Case No: B4/2005/0248
Neutral Citation Number: [2005] EWCA Civ 961
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOURNEMOUTH COUNTY COURT
His Hon. Judge Bond

Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday, 27th July 2005
Before :

LORD JUSTICE WARD
LORD JUSTICE LAWS
and
LADY JUSTICE SMITH
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Between :

	K (CHILDREN)		

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(Transcript of the Handed Down Judgment of
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Mr Ashley Ailes (instructed by Messrs Simmonds) for the Appellant
Mr John Ward-Prowse (instructed by Poole Borough Council) for the Local Authority
Ms Eleanor Davies (instructed by Messrs Andrews McQueen) for the Children’s Guardian

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Ward : 
Introduction
1.	This is a mother’s appeal against the order made by His Honour Judge Bond sitting in the Bournemouth County Court on 26th January 2005 when he ordered that her younger son D be placed in the care of the Local Authority and that he be freed for adoption.  She did not appeal against his placing her eldest son J in care.  It is a sad case and one which caused me real anxiety.  It was for that reason that I granted permission to appeal.  To the same or perhaps lesser extent that unease was shared by Laws and Smith L.JJ. but by the conclusion of the oral hearing we were agreed that the appeal should be dismissed for reasons which we would put in writing.  These are my reasons for so deciding.
The background.
2.	The mother is 35 years of age.  As the judge found, she “had a desperately unhappy and damaging childhood and adolescence”.  As far as I can piece her history together, she lived in care in children’s homes from about the age of 8.  Her behaviour there led to referrals to the Department of Child Family Psychiatry from at least the age of 11.  Her records show her mutilating herself and attempting to take her own life, if only as a cry for help.  In her teenage years she was raped by a gang of youths.  She had great difficulties at school.  It is impossible not to feel sorry for her.
3.	She married in 1993.  It seems that her husband was violent to her.  Her son J was born on 13th July 1994.  The marriage broke down less than a year later.
4.	The Social Services Department were concerned about J from the time of his birth.  A glance down the chronology reveals the awfulness of his life.  When just 2 years old mother reported that she had seen J kissing another child’s genital area.  Shortly afterwards she reported “a male adult is encouraged to openly masturbate with a consenting female in front of children at her property until she orders him out of her flat”.  At 2½ he was asking his mother to suck his penis.  At 3 he was in a local park holding his penis and chasing after older boys.  At 3½ he was a witness to his mother being raped.  He was becoming very difficult to control.  By the time he was 6 the mother was concerned that he was suffering from ADHD but the paediatrician was not convinced that such a diagnosis was correct.  In March 2001 he was, however, prescribed Ritalin but his behaviour still caused difficulties. 
5.	D was born on 4th July 2002 so he is just 3 years old.  J was very jealous of D.  He held his hand against a radiator and burnt it.  He threw a beaker at D.  By May 2004 the mother felt she was unable to protect D from J and agreed that J should be voluntarily accommodated for a period of assessment.  These care proceedings commenced and interim care orders were made on 23rd July 2004, the children being placed in separate foster homes.
6.	The amended case against the mother was this:-
“She suffers with a personality disorder complicated by a low IQ, this is characterised by her continuing stress responses to problems, crisis situations, relationship difficulties and ongoing neighbourhood disputes, which in turn have had and continue to have a negative impact on her parenting ability that has resulted in the children suffering as follows:-
(i)	J becoming out of control at school, using bad language towards teachers and peers and engaging in disruptive behaviour, which on occasions has led to his exclusion;
(ii)	J witnessing frequent threats and inappropriate language between his mother and neighbours;
(iii)	J having no belongings i.e. toys, posters, books or clothes and his bedroom being in a bad state of decoration – not child friendly;
(iv)	J being rejected by his mother, she on occasions asking Social Services to accommodate him;
(v)	J suffering continual “scapegoating” and rejection by his mother, who perceives and treats J markedly differently to D;
(vi)	D frequently suffering with colds, diarrhoea and vomiting;  such conditions being exacerbated due to living in an impoverished environment and due to his diet/nutrition;
(vii)	D failing to develop a positive identity due to the negativity in his household between his mother, J and third parties;
(viii)	Due to his mother favouring him over J, D is at risk from J who has diverted violence and anger towards him that his mother cannot always protect him from.”
7.	The mother’s case was that although reluctantly having to accept that J had behavioural problems and needed specialist care away from home, she should be given a chance to demonstrate her ability to look after D, a different boy who was not suffering ADHD.  She denied that the threshold set by Section 31 of the Children Act had been crossed; that there was no case that he had suffered harm nor was there any significant risk that he would so suffer in the future.
The essential issues.
8.	Reducing the case to its essence the three key issues are:-
i)	Had D suffered significant harm by the time these care proceedings started?
ii)	Does mother bear some responsibility for J’s behaviour or should it all be attributable to his suffering ADHD?
iii)	Given mother’s personality, does she show a sustainable capacity to care for D in the future?
The harm suffered by D.
9.	The question whether D had suffered significant harm turns on a comparison of his health and development with that which could reasonably be expected of a similar child.  There were references to D often having colds.  On one occasion the health visitor called at the mother’s request, a not unimportant fact, as D was coughing to a worrying extent.  He suffered diarrhoea and again the mother sought advice.  There were occasional references to his vomiting.  Those matters must be seen in the general context of regular assessment by health visitors whose descriptions included seeing “a loving bond with the mother and a thriving child”.  One Health Visitor reported to a Child Protection Conference in July 2003 that D appeared to be thriving.  And in July 2004 another reported that D was “a happy, sociable little boy, who has a close loving bond with his mother” and who presents “as a normally developing little boy who has a very good loving relationship with his mother”.  More importantly when seen by the consultant community paediatrician in June 2004 when mother took him to the hospital because he had bruising to his penis, his general health was good and D’s “development is reasonably normal, as is his behaviour, though he is a fairly active chap”.  His speech was within normal parameters, he appeared to be thriving and he was not underweight for his height.  In a long and detailed chronology placed before us it is a stark fact that as this family was kept under review month by month almost week by week, there are scant references to any concerns about D.  Looking at D in isolation, I for my part do not see evidence of his having suffered significant harm.  The real question is whether he is at risk of neglect.
ADHD and the mother’s contribution to J’s behavioural difficulties.
10.	It seems from the chronology before us that the mother was deeply concerned by about September 2000 when J would have been 6 years old that he was suffering from Attention Deficit Hyperactivy Disorder.  The general practitioner had some doubt about it and J was referred to Doctor Coppen, a consultant paediatrician of the Child and Adolescent Mental Health Team.  Although I have not seen any report from him he appears to have diagnosed ADHD and prescribed Ritalin for J.  Doctor Hardwick took over at the Child Development Centre and saw J in October 2003 following a referral from the general practitioner and from Doctor Coppen.  Doctor Hardwick is a consultant child and adolescent psychiatrist.  He gave evidence to the judge and explained that he had doubts as to whether the diagnosis was right in J’s case.  He explained that what has become known as ADHD is a description of certain behaviour which is caused by developmental problems in the central nervous system and relates to impulse control and the level of activity.  ADHD can cause even the most competent parents extreme difficulty.  Doctor Bentovim is a child and adolescent psychiatrist of great experience who was jointly instructed in the case who agreed with Doctor Hardwick that there are many facets of behaviour which may be symptoms of ADHD but which are also caused by environmental factors.  Doctor Bentovim considered that J suffered from a moderate to severe attention deficit.  That evidence was accepted by the judge and so there is no doubt that this disorder played a part in J’s disruptive behaviour.  The real question, however, is whether it is, as the mother would assert, the only explanation for her inability to control him.
11.	There was further medical evidence about this.  Doctor Hardwick was of the view, which the judge accepted:-
“that the environmental impact upon J and the standard of his care at home was far greater in his view than difficulties that might be caused by a possible genetic disposition or vulnerability to ADHD.”
Moreover the judge also accepted his evidence to the effect that:-
“There is a serious doubt as to whether ADHD is the cause of J’s behavioural problems rather than circumstances of the environment in which he lived at home.”
12.	Doctor Bentovim reported:-
“Although there may be a biological and familial element to his Attention Deficit Hyperactivity Disorder, mother described her own similar pattern.  It would seem likely, given the accumulation of highly stressful events that he has been subject to during his early years, that his ADHD also has psycho-social origins.  He has also been exposed to the considerable relationship difficulties his mother has had with partners, with professionals and with neighbours, and a network of people who have presented a risk both to herself and to the children.  This has also influenced his behaviour negatively.”
13.	The judge described the report as “careful and detailed” and he accepted Doctor Bentovim’s opinion.
14.	The judge also made this finding:-
“The guardian also pointed out that it is unrealistic of the mother to blame her poor parenting in respect of J and his difficulties at school solely on his ADHD.  I agree that there are clearly elements of both ADHD and poor parenting, which resulted in J’s behaviour.  Doctor Hardwick doubted whether the diagnosis of ADHD was a correct one in this particular case.  There is much evidence of the mother’s lack of judgment.  For example within two months of J seeing his mother raped, the mother harboured a 13 year old girl and her 19 year old boyfriend in her flat who engaged in a sexual relationship.  At this time J is described … as “screaming and urinating on the floor, and smearing faeces”.  He was also referred to a Child Development Centre after reports of night terrors.  I accept the submissions made on behalf of the guardian that there is material which supports Doctor Mynors-Wallis’ opinion that the mother remains vulnerable to abusive relationships.”
15.	In the light of those findings it seems to me impossible for the mother to persuade this court that all of the difficulties she had in dealing with J can be attributed to his suffering ADHD.  She must bear some responsibility for the deterioration in his behaviour and for the deeply worrying need he now has for intensive psycho-therapeutic help.  I do hope the Local Authority will ensure that he receives it.
Does the mother have the capability to care safely for D?
16.	I have already adverted to her troubled childhood.  Between the ages of 7-8½ she was taken into care and seen at a Child Assessment Centre because her mother could not cope with her being hyper-active and physically aggressive.  In her teenage years she was described as being aggressive, provocative and difficult to control.  As a young adult her behaviour was disruptive.  Her marriage was stormy with incidence of violence.  J is a child born outside that marriage.  She was diagnosed by Ryan Aguiar, a clinical psychologist, in 1998 when 29 years old to have intellectual functioning which fell in the middle of the borderline of slow learner range.  That did not however render her unable adequately to care for J, her only child at the time.  The conclusion was that:-
 “While she may be slow at grasping parenting skills relative to someone who is of average or above average intelligence, with the right support, care and commitment to care, [mother] could care for her son adequately.  The issue of concern however is her behavioural and emotional instability, [her] life [being] characterised by instability in personal relationships, violence, aggression, unstable family relationships, increased dependence on others, alcohol abuse, lack of proper judgment (refer to incident involving 13 year old girl …).  There is not enough information to diagnose a borderline personality disorder”.
17.	She was seen by Doctor Mynors-Wallis, a consultant psychiatrist, who was called to give evidence on her behalf.  He told the court that the mother does not have a learning disability though she has an IQ of approximately 100.  He stressed and the judge agreed that low intelligence of itself did not disqualify her from being a good parent.  His opinion was that she did have a personality disorder which would have an adverse affect on the quality of her parenting.  In his opinion:-
“[Her] childhood has left her with personality difficulties, poor coping skills and without the ability to make and sustain supportive relationships.  These factors are having an adverse effect both on herself and her role as a parent.”
18.	The judge held:-
“The doctor was plainly a thoughtful and caring witness.  He was sympathetic to the mother’s plight but having regard to the mother’s history, his discussion with her and his review of the papers, he concluded that it would not be in the children’s interests for them to live with her.  I accept that opinion.”
19.	The judge said this of Doctor Bentovim’s evidence:-
“In relation to D, the doctor did not see symptoms of ADHD but he feared that if the mother continued in her present way of life and D remains with her, he will begin to show serious developmental difficulties and similar symptoms to J.  The doctors stressed how damaging to children exposure to acts of violence and neglect can be.  I agree.  Doctor Bentovim expressed concern about what he described as D’s indiscriminate attachment patterns, which were particularly worrying in a child of his age.  There are also concerns about the serious tantrums thrown by D when he is frustrated in his wishes.  Everyone including the doctor in this case accepted that the mother loves both her boys and tries to do her best.  She has very strong feelings for her children and they have an attachment to her.  But he pointed out that the mother’s personality difficulties, her limited degree of understanding, and the likelihood of her forming further unsatisfactory adult relationships are likely to be dangerous to D’s development, to the extent that he is likely to suffer in the same way that J has done. …  The doctor accepted that it would be easier for the mother to cope with D if J was living away from home but he stressed his fear, which I think is a reasonable one, that the mother’s own difficulties will continue and be harmful to D’s development. …  I accept his opinion.”
Discussion.
20.	Given those damning findings, how does the appellant seek to escape the inevitable consequence that a care order was appropriate in the circumstances?  She has two main complaints:  first the erroneous admission into the evidence of a video recording of a child’s birthday party and secondly the failure to refer her for a proper assessment of her parenting ability.
The video.
21.	It was, in my view, most unfortunate that the social worker in this case produced a video recording during the hearing.  It was not disputed that a video recording of the child’s birthday party and the events surrounding it had been taken but the video produced is an edited version submitted, it would seem, only to show how badly the mother behaved by baring her bottom and showing her breasts in the presence of the children at the party.  There is very considerable doubt about who was responsible for that editing and how the video came into the hands of the social worker.  Matters are made worse by the fact that the judge said this of the social worker:-
“I thought that in some respects Mr Henstone was a little harsh in respect of some of the comments and judgments about the mother.”
22.	She is left, therefore, feeling that she has been unfairly and unjustly treated.  Though I can be critical of the way in which the video recording was produced, I cannot find that the judge was in error at all in admitting the evidence.  He agreed with Doctor Mynors-Wallis that he should be cautious about reading too much into it.  The ten minute clip showed not only how, as she accepted, she had behaved “unwisely and impulsively” but also the fact that her flat was tidy and well ordered.  It seems to me, looking at the case carefully but fully that this incident of impulsive behaviour was but one of many examples upon which the judge could act:  it was not a significant or crucial piece of evidence and in my judgment the mother has not been the victim of any procedural irregularity through the admission of this evidence.
A Section 38(6) assessment of the mother.
23.	I have given this careful thought.  I fully understand and have some sympathy with the mother’s case that she might be better able to care for D alone certainly than she could if both boys remained with her and possibly better than she managed with J when he was the only child in the family.  The judge refused to adjourn for an assessment to be made.  In my judgment there was ample evidence to justify his doing so.
24.	Doctor Bentovim is recorded in the judgment as expressing this view:-
“He is particularly asked about the prospect of a residential assessment pursuant to Section 38(6) of the Children Act in respect of the mother and D.  Doctor Bentovim was not hopeful as to this.  He felt that given the long-standing and deep seated nature of the mother’s difficulties, the likelihood that she could change sufficiently to meet D’s needs within a reasonable time scale was very limited and unlikely to occur.”
25.	Doctor Mynors-Wallis told the judge this:-
“The doctor was also asked about the prospect of an assessment of the mother and D for three months at St. John’s in Bristol.  He told me that he broadly agreed with the comments of Doctor Bentovim as to this point.  Doctor Mynors-Wallis pointed out that the mother has long-standing difficulties from her adolescence and has what he described as a fairly ingrained pattern of behaviour.  It is not easy to change a person’s personality and although a three to six month assessment might assist with some aspects of her parenting style, it would not go to the fundamentals of her personality.  The doctor pointed out that although the mother is now seeing a clinical psychologist, if that were a programme of only six to eight weeks it would do little more than support the mother through this difficult time.  The doctor thought the real change would take months or years of therapy to achieve.”
26.	As for the guardian’s views, the judge said this:-
“She accepted that the mother probably would cope with the practical care of D without J, but the guardian was very concerned about how little understanding the mother had in respect of her own vulnerability.  This was the overwhelming impression the guardian gained from the mother’s evidence.  I agree with that assessment.  The guardian could see no reasonable prospect of any satisfactory outcome from a residential assessment of the mother and D.  D’s future needs a quick resolution.”
27.	In those circumstances, especially in the light of the fact that no detailed proposal for the assessment was placed before the court, the judge was right to accept that weighing the cruel choice between giving this unfortunate mother every reasonable chance to prove herself against the needs of this child to be given a settled placement, the scales came down inevitably against permitting further delay.
Conclusions.
28.	The judge was not without sympathy for the mother.  He said:-
“The mother gave her evidence well in what must have been very difficult circumstances for her.  However, like Doctor Mynors-Wallis, I was left with the impression that she really does not understand the fundamental issues that will confront her in the care of D.”
29.	That is her tragedy.  Her own impulsive behaviour is her worst enemy.  It was exemplified by her bringing back into her home the South American buskers whom she befriended in the street and then had difficulty in removing from her flat.  The sad difficulty is that, as the judge found:-
“There is material which supports Doctor Mynors-Wallis’ opinion that the mother remains vulnerable to abusive relationships.”
30.	The judge’s conclusion was this:-
“Insofar as D is concerned, I accept the body of evidence which clearly demonstrates that he too will be at risk if he returns to the care of his mother.  From the witness box and from her supporting witnesses, the mother was able to show a well-intentioned lady who has a number of pleasing qualities.  However I was left with the feeling of a superficial picture of how she functions and of a lady who simply does not understand the consequences of her impulsive and irresponsible behaviour and the way in which this impacts upon the welfare of the children.  I accept the evidence which clearly demonstrates that D would be at risk of harm to his development if he were cared for by his mother.”
31.	As I have indicated, there was ample evidence before the judge to support that conclusion.  As has recently been restated by Baroness Hale of Richmond in In Re J (A Child) (Custody Rights: Jurisdiction) [2005] UK HL 40, [2005] 3 WLR 14 at paragraph 12, this court can only interfere if the judge’s decision is so plainly wrong that he must have given far too much weight to a particular factor.  This was an experienced judge and the deference due to him and the advantage he had in seeing and hearing these witnesses compels my conclusion that this appeal against the making of the care order should be dismissed.
32.	In those circumstances it was virtually inevitable that the mother’s consent to J’s adoption be dispensed with and Mr Ailes did not submit otherwise.
33.	Very sadly for this mother her appeal must be dismissed.
Lord Justice Laws :
34.	I agree.
Lady Justice Smith :
35.	I also agree.