(Court of Appeal, McFarlane, Sharp LJJ and Baker J, 23 March 2016)
Public Law Children – Special guardianship – Child placed with maternal aunt due to mother’s poor mental health – Whether the child should be returned to the mother’s care
The mother’s appeal from a special guardianship order in favour of her sister was dismissed.
Case No: B4/2015/3861
Neutral Citation Number:  EWCA Civ 189
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT BOURNEMOUTH AND POOLE
HH Judge Bond BH14C00890
Royal Courts of Justice
LORD JUSTICE McFARLANE
LADY JUSTICE SHARP
MR JUSTICE BAKER
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RE FM (A CHILD)
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BOURNEMOUTH BOROUGH COUNCIL(1)
FM (by his children’s guardian) (3)
MR and MRS W (4) and (5)
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Emma Harman (instructed by Jacob and Reeves) for the Appellant mother
Jason Hughes (instructed by Local Authority Solicitor) for the First Respondent
John Ward-Prowse (instructed by Ellis Jones) for the Fourth and Fifth Respondents
The other parties were not represented at the hearing
Hearing date : 9th February 2016
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The Honourable Mr Justice Baker
This is an appeal by a mother against a special guardianship order in respect of her son, F, made by His Honour Judge Bond sitting in the family court at Bournemouth on 3rd November 2015. The order was made in favour of mother’s sister and brother in law, hereafter referred to as Mr and Mrs W. Permission to appeal was granted by Mr Justice Peter Jackson on 18th December 2015.
The mother, who is now aged 39, has a university degree and has had a successful career in corporate travel management. Unfortunately, however, she has also suffered from episodes of depression for which she has received treatment for much of her adult life. In 2012, she met and started a relationship with the father, a man with a long history of drug abuse who had recently come out of prison.
In October 2013, the mother’s father committed suicide, an event which had a devastating impact upon her. Shortly afterwards, she discovered she was pregnant and, as a result, stopped taking her anti-depressant medication. Thereafter, her mental health deteriorated. In early August 2015, when she was in the late stages of pregnancy, she was admitted to a hospital mental health unit on a voluntary basis. At that stage, she apparently decided that she wanted her sister and brother in law, Mr and Mrs W, to look after her baby. She contacted the local authority for the area where she lived.
On 27th August 2014, the mother gave birth to F. Two days later, the mother, Mr and Mrs W, and the local authority signed a document which recorded an agreement that F would be placed with Mr and Mrs W. Later that day, F was discharged from hospital and immediately went to live with Mr and Mrs W with whom he has lived ever since. Responsibility for the case was transferred to the social services department in the local authority for the area where Mr and Mrs W live.
In early September 2014, the mother, who was clearly unwell and greatly distressed, contacted Mrs W to say that she had changed her mind and wanted to resume caring for F when her health had recovered. Meanwhile, Mr and Mrs W had become concerned that the father was planning to take over care of the baby. On 3rd September, Mr and Mrs W therefore applied without notice to the parents for a child arrangements order and a prohibited steps order to prevent the parents removing the baby from their care. Those orders were granted by a district judge at a without notice hearing, and renewed at a hearing on notice on 12th September. At the latter hearing, Mr. and Mrs. W gave notice of their intention to apply for a special guardianship order in respect of F.
Shortly afterwards, the mother was admitted to a residential psychiatric unit where she remained until the beginning of October. She was readmitted to the unit in December and remained there for a further few weeks until she was finally discharged in January 2015. Meanwhile, on 16th December the local authority had started care/supervision proceedings and on 6th January 2015 Judge Bond made an interim supervision order accompanied by a series of case management directions authorising a range of assessments, including psychiatric assessments, a parenting assessment of both parents, hair strand drug testing of the parents, a special guardianship assessment of Mr. and Mrs. W, and an initial viability assessment of F’s paternal aunt, hereafter referred to as “DJ”. Further case management directions were given at a hearing on 19th February. From January, the mother had regular weekly supervised contact with F.
The parenting assessment of the parents concluded that they had demonstrated positive parenting capacity, although the assessor warned that further information should be obtained about their drug use and lifestyle. On 29th April, the mother applied for a child arrangements order, seeking an immediate increase in contact, with a view towards F’s ultimate placement in the parents’ care. Initially, the local authority indicated that it supported the proposal that F be rehabilitated with her parents. In the event, however, the mother did not proceed with her application for unsupervised contact at the next hearing on 7th May after it emerged that the father had tested positive for drugs. At a further hearing on 1st June, the mother did pursue her application for unsupervised contact, but HHJ Meston QC concluded that existing supervised contact arrangements should remain in place pending the final hearing. On 5th June, the special guardianship assessment prepared by a social worker within the local authority was filed with a recommendation that a special guardianship order be made in favour of Mr. and Mrs. W.
The final hearing of cross-applications was listed before Judge Bond for three days at the end of July 2015. Shortly before the hearing, the parents separated. The position of the parties at the hearing was as follows. Mr and Mrs W, supported by the local authority and the guardian representing F, asked the court to make a special guardianship order, a twelve-month supervision order in favour of the local authority, a prohibited steps order preventing the father from removing F from their care, and a non-molestation order preventing the father using or threatening violence towards, or harassing or pestering, Mr. and Mrs. W or entering or attempting to enter their home. The mother, supported by the father, invited the court to make orders facilitating the return of F to her care. In closing submissions, Miss Harman on behalf of the mother proposed that this could be achieved under a care or supervision order accompanied by a working agreement. An alternative option suggested on behalf of the mother was that F should live with his paternal aunt, DJ. No party invited the court to consider, as an alternative to special guardianship, the option of F residing with the Ws under a child arrangements order.
I note that, in summarising the parties’ positions at an early point in his judgment, the judge characterised the primary position of the parents as being that F should be returned to their care. Before us all parties agreed – as is plain from the written submissions presented to the judge at the conclusion of the hearing – that this proposal was not in fact advanced at the hearing. Having read the rest of the judgment, and considered the written closing submissions presented to the judge, I am satisfied that this was merely an error in the drafting of the judgment and did not in any way reflect a misunderstanding on the part of the judge.
The written evidence before the court included statements from Mr and Mrs W and the parents, statements from a variety of supporting witnesses relied on by both sides, reports from social services and from two psychiatrists and one psychologist instructed to assess the parents for the purposes of the proceedings, and the written final analysis of the children’s guardian. Oral evidence was given by ten witnesses, including Mr and Mrs W, the parents, the social worker, Dr. Ewbank (one of the psychiatrists instructed to assess the mother), and the guardian. The three days set aside for the hearing proved insufficient, and the matter was relisted for a further three days at the end of August. Written submissions were delivered on the 7th September, a draft judgment sent out to the legal representatives at the beginning of October, and the judgment finally handed down on 3rd November, (together with supplemental reasons given in response to a request from the parents’ legal representatives). At the conclusion of the hearing, the judge made the following orders:
(1) a special guardianship order in favour of Mr and Mrs W;
(2) a one year supervision order;
(3) a prohibited steps order forbidding the father from removing the child from the care of Mr and Mrs W, or from any third party with whom they placed F, including his nursery or school, and
(4) a non-molestation order preventing the father using or threatening violence towards, or harassing or pestering, Mr. and Mrs. W or entering or attempting to enter their home.
The judgment at first instance
In his judgment, Judge Bond described the decision as involving a choice between a number of options, each of which would bring risks to F’s welfare. He identified the principles of law to be applied when making the decision. He acknowledged the need to consider and balance the Article 8 rights of the parents and F. He cited inter alia the dicta of Hedley J in Re L (Care: Threshold Criteria)
 1 FLR 2050 at para 50 (endorsed recently by Sir James Munby P in Re A (A Child)
 EWFC 11) :
“…society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from that. It seems that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children or the consequences of defective parenting. In any event, it simply could not be done.”
The judge approached his task by asking the question: are there compelling reasons why F should not live with his parents?
The judgment sets out a thorough analysis of the evidence. Judge Bond formed a positive impression of Mr and Mrs W. He accepted their evidence that they would agree to F returning to live with the mother in due course if they thought it would be safe for him to do so and would do their best to promote contact. He rejected the accusation levelled at them by the parents that they planned to “steal” F from them. He carefully recorded his impressions of the mother. He accepted her observation that it was not fair to F to discriminate against her because of her mental health. He noted her comment that it would not be easy for her to separate from the father. He concluded that the rift between the mother and her family springs from much deeper and longstanding difficulties than the dispute about F. He formed the view that the mother was clearly in a much better state of mind than around the time of F’s birth, though he was concerned that she minimised the difficulties apparent from her medical records. Having heard the father’s evidence, he concluded that he was a volatile character who accepted that he had behaved in an intimidating way on occasions. The judge noted that both parents remained convinced that there had been a conspiracy to remove F and give him permanently to Mr. and Mrs. W.
The judge summarised the written and oral evidence given by Dr. Ewbank. She had reviewed the mother’s medical history and conducted an interview and mental state examination. Dr. Ewbank noted that there had been three particular factors which had come together to cause the mother’s breakdown in 2014, namely her father’s suicide, her pregnancy, and the fact that as a result of her pregnancy she had stopped taking anti-depressant medication. This combination of factors would not occur again, and if she remained on consistent and successful medication, she would remain free of such an episode for a number of years. Dr. Ewbank concluded that the risk of relapse was low to medium. The mother’s previous achievements in life were positive indicators of her future mental health stability, and Dr. Ewbank thought that the mother has good insight into the need for support. She advised that one to two years of stable mental health would be a good indication that her chances of relapse has significantly reduced. Dr Ewbank thought that it was more probable than not that she would be able to care for her son, with support if necessary, without her mental health deteriorating. The fact that the mother had been able to manage the stresses of court appearances and assessments well was a positive sign for the future. The mother had the benefit of various support networks and had undergone cognitive behavioural therapy, and had been compliant with all recommended relapse prevention strategies.
Having summarised the guardian’s evidence, the judge set out the advantages and disadvantages of the options as follows at paragraphs 215 to 217 of his judgment.
“215. Placement with Mr and Mrs W. The advantages of such a placement including retention for F within his birth family; a very high level of care and parenting; the good intentions of the Ws to repair relations with the parents; the perpetuation of F’s bond and attachment with the Ws. The disadvantages of such a course are that F will not be raised by his mother; he may be confused as to his sense of identity if not raised by his parents; disconnection from the extended paternal family although the guardian was not able to find very much information about them.
216. A placement with DJ [the paternal aunt]. The advantages of such a placement include DJ’s extensive professional experience in caring for children of varying needs and ages; F would maintain close links with his parents. The disadvantages of such a course: F would not be raised by one of his parents but may suffer future confusion about his sense of identity. Contact with the W’s as the maternal family will be difficult and may not continue.
217. A placement with the mother either on her own or with her friend LS. The advantages of such a placement include: F’s reunification with his mother; such a placement would support F’s sense of identity. F would have contact with the father. The disadvantages of such a course would include risk of a relapse in the mother’s state of health given that she is in the very early stages of recovery; the risk that the parents would conceal the breakdown in the mother’s mental health; the father’s volatile nature; the risk that the mother would put her need for the relationship with the father above her concern for F’s welfare; the difficulties about contact with the Ws.”
The judge then considered the relevant factors in the welfare checklist in section 1(3) of the Children Act 1989 highlighting in particular the following matters.
i) F continues to be a vulnerable child who requires stable, loving care.
ii) F has only been cared for by the Ws. At present his primary attachments are to them. He has a bond and attachment to his parents. If F moves to live with his parents there will be a period of transition which will cause short-term disruption.
iii) F urgently requires a decision as to his future.
iv) A return to his mother’s care would place him at risk of future emotional harm. The risk comes from a potential relapse on the mother’s mental health; a relapse by the father into misuse of drugs; F’s exposure to the father’s volatile and unpredictable behaviour; the severing of F’s relationship with Mr and Mrs W and the likely denigration of them by the parents; the risk that the parents place their own emotional needs ahead of F’s.
v) There are various doubts about the present capacity of each of the F’s parents in particular as to the reality of the parents’ separation.
The judge therefore reached the following conclusion:
“I find that there are compelling reasons why F should remain in the care of Mr and Mrs W. In coming to that conclusion I have considered whether there might be some interim arrangement whereby the process of rehabilitation of the mother takes place under the auspices of an interim care order. This would require further assessment by [the local authority of the area where she lives] of the details of the mother’s proposals. Although that has superficial attraction, it would involve further delay. The making of an SGO provides Mr and Mrs W with what is sometimes known as ‘super parental responsibility’. Notwithstanding that, if and when the parents are able to show that they have overcome their various difficulties which impinge upon their parenting capacity, an application can be made to discharge the SGO.”
After receiving the draft judgment, counsel for both parents submitted requests for further reasons, in accordance with the practice approved in Re B (Appeal: Lack of Reasons)
 EWCA Civ 881. The judge responded to these requests at the same time as handing down his judgment on 3rd November. Of particular relevance to the present appeal was one question from the mother’s representatives as to why it was considered that delay to consider rehabilitation to the mother under the auspices of any order, which has (in the judge’s phrase) “superficial attraction”, was not considered to be appropriate within the circumstances of this case. To this, the judge replied:
“Each of the parents has some way to go in respect of recovery…. The court has to consider the balance between embarking upon a course leading to F’s move to the care of the mother at a time when her recovery is on Dr Ewbank’s timetable 6-7 months into a two year period. I also accepted that [the father] had only been clear of drugs since May 2015. Although it is not the parents’ case that F would live in the same household as the father, there are serious concerns about his recovery and the reality of the parents’ separation. Further assessment of the situation by [the local authority] will be necessary. This might require an interim care order. The outcome of such a process from F’s point of view is uncertain. Section 1(2) of the Children Act emphasises the dangers of delay. F needs the security of a settled and secure placement as soon as possible. He is still a small and vulnerable child. The court has sufficient information upon which to make a decision.”
The mother’s representatives also asked the judge to identify his reasoning for the factors listed as disadvantages of the proposal that F be placed in the mother’s care. In respect of his finding that the risk of relapse in her mental health is such that prevents F from being returned to her care, the judge added these further reasons:
“Dr Ewbank was concerned at the catastrophic collapse in the mother’s mental health in 2014. The doctor said that two years without a relapse would present good progress…the mother has been stable since February 2015. Examination of her support mechanisms would be part of the assessment which [the local authority] would undertake.”
As to his finding that the parents would conceal the breakdown in the mother’s mental health, the judge added these additional reasons:
“The evidence of the parents was clear to the effect that they regarded the case as a battle between them and the Ws who had stolen their child. The mother in my judgment would have difficulty in admitting that her health was in decline if the likely consequence was the removal of F from her care.”
As to his finding that the risk that the mother would put her need for the relationship with the father above her concern for F’s welfare, the judge added the following:
“The guardian was clear in her evidence that the mother did not see the father as a risk. The mother felt that she was being forced to separate from the father. The guardian said that the mother told her that she did not the father’s drug use as a risk to F. That is very concerning. The parents only asserted their separation at the beginning of the final hearing to satisfy the concerns of the court.”
As to his finding that there would be difficulties about contact with Mr and Mrs W, the judge added:“Given the obvious and entrenched hostility of the parents to the Ws, I am of the view that, if F lives with the mother, contact for F with the Ws will be very difficult. It will not be encouraged by the parents. I think that the mother is incapable of doing so. She still feels that the Ws stole her child. The Ws are important figures in F’s life. F’s needs include contact with the Ws. As I said in the judgment, my view is that the Ws will encourage contact with the parents if F lives with the Ws.”
Of the additional reasons sought on behalf of the father, I record in particular the response given by the judge to an enquiry as to whether the court had factored in the difficulties in contact for the father given the relationship with the Ws and therefore F’s ability to have a relationship with the father:
“This was considered. The father’s difficulties in the situation as put are partially of his own making. Although the Ws are wary of the father’s behaviour, it is my assessment that they will try and make father’s contact work because they see the value of that for F. If there is a supervision order, help with available (at least for a while) to organise contact.”
On 15th November, the mother filed a notice of appeal against the special guardianship order. On 18th December, Peter Jackson J granted permission to appeal, limited to the following grounds:
i) in depriving F of the opportunity of being brought by at least one of his parents, a special guardianship order was a unnecessary and disproportionate interference with the right to respect for family life to which he and the parents were entitled;
ii) the judge did not examine the reality of the situation created by his order and confront the foreseeable risk that F would lose any relationship with his parents as a result of their attitude to Mr and Mrs W;
iii) the judge placed undue weight on the need to avoid delay when the evidence of Dr Ewbank was guardedly positive about the mother’s prognosis and when local support services may have been available.
The argument in support of the mother’s appeal has been presented by Miss Harman and the court is grateful to her for her thoughtful and well-constructed submissions. The father has played no part in the appeal process, save to indicate that he supports the mother’s appeal. The court was told that he and the mother remain separated.
Before this court, the mother has adhered to her position that F should be returned to her care. As at first instance, the mother has not invited the court to consider the option of F living with Mr. and Mrs. W under a child arrangements order. Miss Harman therefore accepted that the essential question for this court was whether Judge Bond had been wrong to conclude that F should live with the Ws.
I turn to consider the arguments advanced in respect of the three grounds of appeal in respect of which permission has been given. Ground One – the SGO was unnecessary and disproportionate interference with the right to respect for family life.
On behalf of the mother, Ms Harman reminds the court of the purpose for which special guardianship was introduced, and the guidance given prior to its introduction as to the types of cases which it was intended for. She cites the observation of Ward LJ in Re L (A Child)(Special Guardianship Order and Ancillary Orders)
 EWCA Civ 196 at paragraph 31: “It is a halfway house between a residence order and an adoption order. Its purpose is to provide permanence short of the legal separation involved in adoption.” Ms Harman cites criticism of the use of SGOs, including that contained in the response of the Association of Lawyers for Children to the Department for Education’s Consultation on SGO’s (September 2015), that the SGO is treated as the default option to be used in all cases where a child is to be placed with kindship carers with no or little consideration as to whether a child arrangements order would be more appropriate. Whether or not these criticisms are justified, to my mind they have no bearing on this case.
Ms Harman submits the making of such an order in the present case was an unnecessary, unjustified and disproportionate interference of F’s and the parents’ Article 8 rights. She submits that this is not a case in which permanence just short of adoption was required. She relies on the assessment carried out by Dr. Ewbank as summarised above. The mother’s mental health is stable and has been for nearly a year. Dr. Ewbank had been positive about the mother’s future prognosis and low/medium chances of relapse. Thus the “problem” of the mother’s mental health is on an upwards trajectory. Miss Harman relied on the mother’s previous history, including her considerable success in a demanding career, as demonstrating that she has navigated adult life remarkably well. She submitted that the mother has done everything that she can to successfully stabilise her mental health, and added that the consequence of her relapse – namely that she would lose care of F – would be a significant deterrent to her. Miss Harman contended that the judge’s analysis of the risks arising from the mother’s mental health problems was inadequate, in particular because he did not consider the network of support on which she would be able to rely.
As a result, F’s best interests were not served by an order intended to permanently settle his living arrangements for his minority with no plans for unification. Ms Harman relied on the well established principles that a child should be raised by its birth parents wherever possible and that the local authority and the courts are under an obligation to take measures to facilitate family reunification as soon as reasonably feasible: K and T v Finland
(2001) 36 EHRR 255. She reminds the court of the decision of this court in Re B-S
 EWCA Civ 1146 – the principle that the parties and the courts must consider all realistic options when determining what order she would make for the future care of the child and conduct a robust and rigorous analysis of those options before coming to a conclusion. She submits that Judge Bond did not consider the options available to enable F to be rehabilitated to his mother’s care. Ground two – the judge failed to examine the reality of the situation created by his order and confront the foreseeable risk that F would lose any relationship with his parents as a result of their attitude to the applicants.
Ms Harman draws attention to an observation by Dr Gary Taylor, expert psychologist instructed in the proceedings, to the effect that:
“If F were to remain in the care of Mr and Mrs W, I would have concerns about their capacity to manage a family relationship because I suspect that the family dynamics would be unmanageable in the sense that the parents are likely to be become more hostile towards Mr and Mrs W and the rift within the family would deepen….If F were to reside with Mr and Mrs W, then as long as the parents maintain their current position it is difficult to see how this could be managed in the best interests of the child. There is a risk that the anger and resentment that the parents are likely to feel towards Mr and Mrs W as having “stolen their child” would have an adverse impact on F as he grows older. …If F remains living with Mr and Mrs W, then the family dynamics are likely to remain extremely conflicted and very acrimonious.”
Ms Harman also complains about the failure of the judge to make any order defining the contact arrangements between F and his parents following the making of the SGO. She draws attention to the fact that the court is required to consider whether to do so by the provisions of section 14B(1)(a) of the 1989 Act. As a result, arrangements as to contact are left entirely within the control of Mr and Mrs W. Ground three – the judge placed undue weight on the need to avoid delay when the evidence of Dr Ewbank was guardedly positive about the mother’s prognosis and when local support services may have been available.
In support of this third ground Miss Harman relies in particular on the observation of Sir James Munby P in his seventh “View from the President’s Chambers”, and repeated by the President in Re S (A Child
)  EWCC B44 (Fam) at para 28, to the effect that the so called “26-week rule” provided in the Public Law Outline, now contained in Practice Direction 12A to the Family Procedure Rules, “is not, and must never be allowed to become, a straightjacket, least of all if rigorous adherence to an inflexible timetable risks putting justice in jeopardy”.
Miss Harman cites the passage in Judge Bond’s judgment at paragraph 219 cited above in which he refers to the possibility of an interim care order to facilitate a process of rehabilitation and his comment that “although that has superficial attraction it would involve further delay”. She submits that the judge failed to explain, either in the judgment or in his response to her request for further reasons, why delay for the purposes of exploring the prospects for reunification of F with his mother would be prejudicial within the particular circumstances of this case. She points out that F is not in a temporary placement so any delay to explore the prospects of reunification would not cause him harm as his current living arrangements would not change. In the light of Dr. Ewbank’s evidence as to the prognosis for the mother’s mental health, and the fact that support services would be available, together with support for the mother’s friends, and the overall evidence that the mother was on a “upward trajectory”, Ms Harman submits that rehabilitation had good prospects of success, and in these circumstances it was necessary and appropriate to extend the timetable to enable the scope for reunification to be further explored.
The response to this appeal is set out in written and oral submissions by counsel on behalf of Mr and Mrs W and the local authority. In addition, the court has the benefit of helpful written submissions from Miss Penny Howe of counsel on behalf of the guardian. As the guardian’s position was in line with that advanced on behalf of Mr and Mrs W and the local authority, Miss Howe did not attend the hearing, but the court is grateful to her for her written submissions.
All three respondents submit, in short, that, whilst the basis for the mother’s appeal centres around her own mental health and the relatively positive prognosis for the future, and whilst this is on any view an important factor in these proceedings, this is not a single issue case. As the judgment demonstrates, there are a number of significant factors relied on by the judge in support of his conclusion. As summarised by Miss Howe, these are:
i) the potential relapse of the mother’s mental health, and the risk of concealment of relapse;
ii) the father’s relapse into misuse of drugs;
iii) F’s exposure to the father’s volatile and unpredictable behaviour towards others;
iv) the risk of a severance in F’s relationship with Mr and Mrs W and the likely denigration of them by the parents;
v) the risk that the parents place their own emotional needs ahead of F’s, and
vi) the judge’s doubts about the incapacity of each of F’s parents and in particular about the reality of the parent’s separation. The respondents submit that it was for all of these reasons that the judge concluded that F would be at risk of emotional harm in his mother’s care.
With regard to the first ground of appeal, the respondents assert that the making of an SGO was a necessary order and was a proportionate interference with Article 8 rights. The local authority draws attention to the judge’s express acknowledgement of the need to balance and consider the Article 8 rights and to the question posed by the judge at the start of his judgment, quoted above, namely whether there were compelling reasons why F should not live with his parents. It is accepted that the court should adopt the least interventionist approach consistent with the child’s welfare. A child arrangements order in favour of Mr and Mrs W would have been less interventionist than a special guardianship order but, given the significant animosity from the parents towards Mr and Mrs W, it is imperative that they are able to exercise parental responsibility to the exclusion of the parents.
As for the second ground of appeal, the respondents accept that the family dynamics are difficult in this case but all submit that responsibility for the level of acrimony rests with the parents themselves. In those circumstances, Mr. Ward-Prowse on behalf of Mr. and Mrs. W submits that it is somewhat disingenuous for the mother to advance this ground of appeal. The local authority submits that the parents’ attitude towards the Ws, far from giving rise to a ground of appeal, is a significant argument in favour of a SGO. By failing to understand the importance of maintaining a better relationship with Mr and Mrs W, the parents are demonstrating an inability to put F’s needs before their own. Miss Howe submits that the judge acknowledges the reality of the parents’ attitudes towards Mr and Mrs W; found (rightly) that he could trust Mr and Mrs W to endeavour to make contact work between F and his parents; heard evidence that in fact ongoing supervised contact was proceeding successfully and, in all the circumstances, adopted a proper approach to the assessment of the ongoing difficulties regarding contact.
So far as the third ground is concerned, the respondents rely on the statutory obligation under s.1(2) of the 1989 Act to have regard to the general principle that any delay determining a question with respect to the upbringing of a child is likely to prejudice the child’s welfare. Counsel on behalf of the local authority reiterates that this is not a single issue case and that what he characterised as Dr. Ewbank’s “guardedly positive” prognosis about the mother’s mental health has to be assessed in thee context of all the other risks and available evidence. On behalf of the guardian, Miss Howe draws attention in particular to the judge’s response to the request for further reasons cited above – “F needs the security of a settled and secure placement as soon as possible. He is still a small and vulnerable child. The court has sufficient information upon which to make a decision.” Miss Howe submits that, in the circumstances, the judge did not give undue weight to the need to avoid delay in reaching a final decision about F’s future.Discussion and Conclusion
In my judgment, none of the grounds advanced on behalf of the mother demonstrates that Judge Bond’s decision was wrong.
The judge was plainly aware of the Article 8 rights of F and his parents. He approached his task by asking at the outset whether there were compelling reasons why F should not be brought up by his parents. By referring to the passage in Hedley J’s judgment in Re L
, as endorsed by the President in Re A
, he demonstrated that he appreciated the importance of a tolerant approach to different types of parenting. He concluded, however, that the circumstances of this case justified an interference with the Article 8 rights. Those circumstances included a number of different strands. I accept the respondents’ contention that this is emphatically not a one issue case. There were manifestly a number of significant concerns about the parents which, taken together, justified the ultimate decision.
The judge considered the evidence concerning the mother’s mental health at considerable length. He reminded himself that the court must be careful not to discriminate against someone seeking to care for a child on the grounds of mental illness. He accepted the evidence that the mother’s mental health problems did not prevent her meeting the practical needs of the child. He carefully summarised and considered the evidence of Dr. Ewbank. He described how the mother’s mental health was now apparently set upon an upward trajectory. He accepted that she was now in a much better state than she had been around the time of F’s birth, and took into account Dr. Ewbank’s opinion that the risk of relapse as being at “low to medium”. On the other hand, the judge noted that Dr. Ewbank accepted that there had been some degree of minimisation by the mother of her difficulties. The judge further accepted that, were there to be a relapse, there was “a real and substantial risk that cannot be ignored that the mother may endeavour to hide the deterioration of her mental health from professionals if F was with her for fear that he might be removed”. Miss Harman submits that the judge did not consider the network of support available to the mother, but it is notable that at paragraph 123 of the judgment the judge records the submission that Miss Harman made to him about this and sets out the components of that network. At the conclusion of the hearing before this court, we asked Miss Harman to file a copy of the written submissions presented to Judge Bond (which were not in the appeal bundle). I have now read those submissions, and conclude that the judge’s summary demonstrates that he was fully aware of the extent of the mother’s support network and took it into account in his overall analysis.
In short, the judge’s view was that, whilst there was some course of optimism in the prognosis of the mother’s mental condition, there was still concern about the potential for a further relapse and how such an event, if it occurred, would impinge upon her care of F.
Taken by itself, this might be insufficient to justify the interference in family rights. In addition, however, there are several other factors, all interlinked, which significantly add to the risk of emotional harm to F were he to be placed in the mother’s care.
There is the father’s history of drug use stretching back over a number of years. Although he had apparently remained drug free for some months, the judge was entitled to take this into account as a factor which added to the level of risk. Linked to the father’s drug use is the evidence of the father’s volatile character. The judge found that the father is on occasions unable to control his anger, that he clearly has a volatile temperament, that he had been verbally abusive to the maternal family and had uttered threats towards the Ws. In addition, there are concerns about the ongoing relationship between the parents. Although the parents asserted that they had separated, the judge was concerned that the mother would find it hard to keep away from the father. She herself accepted that it would not be easy to separate. The judge described this as a possibility that could not be ignored. Given the history of volatility in their relationship, this adds to the emotional risk to F.
Furthermore, there is the history of extreme antipathy and hostility demonstrated by the parents towards Mr and Mrs W. The mother has repeatedly accused Mr and Mrs W of acting in bad faith. She said that they had “stolen” F because they wanted a child of their own. The judge emphatically rejected this characterisation of Mr and Mrs W’s motives. The mother said in evidence that she would never forgive her family for intervening. The judge concluded that the rift between the mother and her family sprang from much deeper and long standing difficulties than the dispute concerning F. Having seen and heard Mr and Mrs W give evidence, the judge concluded that the mother and father ought to have accepted that they had been well motivated and that as a result of their intervention, F had been saved from placement in care. The judge concluded that the hostility shown by the parents towards Mr and Mrs W demonstrated that they lacked the capacity of objectively to consider F’s emotional needs. The judge considered a note in the social services records that Mrs W had said at an early meeting in September 2014 that she and her husband intended to bring F up as their own child with the birth parents having the role of aunt and uncle. Mrs W denied the evidence that she had made these comments, but the judge concluded that she “probably did”. This did not, however, lead him to accept the parents would be justified in their antipathy towards Mr and Mrs W.
In her second ground of appeal, the mother argues that this antipathy in fact undermines the judge’s order. In my judgment, however, the real significance of the parents extreme hostility towards Mr and Mrs W is that it demonstrates that they find it difficult to identify and prioritise F’s needs, which manifestly require the parents to adopt a more measured and child-centred attitude to Mr and Mrs W and their intervention.
So far as the third ground of appeal is concerned, I conclude that the judge’s concern about the impact of delay on the child’s welfare was an acknowledgment of the general principle in section 1(2) of the 1989 Act and the particular welfare needs of F, at the vulnerable age of 14 months. The judge considered the option of a further interim order to facilitate an attempted rehabilitation to the mother, but took the view, after a painstaking analysis of the evidence, that F needed a decision now. It cannot be said that he was wrong to come to this view.
In my judgment, the judge’s conclusions he reached on all these issues were plainly within his discretion, having seen and heard the witnesses. His assessment of the qualities of Mr. and Mrs. W, and the relationship between the Ws and the parents, is unimpeachable in this court. In the light of that assessment, he was in my view entitled to reach the conclusion that, in the circumstances of this case, an SGO was a necessary and proportionate interference with family rights to ensure that F’s welfare needs were met.
The judge recognised that whichever option he chose would carry risks for F. Given his findings on the matters highlighted above – concerns about the mother’s ongoing mental health difficulties and the risk of relapse, the father’s history of drug abuse, the father’s volatile character and behaviour, the continuing arising out of the dysfunctional relationship between the parents and their extreme hostility towards Mrs W – the judge’s decision that F should remain with Mr and Mrs W was plainly justified.
It would have been open to Judge Bond to make a child’s arrangements order instead of a special guardianship order. This would have left open the possibility of a change of those arrangements if the mother’s mental health continues on its upwards trajectory and the risk arising out of the other factors listed above diminishes. As stated above, this argument was not advanced either at first instance or before this court. In my judgment, however, his decision to make a special guardianship order was plainly one he was entitled to reach in the circumstances and could not be described as either disproportionate or wrong.
I would therefore dismiss the appeal.
At the end of the hearing, my Lord McFarlane LJ rightly observed that the level of acrimony between his mother and Mr. and Mrs. W is likely to have a harmful effect on F. He strongly urged the adults to put past differences behind them and work together in the interests of the little boy they all love. It is plain that this will not be easy. Professional help will be required. To that end, the local authority indicated that it would amend its special guardianship plan to incorporate measures to be taken to tackle this problem. Following the hearing, an amended plan has now been filed. It states that the local authority intends to work with the mother and Mr. and Mrs. W to enable them to rebuild their relationship so that communication between them concerning F is positive. One aim is that the parties should be able to conduct contact handovers in a way that is natural and beneficial to F. At present, the mother’s contact is supervised, but the local authority wishes to move to an informal family arrangement by the conclusion of the period of the supervision order. The local authority has offered to arrange mediation and also a family group conference or other family meetings to address these issues. The amended plan records that Mr. and Mrs. W are willing to try any of these options, but that the mother at present is declining any of the services offered by the local authority. It is suggested in the plan that the mother may benefit from further therapy, in addition to the cognitive behavioural therapy she has already undertaken, or alternatively counselling, to address her ongoing feelings about Mr. and Mrs. W. The plan also records that child psychological services may be available to help F make sense of his situation whilst ensuring that he has a positive view of all significant members of his family.
I strongly urge the mother to take up the offer of support provided in this amended plan. This appeal marks the end of these proceedings. The decision has been taken about F’s future. It is in F’s interest that the mother accepts the decision, and that all parties do their utmost to ensure that the arrangements work for F’s benefit. If the level of hostility remains unchanged, it is highly likely that F will suffer emotional harm. I am sure that this is something that all parties wish to avoid.
Lady Justice Sharp:
Lord Justice McFarlane:
I also agree.