Case No. LV20C00210

“(6) Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child; but if the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessment.”7) …(7A) A direction under subsection (6) to the effect that there is to be a medical or psychiatric examination or other assessment of the child may be given only if the court is of the opinion that the examination or other assessment is necessary to assist the court to resolve the proceedings justly.(7B) When deciding whether to give a direction under subsection (6) to that effect the court is to have regard in particular to—(a) any impact which any examination or other assessment would be likely to have on the welfare of the child, and any other impact which giving the direction would be likely to have on the welfare of the child,(b) the issues with which the examination or other assessment would assist the court,(c) the questions which the examination or other assessment would enable the court to answer,(d) the evidence otherwise available,(e) the impact which the direction would be likely to have on the timetable, duration and conduct of the proceedings,(f) the cost of the examination or other assessment, and(g) any matters prescribed by Family Procedure Rules.”11.Two decisions remain determinative of the interpretation of s. 38(6). The leading authority is Re C (Interim Care Order: Residential Assessment) [1997] 1 FLR 1, which emphasises that the proposed assessment should be an assessment of the child, ‘the main focus must be on the child’ (per Lord Browne-Wilkinson). However, Lord Browne-Wilkinson considered the specific facts of that case also illuminated the clear parameters of Section 38(6): “What was to be assessed was the mother’s capacity for beneficial response to the psychotherapeutic treatment that she was to receive. Such an assessment, no matter how valuable the information might be for the purposes of the eventual final care order could not, in my opinion, be brought within Section 38(6).”12.The second decision is Re G (Interim Care Order: Residential Assessment) [2006] 1 FLR 601. There Lord Scott said at [14]:Baroness Hale summarised matters at [64-71]. At paragraph 64 she said this:"The purpose of these provisions is, therefore, not only to enable the court to obtain the information it needs but also to enable the court to control the information gathering activities of others. But the emphasis is always on obtaining the information. This is clear from the use of the words "examination" and "other assessment." If the framers of the 1989 Act had meant the court to be in charge, not only of the examination and assessment of the child, but also of the medical or psychiatric treatment to be provided for her, let alone for her parents, it would have said so. Instead, it deliberately left that in the hands of the local authority."At paragraph 66:At paragraph 69:"In short, what is directed under section 38(6) must clearly be an examination or assessment of the child, including where appropriate her relationship with her parents, the risk that her parents may present to her, and the ways in which those risks may be avoided or managed, all with a view to enabling the court to make the decisions which it has to make under the 1989 Act with the minimum of delay. Any services which are provided for the child and his family must be ancillary to that end. They must not be an end in themselves."And finally, at paragraph 71:"Further or other assessments should only be commissioned if they can bring something important to the case which neither the local authority nor the guardian is able to bring."13.In Re Y (A Child): Section 38(6) Assessment [2018] EWCA Civ 992, Peter Jackson LJ, having reviewed the above authorities, identified two questions for the Court when determining an application pursuant to Section 38(6), namely: “18. In my view, a judge deciding an application under s.38(6) must address two questions: (1) Is this a proposal for an assessment that falls within the terms of section 38(6)?(2) If so, is the assessment necessary to assist the court to resolve the proceedings justly, as required by ss. 7A, having regard to the matters in ss. 7B? Both questions must be approached in a manner that upholds the right to a fair trial under Article 6 and the right to respect for family life under Article 8. Only if both are answered affirmatively can the court make the direction requested.”14.Peter Jackson LJ also considered the wider principles engaged in any contemplated separation of mother and child in: Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998. Jackson LJ’s convenient summary of the applicable principles is frequently cited and was set out in the judgment of Judge Sharpe. “(2) The removal of a child from a parent is an interference with their right to respect for family life under Art. 8. Removal at an interim stage is a particularly sharp interference, which is compounded in the case of a baby when removal will affect the formation and development of the parent-child bond. (3) Accordingly, in all cases an order for separation under an interim care order will only be justified where it is both necessary and proportionate. The lower (‘reasonable grounds’) threshold for an interim care order is not an invitation to make an order that does not satisfy these exacting criteria. (4) A plan for immediate separation is therefore only to be sanctioned by the court where the child’s physical safety or psychological or emotional welfare demands it and where the length and likely consequences of the separation are a proportionate response to the risks that would arise if it did not occur. (5) The high standard of justification that must be shown by a local authority seeking an order for separation requires it to inform the court of all available resources that might remove the need for separation.”15.Paragraph 2(4) above requires to be read in conjunction with para. 18 in Re Y (supra), see para. 13 above. There is no tension between the two. What is required is identification of the nature and extent of the risk, consideration as to whether a residential assessment is necessary, having regard to the factors set out in Section 38 (7B) Children Act 1989 and, ultimately, the proportionality and length of the intervention. 16.Thus, a decision to place mother and baby in a residential unit requires to be rooted in cogent and coherent consideration of all the available evidence, with particular regard to what it is thought the residential assessment can contribute to an accurate understanding of the matrix of risk. A plan for immediate separation is not to be conflated with or confused by a perception of immediate risk of harm. 17.All the parties agreed, at the commencement of these proceedings, that the facts of this case required M and S to be assessed in a residential unit. Following the negative conclusions of that first assessment neither the Local Authority nor the Guardian considered that a further assessment was either necessary or in S’s interests. Judge Sharpe took a different view. He ordered a further residential assessment. No party appealed that decision. From that point on, as best as I can understand it, the residential placements which followed (interspersed by foster care placements), appear to have been driven by a view that M and S should be kept together until a final hearing in which the plans for S’s future could be properly considered. 18.By this point, the case had been re-allocated to the District bench. These placements do not appear to have been directed towards any focused assessment on M’s care. They have been described before me as ‘holding placements’. That is not a concept that I am familiar with, nor am I attracted to it. It appears to me that the thinking behind it was effectively ‘to hold the ring’ in the litigation, predicated on the view that this might keep options open for the future. Whilst this might, in some circumstances and within tightly constrained parameters, be necessary and thus desirable, it also carries the risk of elevating process above substance, guarding procedural rights at the expense of a child’s welfare. That, I regret to say, is what occurred here. The need for a residential placement will be indicated by consideration of the factors that I have set out above. Engagement in analysis of those factors will also illuminate the child’s welfare in the interim. Here S, now I reiterate approaching two years of age, has lived almost the entirety of his life in an environment in which he and his mother live communally; are observed on a 24-hour basis by either staff or video surveillance or both. These mother and baby units were inevitably restrictive of S’s potential to engage more widely with the world at a crucial stage in his development. I have asked Counsel on a number of occasions how this was permitted to endure for as long as it did. No party has sought to justify it. 19.As Ms Isaacs QC and Ms Fox, on behalf of the applicant Local Authority, have argued, the contemplated risk to S has logically to be evaluated by reference to the harm sustained by the other children. With respect to Mr Browne QC’s arguments on behalf of M, I regard that proposition as self-evident. In this context, it is important to highlight the allegations made by A’s elder sibling, Q in earlier proceedings. 20.Q was medically examined, following a complaint, and found to have a faint bruise to his chin, multiple faint bruises to both upper arms and a mark to his left chest. He said that his mum slapped and punched him and the mark on his chest was as a result of a kick. Q said that he was selfish and that because of his behaviour, his mother had not been eating or sleeping and that she hit him because ‘he winds her up’. He thought he could be a ‘good person’ but ‘flips’. He reported to the examining doctor that his mum told him that he ‘controls everything the family does’, and this ‘winds her up’. He said that caused her to punch, slap, hold him down and bite him. 21.These allegations are, as in those made by A, accepted by M only in part. Again, M casts herself as a reactive victim. It must also be noted that M has three criminal cautions for assault. They are now over a decade old and there have been no further or recent allegations. It is, however, pertinent to identify as Ms Isaacs QC, invites me to do, that in explaining each of those three cautions, M describes herself essentially as the victim. 22.Finally, looking at the broader spectrum of risk, both Q and A have made allegations of sexual abuse. Both sets of allegations arise at a time when each child was living at home. Neither child felt able to communicate their allegations to M at the time. 23.In the care proceedings that followed Q’s allegations, M was noted to be aggressive, challenging and intimidating. These features of her personality were immediately obvious to the social workers in these proceedings. They were also noted by the staff in each of the residential units, who found her to be manipulative, challenging, loud, and uncooperative. More broadly, they found her to be a disruptive influence on the day-to-day life of the unit, identifying her propensity to generate ill feeling amongst other residents. 24.Very early in the investigative process, it was identified as necessary to seek the opinion of both a Consultant Psychiatrist and an experienced Psychologist. Dr Michael Weir, a highly experienced Psychiatrist was instructed and Dr Hansen, a Clinical Psychologist. Dr Weir emphasised, in his oral evidence, that he found M to be one of the most hostile, aggressive, and obstructive clients that he had ever encountered. He has been involved in a number of high-profile cases and his experience is, forensically as well as clinically, extensive. He was particularly struck by the extent to which M was ‘controlling interviews by not answering questions’ and providing only ‘minimal information’ in order to ‘assert herself to those around her’. Dr Weir considered M’s relationship with the elder children to be ‘extremely worrying’.25.Dr Hansen spent 19 hours with M during the course of her assessment. She told me that this was significantly in excess of the time she would ordinarily spend in an assessment for the Court. Indeed, she could not recall any case that had involved so many sessions. Despite this, it is notable that she did not discover M’s previous history of assaults and accordingly, did not have the opportunity to identify some aspects of the pattern in which M identified herself as a victim, even where she was investigated and subsequently cautioned. I note that this resonates with Dr Weir’s observation regarding M’s sophisticated capacity to withhold or conceal information. In her report, Dr Hansen observed: “[M] reported that there is a repeated cycle of her child experiencing sexual abuse, presenting with difficulties as a result of this and her being a victim to their behaviour. She reported that Q presented as psychotic, yet she was sectioned”26.Collateral information within the papers filed reveals that at the time of his move to care, M was expressing views that Q was, in some way, ‘possessed by demons’. In her oral evidence, she denied the accuracy of these documented remarks. As Dr Hansen noted, the concerns of the professionals at the time were focused on M’s mental health. There did not appear to be concern, in this respect, in relation to Q. It is important that I record for reasons of accuracy that, M was not in fact ‘sectioned’, but was admitted to hospital voluntarily. She continues to assert that Q has mental health problems. 27.Dr Hansen notes: “She fully believes her own narrative; she holds a different perspective despite the collateral information. It could be hypothesised that this is either as a result of being disconnected from reality and having difficulties with delusional disorder, or, that she is aware but cannot admit to any misgivings or inappropriate actions on her part. Furthermore, her narrative is that the information is based on lies and she is being unfairly targeted. This area would be the first to address with [M] so that she is able to move forward positively with the Local Authority, to understand the children’s perspectives and move on forward positively.”28.Earlier, Dr Hansen noted that ‘if the collateral information is accurate then [M] lacks insight’. Mr Browne advances a case on behalf of M, to the effect that whilst there may be a lack of insight there are sufficient positives within the evidence to indicate that M may be able to ‘move forward positively’ in the future. I shall return to the points Mr Browne identifies in the paragraphs below. 29.Very helpfully, Dr Hansen identified the following facets of M’s behaviour which signalled, unambiguously to her, that the mother had a significant disorder of personality. The following disorders were appended to Dr Hansen’s report and Ms Isaacs took her through them in cross examination: “