|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> M-W (A Child), Re  EWCA Civ 12 (21 January 2010)
Cite as:  Fam Law 340,  EWCA Civ 12,  1 FCR 427,  2 FLR 46
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
ON APPEAL FROM
His Honour Judge Lancaster sitting in the Newcastle upon Tyne County Court on 12 October 2009.
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
LORD JUSTICE PATTEN
| Gateshead Metropolitan Borough Council (the local authority)
JM (The Mother)
AW (The Father) – did not attend
JK (The Guardian)
M-W (A CHILD)
Charles Geekie QC and Tom Finch (instructed by Mulcahy Smith - Solicitors) for the 1st Respondent
John O'Sullivan (instructed by Messrs David Gray – Solicitors) for the 2nd Respondent –
Mr O'Sullivan was excused attendance by the Court but provided 'pro bono' written submissions in relation to the disposal of the appeal that were adopted by the Mother.
Nicholas Stonor (instructed by Swinburne and Jackson – Solicitors) for the 3rd Respondent
Hearing date: 8th December 2009
Crown Copyright ©
Lord Justice Wall :
The constitution hearing the application should be provided with the court bundles, including all orders made to date and copies of the statements and reports which it is said the judge did not take into account. I anticipate that the court would welcome the assistance of the guardian, but I will leave it to the professional discretion of the guardian and his / her advisers as to whether or not the child is separately represented on the application.
2. She had a heart operation and during this her vocal chords were damaged. She has lung disease and has a tracheotomy for laryngeal web. She has feeding problems which require naso-gastric tube feeds. (B) also suffers from gastro-oesophageal reflux. A tracheotomy requires regular suction, she required oxygen during the daytime as well as night-time until a few months ago. The night time oxygen is set at a low flow level through her nose.
3. Feeding B has been problematic, but by June of this year she was able to tolerate soft foods but gagged on any lumpy consistency. She basically feeds via a naso-gastric tube. At one point it was thought that B may have cerebral palsy, but the medical evidence now seems to suggest that this is not likely.
5. Looking after a child with a tracheotomy at home is extremely demanding and there are hardly any other medical conditions in children that are as, or more, challenging.
6. Now I have dealt with this at length because it is important in my judgment to record the practical difficulties that faced mother on a daily basis. Dr PC explained that he thought it was no mean achievement for mother to have done what she did, a statement with which I agree. When discharged from hospital on 24 February (2008) on a package of support care for mother, it was not put in place as well as perhaps it ought to have been.
22. Counsel for the mother and father submitted that the evidence did not support that the threshold criteria were satisfied and that such matters as the local authority could prove amounted in fact to significant harm. On balance I find that (the mother) had achieved a good standard of care in respect of B. There is no evidence to show that any developmental delay as may exist is attributable in any way to the lack of care showed by mother. On the contrary, the evidence showed that mother had acquitted herself well in caring for B on her own in difficult circumstances with limited support. Although mother suffers from bipolar disorder, this is treatable, and the combination of this and her personality disorder such as it is do not show that she is likely to cause B significant harm. (emphasis supplied).
Issue 1: The evidence not discussed by the judge
I note at no stage has there been any concerns with regards (the mother's) physical care of (B). However clearly her (that is, the mother's) psychological instability will in the long term, if untreated, lead to very significant risks in terms of B's psychological and emotional development and lead inevitably to difficulties for (the mother) in providing an emotionally warm secure and consistent environment for (B) to develop in. (Emphasis supplied)
|Judge:||Before we move on, I just want to clarify something. I'm wondering what direction you want me to go in relation to this, because for the moment this is the only psychiatric evidence that the court has got. It looks to me as though you're trying to direct me to go along the path where you're inviting me to treat the opinion as valueless, either because of inadequacy of preparation or consultation or misunderstanding of this history, or deferment to a psychologist, or a combination of all three.|
|Counsel:||Yes, I am.|
|Judge:||There are some dangers in that from the court's point of view, aren't there, as to how the court ought to deal with things like that, because I haven't got anything to the contrary to prefer.|
|Judge:||So if you continue in this line the conclusion that you want me to reach is that its valueless.|
|Counsel:||Can I put it another way?|
|Judge:||Which is a very dangerous thing for a court to do.|
|Counsel:||In fact, it wasn't my intention to invite you to reach a conclusion that it has no value, but that it has limited value in the context of this case, and that there is a distinction, because your Honour is entitled to take into account, because I don't have any contradictory psychiatric evidence – I accept that – that's apparent.|
|Judge:||How can I reject an expert opinion? The point about expert opinion is it's there to inform the court.|
|Judge:||Whilst I accept the court has a right to accept it or reject it, there has to be a rational basis for doing either.|
|Judge:||If the rationale is to accept, then one can take that view on the basis of credibility, professionalism and so on, but rejection has to be, I think, taken with great care. I'm not convinced that you're going to be able to persuade me on the matters you've referred to so far to reject it.|
The evidence of the psychologist, Mr. M
The evidence of Mr. F, the independent social worker
Issue 2: The threshold; (1) the findings sought by the local authority
(2) The closing written submissions by the mother on threshold.
(3) the argument for the mother in this court
i) the fact that the mother had some mental health difficulties had been well known to relevant professionals before (B's) discharge home;
ii) the nature of the mother's mental health difficulties had not been clearly defined before the removal of (B). As a result, inevitably, she had not received appropriate advice or treatment;
iii) whilst caring for (B) the mother had plainly been subject to stresses which would inevitably exacerbate any mental health difficulties; and
iv) the expert evidence prepared for the proceedings was not clear cut. In so far as a diagnosis was made, it offered the possibility of a more coherent and consistent treatment regime than experienced by the mother to date.
(4) the law on section 31 of the Act
(2) A court may only make a care order if it is satisfied
(a) that the child concerned is likely to suffer significant harm; and
(b) that the likelihood of harm is attributable to
(i) the care likely to be given to (her) if the order were not made, not being what it would be reasonable to expect a parent to give to (her).
The same approach applies to the second limb of s 31(2)(a). This is concerned with evaluating the risk of something happening in the future: aye or no, is there a real possibility that the child will suffer significant harm? Having heard and considered the evidence, and decided any disputed questions of relevant fact upon the balance of probability, the court must reach a decision on how highly it evaluates the risk of significant harm befalling the child, always remembering upon whom the burden of proof rests.
However clearly her psychological instability will in the long term, if untreated, lead to very significant risks in terms of B's psychological and emotional development and lead inevitably to difficulties for (the mother) in providing an emotionally warm secure and consistent environment for (B) to develop in.
(1) Experts do not decide cases. Judges do. The expert's function is to advise the judge;
(2) The judge is fully entitled to accept or reject expert opinion;
(3) If the judge decides to reject an expert's advice, he or she; (a) must have a sound basis upon which to do so; and (b) must explain why the advice is being rejected.
(4) Similar considerations arise when a judge prefers one expert's evidence to that of another. Judges must explain why they prefer the evidence of A to that of B.
Although mother suffers from bipolar disorder, this is treatable, and the combination of this and her personality disorder such as it is do not show that she is likely to cause B significant harm.
Lord Justice Patten:
Lord Justice Thorpe