X Local Authority v M & Ors [2010] EWCC 19 (Fam) (2010)

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Neutral Citation Number: [2010] EWCC 19 (Fam)

In the County Court

Before:

HHJ X

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Between:

X Local Authority		Applicant
	and
M		1^st Respondent
F1		2^nd Respondent
F2		3^rd Respondent
MGM		4^th Respondent
PGP’s		5^th Respondents
MGU AND MGA		6^th Respondents
A and B		7^th Respondents
	and
A, B and C		8th Respondents (by their Guardian)

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	for the	Applicant
	for the	Respondent

Hearing dates: 18^th May 2010

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Judgement

The background facts

1 The three children in this case are A (14), B (11) and C (4). They have different fathers but the same mother. She is now 30 years old and married C’s Father, who is 27, in 2004. A’s father has played no part in her life nor in these proceedings, but B’s father lived with her mother for several years until 2002 and continues to have contact with his daughter.

2 The three children are in foster care together, not subject to an interim care order until 12^th February 2010, and have been since August 2008. The reason for them being accommodated is that they were removed from their home at the instigation of the Local Authority and police due to deficient parenting. This has subsequently been agreed and admitted. The Local Authority produced a schedule of facts (the ‘threshold document’) which they intended to prove in order to establish that the children had been exposed to significant harm, and were likely to continue to be so exposed, as a result of parental care, and thereby satisfy s 31(2) of the Children Act 1989. In the event both Mother and Father conceded that the facts were made out without the need for a trial of those issues.

3 It should be added that the removal of the children did not come out of the blue. The family had been known to social services for a long while and attempts had already been made to improve the school attendance of A and B and the management of A’s diabetes. An initial Child Protection Case Conference had taken place in October 2007 and the children’s names placed on the Child Protection Register under the category of neglect. A referral to Home Start was made. In January 2008 the Mother and Father signed a written agreement setting out the steps they needed to take to avoid legal action being taken by social services. They were offered a parenting course on coping with young children, but failed to attend. Standards in the home did not improve and the concerns of the health visitor and the schools increased to the point where the situation could not be allowed to continue. In the event it was the police who visited the home on 11^th August 2008 to find conditions had deteriorated further, Mother was asleep on the living room floor and cannabis was found in the house.

The reasons for the children’s removal into care

4 In brief, the agreed threshold document outlines areas principally of parental neglect, but also of emotional harm. These are that the Mother and Father

(a) failed to ensure consistently that A’s Type 1 diabetes was appropriately managed in that she was not taken to clinic and GP appointments for assessment despite reminders, her blood sugar levels were not regularly tested and advice from the clinic was not heeded;

(b) failed to meet consistently the girls’ health needs in that B was not taken for appointments with the paediatrician in relation to concerns about her wide fontanelle; and dental appointments for both A and B were missed;

(c) failed to get A and B to school regularly such that their attendance was only about two thirds of what it should have been and both were often late, despite formal warnings, which had an impact on their educational progress;

(d) failed to work consistently with professional agencies by cancelling home appointments, failing to attend pre-arranged sessions, including a parenting course, refusing social workers entry to the home and not attending school meetings;

(e) failed to maintain home conditions to an appropriate standard, such that the home was cluttered and unhygienic;

(f) failed to present the children to an acceptable standard such that the children were grubby and suffered from body odour; and

(g) Mother persistently failed to attend to her mental health needs such that the children’s needs took second place.

(h) In addition Mother has told A and B that she was sexually abused by their maternal step-grandfather, thereby destroying the girls’ good relationship with their maternal grandparents, whereas a finding of fact hearing in July 2009 found Mother’s accusations to be untrue. This has caused them emotional harm.

(i) Finally, Mother caused the children emotional harm through exposing them to her relationship with B’s father which included his excessive drinking, domestic violence and other bad behaviour in front of them.

5 Subsequently an assessment of their parenting skills was undertaken by an independent social worker JB in March and April 2009 in the course of which she reported that Mother and Father “acknowledged that the situation within the family home had become chaotic and inconsistent due to Mother’s mental health difficulties” and that “school attendance had been inconsistent” because “Mother had not wanted to get up due to her depression so everything was left to Father. Father said he was also tired because Mother would keep him awake all night. When he tried to get the children to school they would not listen to him…” and Mother said she could not accompany the children to school because of her agoraphobia. They also said that they “had set very few boundaries with the children. Mother stated that whatever boundaries Father attempted to put in place she would undermine him”. She also said she “would give in to the children because she felt it was being cruel if she did not”.

6 In cross-examination in the course of this final hearing Mother was asked to reconsider her statement dated 20^th April 2010 (and therefore made just a fortnight earlier) where she said “…up until the children were removed I believe I had cared for them well” which was completely at odds with what she had previously admitted. She had to concede that such an assertion flew in the face of admissions she had already made and was simply untrue. She then amended it to say she had cared for the children “…as well as I was capable of at the time”.

7 Father was also cross-examined on this point. He appeared reluctant to admit that the children had suffered significant harm or that they were, until removed, at risk of suffering further significant harm despite the fact that his solicitor had made these concessions on his behalf in his responses to the threshold document. On being pressed he conceded that on the day the children were removed the state of the house was not good enough as they were “de-cluttering” it and this “makes a mess”. He said they had “de-cluttered” it on numerous occasions. Amongst other concessions he then made were the fact that A’s diabetes was not being properly monitored, that clinic and other health appointments were being missed, that the state of the house was not always “up to scratch” and that the children’s school attendances were poor. Despite the fact that he had no mental health difficulties and was at home and not working, he accepted no personal responsibility for these failings.

8 Section 31(2) provides that the court cannot proceed to make a care or supervision order unless it is first satisfied that the child concerned is (at the relevant date which in this case is the date of removal) suffering or is likely to suffer significant harm and that the harm or likelihood of harm is attributable to parental care not being what it would be reasonable to expect from a parent. On their own admission the Mother and Father accept therefore that their care, or lack of it, has caused the children significant harm and any objective observer with parenting experience would be asking how responsible parents could possibly have allowed things to get to that state.

9 This means of course that from the point when these concessions were made the fundamental issue in the case became the outcome for each child, which is subject to the principle that the paramount consideration is the child’s welfare throughout childhood.

The Local Authority’s care plans

10 The care plan was initially to assess Mother’s mental health and whether the parents could respond to advice and assistance and make changes such that the children could safely be returned home. To that end an unusually high number of expert assessments have been carried out to enable the Local Authority to form its final care plans and to assist the court in its decisions as to the future of these three children. There has been a series of reports on the parents from a consultant psychologist; a very full and detailed assessment of the Mother’s and the Father’s respective parenting capacity by a highly experienced independent social worker; arising out of his recommendations there followed assessments by JB (already mentioned) and ID, both independent social workers who worked with the parents in the home; a consultant paediatrician’s overview of the children’s health; a consultant psychiatrist’s report on Mother; a consultant neurologist’s report to deal with the fits Mother suffers; a consultant psychiatrist’s report on B’s father; a play therapist’s report on the children; a child psychologist to consider the children’s attachments to one another; drug and alcohol testing by hair strand testing and of course the Local Authority’s assessments by its designated social worker. In addition the children’s social worker and the Children's Guardian have been involved since these proceedings commenced and have been available to monitor the situation and give advice where appropriate.

11 The process has been prolonged not only by obtaining these reports and their addenda but by two additional factors. The first is that the maternal grandmother and step-grandfather put themselves forward as carers for the children should the eventual decision be that the children cannot return home. That provoked Mother to resurrect allegations she had first made in 2002 but never followed up. These were of serious sexual and physical abuse of her by her step-grandfather between the ages of 11 and 14. If true, it would inevitably exclude the maternal grandparents as carers. A finding of fact hearing was timetabled and heard in July 2009. My judgment was that Mother had failed to prove any of her allegations against her step-grandfather and I was obliged to describe Mother’s evidence (paragraph 31) as

“…riddled with lies, with exaggeration, with inconsistency, and probably, I am afraid to say, fantasy,”

and therefore to conclude that these alleged events simply never happened. I went on to refer to her Counsel’s suggestion that behind all the exaggeration and inconsistency there may have been a grain of truth, and added (paragraph 32)

“…that may be so, but she succeeded in showing herself to be so unreliable as a witness that she really has only herself to blame if there is some truth which has been lost by her giving evidence blown out of all proportion”.

12 The second is that when it became evident within the wider family that the children might not be returning home, other relatives came forward to offer themselves as long-term carers. These included the paternal grandparents of C who wished to care for him alone, the maternal great uncle and aunt who were willing to accept A and B and, at a late stage, the Mother’s birth father who offered to take all three. The relative merits of all these potential carers had to be assessed and this took time.

13 In the event the Local Authority’s care plans for the children are that A should remain in foster care for a further interim period of 3 months to allow her to adjust to the changed situation if she cannot return home but with a view to then joining B; that B should move straightaway to live with her maternal great uncle and aunt (who have a daughter of their own close in age to B) under a special guardianship order coupled with a one year supervision order; and that C should be subject to a placement order and adopted. In the longer term the Local Authority’s hope is that A will agree to move to live with B, but if not she will remain in long term foster care. The reason for this delay is because A is simply unable to contemplate any outcome other than a return to live with her mother. Although exonerated in the fact finding hearing, the maternal grandparents have accepted that A and B believe what their mother has told them about the alleged abuse and that they are refusing to have anything to do with their grandparents. For the time being these grandparents are staying in the background but hoping that contact will resume in due course. B’s father has now limited his claim to contact, which has been agreed.

14 These plans are approved by the Children’s Guardian and supported by B’s father and the maternal great uncle and aunt. They are vehemently opposed by the Mother and Father, A and B (who are separately represented) and C’s paternal grandparents. Mother and Father want all three children returned immediately and A and B state quite clearly that this is their wish and that they want to be reunited as a family. A has taken the opportunity to visit the court and tell me in person. It is evident that Mother and Father only very reluctantly accept the maternal great uncle and aunt as an alternative if A and B cannot return home. If C cannot return home then they support the application of his paternal grandparents to care for him under a residence order. The strongest objections of all are to his adoption.

The Local Authority’s evidence in support of its plans

15 It is of course for the Local Authority to ‘prove’ its case in the sense that it must put forward evidence that persuades the court that the welfare of each child is best served in the long term by the proposals set out in that child’s care plan. Given that the Local Authority has established that the children were all suffering significant harm in August 2008 such that they had to be removed for their own safety and well-being, what changes have the parents made since then which would show that the children could safely be returned home? This fundamental question requires an analysis of the reasons behind the previous defective parenting before deciding whether the parents have been able to recognise their shortcomings and what steps they have taken to remedy them.

The psychological/psychiatric evidence

16 A jointly instructed consultant psychiatrist reported on Mother in November 2008. His evidence was not challenged. He took a full social and medical history which revealed, amongst many other things, that Mother reported suffering from ‘epileptic fits’ for the past nine years for which there is no pattern of causation. In his opinion Mother ‘has a range of risk factors for serious mental illness’ including ‘a very strong biological disposition in that a number of blood relatives have mental health problems’ and his understanding from Mother was that she had ‘an appallingly abusive upbringing’ which he accepted at face value. He summarised her psychiatric conditions as:

A personality disorder with elements of dependent anxious and emotionally unstable (sic).
A range of neurotic symptomatology together with clinically diagnosable depression and agoraphobia.
Probable psychologically produced seizures of non-epileptic attack disorder.

He added that there was no clinical evidence of ongoing mental health problems when he saw her but remarked that she had had no opportunity to do any work on her underlying psychological difficulties. In the light of her non-epileptic attack disorder (NEAD) he advised against her being the sole carer for children. He advised that this be further investigated. He also opined that she needed in-depth psychological therapy which could take up to two years of weekly appointments.

17 In the light of the findings in the judgment of July 2009 he revised his opinion and, on the basis that Mother had either invented or considerably exaggerated events from childhood and early adult life, considered that a diagnosis of personality disorder within the emotionally unstable/borderline was strengthened. He accepted that she has probably had periods of clinical depression and agoraphobic symptoms but that there may even be a factitious element to her symptoms. As for her parenting ability he saw this as one where she is likely to parent in a reactive style largely dependent upon her own psychological state at the time. In the light of the expert neurological report which he had by then seen he concluded, in an addendum report, that Mother’s NEAD represented a further expression of her numerous psychological difficulties.

18 A consultant neurologist with a special interest in epilepsy, whose evidence was also not challenged, has indeed confirmed that Mother does not have epilepsy and has confirmed the diagnosis of NEAD. He states that the clinical records show that depression, agoraphobia and sleep disturbance have been the main causes of neglect of the children and not her ‘epileptic’ attacks. NEAD should not affect parenting capacity but may indicate wider mental health issues requiring additional appropriate treatment and supportive measures. In Mother’s case he did not consider that NEAD has a major impact on her parenting capacity but she would benefit from a referral to a specialist and appropriate psychological management for her condition.

19 The consultant forensic psychologist, who gave oral evidence, had prepared comprehensive reports on Mother and Father over a period of a year. Testing established that Mother is within the average range of intellectual functioning, as is Father. Comprehensive psychometric testing further indicated that in his opinion Mother was not attempting to exaggerate or feign any psychological or psychiatric symptoms. He too was concerned about her fits and that she was not then undergoing any treatment for them. He saw it as extremely important that the cause of these fits be understood. Apart from saying that ‘he is somewhat inflexible’ and ‘finds change difficult’ he had no adverse report to make in respect of Father’s psychological make-up. Aside from Mother’s fits he did not detect difficulties that would mean they could not offer a good enough standard of care to the children. However he drew attention to Mother’s ‘involvement in her own difficulties’ and her dependence on Father which places considerable strain on him. He concluded that there was a medium risk of emotional harm and emotional neglect and also potential physical neglect were the children to be returned.

20 Six months later he was asked to re-visit his opinion in the light of the psychiatric and neurological reports already described. He was now somewhat more concerned than he originally was that Mother has a number of psychological difficulties

“…which may include elements of emotionally unstable or borderline personality traits, which would mean that she will have a tendency to prioritise her needs before those of the children and also offer an inconsistent level of care. In addition she has a number of psychological symptoms which are related to post traumatic stress and she is a very ego-centred individual, very much centred upon her own difficulties.”

His opinion was now that

“…in the medium to long term she may have significant difficulty in offering emotional consistency and indeed prioritising the children. She is also highly dependent upon her relationship with Father and this place considerable strain on Father. It is therefore my opinion that both at present and in the medium-long term there is a medium risk of emotional harm and emotional neglect occurring towards the children and also a potential risk of physical neglect occurring within the family home if the children were returned to the couple’s care”.

21 Six months later again, aware by then of the findings made in July 2009, he re-considered his reports on Mother. His conclusion was

“In the case of Mother I have pointed out that I now have very significant concerns in relation to her ability to offer a ‘good enough’ standard of care to a child or children in her care and, in my view, is likely to be extremely ego-centred and attention-seeking and engage in a number of attention-seeking behaviours that may cause direct emotional harm to any children in her care. The evidence of the finding of fact now makes it clear that Mother now has no difficulty in manipulating her wider family and, indeed, causing harm within the wider family in order to obtain attention in order to meet her own needs. It is also my opinion that although Father has no significant psychological difficulties (he) would find it almost impossible to be able to protect any child in the couple’s joint care from the risks I assert Mother poses”.

22 Summarising his oral evidence, he confirmed that Father has no psychological difficulties and is not dependent on Mother but pointed out that he was unable to protect the children from the harm set out in the threshold document. He remained particularly concerned about Mother’s fits, which remain unresolved, and which may or may not be under conscious control. They may represent either real or functional impulsivity. If the former she so needs attention that she will fall and potentially injure herself. If the latter, her distress is so great that she ‘opts out’ of a situation. She needs specialist psychological work which could take at least two years because of her wide range of pervasive and enduring problems.

23 In addition he was concerned at her ability to act impulsively, for example to undermine any placements in which the children might find themselves in order to achieve what she wants, as evidenced by her lack of understanding of the effect of what she says on others, such as alienating the maternal grandparents without regard for the children. He agreed that she can be manipulative, egocentric and lacking insight, a good example being her apparent support for her father putting himself forward as carer for all three children (the merits of which I shall come to later). He agreed that Mother and Father have an enduring relationship, describing it as ‘stable but dysfunctionally so’ and on the plus side Mother had not sought to undermine either the foster placement or the contact managed by the paternal grandparents. In his view the difficulties in the parents’ relationship occur because of the pressures she puts on Father and she is emotionally demanding and inconsistent. She ‘needs to be the centre of his attention and of his emotional availability’. He saw the outlook for change as ‘poor’.

The independent social work evidence

24 The evidence of the parents’ ability to meet the future welfare needs of each of these three children came primarily from a very experienced and respected Independent Social Worker (ISW) instructed by the Children's Guardian. His comprehensive and thorough reports date initially from November 2008 and include assessments not only of Mother and Father but also of the maternal grandmother and B’s father. As with the psychologist, he was asked to re-visit his conclusions in the light of the findings made in July 2009.

25 The ISW’s first report devotes 57 pages to the history, background and current dynamics of the parents, their relationship and the children. He concluded that the parents have the capacity to meet the children’s basic care needs but do not apply this consistently. He recommended that they attend an appropriate parenting programme which would afford them the opportunity to engage in both theoretical and ‘hands on’ parenting with the benefit of constructive feedback after each session. His report deals with the fundamentals of a statutory framework assessment such as ensuring safety, emotional warmth, stimulation, guidance and boundaries, and stability. The parents admitted to him some of the shortcomings in their previous care of the children and in their relationship, which included a lack of communication between them, Father’s inability to challenge Mother and her inability to listen to his views. The ISW’s summary of the parents’ competences runs to 8 pages and his recommendations for a possible programme of intervention to a further 5. He recommended that direct work be done with the parents the results of which should be fed back weekly to a core group. In the interim he did not recommend the children being re-unified with the parents until the impact of this programme had been measured. He added that

“Their commitment and capacity to sustain the proposed approach now has to be tested and extended. If they are unable to demonstrate that they have the potential to achieve the required changes, within the proposed timetable, then decisions have to be made for the children which create for them the potential for permanency, either within their extended family or in a foster placement”.

26 His recommendations were taken up by a social work consultant (ID) whose brief was to undertake direct assessment sessions with the parents and to focus on the issues identified by the ISW, ie improving communication and decision taking, resolving conflict and developing strategies to address sensitive issues and resolve them in a constructive manner. The parents cooperated within the sessions and applied themselves well but three sessions of the six planned were cancelled by them. This extended the period of work which had to be re-timetabled. The parents then cancelled three further appointments. The outcome of all this was that ID reported that Father had attended five sessions and Mother only three. Because of their poor commitment to complete the programme

“…it is difficult to accurately assess if they have acquired sufficient ability to sustain such change when faced with more demanding challenges if the children were to be returned to their care”.

27 She went on to comment that Mother’s health appeared to be poor, having been cited as one of the reasons for her non-attendance, but this might simply be following an established pattern of non-cooperation and poor motivation. She also commented unfavourably on the state of the home which seemed to underline the lack of commitment to make improvements, (a point made by the social worker when she tried to visit in November 2009 and was turned away due to the state of the home).

28 This work was supplemented by another independent consultant (JB) who was asked to assess the couple’s parenting skills, particularly by reference to the headings in the ISW’s framework assessment. She observed contact on six occasions and had feedback sessions with the parents after each. The parents admitted to her their previous failures, as already described, putting it down to Mother’s mental health difficulties.

29 Following an interim report JB arranged three further observations of contact and three feedback sessions of which one did not proceed due to the parents both being unwell, although JB was not forewarned of this. In the course of these sessions the parents assured JB that they ‘would do whatever it took’ for their children to be returned home. JB’s summary was that the parents demonstrated an insight into the needs of their children and the ability to listen and implement advice and that they spoke of the children with great affection. The question that JB posed was whether they could sustain this if the children returned. She was concerned at the number of appointments missed by Mother and the amount of time she appeared to spend in bed when the children would need her support. Her view was that ongoing support would be required if stresses or difficulties were to arise.

30 Following this work the ISW was approached to report again, by which time he had become aware of the findings made in July 2009. He points out that the parents commitment to ID’s work with them was far worse than with JB and suggested that the explanation is that they found the former too challenging and demanding whereas the latter was pleasurable, involving as it did contact with the children. Overall he took the view that the attempt to assist the couple to move forward in the best interests of the children had proved a missed opportunity. He summed up his concerns as follows:

“Despite their behaviour being under the microscope of the court the parents’ inability, following the removal of the children, to jointly and constructively engage in a programme of therapeutic assessment of their relationship, designed to enable them to attempt to establish a ‘secure foundation’ upon which to parent these children;

Concerns within the couple assessment that Father is influenced and caught under his wife’s power and management and he is prepared to acquiesce in her control;

A real sense that the couple assessment was not taken seriously. It was a potentially positive opportunity for change which was misused by both;

Concerns within their parenting assessment as to their inability to consistently transfer theoretical approaches to parenting into action;

A finding of fact that raises grave concerns as to the honesty, trustworthiness, fabrications and reliability of Mother”.

He went on to say that whilst some progress was reported in assessment work, little had fundamentally changed within the couple dynamics.

31 In oral evidence the ISW reiterated his disappointment that the parents had not been more ‘proactive’. He pointed out that the parents needed to work openly and honestly with professionals and that this is ‘crucial’ as the ‘foundation of success’ if those professionals are to have the evidence to gauge how the parents will behave in the future. He was referred to the fact that Mother had allowed her own daughters overnight contact with their step-grandfather at a time when Mother was saying that he had sexually abused her as a child of similar age. Father had acquiesced in this, just as he appeared to have acquiesced in the proposal that Mother’ own father should be put forward as a carer for the children. On that basis the ISW saw Father as his wife’s ‘puppet’, as ‘managed by her’ and someone who will ‘say what she wants, not what he thinks is right’. In relation to the work by ID and JB and the missed sessions and lack of apparent commitment he commented:

“I would have thought that if the future of your children is at stake and you’re being asked and helped to bring about change, you would take that opportunity. It is sad that they didn’t and suggests that neither had the capacity to do what was asked of them”.

The assessments of the children

32 An assessment was requested from an independent social worker who is also a qualified play therapist, so I will call her PT. She is well known to this court and respected for her work in this field. Her task was to undertake a play therapy assessment of the children’s emotional, social and general development. In her report she says:

“The sense was gained that there is potential for A to move away from the family narrative of distorted, abusive childhood experiences and that A wishes to do so. But she is constrained by a strong sense of responsibility for, and identification with, her mother’s difficulties.”

As for B she said:

“She has a sunny disposition and her level of engagement with others is trusting and open. She has an expectation that she should be cared for because she is a child. She loves her mother. She has accepted that there were deficiencies in the level of care that she experienced in the care of her mother and stepfather and she is able to describe them”.

She also described her as adaptable, whilst A presents as a troubled girl who has lost hope in any form of help that is on offer. She went on to describe A as follows:

“She suffers from a serious ongoing health condition which means that she is a needy young girl who should have additional adult support. Instead she finds herself in a situation where her mother’s multiple health needs dominate family interactions and Father’s efforts to ensure that his wife’s needs are met have sometimes been exerted to the exclusion of his ability to care for the children. A copes with this situation by using two strategies. One is to take on the role of ‘next in charge’ within the family hierarchy. She then subsumes her own needs so that her mother’s needs are met and then she feels frustrated and let down. The other strategy is to be very childlike as she vies to become the most demanding of the sibling group. This strategy lowers her self esteem and leads to confusing and inappropriate interactions”.

33 PT was asked in oral evidence by Counsel for the Local Authority what she would recommend if the girls are not to return home. Her answer was:

“If Mother could help A to move on it would help the girls enormously. Both A and B have an internal idea that the principal aspect of their family life is to preserve their mother’s happiness. They are prepared to deny their own needs to do so. That is a cognitive distortion. They have a right to have their needs met, because they’re children, not just because a parent wishes to. A and B don’t have that concept in their heads. If Mother could convey to them that they should be looked after properly, because she can’t, that would free them up to be children”.

34 An independent educational psychologist (IEP) with special experience of assessing and working with children was asked to consider the attachment that exists between the children themselves, to supplement the views that PT had expressed in an addendum report. He found the emotional relationships that existed between the sisters to be weak, insecure and unsupported with a likelihood that A will undermine B if they are placed together. C is still developing relationships with his sisters and appears to enjoy their engagement with him but shows no particular preference. All three children show behaviour indicative of attachment difficulties with their mother. These result from Mother’s own unresolved attachment difficulties and mental health problems. Both A and B are united in their loyalty to Mother and Father but B is more emotionally balanced and stable than A who is more closed minded and has developed a mutual distrust of professional intervention and judgment that she shares with her mother. All the children will experience distress if they have to move to separate placements, C least because of his age and B will display more resilience and understanding than A.

35 In oral evidence the IEP said about A that her wishes are strongly felt and she has clear views as to where she wants to live. She does not accept that her parents have played any role in her present situation and has shut out any criticism of them. She will be distressed and resentful if not returned home. B is more resilient and open to change. She blames herself for being in care, but should of course not bear that guilt. She gets more support from C’s response to her than she gets from A. A and B are not particularly close, but that is partly a function of their ages. For C his sisters are more important to him than he is to them. He has a familiarity with his sisters rather than a deep-seated emotional relationship. The IEP said that the children would say that the link between the three of them should be maintained but his view is that this must not be a substitute for making other links. For example Mother is, in his opinion, preventing A from accessing more empathic adults. He said that A ‘has to move forward and put the past into perspective’ but accepted that this will meet with fierce resistance from A. Nevertheless his view is that, faced with the inevitable, A will adapt.

36 His advice was that the children’s primary need is to have a clear idea of where they will be living. The priority is to secure long-term placements. Contact with each other and with the parents is very important but must be secondary to the primary aim. He too stated that it would greatly help A and B if Mother supported their placements and that A craves this sort of support. The placement becomes more secure if Mother ‘gives her permission’.

37 The social worker (SW) responsible for these children has been involved with the family since October 2007. It is plain that she does not enjoy the confidence of the parents but that may be attributable to the decisions SW has had to make. It is her care plan, based on her own findings but guided by the expert evidence and the input of the Children's Guardian, that the Local Authority puts forward for approval. She confirms how upset A will be if she cannot return home and that there is a possibility of reactive self-harm again as there was in December 2009. She also confirmed some of the positives that are to be found in the core assessments that were carried out by another social worker in July 2007, although these have to be set against the events of August the following year. She prepared the assessment of the paternal grandparents as long term carers for C which was negative, for reasons I shall come to in more detail but which were essentially their ages, the paternal grandmother’s health and their refusal to accept Mother’s mental health difficulties. She agreed that they have managed contact satisfactorily and have adhered to the contract of expectations entered into for this purpose. She further agreed that C does not require any special parenting and she has no concerns about the standard of their care. She would have no concerns if they had to provide that care for 6 months or a year, but in this case they would, in effect, have to provide it until C is 18. She emphasised that the aim was to keep the children in the family if possible; but it is not. She acknowledged that A and B know what life was like at home and yet, despite 20 months in foster care, they still want to go home. She has observed the girls’ contact with the maternal great uncle and aunt and it has been fine.

38 The Children's Guardian’s position is that she entirely supports the care plans, on which she was in fact consulted. She also endorses the special guardianship support plan put forward to help the great uncle and aunt financially. Having listened to the evidence her views did not change. She said:

“I have considered the expert evidence and the parents’ evidence but when you look at the initial concerns, and after nearly two years, the parents don’t feel they need help and don’t accept there are problems. I struggle with that. You have to recognise your problem before you go on to deal with it. The parents are very plausible, they say they will do anything to get the children home, but over two years I’ve seen no change at all. There has been no attempt to access services, for example a parenting course or mental health treatment, instead there is a ‘blame culture’ in which everything is someone else’s fault”.

39 The Children's Guardian confirmed the strength of A’s wishes and that A remains adamant she wants to return home, but believes this is not independent thought but is based on worries about her mother. The Guardian’s view is that the decision has to be taken away from A who has been making decisions all her life.

40 She was attacked for dealing with the paternal grandparents’ (PGPs) position too cursorily in her report, a criticism that was well made as this is an important alternative that required careful consideration. Her position on this is however that when she first proposed to the PGPs in 2008 that they might be interim carers for the children the PGM was clear that she would not be able to cope. Nothing has changed in the interim save that it is now ‘something they feel they must do’. She suggests that the PGPs have no insight into the risk the parents present to the children and if they see nothing wrong with their parenting then they will provide no protection. Additionally if C lived with the PGPs he would be confused as to ‘who did what and where his primary attachment lay’. He needs of course a firm attachment for childhood. She heard the PGM say that she believes the parents have changed in recent months when in fact her view is that they have not.

The parental grandparents

41 This brings me to the issue of whether C could be placed with the PGPs under a residence order. There is no question of the Local Authority supporting a care or supervision order, not least because the PGPs have been comprehensively assessed and would be unable to satisfy the regulations governing kinship carers. The PGPs have not applied for a special guardianship order, probably because they have been without legal advice. This does not prejudice their position because if a residence order could be made in their favour, special guardianship could be considered at a later date. But should a residence order be made? It would only be on the basis that C could not be returned to the care of his parents. In that case the PGPs would have to become C’s primary carers to the exclusion of the parents, save for periodic contact, and would have to protect C from any potential harm the parents might present. The PGPs could not simply be temporary carers with a view to C returning home in the near future.

42 In principle the PGPs’ proposal is an attractive one. If C cannot return home it would provide an alternative that would keep C within the wider family. But there are significant drawbacks. As confirmed by the SW, there is no reason to doubt their love for their grandson and their desire to do all they can to keep him in the family. That is entirely laudable and beyond criticism but the question that must be asked is whether it is practicable. When the children had to be accommodated in August 2008 the PGM, who is now 60, spoke to the SW and said she could not take the children due to her health. She was apparently going through a lot of pain at the time and felt she couldn’t cope. She then withdrew from an assessment in January 2009 in respect of C when she again decided that she could not manage his long-term care. At the time she was receiving Incapacity Benefit but had applied for Disability Living Allowance. Her paper applications for DLA (all of which were in fact refused) were examined in some detail and a very unhappy state of affairs emerged. If the content is to be believed, the PGM had become virtually housebound, unable to walk any distance without a stick and the support of her 66 year old retired husband, reliant on her husband for any household tasks which involved lifting and requiring his help for such everyday tasks as getting in and out of bed, dressing or bathing. She would have to stop twice just to negotiate the stairs. She stumbles or falls almost daily and requires help to get up again. Without going into unnecessary detail she has respiratory, hip and spinal conditions which are not going to improve and which she concedes are likely to worsen. All this she set out in detail in her DLA applications which were confirmed by a statement of their truth.

43 In her oral evidence the PGM was obliged to confirm that she had not lied in those applications, but even allowing for a measure of hyperbole she has still painted a picture of a semi-invalid who requires constant care. She said her doctor has told her she may finish up in a wheelchair. Her husband is plainly a willing helper for his wife and, although he has stayed very much in the background, a supporter of the notion that together they could provide care for a busy four year old for the remainder of his childhood. Even young and physically fit parents find childcare tiring. For grandparents to take on the task in their 60s is daunting. I regret to say that I find their proposal impractical. I say that with a heavy heart because if they were younger and fitter, and more amenable to protecting C from any harm, it would probably be very different. However it would be flying in the face of the clearest facts to accept that the PGPs could cope with this task for the many years it would involve.

44 There are other reasons. Given that the PGPs see nothing wrong with the parents’ past care of the children, reject the findings of the hearing in July 2009, have not troubled to acquaint themselves with the expert evidence and see no reason why the children should not return home forthwith, their assertion that they would enforce even a limited contact order is hard to accept at face value and their independence from the parents would be very much in doubt.

The parents’ evidence

45 In giving oral evidence both Mother and Father had the opportunity to show that they had acknowledged past failures, accepted the need to put things right and had taken steps to give the children the best chance of returning to their care.

46 Mother started by saying that she is ready for the children to come home, stronger than she has been for a long time, more mentally stable and in no need of any therapy. Confusingly she did not disagree with the psychologist’s contrary opinion and would accept counselling alongside having the children home. She also accepted the various psychiatric and psychological opinions about her mental state at the time the children were removed. It then emerged that despite the clear recommendation that she should seek psychotherapy she had done nothing about this. At the same time she accepted that the circumstances that gave rise to the removal of the children in August 2008 were due to her mental state at that time, something which has not subsequently been addressed by her.

47 She was obliged, despite her statement to the contrary (already mentioned), to accept that she had not done enough for her children, allowed poor home conditions, failed to get her children to medical appointments or even to school, but blamed all this on her depression, making it all the more difficult to understand why she had not sought treatment. She agreed that she had not engaged with ID and that when there was a recommendation that C should start school neither she nor Father took any effective steps to register him. In effect she was admitting to inertia and lack of engagement with professionals who were trying to help her, but blaming it on illness and fits.

48 She was also obliged to admit that she had made accusations of drug and alcohol abuse by the maternal great uncle and aunt without a shred of evidence, the implication being that she will make false accusations if it suits her agenda and even if it puts a placement for the children in jeopardy. This was in stark contrast to her assertion, heard for the first time in oral evidence, that she now supports the special guardianship plan if the girls cannot return home.

49 She denied that she had recruited her birth father as a carer for the children, if they could not return home. However she did not oppose permission being granted for an assessment of him by an independent social worker, in the course of which he withdrew his proposal and stated that he had only put himself forward at the invitation of his daughter. He was quite right to withdraw. His own record as a parent, if Mother’s account to the ISW is to be believed, was one of violence, heavy drinking, damage to the home, cruelty to family pets, and even involving Mother as a 6 year old in a robbery. It seems inconceivable that Mother, who had very little contact with him over the years, could have thought that he would be a suitable long term carer for her children yet the strong inference is that she was prepared to use him for her own ends rather than putting the children’s welfare first.

50 Father’s evidence was that Mother is much better, goes out a lot more, shops on her own and has a lot more ‘up’ days than ‘down’ days. He said that communication between them had improved considerably. He stated that there was nothing he had seen to suggest his parents could not care for C. He rejects the findings of fact about his wife and he rejects the expert medical and other opinions about her. This may explain why he has done nothing to encourage Mother to access treatment. There may be another reason which is that, by his own admission, he finds it difficult to challenge his wife. This is perhaps best illustrated by him acquiescing in the girls having overnight contact in the past with their step-grandfather despite the fact that Father knew of his wife’s allegations of sexual abuse against her when she was at the same age. He also raised no objection to Mother putting her birth father forward as a carer for the children, despite knowing of his history. He agreed that was a serious error of judgment. He says he feels powerless in the face of his wife’s decisions. Mother now says that she would agree to contact with the MGPs resuming, which he said they had not discussed.

51 His evidence of the part he played before the removal of the children raises inevitable questions. Why, if Mother was ill or depressed and unable to meet her commitments with the children, did he not step in? Why did he not ensure they went to medical appointments, and to school on time? He was at home and unemployed so why did he not do the necessary housework? He really has no answer to this but he did eventually accept in cross-examination that he could have done better and that part of the reason why the children are in care is through his own fault. He, too, was ready to blame others for his predicament but extremely reluctant to admit his own shortcomings. When it was put to him directly that he did not feel there was any need for him and his wife to change, his answer was “That’s my view, yes”.

The maternal great uncle and aunt

52 There is, on the other hand, no difficulty in accepting the proposals put forward by the maternal great uncle and aunt to care for both girls, if A and B cannot return home. Their suitability has been assessed favourably in a special guardianship report and is not in issue. Mother now says she supports this placement if her wishes are not met. B has enjoyed her time with her aunt and uncle and has said that she is prepared to live there if she cannot return home. A was reluctant at first but appears to have warmed to them at contact. For their part they are very anxious that A should not come to live with them unless she is willing and they support the idea of giving her time to choose. They have said that they will treat A and B as they treat their own daughter and, having heard both of them briefly in evidence, I believe they will do their utmost to achieve that. It is also understandable that they feel they can only offer care to A and B.

The welfare checklist

53 In coming to a conclusion as to what each child’s welfare requires by way of a final order a court must have regard, in particular, to certain specific matters. If a placement order is being considered the list is enlarged. Any final decision must be based on the evidence in the case and expert evidence can only be ignored for good reason.

54 The first issue is the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding). In this case A and B have been separately represented because, as has been seen, their views are diametrically opposed to those of the Children's Guardian. I have received a letter from B who is vehemently opposed to adoption of her brother. I have no doubt whatsoever of the sincerity of her plea. I had the advantage of spending 20 minutes with A at her request and her solicitor’s note of that discussion has been circulated. She is an intelligent, articulate girl whose feelings are deeply held. I note that both she and B have been doing well at school since being in foster care, their attendance now being exemplary. A has aspirations in life which I very much hope she pursues. In her case there can be little doubt that she has a good understanding of her situation, which lends weight to her wishes, but she is not aware of all the facts, nor of course the expert evidence in this case, and she is not prepared (as yet) to give rational consideration to the alternatives. B is said to be more resilient and perhaps more reflective on this point but she is also that much younger. Their wishes and feelings must be given due weight and placed in the balance and make any conclusion adverse to their wishes that much more difficult to arrive at.

55 C’s wishes are not of course forthcoming. All I know is that he has bonded well with his carer, that he enjoys a bond with his sisters and would no doubt want to remain part of that sibling group, and that he enjoys contact with his parents, although he tends to play up with them more than with his foster carer. It is to be assumed that he would wish to be brought up within his own family.

56 Their physical, emotional and educational needs. These are the needs shared by all children during their upbringing: for love, emotional warmth, safety, stability and the imposition of behavioural boundaries, and hardly need further elaboration. In the context of this case the need for consistent education is relevant.

57 The effect on each of them of any change in circumstances and, in C’s case if a placement order were to be made, the effect on him for life of becoming adopted. This of course is at the heart of this case and has already been discussed in different contexts. The effect on A if she is to live away from her mother will be initial grief. She cannot accept such an outcome. B is more resilient but she too will be devastated. They would be looking for much contact with the parents so the parental bond would not be severed. For C it would be life-changing but the evidence is that the bond formed with his carer could be transferred to an adoptive family and that there are prospective adopters available. I do not shy away from the fact that there is no guarantee that adoption would be successful in his case, nor that there is a probability that the sibling bond would be lost for all of them as the prospect of adopters who would agree to post-adoption sibling contact is doubtful.

58 The child’s age, sex, background and any other relevant characteristics. These factors have largely been covered already. I repeat that C is a child with no intellectual or physical disadvantages that might impede his adoption, save perhaps for his age.

59 Any harm which the child has suffered or is at risk of suffering. This again is at the heart of this case but is tied in with how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs. There is abundant evidence that all three children suffered significant harm while in the care of Mother and Father. This is admitted, reluctantly, by both of them. They have no acceptable explanation between them to justify it nor why they did not respond to outside help before things got to the point where the children had to be removed for their own safety.

60 The parents contend that they have learned from these mistakes. There is, sadly, no evidence to support that. On the contrary they do not see any need to change and say so. Consequently they have not seen fit to cooperate with professional agencies sent in to help them and have resisted advice. They have not even been able to improve their living conditions despite admitting that standards in the home were unacceptable. Their inertia and lack of motivation is all the more surprising given their assertions that they want to do anything they can to get their children back. They are not without intelligence and they must have realised they had to do more but they seem unable to match actions to words. Underlying all this is Mother’s mental state which remains untreated and Father’s seeming inability to galvanise either himself or his wife into action.

61 The logical consequence of this is that things are not going to change and the pressures of having the children back in the home will only increase their problems. If there is no external control, things will presumably revert to the way they were. Why should the parents change things when they see no need to? The home conditions will remain unacceptable, the children’s schooling will suffer, the children’s health and A’s diabetes in particular will not get the attention needed and the girls will return to being carers for their mother. The long-term effect on C of being raised in this environment is likely to be enormously damaging.

62 The expert evidence of the parents, their personal difficulties and their parenting abilities has been comprehensively assessed. I am driven to the conclusion that such a weight of evidence, most of it unchallenged or beyond challenge, simply cannot be set aside. In fact I found the evidence I have recorded highly persuasive. The difficult balance has to be struck between the evidence of likely future harm with its welfare implications for the children on one side and the wishes of the children and their entitlement to family life on the other. My conclusion is that if the children’s welfare is the paramount consideration, as of course it is, the orders proposed in the care plans are the preferred options.

63 The capabilities of the maternal great uncle and aunt have already been described and of course the same issue in respect of the PGPs has been dealt with above. I reiterate how sad it is to have to record this because it became, as I think they recognised, the last chance of anyone in the family coming forward to care for C. The ability and willingness of any of the child’s relatives to provide the child with a secure environment in which the child can develop is a factor to be taken into account in considering a placement order.

64 Finally there is the range of powers available to the court. The choice for C is stark. Having concluded that he will be at risk of significant further harm if he returns to his parents’ care, the only alternative is a placement order. The plan is to attempt to find a placement that will allow post-adoption sibling contact. I support the attempt but it would be unrealistic to be prescriptive about this and deny C what might be the ideal match just because the prospective adopters cannot accept such contact. I therefore endorse the amendments to paragraph 2.5 of C’s care plan for the reasons there set out.

65 No court willingly damages or destroys sibling relationships if that can be avoided but that is the unhappy position this court is forced into. I have taken account of the expert evidence in this regard. A and B can justifiably feel bitter at their loss and it is no consolation to be told the reasons behind it. It is something with which they will have to come to terms. As for their position, A has the choice of remaining in foster care or moving to live with B, as I am satisfied that the best outcome for her is to move to live with her great uncle and aunt under a special guardianship order. I very much hope that A will decide that this is her best long term option but it must be her choice and entered into willingly and with the desire to make a success of it. I am prepared to make an interim order in her case to give her time to consider her decision.

66 The real issue here is the frequency of contact. The care plan is for contact between the girls and the parents to be gradually reduced to six times per year and supervised for 1 ½ hours at a contact centre. The reasoning behind this is that A and B will have to put down new roots and form fresh attachments and this will be hampered if they remain locked into the past. It is also designed to ‘send out a message’ to the girls that these are now the long-term arrangements. This restricted contact has been strongly attacked on the parents’ and the children’s behalf. Again, a balance has to be struck if it is to be workable. The proposal of six times p.a. is somewhat arbitrary and probably based on the number of holidays and half terms. I am very uneasy about this and concerned that it will be seen by the girls as punitive. It is not right to describe this as ‘identity’ contact, it is more than that. These girls have spent most of their lives with their Mother and despite everything that has happened they still feel considerable loyalty to her even if they are to form loyalties elsewhere. If they are to accept the new regime, which in my judgment is in their long-term interests and simply must work, they must be offered a more acceptable degree of contact. In my view, balancing up the various views about this, contact should not be so infrequent nor should the circumstances be so limiting. I am prepared to make an order for contact every six weeks, which should take place during holiday periods where possible. It should be supervised at first but with time that supervision could be carried out by a family member. The length of contact should be progressively increased, if it takes place satisfactorily, to half a day during holiday periods and should be activity-based.

67 The other orders to be made are, as agreed, a parental responsibility order for B’s father and contact for the girls to him and to the MGM as set out in the care plans. In addition there will be a supervision order for one year to assist the maternal great uncle and aunt with contact arrangements. A will remain under an interim care order for three months when a final order will be considered. In the light of these conclusions and the parents’ understandable refusal to agree to C’s adoption, I have to dispense with their consent on the ground that C’s welfare requires it in order to make the order placing him with the Local Authority for adoption as well as in their care.

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	England and Wales County Court (Family)
You are here: BAILII >> Databases >> England and Wales County Court (Family) >> X Local Authority v M & Ors [2010] EWCC 19 (Fam) (2010) URL: http://www.bailii.org/ew/cases/EWCC/Fam/2010/19.html Cite as: [2010] EWCC 19 (Fam)

England and Wales County Court (Family)