honourable Mr Justice Munby Re C
Approved Judgment
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 | 
