Gloucestershire County Council v M & Ors is a recently published case where a family court judge at circuit judge level applied routine, established law to the particular circumstances of a 9 month old baby boy and his vulnerable young mother.
Through no fault of her own, she had been badly affected by the parenting she received and her time in the care system and she was found to be not far enough on the road to change through therapy, to be the safe parent her son needed, within a time frame that was realistic for his needs.
Several difficulties were thought to be affecting her parenting but the underlying one that really affected the decision that her child could not return home was her mental health / personality functioning, which (as she accepted) was only really likely to change through therapy. She had recently accepted the need for therapy after digesting a formal diagnosis just 5 months before the final hearing. Though Gloucestershire County Council had supported reunification through a joint foster placement, a respite joint foster placement and funding a ‘therapeutic’ mother and baby assessment unit, His Honour Judge Wildblood observed that:
“This case is yet another reminder of just how important it is for early therapeutic intervention to be offered to young parents; if this mother had been offered, and had engaged in, therapy in the non-proceedings stage when she was known to be pregnant the outcome might have been very different and the very high cost and misery of these proceedings might have been avoided.”
It is only relatively recently, as a result of the Presidents Transparency Guidance on publication of judgments that ‘routine’ legal decisions, that don’t make any new law, but couldn’t be more important to the children and families they affect, have begun to be published. We highlight this one, because the issues affect many parents in care proceedings and some parents at earlier stages of the child protection process may be helped by knowing how the court is likely to apply the law by the time of a final decision in any later care proceedings.
Issues the case highlights
- The legal duty to support parents with parenting; and the limits of that duty where it conflicts with the child’s needs
- The vital importance, for parents with mental health or personality functioning problems affecting their parenting, of early mental health assessment and therapeutic support
- The established law on the advantages of adoption over long term fostering for many babies and young children
The hearing
This was the final hearing of Gloucestershire County Councils application for a Care Order and permission to place the child for adoption (Placement Order), supported by the guardian and opposed by his mother who asked for an adjournment for therapy to reach the standard of parenting he required.
She accepted that her parenting warranted state intervention but disagreed that adoption was required yet, on the basis she had made recent progress, had good underlying parenting ability, love and commitment to her son and therapy was now available to her.
The decision was therefore what permanence plan her baby required from the realistic options available of:
- Delay with more time in foster care to see if his mother could change through therapy; or
- Adoption with loss of contact with his birth mother and half sibling; or
- Long term fostering (arguably not a realistic option on these case facts but relevant for some children and considered briefly here)
Background:
- The baby was 9 months old. He had spent 6 months in foster care and was having supervised contact twice weekly with his mother by the final hearing
- She was a young parent of 20 who had experienced abuse and neglect from her own parents, followed by multiple care placements and disrupted education from the age of 14 when she went into care. She had a history of misuse of alcohol and drugs; and of domestic abuse with continuing uncertainty expressed by professionals about her insight into the need to remain separate from violent and abusive partners; as well as a lack of support networks as a result of her experiences
- Reports from the mother and baby foster placement she had left, the therapeutic residential assessment that terminated her placement and the mental health services (etc) willing to support her in the community, all described her behaviour as challenging, confrontational and aggressive when under pressure (including after contact had been increased to include overnight contact at the unit leading to the placement breakdown)
- A half sibling had previously been placed with a relative after injuries found by a family court to have been probably committed by her or her violent ex partner with the other failing to protect her
- She first obtained a diagnosis from a consultant psychiatrist, of emotionally unstable personality disorder (impulsive), within the care proceedings, 5 months before the final hearing.
- Everyone agreed the mother’s basic parenting ability was good, other than when she became overwhelmed by her own emotions, losing the ability to keep her son safe emotionally or physically in those moments or as the Judge put it “to use everyday language, they say that she flies off the handle in such an extreme and unregulated way that she would be an emotional and physical danger to B if he were in her care”.
- They also agreed that in the final weeks leading up to the final hearing this had improved and that she accepted a need for therapy and social support
The law
The Judge was required to weigh the advantages and risks of each realistic, long term option for the child and decide whether adoption was necessary and proportionate on the basis that no other option could meet his needs.
“Support to Parent”
That included being satisfied that there was no other practical and realistic way to provide the support this mother needed to parent:
“In considering the care that a parent might be able to provide for a child it is important to recollect the concept of parenting with support. The President stressed the significant of the concept in a reported case called D (A Child) (No 3) [2016] EWFC 1 in which he referred to the decision of the then Gillen J in Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8, para 5. The very purpose of the welfare state is to provide support for those in need (as was said in Soares de Milo v Portugal, ECHR, Requête no 72850/14, para 106). The Local Authority must place evidence before the court of the support that is available to parents so that the court is then able to make a satisfactory welfare evaluation – Re W [2013] EWCA Civ 1227“.
The decision to agree the plan for adoption and make the placement order
“The overwhelming preponderance of evidence is that mother could not care for B safely in the community as matters currently stand even with the impressive support that is available.”
“There is reason to hope that [she] would respond well to a combination of drug and psychological therapy.”
“Even if she did… that process is way beyond the timescales for B. It could not possibly be in his interests, either in the short-term or in the long-term, for him to remain in interim foster care, probably for the next year, while the mother undergoes the course of therapy.”
” It is always possible to extend the time-table for cases where to do so is ‘necessary to enable the court to resolve the proceedings justly’ – see s 32(5) of the amended Children Act 1989 and, e.g. Re NL (Appeal: Interim Care Order; Facts and Reasons) [2014] 1FLR 1384 and Re M-F (Children) [2014] 2014] EWCA Civ 991. However, in this case, it would be positively unjust to the child and contrary to his welfare to do so.”
The risk of emotional distress to him in later life arising from “loss of a chance of an upbringing within his natural family and possible contact with his half-sister and father” was, said HHJ Wildblood, “far outweighed by the advantages that adoption would confer and the damage that would be caused by delayed decision-making.”
Why fostering wouldn’t do instead
In theory long term fostering was a third option. Plainly it is a realistic (even the most realistic option) for some children, including those who are harder to place, older, or who have attachments to short term foster carers offering long term care etc. (See Re Y (Children) [2016] EWCA Civ 1091 for a Court of Appeal decision the day before this judgment, based on judicial failure to consider long term fostering for children aged 7 and 4 who were in a successful foster placement that could be made permanent). Arguably in a case like this one, without such indicators, long term fostering is not even a realistic option. Nevertheless HHJ Wildblood explicitly considered and ruled it out as an option, at the request of counsel for the mother, referencing and applying established law on the differences for children between adoption and fostering at para 44:
“Long-term fostering is not a viable solution for him, in my opinion. It would not provide him with anything like the same degree of necessary security, permanence or integration. Further, fostering would be subject to applications by the mother for discharge of the underlying care order. Importantly, in my opinion, when B became adult, the legal connection between him and the foster carers’ family would end, unlike with adoption which would provide him with a lifelong place in the adoptive family. I have read and noted the differences between adoption and fostering identified by Black LJ (with caveats expressed in para 95 of her judgment) in para 96 of Re V [2013] EWCA Civ 913.”
The vital importance for parents with mental health or personality functioning problems affecting their parenting, of early mental health assessment and therapy
There is some suggestion that the ‘therapy’ offered to this mother (which she avidly took up) during the residential placement was not appropriate and more like anger management counseling. But this isn’t explored in detail. Nor is there any analysis of what mental health assessment was or was not offered to her previously, within the former care proceedings, after removal of her first child, or during the pre birth assessment and planning process for this child. It seems reasonable to assume it was not offered during these crucial earlier windows, given HHJ Wildbloods observation.
These issues for parents have attracted research and discussion over several years now as well as comment in previous judgments, including from this Judge. A number of projects have started to try to fill the gaps for parents and children, including Families In Care in Tyneside and Pause (now operating in 5 London boroughs, Newcastle, Hull and Doncaster according to their website). Unfortunately at the moment they offer pockets of innovative practice rather than a safety net that all parents in need can rely on.
Family Rights Group are however campaigning for a right to therapy for parents after a child has been removed, to be introduced into the Children and Social Work Bill. See here.
They also offer advocacy by phone call or letter/email to young parents, which could include help to press for early mental health assessments and funding of therapy. See here for referral form.
Parents on low income or benefits may qualify for a short piece of free legal advice and help from a family law solicitor during child protection procedures / pre birth assessments. The number of such cases that can be opened is limited and solicitors firms can be reluctant to take on cases for funding reasons. Ringing several to find one willing to take a short term ‘legal help’ case is a good idea. As is making clear that you have realistic expectations like asking mainly for a letter to be sent requesting urgent mental health assessment and funding of therapy.
There is more information about personality disorder and work to prevent repeat removals of children in care proceedings at Child Protection Resource. And in Family Law here about how funding works across health and social care and repeat removals.
Many of the TP readers and commentors know my own views on these issues and the particular Kirsty X case.
Its been a fundamental concern of mine for many years, the “revolving door” situation will never cease when these matters don’t get addressed, many of the problems new mums and first mums face is that they would never be aware of the problems they have, like Kirsty and the case above, we will always find the ugly head raised when its gone beyond critical.
I have been counter arguing against psychology assessments being undertaken simply because there is often no therapy available, or quite frequently the “condition” of the Experts OPINION does not exist, more so, the L.A’s will not provide the therapy because they are not bound or liable too, parents are just handed the report they cannot understand and sent forth into the wilderness to get on with it themselves, with zero help from anyone, that’s beyond cruel.
I find it galling sometimes that Lawyers et al are pushing parents to have these assessments all the while knowing that if the assessment is negative, the chances for the parents keeping their children can most often become impossible.
We always tend to forget that the Experts provide an opinion, it is just that, when I have been to many NHS Mental Health services with much of my case work the actual process to obtain therapy is nigh on impossible, not because the NHS doesn’t provide it, its squarely down to a simple opinion, the MH @ NHS dismiss the reports almost instantaneously, horrifyingly, that scenario is never explained within the court arena, unless folks like me do, further assessments are needed. NHS and Other therapists CANNOT start/provide any sort of therapy on third hand information, or an opinion only based report.
Now if Lawyers reading this, ask the Experts whom they appoint to Diagnose the parent rather than pass an opinion you’ll find the Expert cannot carry out the assessment.
Simple Question here, how many TP readers hear “the parent needs 12/18 months therapy”? its been a standard format for far too long, these opinions, while some will bare some truth, are carried out by Experts who do not provide therapy.
My own opinion is that if L.A’s and Children’s Guardians more specifically obtain these assessments, then they should be liable for addressing the outcomes, no if’s no buts, they should be burdened with the consequences just like a parent is, if they’re not prepared to assist with the results then simply do not pursue the assessments.
Lastly, and quite crucially, when an Expert is appointed into family proceedings, none of the evidence has been tested, so the Expert receives the court bundles, and uses them as an opinion making tool, all the inaccuracies, false accounts et al are deemed FACT by the assessing Expert.
Yes we can often cross x the Expert on the stand however the ship has sailed, when, once the report comes through plans are already in the pipelines and care plans are written upon the basis of that report, often weeks before any court hearing is scheduled.
Judges can dismiss the evidence of the Expert quite rightly, I would ask, how many times has that happened, I count just one since 2014, and the case of Dr Van Royen.
Why does Legal aid and others spend thousands of pounds on a report that once the court process has ended is not worth the paper it is printed on, fact!, sorry, that’s wrong, the report is used again if the matter like Discharge applications are pursued, and, the Judge demands the parent show they’ve addressed the psychological assessment and outcomes, again, another fact of child care proceedings, despite the very notion the parent may not have the psychological issues at all.
There will soon become a time where children removed from their parents simply because of a parents presumed “Mental Health” conditions will end up as a monster class action under the disability discrimination act, notwithstanding the HRA also, that is all this is, if a parent has an opined “Condition”
I am so sorry for ranting, in order to change the face of child care proceedings, this monumental and fundamental issues needs a serious investigation, not by blogging or other, it needs academic intervention.
YOU CANNOT GIVE THERAPY BASED UPON AN OPINION IT HAS TO BE A DIAGNOSIS!
I will eventually crack this nut one day, its a false economy not too!
The case synopsis of Kirsty X
The claimant, known as ‘Kirsty’, brought a claim against Oldham Metropolitan Borough Council, alleging that there had been a breach of the duty of care owed to her, by its social services department. The trial was heard before Recorder Amanda Yip in the Manchester County Court in June 2013.
Background
Kirsty came to the attention of social services in 1989 aged 17 months old and was subsequently taken into care. At twenty she gave birth to a daughter, however concerns were raised about her ability to parent the child and a care order was approved for adoption. When making the order HHJ Allweis acknowledged Kirsty’s difficult childhood and commented that: “… the underlying problem was a failure to address psychological problems…in her past.”’
In bringing a claim in negligence against her local council, Kirsty alleged that failures in her past had impacted on her ability to parent her own child, and that the loss of her daughter was a foreseeable consequence for which she should be compensated.
Allegations
Representing herself at the trial, Kirsty alleged that there had been a failure to:
Remove her from her parents in a timely fashion (causing her to endure further and unnecessary physical and emotional abuse).
Provide her with therapy once taken into care (such that additional psychological damage was caused).
Failure to remove Kirsty from her parents sooner
The social care experts agreed that there was a need to find the right balance between ’family preservation’ and ‘child rescue’ and that, following the Cleveland Report of 1988 (which found that children had been removed from their families too readily), there had been a move towards prioritising family preservation.
At trial the claimant’s expert conceded that the defendant had not acted negligently in failing to take the claimant into care before November 1993, as the family had received extensive support and there had been evidence of improvement. However he was critical that care proceedings were not instituted after an assault on the claimant by her father at the end of October 1993.The trust’s expert disagreed, describing the defendant’s response to the assault as “proportionate”.
After hearing evidence from a support worker involved in the review process at the time, the judge held that she was a committed social worker who had acted appropriately based on what was known at the time and was also satisfied that the claimant’s expert’s opinion accorded with a responsible body of social work opinion at the relevant time.
Failure to provide therapy
A consultant in child and adult psychiatry had prepared a report in the course of the care proceedings in 1994. He concluded that, although Kirsty required therapy, the finding of a long term placement should be prioritised, with therapy to be considered thereafter, if necessary.
The claimant’s expert felt it was unreasonable for his recommendations to have been followed, as therapy was required urgently. The judge held that the defendant should not be criticised for accepting the advice of a qualified professional.
Judgment
Whilst there was considerable sympathy for the claimant, it was held that there was no breach of duty and the claim was dismissed.
Common sense result for social workers?
It is clear that this decision was made considering the context at the time i.e. post Cleaveland. Had this decision arose in more recent times, when the threshold for removal was arguably lower following cases such as Victoria Climbie and Baby P, then the decision may have differed.
It is noteworthy that the judge recognised how difficult it is to know whether a particular decision regarding the welfare of a child is the right one, without the benefit of hindsight. It is also refreshing to see how she appeared to empathise with those social workers who have, nonetheless been severely criticised, as evidenced in the Cleveland and Baby P cases.
This case also evidences that the actions of professionals may be scrutinised many years later. Good record keeping, including of the rationale behind any decisions is essential.
I think therapy is tricky. I don’t know Kirsty X’s story in full, did meet her at the first conference I think, but I have worked with young people in care who I know would benefit from therapy and haven’t wanted to access it. No point in therapy if someone doesn’t want to engage and I don’t blame young people for not wanting to go back to that place, it can re-traumatise before you put everything back together again and there is often a lot of other stuff going on which isn’t easy, at school for e.g. I also think CAMHS has got harder to access, though cuts and funding since I was working with that cohort as well. Therapy should generally be an NHS provision. The NHS otherwise treat the symptoms.
It isn’t unusual for people generally to want therapy for family history issues when they have their own children, there is a resonance with losing your own childhood, the pain of that is not to be underestimated, and is a challenge when all you want to do is parent your own child/ren well. Without some healing it is easy to just not do it well, repeat old patterns, or just feel resentment about what your child is getting that you didn’t. I’m sure there are other complexities, I am not a therapist.
All of that is complicated if you then have LA involvement with your child/ren. The outcomes of therapy are unpredictable, as are timescales and healing trauma. The ideal would be to access therapy as a child, because my understanding is that there is an element of efficacy which is quicker than for adults. But children in care are often still thinking about themselves as the cause of their problems and I completely understand why they don’t want to sit in a CAMHS room or wherever being a problem again, even if it isn’t really like that. Perception is all.
If the LA is involved, they don’t have the resources, if it is CP it is on timescales even if it doesn’t go immediately to court, there are conferences and pressures and stress. Some therapy I’ve been advised by a psychologist to access is intense, involves a child waiting years, and isn’t easily accessible even if there was any funding. With outcomes being unpredictable, I would be asking a very little person to remain in foster care to see if something that might work did. I’ve also had cases where parent has no insight, thinks nothing wrong, so things can’t change because they don’t engage with the sessions at all but at least there was a chance I guess.
It isn’t an argument I set out here, more an addition to the discussion. I am sure there are cases of poor practice because there always are, but sometimes it just isn’t that simple, and I don’t have the answers. We should discuss more.
One other factor prevalent within these scenarios is that when the court proceedings have concluded and a child/ren have to remain in care there is almost zero motivation for parents to seek therapy or any assistance with the issues.
In their shoes they’ve lost everything already, no guarentees of every having children returned unless they face a further arduous court process.
*Helen* you’ve explained the major factors within the whole psychological/therapies concerns better than I could, I have a specific case that still haunts me from 2014, I trawled the length and breadth of the UK, searching for help for a mother, begged even the noble folks of this website to see if they could point in right direction, sadly the door was slammed which ever avenue/idea I tried, the Judge on that case was quite livid that my efforts proved futile.
My argument was if I could not find any help in any shape or form for the mother, how on earth was she supposed to do it alone.
Sadly once the court proceedings have ended the Social Workers become very distanced from parents, maybe seeing them twice a year at L.A.C’s if that, again that would not help parents get the requisit help, no wonder parents won’t/can’t get what’s needed
I have raised this matter to the heart of government and, well, a tough luck response is often given, it doesn’t have to be this way.
Its a false economy given that if problems known early and resolved it would make a world of difference and in my view, put a bolt on that all too common revolving door
Of course I agree with Jerry. It took me three years to get to the top of the waiting list for therapy, only for the mental diagnosis made by the expert to be over turned. The expert certainly was not experienced in trauma , or even understand the law relating to abuse within marriage in this country. He saw me for two hours before misdiagnosing. I still cannot have my children returned, according to the courts. The psychologist ( who was the third mental health professional to see nothing wrong) said I was one of her most mentally well patients. She did tell me that she had another patient that had become ill through lack of support for her SEN son impacting on her mental well being.
The system works similarly to disability assessments, your GP, or consultant says one thing and someone who knows you far less, is not as qualified over turns it.
I do wonder if Local Authorities started having some negligence cases go against them , for failing to support , whether some power would be put into the hands of families.
I would like to see a triage system, with a personal budget allocated to each family.