A – BOOOOOOOOOOOOOOM !!
This judgment relates to a mother’s application to have a care order discharged and an attachment assessment played a part in the local authority case until HHJ Mostyn took over.
If you read the conclusion first then this will prepare you for what lies in store. HHJ Mostyn drew the judgment in GM v Carmarthenshire County Council & Anor  EWFC 36 to a close with the following statement. At para 39 he says:
…The objections to the success of the application are inconsequential, trivial and insubstantial and have been, in my judgment, advanced to give effect to a predetermined end. If this application does not succeed then we might as well scrap section 39.
Hmmmmm… I think this case may have just struck a nerve with HHJ Mostyn. As a matter of fact it should strike a nerve with anyone that gives a damn about justice in the family courts.
To give a little bit of background: Court orders made under Section 39 of the children Act 1989 deal primarily with the discharge and variation of care orders and supervision orders. Readers should note that this judgment relates to an application made in 2016. In other words, it has taken almost 2 full years to determine a mother’s application to discharge an order that it appears should never have been made in the first place. In that time a child, who had been placed in foster care, should not have been there and whilst he was in foster care his parents should have seen him regularly.
Key elements of the case which led to HHJ Mostyn issuing this stern rebuke were:
- the admissibility of ‘expert’ evidence, and;
- the legitimacy of ‘attachment theory’ to inform the court and make recommendations to the court;
- the making and discharge of care orders;
- the dismal quality of the ‘evidence’ relied upon by the LA.
Up to paragraph 9 HHJ Mostyn gives readers a guided stroll through the circumstances of the case, the law relating to the imposition and discharge of care orders under s 39 of the Children Act 1989, what parliament intended the Act to do and how case law has added to the existing rigour of the Act. I would recommend that anyone entering the family court arena gives this judgment a thorough reading. Even if your case does not involve any public law, it is well worth the effort to read these paragraphs because there is a lot said about attachment theory which is a very popular topic amongst social workers. Cafcass rely heavily upon attachment theory in their reports and they do give practitioners some training in this area.
The importance of the child / parent relationship and the significance of severing it
HHJ Mostyn’s clarity and economy of language is a great example of how to present one’s case. The judgment should be read in full. Readers will observe the ways in which various judgments in the domestic and European courts have bolstered the significance of and the human rights of citizens to a parent / child relationship. This body of case law evolved in a way that led Lady Hale, the current president of the Supreme Court, to remark. (See Re B (a Child) ( 2013] UKSC 33,  1 WLR 1911 ) para 198.
‘”Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.”
Anyone that has been reading these pages will note that the relative seriousness of severing a parent / child relationship is a bit of a hobby horse of mine. In some quarters it is appreciated: but, sadly, in others it certainly is not. It is great to know that I am not the only one and I seem to be in pretty good company in holding these views. The outgoing president of the family division, Sir James Munby observed:
‘…it must never be forgotten that, with the State’s abandonment of the right to impose capital sentences, orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make.’
The new president of the Family Division also concurred with this view, as did HHJ Baker at the recent Transparency Project seminar. ( https://www.youtube.com/channel/UCZV66F4LRTSOTakAD9i2zcg ) Indeed the new president opined that:
‘Adoption orders are, rightly, regarded as the most Draconian orders that a family court, or indeed any court, can make. The adoption decision in every case is therefore afforded corresponding respect in terms of time, resources and judicial concern. Based on the evidence provided from the four recent cases that I have cited, I fear that the same cannot be said of potentially intractable contact cases.’
(Sir Andrew McFarlane Nalgro Conference 2018, https://www.judiciary.gov.uk/wp-content/uploads/2018/03/speech-by-lj-mcfarlane-nagalro.pdf)
Notwithstanding the seriousness attached to severing a parent / child relationship the incoming president of the family division has stated unambiguously that there is inequity in the family courts in the comparatively casual way that relationship severance is perceived and dealt with in private law proceedings compared with the highly regulated and relatively carefully considered manner with which relationships are severed by the state in public law proceedings. Para 9 of the judgment sets out the tests the local authority’s case must pass if it is to succeed. The bar is set high for a reason. Parliament never intended the severance of a parent / child relationship to be easy. To reiterate Lady Hale’s words;
‘…it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.’
The above quotes serve as tasters of the many examples of this universal view being publicly expressed but there have been many more occasions when judges have made this point. Once should have been enough to state the obvious but, as this case demonstrates, these fundamantal principles have yet to penetrate the skulls of large numbers of court ‘ professionals’. If any read this who have taken these sentiments on board after a single reading then please accept my apologies as you are probably worthy of being known as a court professional (note the absence of quotes).
Was this expert evidence necessery, reasonably required or not needed?
The local authority and the guardian placed a lot of weight on the independent social worker’s assessment of the child ‘L’s’ attachment profile.
But, before appointing any expert, The Children and Families Act 2014 requires that family courts must be satisfied that expert evidence is ‘necessary’ in order to assist the family court. Whereas, in civil proceedings, it was merely necessary for the civil court to be satisfied that the expert evidence was ‘reasonably required’. Prior to the act the standards for the appointment of expert witnesses were the same. Therefore, “The test of what is “necessary” sets a hurdle which is on any view significantly higher than the old test of what is “reasonably required””. (Re TG (a child)  EWCA Civ 5 ) at para 30).
Furthermore, ‘… in order to be admissible in civil proceedings the expert evidence must be:
- contained within a recognised body of expertise governed by recognised standards and rules of conduct relevant to the question which the Court has to decide; and
ii) of such a nature that that a person without instruction or experience in the area of knowledge or human experience would not be able to form a sound judgment on the matter without the assistance of a witness possessing special knowledge or experience in the area.
HHJ Mostyn concluded that the attachment evidence was not needed. He stated, ‘With the greatest respect, I have concluded that this evidence does not satisfy the new test. Indeed, in my judgment, it does not even satisfy the old one.’
The quality of evidence based upon attachment theory
Referring to a lengthy quotation from the ‘experts’ attachment evidence. HHJ Mostyn concluded:
17. A number of points may be made about this description of the theory. First, the theory, which I suppose is an aspect of psychology, is not stated in the report to be the subject of any specific recognised body of expertise governed by recognised standards and rules of conduct. Indeed, I asked the advocate for the guardian whether he was aware whether a student could undertake a degree in attachment theory, or otherwise study it at university or professionally. Mr Hussell was not able to answer my question. Therefore, it does not satisfy the first criterion for admissibility as expert evidence.
18. Second, the theory is only a theory. It might be regarded as a statement of the obvious, namely that primate infants develop attachments to familiar caregivers as a result of evolutionary pressures, since attachment behaviour would facilitate the infant’s survival in the face of dangers such as predation or exposure to the elements. Certainly, this was the view of John Bowlby, the psychologist, psychiatrist, and psychoanalyst and originator of the theory in the 1960s. It might be thought to be obvious that the better the quality of the care given by the primary caregiver the better the chance of the recipient of that care forming stable relationships later in life. However, it must also be recognised that some people who have received highly abusive care in childhood have developed into completely well-adjusted adults. Further, the central premise of the theory – that quality attachments depend on quality care from a primary caregiver – begins to fall down when you consider that plenty of children are brought up collectively (whether in a boarding school, a kibbutz or a village in Africa) and yet develop into perfectly normal and well-adjusted adults.
19. For my part I would say with all due respect that I do not need a social worker to give me evidence based on this theory to help me form a judgment about L’s attachments.
Speaking of the ‘expert’s’ executive summary HHJ Mostyn opines:
‘This opinion is based on supposed expert evidence, but it seems to me to be no more than a standard welfare officer recommendation, and one that does not place any weight at all on the principle of proportionality, or on the right to respect for family life, as explained by me above, let alone on the positive duty of the local authority to take measures to achieve a reunification of the blood family. Indeed, it is noteworthy that on page 15 of her report the very first matter relied on by the independent social worker against the mother’s case is in these terms:…’
And, at para 21 he concludes:
I cannot say that this so-called expert evidence has assisted me in reaching the decision I must make.
If anyone thought that this was the end of a severe roasting they would be wrong. For anyone thinking of sneaking in some ‘evidence’ from their pet attachment writer, HHJ Mostyn issued a clear warning. (para 22)
‘In my judgment, in any future case where it is proposed that expert evidence of this nature is adduced I would expect the court to determine the application with the utmost rigour, and with the terms of this judgment at the forefront of its mind.’
Before rounding up, HHJ Mostyn turned to a challenge that he had issued to one of the social workers during the proceedings (para 25):
‘…I required Ms Tommason-James to identify in the witness box her top four criticisms of, or concerns about, the mother. These were given as follows:
i) The mother’s questionable ability to meet L’s emotional needs.
ii) The dynamics of M’s relationship with L.
iii) The dynamics of the relationship between L and his siblings.
iv) The mother’s questionable ability or willingness to work with the local authority.
It was rightly pointed out that as generalised statements, or tropes, these were easy things to say, but that concrete examples of the individual concerns were very hard to come by.
These ‘tropes’ form the basis for much of what followed. For the remaining 16 paragraphs the judge outlined and critically analysed the social worker’s accounts of a mother’s perceived parenting faults and misdemeanours. I’m afraid you will all need to read this for yourselves. Having been an alienated parent for far too long I got used to hearing a perspective with views of accounts that were embellished, minimised and gaslit in ways that questioned what I had seen, touched, heard, smelled, tasted and felt with my own senses during one of the worst periods of my entire life. The way that people suffering from severe personality disorders paint a picture of your world that would make Boris Johnson’s memories seem rational and measured is not something I want to experience again therefore I decided to pass on the opportunity.
Suffice to say that the world for most of the social workers in this case is not a place that I recognise and I thank God for that.
I wonder whether these people would benefit from training or whether they really need deprogramming first.