Court of Appeal finds recorder was wrong to decide there was no necessity for psychological assessment
The Court of Appeal has allowed an appeal by a mother against care and placement orders made in respect of her son, after finding the recorder was wrong to decide that there was “no necessity for a psychological assessment”.
Outlining the background to the case in E (A Child) (Care and Placement Orders) [2023], Lord Justice Baker said the mother, who is now aged 21, had a very traumatic childhood.
He said that she was sexually abused by her half-brother, and throughout her teenage years she suffered from “mixed anxiety and depression, had suicidal thoughts and regularly self-harmed”.
The Court of Appeal judge noted that in 2021, the mother started a relationship with the father, who she has subsequently described as “violent and abusive”.
When she became pregnant in 2021 aged 19, the mother was receiving support from adult social care and was being treated as an outpatient by the adult local mental health team who had prescribed anti-depressant medication, he added.
In October 2021, the mother was assessed by counselling psychologists to see if she should undergo a full psychological assessment to determine whether she should receive further psychological treatment. A report from the psychologists recorded that the mother had described her main difficulties as her “lack of ability to regulate her emotions and suicidal ideation”, said Lord Justice Baker.
The mother raised the question whether she might be autistic, describing sensory issues she experienced and stating that autism ran in her family.
Lord Justice Baker noted that, at that stage, the counselling psychologists thought that psychological treatment programme might be too much for her and recommended that she should concentrate on her pregnancy and "transition to motherhood".
However, it was agreed that she would be referred for a neurodiversity assessment by a family psychologist to establish whether she was on the autistic spectrum.
Lord Justice Baker said: “Following this report, the mother was referred for an assessment by the family psychologist. According to a later letter (9 January 2023) from the mental health team, however, no such assessment has so far been carried out.”
During her pregnancy, the mother told NHS staff that the father of the child she was expecting and with whom she was in a relationship was “controlling and had threatened to kill himself if she separated from him”.
The local authority placed the unborn baby on a child in need plan due to concerns about domestic violence and the mother's mental health difficulties.
In May 2022, the unborn baby was made subject to a child protection plan. On 26 May, the mother gave birth to E.
Lord Justice Baker said that the mother and baby were discharged from hospital to the maternal grandmother's house. “The original plan was for an assessment period of six weeks under those arrangements, after which the mother and E would move to the mother's own bungalow”, he added.
On 14 July, the local authority started care proceedings. Lord Justice Baker said: “In the local authority's initial statement, the social worker reported that the mother had demonstrated a reasonable knowledge of a child's needs, that she could manage a child's basic care and was able to show emotional warmth to E.
“The local authority's concerns were as to the consistency of her care for the child, her mental health problems, and her abusive relationship with the father.”
At the first court hearing, E was made subject to an interim care order on the basis of a care plan under which he remained with his grandmother.
On 16 September, however, the grandmother withdrew from the kinship assessment process, informing the social worker that she was unable to cope with the mother who was not prioritising care of the child but instead spending time with a new partner.
Following this, E moved to a foster placement where he remains, said the Court of Appeal judge.
On 10 August, the mother had applied in the care proceedings for a psychological assessment under Part 25 of the Family Procedure Rules.
Lord Justice Baker said: “It was submitted that E deserved to be brought up by his mother if at all possible and that any risks that may prevent that should be properly assessed by an appropriate expert.
He added: “Given the mother's background and multiple diagnoses, it was submitted that a psychologist should be instructed to assess her possible complex psychological needs, any associated risks and the timescale of any treatment required to alleviate those risks. […] Without a psychologist's report, there would therefore be a significant gap in the evidence.”
The application was listed on 26 October 2022 before HH Judge Bugeja.
Counsel for the local authority submitted that it “does not oppose mother's application however it does question the necessity of it in order for these proceedings to be concluded justly”, revealed the Court of Appeal Judge.
Further, it submitted: “Since E has not been in his mother's care, mother has been living a really chaotic lifestyle, partying, drinking and taking drugs. Mother has met a number of different partners and brought them to her home, one of those partners has a history of violence. The allocated Social Worker CB has described a pattern prior to E being in mother's care and now, where mother places herself in risky situations.”
After hearing submissions, HH Judge Bugeja dismissed the application.
In an agreed note of judgment, she said: “A psychological assessment is not necessary to determine contact issues and I take the view there is sufficient evidence, no gaps in this evidence, which I accept is yet to be forthcoming in respect of recent updates. Once that is before the court, I do not find that a psychological assessment will fill a gap in this evidence. Mother's mental health is one aspect of this case and court has to consider if there is sufficient evidence to make a final decision.”
Lord Justice Baker said that two further case management hearings took place, at the second of which the mother made an application for an assessment by an independent social worker which was also refused.
The local authority issued an application for a placement order.
An issues resolution hearing took place in February 2023, and the final hearing was listed before Mr Recorder Rowbotham on 2 and 3 March, said Lord Justice Baker.
He added: “The issue to be determined by the recorder was whether to make the care and placement orders sought by the local authority. On behalf of the mother, it was again argued that no decision could properly be taken unless the court had a psychological report on the mother and that the hearing should be adjourned for an assessment to be carried out.”
The recorder made the care and placement orders sought by the local authority, concluding that “neither parent was able to offer E the stability and consistency he needed”, said Lord Justice Baker.
On 27 March 2023, the mother filed a notice of appeal, relying on four grounds:
(1) the lower court failed to analyse, at all, the credibility of the local authority's evidence given a finding was made they misled the court at a previous hearing;
(2) there was a clear and identifiable gap in the evidence, which the court was wrong to conclude did not require further assessment;
(3) the learned judge erred in his failure to adequately analyse the level and nature of the support the mother is likely to require if caring for E, which led to an erroneous conclusion that "there is no support that could remedy her parenting at this time";
(4) proportionality – the judge did not fully or adequately evaluate the placement option with E being in the care of his mother.
On 15 May 2023, Lord Justice Baker granted permission to appeal on all grounds, noting: “I propose first to consider grounds 2, 3 and 4 together”.
Considering grounds 2, 3 and 4, Lord Justice Baker said: “Part 25 of the Family Procedure Rules provides detailed regulation of expert evidence consistent with these statutory provisions.
“The need for courts to exercise vigilance over applications for expert evidence in children's cases has been reiterated frequently, for example in the "President's Memorandum – Experts in the Family Court" (4 October 2021) in which the President of the Family Division stated:
"Such expert evidence will only be "necessary" where it is demanded by the contested issues rather than being merely reasonable, desirable or of assistance (Re H-L (A Child) [2013] EWCA Civ 655)
"The instruction of an expert is the primary reason for delay in Family Court proceedings relating to children. The recent statistics show that an application for the instruction of an expert is almost invariably granted. To avoid delay, courts should continue to consider each application for expert instruction with care so that an application is granted only when it is necessary to do so”.”
Considering this, Lord Justice Baker said: “There are grounds for concern that parties in care proceedings have been too ready to apply for, and judges too ready to grant, a psychological assessment of their clients. On the basis of the information in the papers before us, however, this was not one of those cases. This was a very young mother involved in care proceedings concerning her first child.”
He added: “Faced with a client with this constellation of problems, the mother's lawyers were fully justified in applying for a psychological assessment so that the court could be fully informed about her needs and the level and type of support she would require to care for her son.”
Lord Justice Baker noted that the recorder “accepted that there was a gap in the evidence” but “was not persuaded that it needed to be plugged for the court to make a decision about E's future welfare”.
Outlining the recorder’s reasons for reaching the conclusion, Lord Justice Baker said:
“First, he took into account the inevitable delay that would follow were he to adjourn the hearing, noting that the proceedings had been continuing for 32 weeks, over the statutory 26-week period. It is plain from his judgment, however, that he did not consider that, by itself, this was a decisive factor. In that respect he was plainly right. If there is an evidential gap which has to be filled before a decision can be taken about a child's future, it is very unlikely that the fact that it might take a few months to fill the gap would by itself warrant refusing an adjournment, bearing in mind the lifelong consequences of the decision reflected in the statutory principle that, when coming to a decision relating to the adoption of a child, the paramount consideration must be the child's welfare throughout his life.”
He added: “Secondly, he found that there was "ample evidence" that the mother was unable to provide good enough care at a fundamental level. That conclusion, which does not sit easily with his observation a few paragraphs earlier that this was a "very finely-balanced case", was based in part on what he described as the "simple fact" that her "mental health is said to be stable with a good prognosis … and yet there are still outstanding issues concerning her parenting." But the fact that her mental health was stable did not undermine the case for a psychological assessment.”
“Thirdly, another factor which the recorder thought counted against directing a psychological assessment was the fact that the mother herself did not accept that she had additional psychological needs that impinged on her parenting. […] From the child's perspective, the fact that his mother does not at present accept that she has additional psychological needs that may affect her parenting does not obviate the necessity of an assessment before concluding that she cannot look after him and nothing else but adoption will do.”
Lord Justice Baker continued: “Fourth, the recorder took into account the various issues about her parenting capacity identified in the social work assessment. But to a greater or lesser extent, the mother's "complex psychological profile" impinged on most if not all of those issues – in particular, her use of relationships as a "coping mechanism", her ability to prioritise E's needs, her limited support network, and her "fundamental lack of stability". Far from being "issues outside and above those arising from her mental and psychological health", they were inextricably linked to it.
He noted: “The evidential gap therefore impeded a full and fair evaluation of her ability to meet E's needs.”
Finally, Lord Justice Baker said that the recorder took the view that the assessments carried out by other professionals were “sufficient to enable him to reach a decision about E's future”. Adding: “It is plain, however, that an assessment of the mother's psychological profile and how it impinged on her parenting abilities was beyond the professional capacity of the social worker and guardian.”
Drawing on grounds 2, 3 and 4, Lord Justice Baker concluded that although he agrees with the recorder that there was a “clear and identifiable gap” in the evidence, the recorder was “wrong to decide that there was no necessity for a psychological assessment”.
He added: “As a result, he was not in a position to conduct an adequate analysis of the level and nature of the support the mother would require were she to care for E, and therefore unable to conduct the fair balancing of the realistic options for E's future care which was essential before reaching a conclusion that a plan for adoption was necessary and proportionate.”
He allowed the appeal on grounds 2, 3 and 4 and set aside the care and placement orders.
Further, he said: “If my Lords agree, I would be prepared to include in the order allowing the appeal provision for a psychological assessment and invite counsel to agree detailed directions for the instruction of that expert to be included in the order following this appeal.”
He noted that he “does not consider it necessary” to consider ground 1, which concerned the judge's treatment of the social worker's evidence, as it may “unintentionally influence the conduct or outcome of the rehearing”.
Lord Justice Arnold and Lord Justice Singh both agreed.
Lottie Winson
