This judgment is being handed down in private on 7 March 2003. It consists of 27 pages and has been signed and dated by the judge. 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.

Case No: IP02C00919
Neutral Citation Number: [2003] EWHC 429 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 7 March 2003
Before:
THE HONOURABLE MR JUSTICE SUMNER
 - - - - - - - - - - - - - 
Between:

SH and RH
Applicant
-and-

SUFFOLK COUNTY COUNCIL
and JH (dob 1.3.98)
(through his Guardian ad Litem)
Respondent
- - - - - - - - - - - - - 

Miss S Dines (instructed by ashton graham Solicitors) for the Applicants
Mr J Bennett (instructed by Suffolk County Council and Blocks Solicitors)
for the Respondents

Hearing dates: 3 February 2003
- - - - - - - - - - - - - 
Judgment
Mr Justice Sumner

Introduction

1.	This appeal which I heard on 3 February concerns JH. He was born on 1 March 1998. He is 4, nearly 5 years of age. He is the 3rd of 5 children of Mr RH, the father, who is 52 years old and Mrs SH, the mother, who is 32 years old. They were married on 14 February 2000. They had been together since 1994.

2.	JH has an older half-brother, D, born 9 November 1990. He is now 12 years of age. His mother is Mrs SH. He was born as a result of a previous relationship by her with a Mr CG. D has lived with his maternal grandmother since June 1998. On 16 July 1999 Suffolk County Council, (“the local authority”), commenced care proceedings in respect of D. On 2 March 2000 D was made the subject of a care order by the East Suffolk Family Proceedings Court (“the court”).

3.	JH has 4 full siblings. They are H born on 11 September 1995 and now 7, V born 10 September 1996 now 6, B born on 31 October 1999 now 3, and L born 1 February 2002 now 1.

4.	On 11 January 2002 the local authority applied for Supervision Orders in respect of H, V and B and a Care Order in respect of JH. L was born 3 weeks later and the application was extended to include her.

5.	On 24 January 2002 the court made an interim care order in respect of JH after a contested hearing. He was placed with foster parents where he has remained with contact to his parents and siblings.

6.	Following a 4 day hearing on 29 July to 1 August 2002, the court made a care order in respect of JH. The care plan which was accepted by the court was to place JH for adoption. The court made interim care orders in respect of the other 4 siblings.

7.	The application concerning the placement of those 4 siblings has now been transferred to the county court. It is to be heard in April 2003 with a time estimate of 3 days. It is against the care order in respect of JH that his parents now appeal.

8.	In order to understand the points made by the parents, it is helpful at this stage to set out the essential background. It includes the circumstances in which D and JH were taken into care and the Justice’s conclusions. I shall then summarise the main arguments put forward by the parents. I will review the evidence before giving my reasons.

Background in relation to D

9.	In August 1997, 3 years after the parents met and when their 2 older children had been born, D complained of 2 incidents of violence. One was by his mother, the other by Mr H. By agreement he went to live with his maternal grandmother in June 1988 where he has remained.

10.	This occurred because of the open hostility towards him by Mr H. He was seriously victimised in the home. It included physical violence. The mother did not oppose the application for a care order for him.

Background in relation to JH

11.	It was when JH was just over 3 years of age in July 2001 that a Health Visitor first reported that the same treatment was being shown towards him. JH was silent and withdrawn. The father said he wanted him adopted. There was lack of cooperation with statutory agencies. The mother did not want him to leave home.

12.	Within days of JH being placed in foster care in January 2002, the father said he had changed. His earlier attitude had been due to depression. He wanted JH home. Contact went well though JH was confused. His attitude improved considerably in foster care.

13.	At the hearing the issues were essentially as follows. Should there be an adjournment for a further assessment or therapy for the parents? Was the conduct towards JH, not in dispute, due to the father’s depression? What were the prospects that the parents could change? Would any change be within a time span compatible with JH’s best interests in the short or medium term?

14.	Those issues were of course to be considered against the fundamental approach in all care proceedings under s.31 of the Children Act 1989. Firstly has the local authority established by cogent evidence to the necessary high standard that JH had suffered significant harm at the date proceedings began, 11 January 2002? If that is proved, was that harm attributable to the care given to him by his parent or parents, not being care which it would be reasonable to expect a parent to give to him?

15.	Only if the answer to both questions is yes does the court then consider the child’s placement. It decides that issue on the basis, under s.1(1) of the Children Act that the child’s welfare shall be the court’s paramount consideration. The court is to have regard in particular to the matters set out under s.1(3) in making its decision.

A summary of the Judgment

16.	The Justices refused repeated applications for an adjournment of JH’s case. They made interim care orders in respect of the other 4 children. They took into account the treatment of D.

17.	They accepted the evidence that in relation to JH the parents had not shown any evidence of change nor acceptance of the real problems at home. Change would take 2 to 3 years for the mother. It was likely that JH would be abused again if he returned home now which would be disastrous for him. JH’s timescale could not wait for his mother to change.

18.	Before I review the statements, it is helpful to consider the grounds upon which the appeal is brought. It makes clear the main points on which it is necessary to concentrate.

Grounds of Appea1

19.	These are set out in the Notice of Motion. As they are only shortly added to in skeleton argument of Miss Dines who appeared for the parents; I shall summarise them. The essential complaint is that there should have been an interim rather than a final care order in respect of JH as there was for the other 4 children. This would have allowed further assessment of the Appellants and the opportunity of seeing if JH could remain at home under a supervision order. The particular grounds are as follows -

i)	The proceedings should have been adjourned in respect of JH for further assessment of the parents, family therapy, and a psychiatric assessment of the mother. It was disproportionate and discriminatory for JH to be treated differently from his siblings though it was accepted he had suffered greater emotional abuse. The psychiatric assessment was needed because of the mother’s mental illness and low level of intellectual functioning, and was in any case going to take place because of the adjournment granted in the case of the other children.

ii)	The court was wrong to take into account the manner of the mother’s evidence bearing in mind her level of intellectual functioning.

iii)	It was wrong for the court to conclude that the father showed a lack of understanding and insight, bearing in mind his level of intellectual functioning and history of depression.

iv)	The court was wrong to attach so little relevance to the father’s depression.

v)	The court was wrong to be dismissive of the evidence of Dr Mayer, an adult psychiatrist.

vi)	The court wrongly gave too little weight to the evidence of Dr Mayer and Dr Flett, the father’s General Practitioner, that the father had a capacity to change and improve.

vii)	The court wrongfully concluded that the local authority had done their utmost to help the parents when they failed to provide any therapy or psychiatric assessment of the parents.

viii)	It was wrong to deny the parents an opportunity of relying upon their own expert psychological evidence when that of the jointly instructed expert, Miss Simpson, was adverse to them.

ix)	The court placed insufficient weight on the evidence that contact sessions between JH and his parents went well.

x)	There was insufficient evidence to show that JH would suffer emotional harm in the future.

xi)	There was no sufficient justification and it was contrary to Article 8 for the ties between JH, his parents and siblings to be severed and for the court to conclude that the only option was adoption.

xii)	The accepted emotional abuse of JH was considered without sufficient regard to the surrounding circumstances which have improved.

xiii)	The court placed too much reliance on the fact surrounding the removal of D.

xiv)	The court placed too much reliance on the parents’ failure to cooperate.

xv)	In all the circumstances the court was wrong to conclude that neither parent could meet JH’s needs.

Skeleton Argument

20.	Miss Dines relied upon two distinct arguments. Firstly there were the grounds set out in the Notice of Motion. To this she added in her skeleton argument a claim to a fair trial under Article 6, a lack of equality of arms, and the right to respect for family life under Article 8.

21.	The second argument was that new evidence was available. It was relevant to the mother’s mental health, and the extent to which the parents had moved on and were now likely to cooperate.

22.	In relation to the second ground I pointed out that the first question was whether the fresh evidence was admissible. If it was and the material parts were not accepted by the local authority, it could not be tested on this appeal.

23.	It was however open to the parents to apply to discharge the care order if they so wished under s.39(l) of the Children Act 1989. With a 3 day hearing imminent, I said it might be possible to make such an application with a return date to coincide with that hearing.

24.	Miss Dines took instructions. As a result she was able to inform me that she no longer pursued the second argument set out in her skeleton argument. Accordingly the appeal proceeded on the first argument only, namely the points set out in the Notice of Motion with the additional matters to which I have referred in the skeleton argument.

Test to be applied on appeal

25.	The appeal is by way of a re-hearing. This means that the court will review the whole of the evidence and the way in which the Justices carried out the balancing exercise. It was put in this way by Waite J. in Re: CB (A Minor)(Responsibility Order) (1993) 1 FLR 920 - 

“The magistrates are also the primary court of discretion, no appeal can be entertained against any decision they make within the scope of the numerous statutory discretions committed to them by the Children Act 1989 unless such decision can be demonstrated to have been made under a mistake of law, or in disregard of principle, or under a misapprehension of fact, or to have involved taking into account irrelevant matters, or omitting from account matters which ought to have been considered or to have been plainly wrong - i.e. outside the generous ambit within which a reasonable disagreement is possible.”

26.	In Re: C (A Minor)(Care: Child’s Wishes) (1993) 1 FLR 832, Waite J. added in relation to the duty of the High Court on an appeal -

“It must then make up its own mind, not shrinking from overruling any finding of fact by the magistrates if on full consideration the High Court comes to the conclusion that such a finding was wrong….”

The Local Authority’s case concerning D

27.	The mother met the father in July 1994 when D was 4 years of age. Their relationship began. In August 1997 D’s name was put on the child protection register. This was under the category of physical injury following allegations by D that his mother had banged his head against a radiator and, the previous year, that Mr H had punched him in the chest.

28.	In October 1997 the parents were not cooperating with assessment. There were more than 6 occasions when social workers or health visitors were refused access to the home. In April 1998 the parents were considering having D fostered. By then there had been a report that D was totally rejected by Mr H and that he was putting pressure on the mother to agree to him being removed.

29.	In September 1998 Mr H said he was not interested in any work to improve his relationship with D. They disciplined him by smacking him. They considered his behaviour was becoming worse. In November 1998 D’s name remained on the child register by this stage under the category of both neglect and emotional abuse.

30.	In March 1999 Mr H stated openly that he hated D. He could not stick being in the same room as him. He referred to him as filthy and disgusting and that his room stunk of urine because he wet his bed. He said that when D had been abusive to him recently he had hit him so hard that he had hurt his hand. Finally in June 1998, after the mother had said she no longer wanted him at home, he was placed by agreement with his maternal grandmother.

31.	A social worker reported in January 2000 - 

“D has consistently and over a prolonged period, recounted extremely difficult experiences from his early years within the family home which it would appear continue to make him feel vulnerable and frightened about the prospect of any possible reunification with the family………..

D’s strongest attachment is with his grandmother and with Mrs Beverley Betts. Therefore it remains appropriate that he remains in his grandmother’s care with regular respite with Mrs Betts. If D were to be returned to his home it is highly likely that he will continue to be scapegoat, physically chastised, emotionally abused and damaged. In a statement of the mother in February 2000 she said that there were ongoing difficulties between D and Mr H which had caused problems within the family. She had found it very difficult to manage his behaviour as he was aggressive and violent towards him. She accepted the local authority’s care plan for D and their application for a full care order.”

32.	The nature of the complaints made by D in respect of his treatment by his mother and Mr H is given in the Guardian’s report. In summary D said Mr H would not let him play with his half-sisters. His mother put him to bed at half-past six before the other children. He wet his bed because it was too dark to find the toilet as the light bulb had been removed.

33.	His mother and Mr H went on holiday with the children but left him with a neighbour. He had to take the baby’s dirty nappies out and do all the dirty jobs. He had to wash and wipe up after every meal and his clothes were always smelly because he wet himself. When he finally left Mr H told him that it was good because they would not see him anymore. He remembered his bed being so wet that it had maggots in it.

34.	He was given different food to the rest of the family. He had to get his own breakfast before everyone else. He was not invited to the mother’s wedding to Mr H though the other children were. As the Guardian, Ms Reiff said, neither his mother or his step-father had demonstrated that they were willing or able to meet his needs.

35.	The mother accepted that there were ongoing difficulties between Darnien and Mr H. She had found D’s behaviour difficult. She supported the Care Plan for D to live with his grandmother.

36.	The Justices on 2 March 2000 made a care order in respect of D. They accepted the Guardian’s report and highlighted her conclusion. It was that the mother had rejected D and allowed Mr H to physically and emotionally abuse him.

The Local Authority’s case concerning D

37.	In considering the background material I shall deliberately say little about the evidence relating to H, V, B and L. They are obviously most important, but there are further proceedings concerning them. However as will appear, it was the local authority’s case that JH was treated differently from his siblings. They contended that the treatment afforded to D was being repeated with JH. Accordingly it is in relation to that on which I shall principally concentrate.

38.	In July 2001 a health visitor, Julia Bilotta, referred JH to social services because of her concerns about his emotional presentation. She subsequently summarised her concerns at a child protection conference as follows. He was not included in the family circle. He was disciplined differently from the other children. He was smacked by his parents that at times left marks on his body. He was persistently criticised. He was socially isolated until he started nursery.

39.	He was observed to have been a quiet and passive child. He displayed a “frozen watchfulness”. The father said that he wanted JH adopted and had been adamant that JH would not change. He said he had no feelings for JH.

40.	JH’s school were very concerned. This was because of his withdrawn silent presentation and his poor interaction with his peers.

41.	Following a child protection conference in October 2001, the parents said that they did not intend to cooperate with the child protection plan. They attended neither conferences nor core groups. The father continued to say that he wanted JH adopted. The school nurse reported seeing the father and JH together for half an hour with JH standing in one position only with his back to his father.

42.	A social worker, Miss Rutterford, noted on 9 January 2002 that the father was bereft of any emotion in his responses to JH. Neither parent acknowledged JH during the visit and the father spoke negatively about him in his presence. JH did not speak during the visit nor react with his parents - “JH displayed body language which suggested that he was wary and fearful of interacting with adults”.

43.	In her statement of 18 January 2002 Miss Rutterford noted that the father acknowledged his lack of feeling towards JH was emotionally damaging. He said that if you did not love someone you could not do anything to change it. The mother was stating that she loved JH and did not want him adopted although the father was clearly saying this was the ideal solution.

44.	The parents initially refused to cooperate with the assessment of the family but by January the father said he would cooperate because he had to. It was considered that the father dominated and controlled the mother.

45.	However on 15 January 2002 the father said that he was going to make a fresh start and spend more time with JH. The Guardian was appointed on the following day.

46.	JH’s behaviour on leaving home was marked. Thus in a report of May 2002 it was said that at school in December he had been presenting “as a withdrawn child, fearful of adults and the other pupils. Since then there have been positive changes in his overall behaviour and social skills. He now relates well to adults ……”.

47.	He remained tearful and distressed both before and after contact with his parents even if it was only on the telephone. Contact caused him a great deal of distress.

48.	The father accepted that his previous negative feelings for JH had been accurately recorded. This however happened at a time when he was suffering from depression. Since then his love for JH had returned and this was observed during contact. There were difficulties in arranging for this because of his long hours as a bus driver.

49.	However the concern in May in a local authority assessment was that the parents had not moved on very far from where they were in 1999. Reports showed similar concerns arising. In particular the lack of movement in the parent’s capacity to change meant that they could be in the same position with JH in the future.

50.	By July concerns were expressed at lack of cooperation from the parents. This concerned making contact arrangements and excuses for this. By this time JH was regarded as thriving in foster care and showing himself to be a very happy and affectionate child.

51.	JH’s school also noted what was described as a marked difference in his presentation when he was removed from the family home. He began smiling and communicating; speech and confidence had developed.

Care Plan

52.	It was the local authority’s plan to place JH with permanent carers within his extended family or with an adopted family. It was not felt in his best interest to return home. Mrs Leeder the social care manager said in evidence that they had enough information from assessments to make a decision about JH. The decision was made at the date of the care plan in early July 2002.

The Parent’s Statements

53.	The father accepted that when suffering from depression he had no feelings for JH. He wanted him to be cared for elsewhere. He had changed now that he was not suffering from depression.

54.	In a statement of over 50 pages of 17 July 2002 he made it clear that his behaviour had been wrong. The depression had been for a relatively short period of time, no more than 8 weeks. JH had suffered no physical abuse and he was physically well cared for. It was a short period of time for a 4 year old child.

55.	In relation to D, it was D who had taken against him and unfortunately he could not get on with him. Tensions grew within the home and it was jointly and very reluctantly decided that D would be better with his grandmother.

56.	The mother said that the local authority had misunderstood their position. They had relied far too heavily on what had occurred with D. They believed very strongly that with appropriate advice and assistance JH could be re-integrated with the family.

Psychiatric and Psychological Reports

57.	An adult psychiatrist, Dr Mayer made a report on the father dated 10 June 2002. He thought it probable that the father had been clinically depressed for much of the previous year. It was reasonable to suppose that he became emotionally detached and withdrawn. He may well have unconsciously used JH as a scapegoat. There was no evidence of him being clinically depressed when D was there.

58.	The parents had stated that the situation with D had been different and comparisons could not be drawn. This suggested that under stress the father had a tendency to direct his negative feelings towards a member of the family he thought the most troublesome.

59.	The impression was that the father was now mentally well. There was no indication from his assessment of Mr H that he should receive anti-depressant mediation or psychotherapy.  There was no need for therapy, there was no illness.

60.	Miss Simpson, a psychologist, instructed by the Guardian prepared psychological assessments of the parents and the 5 children. I concentrate only on the parents and JH.

61.	In her view JH had been significantly harmed by way of serious emotional abuse and been physically abused as well. “He has undoubtedly been scapegoated and rejected within the family and presents as a vulnerable insecure child with low self esteem”. She noted his subsequent very real improvement.

62.	In relation to the mother she said she was the product of a difficult childhood where she experienced physical and sexual abuse. She is “an isolated, vulnerable and immature woman of very limited ability”. She had been much affected by her poor childhood experiences. She was experiencing moderate mental health problems. “In addition, her capacity to parent is impaired as she has minimal knowledge of child development and a limited range of child management skills”.

63.	The father was also of limited ability. He has “a dependant personality and is a confused and anxious person with an authoritarian parenting style. He is also poorly attached to JH and B and his capacity to parent JH is markedly impaired”.

64.	She concluded that the parents were of limited ability and displayed concrete and rigid ways of thinking. “They also find it difficult to understand cause and effect in social situations and have little concept of risk. In addition they both tend to cope with difficulties by denial and minimilisation or by attributing responsibility to others……”.

65.	Miss Simpson said that most people can change given time, sufficient motivation, and appropriate resources providing the individual is aware of and accepts the need for change. “I have had no such acknowledgement from Mr and Mrs H as neither believed they had any problems with their parenting. Thus the likelihood of bringing about positive effective change is limited and, given the level of learning difficulties and concrete and rigid ways of thinking, is likely to prove long and arduous and thus, more specifically, outside the time span for JH”. She suggested that the family was referred for therapy.

66.	In her evidence she went further.

“Having read Mr RH’s statement he is so entrenched in his view that family therapy will not work or be of benefit…. If they are prepared to acknowledge these difficulties and the need to deal with them, long and difficult process that would take - 2 to 3 years of therapy on a best-case scenario, very regular but first at least weekly…… I thought Mr and Mrs H would be able to acknowledge difficulties having read my report but I was wrong….. I cannot see how risk can be managed……. I do not like children being in care, one does not recommend it unless you are absolutely desperate ………..His statement makes me more pessimistic - understands very little of what is happening.”

67.	The father’s children by his first marriage and his first wife gave evidence. They were supportive of him.

The Guardian

68.	Mrs Boatfield prepared a report of considerable length. She said that the original problem had been open rejection of JH by his father and a fearful withdrawn presentation by JH which had been widely observed. D had been removed at 9 because of his emotional and physical abuse and scapegoating within the same home.

69.	She pointed out that the parents opposed the local authority’s applications. They had no confidence in Miss Simpson’s assessment. They unsuccessfully applied for the appointment of a second expert at an interim hearing on 1 July.

70.	She supported JH being placed for adoption. She put her conclusions at an early part of her report in these terms - 

“I myself am deeply pessimistic in the light of those statements and I now question whether, taken together with the history of Mr and Mrs H’s previously emotional abusive parenting, there is in fact any realistic possibility of bringing about change to keep their remaining children safe and protected if they remain in their parent’s care.  

The court may agree that it is a matter for grave concern that 2 children have been so seriously harmed as a result of the care that they have experienced from Mr and Mrs H yet still they are unable to acknowledge this and it has therefore been impossible even to begin to work with them to understand why this has happened. They make it explicit that they do not even accept that the children have been significantly emotionally harmed.”

71.	She commented on the extent of the father’s rejection seen even in front of social workers and observed in the presence of both boys. “The fact that his feelings endured for some considerable length of time were felt to constitute extremes of emotional rejection in both cases”.

72.	She said that offers of help in 2000 and 2001 were repeatedly turned down by the parents. She noted their lack of cooperation.

73.	She observed contact. Had she not known the past “…….I have no doubt that I would at once have had concerns about JH purely on the basis of my observations”. She noted that JH was not unduly distressed on separating from his family and the extent of the beneficial change for him since being with his foster parents.

74.	She had advised reduction in contact because the positive emotional response of his parents compared with his previous experience. It was leading to confusion for JH.

75.	She had seen the father respond positively to JH and they had shown mutual affection. She did not understand therefore why he was taking on weekend and extra shifts which diminished the amount of contact he could have.

76.	She concluded that little or no progress had been made in engaging the parents to look at aspects of family life and to give them an insight into the difficulties with D and JH. Having reviewed JH’s earlier history she considered there was no evidence of JH ever thriving physically or emotionally.

77.	There was evidence of early difficulty in his physical care, of his persistent quietness and wariness, of poor feeding practice and poor stimulation, and neglect of his need for social stimulation. There was a refusal of help from what his parents found to be his difficult behaviour from a time when he was only 2 years old.

78.	She concluded that JH was an emotionally and psychologically abused and vulnerable child. He was now beginning to make trusting attachments. He still had a very poor self-image and low self esteem and self confidence. He had essential remedial emotional needs for secure and permanent care with adults who are reliable and caring. “He cannot afford to be exposed to risk of further emotionally abusive or inadequate care”.

79.	She was pessimistic about the parents gaining insight into their difficulty as parents. The absence of retrospective parental distress and guilt she considered striking. She said in evidence that having heard the parents give evidence she had the gravest pessimism that Family Therapy would be productive.

Hearings before he Justices

80.	On 1 July 2002 the Justices heard an application to transfer the proceedings to the county court on the basis of its complexity and the likely length of the hearing. There was also an application for an additional expert report at the request of the parents.

81.	The Justices pointed out that the psychologist whose report was challenged was jointly instructed. The original estimate of 3 days for the hearing would be significantly exceeded.

82.	They thought that to allow the applications would delay the matter between 3 and 6 months. Further delay was unnecessary and undesirable. A further report was not necessary.

83.	They heard a further application to adjourn on 29 July. They considered it better to postpone any decision on this until after they had heard Mrs Simpson give her evidence. Accordingly on 30 July they considered whether a psychiatric assessment of the mother should be granted. They considered it was regrettable that the application had only then been made.

84.	They considered all parties rights. They concluded -

“If we were to allow an adjournment for this assessment to take place we know from Miss Simpson that any treatment required by Mrs H would take 2 to 3 years of intensive therapy, if she were willing to comply and able to do so - given the commitment to her 4 children at home and her limited ability. 

Mrs H has been represented throughout these proceedings and has taken part in all assessments. It is our view that the body of evidence provided to us is full. We consider Mrs H’s right to a fair trial and balance that against Section 1 of the Children’s Act 1989 - the welfare of the child being paramount. 

What effectively a psychiatric assessment would give us would be a diagnosis of any illness Mrs H may be suffering from and a recommendation for treatment. Miss Simpson has made it clear that this assessment would be necessary for Mrs H’s benefit for herself because of the abuse she has suffered. 

Mrs H suffered abuse as a child - she is now a woman of 32. Her difficulties have been with her a long time and we know that treatment will be long - 2 to 3 years - and painful.

JH is a little boy of 4.  He has suffered already within his family. His timescale cannot wait for Mrs H.

On balance, we are satisfied Mrs H will have a fair trial, but JH’s need to have his future determined one way or another cannot wait……

In coming to our decision we have taken into account the Guardian’s view that JH needs to have his future determined sooner rather than later.  At all times JH’s welfare has been our paramount consideration.”

85.	The Justices considered the question of an adjournment once again on 1 August after the parents had given evidence. This was once more for a psychiatric report and family therapy. Whilst accepting that Miss Simpson had recommended such an assessment,  they pointed out that she had made clear in her evidence that this recommendation was for the mother’s benefit. 

86.	That day the mother had said she did not need help with that. She did not think it would help. 

87.	In relation to therapy, they accepted that they had acted on Miss Simpson’s recommendation in respect of the other 4 children. JH had however suffered emotional abuse and was at risk of reabuse in the home. They were not discriminating against him.

Judgment on 1 August 2002

88.	They adopted their previous findings of fact to which I have referred above. JH had suffered significant harm through his parent’s care. It was not mild with no lasting effect as the parents said. The father treated JH badly and differently from the other children. He wanted him removed from the household and adopted. It is possible he was suffering from depression. The family rejected help.

89.	They held that the parents cannot accept the amount of harm that JH had experienced nor that it was because of their parenting. They did not see that his case was in any way like D’s.

90.	The local authority had done their utmost to help them. The parents had not moved on. They had cooperated on a very superficial level. D’s case followed a strikingly similar pattern to that of JH. It was telling that the father said he would cooperate but then said in evidence that he wished they would all go away.

91.	The mother’s evidence showed her inability to take on other people’s concerns. She had a complete lack of understanding of the real issues as did the father. They saw no real problems within the home. They did not accept the parent’s view of Ms Simpson. They could not meet JH’s emotional needs.

92.	They accepted the Guardian’s assessment which I have set out at paragraph 78. They noted the improvement in JH since he had left home and those improvements would not happen if he returned.  The parents did not acknowledge what a child needs and there was a likelihood he would be re-abused like D and the consequences would be disastrous for JH.

93.	The parents were in denial. They had minimised professional concerns. Neither believed they have a problem with parenting. They did not recognise that the responsibility was with them.

94.	The Justices supported a full care order and endorsed the care plan for adoption. This was after concluding that under s.l of the Children Act JH’s rights take precedence. They also considered the Human Rights Act.

95.	In summary the Justices refused an adjournment to the parents on 29 July. They said they had sufficient evidence. They reserved their position until after Mrs Simpson had given their evidence. Having heard her evidence they again refused an adjournment on 30 July. Finally on 1 August they again considered an application to adjourn. They record that Mrs H said that day in answer to questions that she did not need any psychiatric assessment to help her with childhood abuse. They therefore stood by their earlier findings and refused the application.

96.	On the same day they allowed an adjournment in relation to JH’s siblings for family therapy as that followed a recommendation from Miss Simpson. They went on -

“We know already JH has suffered significant abuse and is at risk from re-abuse in the home. JH is not being discriminated against by this decision and his situation is more pressing and requires resolution. We refuse that part of the application also.”

97.	It is clear that when they refer to the previous findings of fact they are referring to the earlier judgments. I have set these out above in summary form.

98.	Thus they refused to allow any adjournment for psychiatric report on the mother. They refused to allow family therapy to take place with the 4 other siblings at the same time as JH. They held that JH had suffered significant harm as a result of the care given to him by his parents. They considered that he would suffer further abuse which would be disastrous if he was returned to their home. They concluded that treatment of the mother would take 2 or 3 years of intensive therapy. JH’s timescale could not wait for his mother. Finally they did not consider they were discriminating against him.

Preliminary Observations

99.	I preface my consideration of the grounds of appeal with a few remarks about the appeal itself.  Like the Justices, I faced over 600 hundred pages of statements and reports in addition to the notes of evidence in respect of some 14 witnesses. I was assisted by the case summary and skeleton argument prepared by Mr Bennett for the local authority.

100.	There were however few references in the Notice of Motion, or the skeleton argument, to the bundle, the notes of evidence, or the relevant parts of the Justices reasons. I was given a bundle of authorities and statutes. There was no reference to any of them in the Notice of Motion, the skeleton argument or submissions before me.

101.	A skeleton argument should contain all the necessary references to reports, notes of evidence and principles upon which reliance will be placed together with the authorities and the passages in them supporting the principles enunciated. I regret their absence. It has presented some problems. I am however satisfied that no injustice has been done.

Conclusions

102.	In setting out briefly my conclusions in respect of the points that has been raised, I do so on the basis that I have both before and since the hearing reviewed the evidence. Most of the essential points I have already set out earlier in this judgment. I can therefore be shorter than might otherwise be the case.

103.	The first point relates to the failure of the Justices to adjourn for further assessment of the parents including family therapy and psychiatric assessment of the mother. It is said to be wrong to describe what was going to happen in any event in respect of the other 4 children as “a by product”. It was discriminatory, a breach of natural justice and contrary to Human Rights legislation.

104.	I find the Justices refused the various applications for adjournments for good reason. On 29 July it was because they did not have sufficient evidence until they had heard from Miss Simpson. On 30 July they pointed out that an assessment would give them a diagnosis of any illness the mother was suffering from and a recommendation for treatment. But they knew that treatment would be long, 2 or 3 years of intensive therapy if the mother was willing and able to comply. JH could not wait. They had full evidence.

105.	On 1 August when they again considered an adjournment they had just heard the mother’s evidence that such an assessment would not help. They stood by their earlier findings. In relation to therapy, with regard to the other 4 children it related to whether they could be safely parented. JH was different because he had been abused and was at risk of further abuse if he went home.

106.	They asked themselves the essential question namely how would such an assessment affect JH. By the conclusion of the hearing they knew the mother did not think it would help.

107.	In relation to therapy, they found that the parents promise of co-operation with professionals were empty words. The parents did not accept they had a problem with parenting.

108.	In my judgment the essential point is not so much whether the mother had a psychiatric condition but whether there was clear and cogent evidence about her ability to change. That came from Ms Simpson. It was not alone. The Guardian shared Ms Simpson’s view.

109.	The Guardian concluded that neither parent had addressed the reality of the strong and continued negative and rejected feelings they had nor have they accepted or understood the consequences for JH. To her this was the fundamental insurmountable hurdle in working towards a possible return of JH to their care.

110.	The Justices recorded that neither parent felt the need for such help. They accepted Ms Simpson’s evidence in relation to the length of the treatment required, 2 to 3 years as they were fully entitled to do. It was quite apparent that before even the treatment could start the parents, and in particular the mother, had to accept that it was needed and the reasons why. That process as the Justices found had not even been started.

111.	There is a report amongst the papers I was asked to admit as fresh evidence from a chartered clinical psychologist, Ms Haidi Totsika. She was another jointly instructed expert. She concluded in September 2002 that the parents did not consider they had any problems at present for which they wished for help. She did not consider them appropriate for family therapy at the time.

112.	This was because of their denial of responsibility, their minimising of the effect of their behaviour on the children and the lack of any expression of genuine concern for the welfare of JH. She was not confident that they would be able to achieve the necessary changes in the near future. It is a conclusion reached by the justices when they said that the mother had not even reached the starting block.

113.	There was also a report from Dr Kinane on the mother. He is an adult psychiatrist. He reported in December that the mother did not meet diagnostic criteria for a personality disorder. Her abnormal personality traits may be amenable to psychotherapy but the success would be limited by her intellectual impairment.

114.	It is a comfort only to see that had there been that psychiatric evidence available earlier, it would not have benefited the mother. Equally the therapy sought would not in JH’s case have helped if they were still in denial after the hearing.

115.	The crucial point is that the Justices well understood the points being made about an adjournment. They addressed themselves to the correct questions. Their conclusions were sufficient. They were based on evidence they were entitled to accept. They were aware of potential discrimination and in clear terms set out why this did not arise. I see no arguments arising from that which breach rules of natural justice nor infringe Human Rights to which I shall refer later.

116.	It is next said that the Justices were wrong to come to this conclusion -

“The manner in which Mrs H gave her evidence underlined her inability to take onboard anybody’s concerns especially the Guardians and expert witnesses. She demonstrated a complete lack of understanding of what the real issues were. Similarly Mr H demonstrated a lack of understanding and insight into the issues of this case.”

117.	There was clear evidence in support of this conclusion from Miss Simpson, the Guardian, and the social worker. Furthermore it is the very assessment which the Justices were there to make. It was not necessary to have expert evidence on mental. illness before reaching this conclusion.

118.	It is said that the Justices did not take into account the mother’s limited intellectual functioning. They did not expressly mention this but it was central to Miss Simpson’s report which they did accept. Furthermore sadly the reason why the mother could not understand the concerns was not crucial. It was only relevant to the ability to change. If functioning prevented that change or slowed it down it was an added ground for the Justices’ finding.

119.	The same applies to the father. The Justices concluded that it was possible the father was suffering from depression the previous year. They were entitled to note that none of the neighbours or relatives of the father had observed any signs of depression. The point not addressed by this submission is that at the hearing the father was not suffering from depression. Despite that and the clear evidence of his rejection of JH, he did not accept that what had happened had, in the words of the Justices, caused significant harm. “They (the parents) are in denial”.

120.	It is true that the father’s GP Dr Flett was not aware that he was suffering from depression and he mentioned that it can be a matter of shame to admit to it. It is right that the part of the judgment dealing with depression is short. It amounts to saying that the father may have been depressed and recording that this was not observed by friends or relatives.

121.	I am satisfied that the proper inference from those findings is that if the father was depressed it was not of such a nature to be noticed by others or make him go to the doctor. It was therefore not a sufficient explanation why the father behaved as he agreed that he did.

122.	The references to Dr Mayer relying on self-reporting evidence must be correct. He was not diagnosing a present condition of depression. He was considering whether the father’s reports of what he was like the previous year supported a particular finding. It was correct to say that Dr Flett took the matter no further as the justices found. He mentioned as I have said the shame that might explain why the father did not tell him how he was. He could add little else.

123.	The evidence was that his treatment of JH had exceeded the time when he was depressed. The father did not say he was depressed when he dealt with D in a similar rejecting manner. He did not acknowledge that he had done anything wrong. Given this and my earlier conclusions, I dismiss the appeal on this ground.

124.	It is said that to adjourn the case for one set of children but not for JH was wrong. The reason for adjourning the case in relation to the other 4 children was to see whether there was a chance of them remaining together and at home. Without going into the details further, there was some prospect that the other children against whom there had been no rejection might remain with their parents. JH had already suffered and was suffering significant harm when he was, rightly in my judgment, removed in January 2002.

125.	There was no evidence to suggest that any improvement in relation to a problem the parents did not recognise could be achieved either in the short term or in anything less than the 2 or 3 years about which the Justices heard. To put all 5 children into the same bracket is to discount totally the serious damage already done to JH and which the Justices held would be repeated if he returned home. This was not discrimination; it was considering JH separately. This was essential on the evidence.

126.	There is equally no substance in the next ground of appeal. This was that the Justices were wrong in their conclusion that the local authority had done their utmost to help the parents. Reliance is placed on the therapy recommended by Miss Simpson in March 2002 which had not begun. It was quite apparent by the date of the hearing that the pre-condition for such therapy to begin, namely an acknowledgement of what had gone wrong, had not started as the Justices found. The point therefore did not arise. The Justices’ conclusions on this were clear and plainly justified.

127.	Next Miss Dines argued that the parents had been denied a fair trial by being unable to challenge by comparable evidence the impact of what Miss Simpson had to say. I asked Miss Dines whether in every case where a joint expert had been instructed the party against whom the report appeared to go was entitled to an adjournment. She accepted that they were not. She did not venture a particular principle to decide in which cases adjournments should be allowed and in which cases they should not be allowed.

128.	I accept of course that it must turn upon the particular facts of the case. In this instance Miss Simpson determined the parent’s intellectual functioning and their personality traits on the basis of well known and accepted tests. It corroborated evidence to be found in the Guardian’s report and that of the social workers. Simply to argue that there was no equality of arms begs the question of why in this case that was wrong.

129.	The Justices found a series of good reasons why to refuse to adjourn for a psychiatric assessment, which I summarise. A month before the trial it was because Miss Simpson was jointly instructed and selected. The reason for the challenge were anecdotal. A further report was unnecessary. The application was late and without evidential support.

130.	At the beginning of the trial there was insufficient evidence to adjudicate on this. On the next day they once more refused because they know about the length of treatment, and the body of evidence was full.

131.	They made a further and telling finding. The purpose of a psychiatric assessment was to help the mother address, not principally her conduct to or failure to protect D and JH, but the problems resulting from her abusive childhood.

132.	They held crucially that JH’s timetable could not wait. They were conscious of the need for a fair trial and held that the mother would have that.

133.	Finally at the end they once more refused the adjournment. By then they knew the mother did not think she needed help, the things to which a psychiatric assessment and therapy would be directed.

134.	It so happens that a further psychologist jointly instructed reached no different results when reporting after the judgment. Furthermore a psychiatrist, Dr Kinane considered a minimum period of 1 year of psychotherapy before family therapy could be beneficial. It is right that I should be aware of subsequent reports supporting the Justices conclusions when reviewing the evidence.

135.	I conclude that to hold the parties to the one jointly appointed expert on the facts here was correct. Later evidence shows that a different picture would not have been obtained had the application for another expert been granted.

136.	It is not the practice in every case to permit parties a further opportunity to obtain expert evidence. Miss Simpson’s conclusions other than the tests were well supported by other evidence. In my judgment the Justices were right to refuse the applications for adjournment and to press on with the hearing.

137.	It is right that on the next ground of appeal the Justices did not comment on the change in the parents in relation to contact visits. I do not regard this as sufficiently significant. In fact that change caused JH confusion and contact had to be reduced because he was so unused to his parents behaving in this way towards him. That was not however sufficient evidence of change.

138.	As long as the parents did not accept the difficulties, a change in their attitude on contact was not enough. As the Justices found -

“Neither Mr nor Mrs H truly believe they have a problem with parenting. They do not recognise that the responsibility is with them but externalise everything by blaming it on other factors or agencies.”

139.	Sadly whilst a change in attitude on contact was to the parents’ credit, it was not enough. This was because, as the Justices held, they could not see the harm they had already done him. They therefore could not start to see what was needed to avoid the harm in the future. This omission is therefore not significant though to the parents it may well seem otherwise.

140.	Next it is said that there was insufficient evidence for the conclusion that JH would suffer emotional harm in the future. JH had already suffered enormous emotional harm. His parents have never acknowledged either that it happened nor their part in it. It is not just a factor of their low intellectual functioning.

141.	It does however follow a pattern plainly demonstrated already in the case of D. The Justices so found. Without any acknowledgement and a long period of therapy, the evidence was there was no prospect of the risk to JH being reduced. The Justices came to this conclusion. They were fully entitled so to do. The conduct was accepted by the parents. They did not accept the harm done.

142.	As the Justices held -

“We find that neither parent is capable of meeting JH’s needs. Each parent in giving evidence has demonstrated to us that they do not accept that JH has suffered significant abuse because of their behaviour. They are in denial. They both minimised all professionals concerns.

Neither Mr nor Mrs H truly believe they have a problem with parenting. They do not recognise that the responsibility is with them but externalise everything by blaming it on other factors or agencies.”

143.	The question of permanent severance of the link between JH, his parents, and his siblings is of crucial importance. But further assessments were not going to help as in the event has been demonstrated. The question was whether JH should be left in limbo for the next few years. This would be in the hope that his parents might respond to treatment which they had not yet accepted was needed. This the parents say would be better for him than securing the stability and security which he so much needed in the short and medium term.

144.	The short answer is that, as the Justices found, his parents could not meet JH’s needs. They found that he would be re-abused if he returned home like D. They found that it would take the mother 2 to 3 years of intensive therapy if she was willing to comply and they found JH’s timescale could not wait for the mother. That conclusion was justified on the evidence.

145.	Adoption is a drastic step. Other alternatives are not named; they would be leaving him long term with his present foster parents or moving him to long-term foster parents. It is not apparent from my reading that either alternative was put before the Justices.  It was not raised before me.

146.	The parents’ case was to seek an adjournment. They wanted further assessments which I have held were refused for good reason. Because the parents were not contemplating a delay of a year, let alone 2 or 3 years, the question of other options did not arise. I do not see that other options were in any event realistic given JH’s age and his needs. 

147.	Next it is said that too much reliance was placed on the removal of D whilst accepting that there were some similarities with his case and that of JH. In my judgment, having reviewed the evidence, the Justices were more than entitled to find that there was a strikingly similar pattern between what happened to D and what had already happened to JH.

148.	The Guardian and Miss Simpson also saw the validity of the comparison. Their evidence further supports the Justices. Both boys had been scapegoated. Both had suffered physical abuse. Both had been excluded from the family. Both had suffered significant harm. The conclusion that history was repeating itself was unusually well based. The argument to the contrary is not sustainable.

149.	The parents’ failure to cooperate with social services was relied on it is said too much.  However it is accepted as I understand it historically but not after January 2002. It was held to be superficial by the Justices. They gave an example. It was of the father saying he would cooperate and wanted help in evidence. He then said “we need the help but wish they would go away”. He needed a break from it.

150.	But, as Mr Bennett for the local authority points out, they had failed to address the most important issues namely whether anything had gone wrong and if so whether they were responsible for it. It follows that in my judgment the Justices were wL entitled to conclude that neither parent was capable of meeting JH’s needs.

151.	It goes further. The parents cooperated on a very superficial level they found. They were no less entitled to find that they had neither begun to recognise what the problems were. This was an essential pre-requisite before treatment which, in the case of the mother, would take years.

152.	The point is repeatedly made that JH had been dealt with disproportionately and in a discriminatory manner by the court. As I have said earlier, the answer is that he was in a different position. He had suffered serious emotional harm; in relation to the other children it was more of an issue whether they had suffered that harm or were at risk of it.

153.	To treat JH differently is only disproportionate and discriminatory if there are no good and sufficient grounds for the difference. In this case there was very strong grounds for a difference of treatment by the court. In short it was because the parents had treated or permitted JH to be treated in a different way from his siblings to an abusive extent.

154.	In my judgment none of the conclusions were contrary to the Article 8 rights of either JH or his parents. Article 8 is in these terms -

“Right to respect for private and family life.

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.”

155.	As Sedley LJ said in Re: F (Adult: Courts Jurisdiction) (2001) Fam 38 -

“…..It should be clearly stated now that it is T’s welfare which will remain throughout the single issue. The family life for which Article 8 requires respect is not a proprietary right vested in either parent or child; it is as much an interest of society as of individual family members, and its principle purpose, at least where there are children, must be the safety and welfare of the child. It must be remembered that the tabulated right is not to family life as such but respect to it. The purpose, in my view, is to ensure that within proper limits the entitled of individuals to what is benign and positive in family life. It is not to allow other individuals, however closely related and well-intentioned, to create or perpetuate situations which jeopardise their welfare.”

156.	The parents’ conduct jeopardised JH’s welfare. They did not see that; they saw no need for change or treatment. There was abundant evidence that if he was returned in such circumstances harm would continue. It is the duty of the state in such a situation to intervene and remove the child only for such length of time as is required in order to effect change.

157.	However where that has not even begun and where it will take not months but years, a child’s welfare may demand that he be placed away from his family. That clearly arose here and in my judgment the Justices were fully entitled to reach that conclusion.

158.	Accordingly I reject the submissions which have been advanced on behalf of the parents. I have not done so without stepping back and looking at the whole of the evidence and the local authority’s case. I have tested it from various points of view, in particular whether the Justices were entitled to make the findings that they did and whether those findings were sufficient.

159.	Reading both their judgments together, I am satisfied that there are no grounds for appealing against their decision. Their judgment was sadly correct.

160.	I have looked anxiously at a further aspect of the appeal. Was this a hearing too difficult or complex for the Justices? Do their judgments reflect a failure to understand the basis of the application, was there a lack of essential findings, or was the drastic nature of the decision they were taking not clearly seen? Did they apply the proper approach?

161.	It was a lengthy case both in pages of statements and number of witnesses. The Justices could and probably should have sent the case to the county court earlier. But having started the hearing they were in my view right to continue.

162.	They plainly took trouble on every application and on their final judgment. Their conclusions and reasons were sufficient; the omissions were not fundamental. They had a good grasp of the case. They identified the crucial issues. There were findings sufficient to justify their conclusions.

163.	Though no point has been taken on the appeal, I have noted that the Justices did not refer to the burden being on the local authority to prove the threshold criteria nor the high standard required. They did however clearly identify that JH had suffered significant harm as a result of his parent’s care when there was really no dispute about the nature of that care. They thereafter rightly set out that JH’s welfare was paramount.

164.	It is desirable to set out the stages of decision making as I have done in paragraphs 14 and 15. To omit part of that can be a fatal flaw in any decision. I am satisfied that this is not such a case and that the Justices had sufficiently in mind both the burden and standard of proof. The omission is of far lesser significance where the essential facts were not disputed.

165.	I accept it was a difficult decision. The middle child of 5 was being removed from his home at a time when his siblings may stay there. The proposals of the local authority may lead to a permanent severance of all ties with his parents and family. That is such a far reaching and serious a step as to require the strongest and clearest evidence before it can be justified.

166.	After much reading and reflection I have come to a clear decision. The nature and extent of the scapegoating first on D and then JH was remarkable. Its effect was severe, physically and emotionally. The risk of re-occurrence when it was not recognised by his parents was plainly unacceptably high.

167.	Could there be sufficient change in a time-span which was compatible with JH’s best interests? There could not be because the long therapeutic progress for the mother, and I suspect the father, could not begin. It needed 2 essential elements, an acceptance of what had gone wrong with a willingness to receive treatment.

168.	The Justices found on more than sufficient evidence that neither was present. If 2 or 3 years was required (or even at least a minimum of a year), that was too long even if it was possible to start. The evidence was that after the second set of care proceedings it had not.

169.	It matters not whether I would have come to the same result. But it is not easy on all the evidence to see how a different one could have been reached. It may be the case that the limited intellectual functioning of the parents was itself a barrier to their understanding of the need for therapy and their willingness to start.

170.	I add a final consideration. This only arises where the Justices’ present conclusion to stand and there were no discharge of the care order. It relates to what JH and his 4 siblings are to be told about why he is not in the family and how contact is to be handled. I have read what the Guardian has had to say about this but it is a matter requiring an unusually sensitive and well thought out approach.

171.	It has an impact also on whether this is or is not a case where a degree of continuing contact for JH with his siblings and perhaps his parents should be considered a prerequisite for any adoption or long-term fostering. I would not wish to reach any conclusion about this. I highlight the fact that it may well require a degree of further expert evidence before it is finally determined.

172.	Accordingly I shall dismiss this appeal. I will hear the parties should any further points arise.