BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just Β£1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales Family Court Decisions (High Court Judges) |
||
|
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> XJA & YJA (Children), Re (Care Orders: Domestic Abuse) [2024] EWFC 97 (13 May 2024) URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2024/97.html Cite as: [2024] EWFC 97 |
||
[New search] [Printable PDF version] [Help]
B e f o r e :
____________________
| A Local Authority |
Applicant |
|
| - and - |
||
| A mother |
||
| A father |
||
| XJA (1) YJA (2) (through their Children's Guardian) |
Respondent |
|
Re. XJA and YJA (Children) (Care Orders: domestic abuse) |
____________________
Tony Woods, Solicitor (instructed by the Family Law Group) for the Mother
Alexander Ormiston, Counsel (instructed by BLM Solicitors) for the Father
Helen Little, Counsel (instructed by Hepburn Delaney) for the children
Hearing dates: 24 26 April 2024, 1 May 2024
____________________
Crown Copyright ©
Deputy High Court Judge Paul Bowen KC:
Introduction
Parties' positions
Background
Pre-proceedings chronology
(a) 11.11.2010: Contact from [X] School. The children's sister, Child 1, told a Teaching Assistant, daddy smacks her face if she loses something or is naughty. Parent Support Worker spoke to her mother and Child 1 did not come to school the next day. School phoned and were told she had a fever. The next day, the head teacher asked Child 1 how she was, Child 1 told her she had a fever. She was asked if everything was okay at home and she said daddy got cross. She said he slapped her around the face - she became very anxious when asked if she would like the teacher to speak to daddy and said no, because when we did that the other day he was very cross and hurt her really badly in the bath. Outcome - progressed to referral and initial assessment undertaken - No Further Action was recommended.
(b) 12.01.2011: Contact from [X] School Child 1 did not attend school and when school rang home to find out why there was no answer, her mother returned school's missed call later and said Child 1 was not in school because she has a pain on the leg. However, she did not clarify how or why and put Child 1 on the phone to speak to school instead. Child 1 did not say much as was prompted by her mother in the background. Outcome - unannounced visit by school - No Further Action was recommended.
(c) 05.01.2012: Contact from [X] School Concerns were raised in relation to the children stating parents hurt them. Child 2 shared he would be hurt because he couldn't find his PE kit and became very frightened and distressed. Outcome - progressed to referral and initial assessment undertaken. [M] and [F] denied physically chastising their children. The children have not reported to the social worker any concerns in this area. The school continued to monitor and report any future concerns - No Further Action was recommended.
(d) 04.05.2012: Contact from [X] School Child 2 came to school very distressed and claimed that mummy had hit him. There was a mark on his arm which he pointed to as where it hurt. This could have been a skin blemish but it could have also been a mark from a ring or a bruise. Outcome - progressed to further investigations to be undertaken. An initial assessment was completed and the case was transferred to the Family Support Team.
(e) 16.01.2017: Contact from [Y] Hospital [M] presented to [Y] Hospital for the first time on 14.01.2017 with her husband @ 21:15 having had 'a vase fall on her' causing a black eye/bruise to her right eye. Her husband appeared to answer the questions in regard to how the injury occurred which concerned staff. Also parents left their 3 children at home alone to attend hospital. There were concerns as to why parents presented to [Y] Hospital and not [local hospital]. [Y] Hospital had no previous records for [M], she was discharged home @ 22:30. Staff called the family @ 23:00 and they were at home again with the children. Outcome - [F] was spoken to, he appeared to be doing the talking and his story remained consistent. Professionals were unable to speak to [M] alone to fully ascertain how the injury occurred. His and Child 2's account of who they were staying with when parents went to hospital is also consistent. No health or education concerns. No Further Action was recommended.
(f) 27.09.2020: Contact from police. The family's neighbours reported domestic abuse between parents where [F] was reported to hit [M]. [F] was arrested for Actual Bodily Harm, however, [M] did not complete a statement. Children's Social Care to continue working with and supporting the family.
(g) 06.10.2020: Contact from the local Hospital [M] attended the local Hospital with pain to her leg and head and both ears which she has described as a result of an assault from her husband 1 week ago. She shared that this had been ongoing.
(h) 09.02.2021: Contact from police. The family's neighbours reported domestic abuse between parents where [F] was reported to hit [M]. [F] was arrested, however, [M] did not complete a statement. Children's Social Care to continue working with and supporting the family.
(i) 31.03.2021: Allegation from [M] to Police [M] reported [F] had hit her, she stated he drinks everyday, and they argue about money as she is the only one who works, she said he was asleep and she woke up to ask for support, he woke up picked up a cricket bat and hit her. [F] threatened to kill [M] with a knife, she took the opportunity to get in the car and run away, she drove to the school and called the police.
(j) 07.09.2021: Allegation from [M] to Police. Caller can hear female screaming from next door and sounds like male is hitting her. [F] slapped [M] on the face after an argument about cooking, [F] was arrested, and she reported he had been drinking and he was not normally that way. [M] stated she would like him to be told his behaviour is not acceptable, it was deemed no further action in custody, there was no concerns around [F] or children at the time, [M] refused to support.
(k) 05.10.2020 [I assume this is 2021] - Assault with injury No further action [M] alleged to Police that she had been beaten by her husband causing pain in her legs and in her ear.
(l) 31.03.2022 - Assault without injury No further action [M] disclosed to Police that [F] has been hitting her, she fled the address to a local school. [M] alleged to Police two historic assaults whilst taking a statement, these occurred around January 2022 and end of February 2022.
(m) 14.04.2022: Neighbours reported Domestic violence to Police. There was an incident at the family home. Child 2 witnessed his stepfather, [F] punch his mother 5 times to the head and threatened to kill her. Child 2 went to the neighbour's address, and they supported him to call the police. [F] became angry following [M] dropping a dustpan and brush. [F] stated if police arrived, he would kill [M], he then fled the scene but was later located and arrested. [M] and Child 2 gave statements. [F] denied everything in the interview, he changed his account, initially he said Child 2 was not present but when challenged he said he was present. He was arrested and kept overnight then released with bail conditions in place. [F] was not to contact [M] or be at the home address until the court hearing on 1 June 2022. [F] was charged with assault with battery, the court case was adjourned until 14 June 2022.
(n) [In June 2022, F was convicted and sentenced to an 18 month Community Order for an offence of Assault by Beating in relation to this incident. Upon sentencing a Restraining Order was made to protect M, stating that F was not to go or enter the family home. This Restraining Order terminated on 13 September 2022.]
(o) Most recent referrals 22.09.2022: Child 2 attended school with an injury to the left side of his head. He alleged that this was caused by his stepfather assaulting him the previous night. There was a restraining order for his mother against his stepfather that meant he could not come into the home address, for three months which expired on the 13th September 2022. Child 2 reported that his 'dad' had been coming to the home and was sometimes sleeping in the home whilst the restraining order was in place. Child 2's mother denied being present for the assault but Child 2 said his mum tried to stop his stepfather from hitting him. She said she washed his bloody clothes, but later said to police they were in the bin.
At school on 20/09/22 [Child 2] went to his Head Teacher's office, telling her that he could not go home before bursting into tears. He had an inch long cut to his head which he said he had sustained when [F] pushed him against the corner of a wall. He also alluded to a previous incident where [F] had punched him. The trigger for this behaviour appears to have been that [Child 2] had been testing boundaries in stayed out until 21:00 without asking or telling his parents where he was, as well as their concerns (unconfirmed) that he has started using illicit drugs. [F] is reported to have been living at the address in breach of the Child Safety Plan expressly prohibiting him from doing so, something which [M] has not disclosed to the Social Worker during the course of their interactions. There had also been a Restraining Order in place until July 2022, which [F] is also reported to have breached. [F] has been bailed to an address in Feltham and is due to answer bail on the 18th December 2022. He has failed to keep in contact with Probation at the date of this assessment and is due in court in relation to the breach on 03/11/22. [M] is the victim of the index offence (see details below). She has struggled to understand why agencies are concerned and appears to genuinely believe that she will not be able to cope without [F], although there is no evidence of this based on what Children's Services know about the family and the support available to them.
The parenting capacity is not currently considered to be good enough and there are concerns that if parents do not engage with support to address the volatile nature of their relationship and their ability to parent the children positively without resorting to physical chastisement that the children could be physically hurt, and their emotional wellbeing will be affected negatively. A detailed plan of recommendations with timescales will be set out for parents to reduce the risk of harm to the children to an acceptable level.
[M] Full Scale Intelligence Quotient (FSIQ) was assessed to be within the Borderline Range. This means that she does not meet the threshold for having a learning disability. However, her score is at the lowest point of the Borderline range and therefore she is likely to experience some difficulties in understanding and processing standard forms of information. Her verbal comprehension, perceptual reasoning, working memory and processing speed were all assessed to be within the Borderline Range'.
The care proceedings chronology
Parenting assessment 15 February 2024
[Child 2, Child 3 and Child 4] have all experienced varying degrees of physical chastisement throughout their lives. They have also witnessed arguments between parents and violence perpetrated by their father against their mother. Parents have asserted that the children have not witnessed any violence, however there has been multiple occasions of neighbours witnessing these arguments and feeling the need to call the police, therefore it is conceivable that this has in some way been witnessed by the children. Child 3 has spoken of being scared to end up involved in the arguments, he spoke of being trapped in them, and unable to leave, giving the impression of being used as ammunition within these arguments.
There are instances throughout the case recordings that Child 1 and Child 2 have stated that they have been reprimanded for having told professionals about the physical chastisement they have experienced. During a home visit on 25th August following the incident of Child 2 being assaulted, Child 1 did not wish to show the social worker her split lip for fear of getting in trouble for it. During Direct Work session with Child 4 on 1st December 2023 he told the social worker 'mummy told me if I tell you about Daddy he won't come back forever'. This paints a picture where the children are experiencing abuse in the form of physical chastisement, as well as witnessing aggression and violence towards their mother, but being put in a position where they are not allowed to speak about this. Certainly, for a child as young as Child 4 this is confusing and difficult. Throughout the time that Children's Services have been involved there has been difficulty in gaining information with regards to their lived experience and there has been continued concern that they are being coached in what to say to professionals.
It is clear from observations of the family that there is love in the family. All of the children report a fondness of mum and that they feel loved, she is kind and caring. There have been similar reports in relation to their father and the observations of greetings and goodbyes during family time are indicative of a bond between children and parents. All of the siblings are equally close, affectionate and desire to support and care for each other. Despite the unpredictability of their father's behaviour, witnessing aggressive and violent behaviour and experiencing physical assault in the manner of chastisement, they all feel loved and have developed a bond as a family. This is important to note but should not be taken as an indication that there has not potentially been damage caused by these experiences.
The main concern for [M] is whether she is able to prioritise the needs of her children over the needs and desires of her husband. [M] states that she wants to have time without her husband in the family home, so that he can prove to her and the children that he has changed and that he can sustain this change. Whilst this appears to be a genuine response and intention, she has failed to ensure this in the past and there remains concern that she is easily manipulated and coerced by her husband, leaving the question as to whether she will be resilient enough to ensure he remains unable to have free access to the family home, her and the children
The Goals and Expectations document 15 April 2024
(a) M to complete the Freedom Program to gain a better understanding of Domestic abuse and how this impacts herself and her children; Talking Therapies to enable her to explore her experiences in a safe environment where she can be open and honest about her feelings and the impact, they have to both her relationship with F and the impact this has for the children; and parenting classes to support her in identifying and understanding methods of managing issues of sibling conflict and to be equipped with the tools to maintain routines and boundaries in addition to enabling her to support Child 4 in regulating his emotions.
(b) M must not allow F in the family home until a risk assessment is completed by the LA and he has undertaken: (i) either Building Better Relationships with Probation or Fresh Start, ideally this would be in a group setting where F would be exposed to other men who are able to express their feelings and experiences and show their own vulnerability. This may enable F to feel supported in sharing his own feelings and experiences. F must engage in this process in a meaningful way to enable his motivation to change to be observed. (ii) F to be referred for and to engage in talking therapy to encourage him to engage more effectively with his feelings and to be able to recognise and express them in healthy ways. (iii) F to attended parenting classes to support him in identifying alternative behaviour management strategies and to support him in learning to be emotionally available and supportive to his sons and to enable him to develop skills to support Child 4 in regulating his emotions and understanding the need for consistent routine and structure and be equipped with the tools to maintain routines and boundaries. (iv) F to engage with local addiction recovery services to explore his alcohol use and the impact this has to both his self and his family members.
Witness evidence
Evidence of the social worker
Evidence of mother
Evidence of the father
Evidence of the Guardian
The s 31A care plan
Threshold
Physical Chastisement of children
Domestic Abuse
(a) On 25 August 2023 at approximately 2.00am, there was a domestic abuse occurrence in the family home. All of the children were in the home at the time and were exposed to the domestic abuse. M was present and failed to report the incident to Police or professionals.
(b) On 14 April 2022, F assaulted M punching and slapping her to the head 10-15 times. This incident was witnessed by Child 2 who had to ask a neighbour to call the Police. F was charged with battery and pled guilty.
(c) On 31 March 2022, M was assaulted by F punching and slapping her and making threats to kill her. When giving an account to the Police, M reported being assaulted by F on two further occasions in January and February 2022.
(d) On 7 September 2020, F assaulted M slapping her to the face during an argument. M refused to support any criminal proceedings against F. The children were in the home at the time of the incident.
(e) On 5 October 2020, M attended A&E following a fall at work. She was noted to have bruises to her legs and suspected perforated ear drum which she told professionals was as a result of the assault from her husband on 7th September 2020. [SWET, p.9; Police Disclosure, p.36]
(f) On 27 September 2020, F assaulted M hitting her a number of times to the face and legs. The assault took place in the home and the street outside the home and was reported to Police by a neighbour. M failed to provide a statement to the police. The children were in the home at the time of the incident.
(g) During direct work with the children, Child 2, Child 4 and Child 3 have all shared worries about arguments between the parents which they have been exposed to and witnessed.
Neglect
(a) M has failed to protect the children and keep them safe from significant harm. She has failed to report incidents of domestic abuse perpetrated, to the Police and refused to support the Police in proceedings against F.
(b) M and F have not consistently engaged with professionals, support or followed advice. Parents have refused to follow advice and safety plans designed to keep the children safe. Parents have failed to engage meaningfully with professionals and support identified to address the risks impacting their children.
(c) M and F have, on occasions, been unable to implement appropriate guidance and boundaries for the children which has resulted in Child 2 having numerous missing episodes and being at risk of criminal exploitation.
(d) School report that, on occasion, Child 4 presents as tired and sleepy at school. On some occasions Child 4 has had to stay late at school due to parents' failure to collect him.
Legal framework
Care Orders and Supervisions Orders
The exercise to be conducted by the Court
Threshold
(a) The threshold criteria are set out in s 31(2), namely (a) that the child concerned is suffering, or is likely to suffer, significant harm (the 'significant harm' criteria) and (b) that the harm, or likelihood of harm, is attributable to (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child's being beyond parental control (the 'attributable' criteria).
(b) As regards the 'significant harm' condition, the general rule is that the burden of proof rests upon the local authority and that the standard of proof of past facts is the balance of probabilities. When considering the likelihood of future harm, what must be shown is a real possibility of such harm, a possibility that cannot sensibly be ignored, having regard to the nature and gravity of the feared harm in the particular case. Both past and future harm can only be established on the basis of proven facts. Doubts or suspicions are not enough: B (Children) (Uncertain Perpetrator), Re. [2019] 1 WLR 4440, [40].
(c) A child who sees or hears, or experiences the effects of, domestic abuse that is perpetrated by, or which is inflicted on, a person to whom they are related is a 'victim' of domestic abuse: Domestic Abuse Act 2021, s 3. Such exposure is capable of amounting to 'significant harm'. In recent years there has been an increasing awareness that domestic abuse may occur when a person subjects another to a pattern of behaviour amounting to 'controlling or coercive behaviour'. The definition of such behaviour is to be found in PD 12J, which in turn derives from statutory guidance issued by the Home Office under s 77 of the Serious Crime Act 2015 following the introduction of the new offence of controlling or coercive behaviour under s 76: see H-N (Allegations of domestic abuse), Re. (CA) [2022] 1 WLR 2681, [29-32]; EF (Abduction: Hague Convention (Slovakia), Re. [2023] EWHC 505 (Fam), [32-36].
What order should be made
(a) The child's welfare ('best interests') is the court's 'paramount consideration' (s 1(1)).
(b) Any order made by the court has to be better for the child than no order before it can be made: s 1(5) of the 1989 Act.
(c) The Court must adopt the 'least interventionist' approach: Re. B-S, [22], H-W, Re. (SC(E)) [2022] 1 WLR 3243 [45]; s 1(5) of the 1989 Act, read in conjunction with section 1(3)(g) and now similarly embodied in section 1(6) of the 2002 Act. A care order removing a child from their natural parents is a measure of 'last resort': B (A Child) (Care Proceedings: Threshold Criteria), Re. (SC(E)) [2013] 1 WLR 1911, [77]; Re. W, [94].
(d) The Court must have regard to the 'welfare checklist' in s 1(3) of the 1989 Act, namely (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) 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; (g) the range of powers available to the court under this Act in the proceedings in question.
(e) The Court must have regard to the range of powers available to it: s 1(3)(g). These are, materially: a child arrangements order; a placement with the parents under a care order or supervision order; a placement with extended family; fostering; adoption (not relevant here); or special guardianship under s 14A of the 1989 Act. These orders allow a local authority to protect the child by a number of means: by supporting parents with resources, by exercising control over the exercise of parental responsibility by the parents over the child and/ or, where necessary, by removing the child to another care setting either temporarily or, in the last resort, permanently.
(f) Where, as here, it is or may be necessary to protect children from one parent the Court must consider what other powers may be available to exclude that parent, not limited to those under the 1989 Act. In the present context these include the powers outlined by the Supreme Court in H-W, Re, [35], namely:
(1) An occupation order together with a non-molestation order under the Family Law Act 1996, s 42 ('NMO') with geographical exclusion. A NMO may be made by the court of its own motion in any family proceedings: s 42(2)(b). A power of arrest may be attached to an occupation order: s 47. Breach of a NMO is a criminal offence punishable by up to 5 years' imprisonment: s 42A. There is, however, no power to impose a requirement of electronic monitoring under either order, by contrast with s 35(6) of the Domestic Abuse Act 2021 which permits such a requirement to imposed when the court makes a Domestic Abuse Protection Order ('DAPO') under s 28 or 31 of the 2021 Act. Those provisions of the 2021 Act are not yet in force, however. Accordingly, the primary means of enforcing a NMO requires the victim to report any breach, which may be of limited value if an abusive relationship is continuing.
(2) A prohibited steps order under section 8 of the 1989 Act or an injunction pursuant to the inherent jurisdiction prohibiting one person from permitting another to enter the house or to contact any of the children.
(g) The Court's assessment of the parents' ability to discharge their responsibilities towards the child must take into account the assistance and support which the authorities would offer. Accordingly, before making a care order the Court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support: B-S (Children) (Adoption Order: Leave to Oppose), Re. [2014] 1 WLR 563 (B-S), [28].
(h) The Court must resist the temptation of social engineering and recognise the need to recognise the inevitable diverse and unequal standards of parenting: per Hedley J in L (Care: Threshold Criteria), Re. [2007] 1 FLR 2050, [50]:
society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.
(i) The Court's task is likely to be a choice between two or more realistic options. In exercising that choice, the Court must follow the guidance of the current President in G, Re. (CA) [2014] 1 FLR 670, recently approved by the Supreme Court in Re. H-W:
[49] The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.
[50] The linear approach . . . is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to accord paramount consideration to the child's welfare'.
(j) The removal of a child from their parents constitutes a significant interference with the Article 8 rights of the child, their parents and wider family members. Accordingly, it will only be lawful if it is a necessary and proportionate means of achieving the legitimate aim of safeguarding the child from harm. As the Supreme Court re-emphasised in Re. H-W, the analytical approach identified by the President in Re. G in the previous paragraph 'is now rightly the accepted standard for the manner in which a contemplated child protection order must be tested against the requirement that it be necessary and proportionate': [47].
(k) In determining what is in the best interests of the child, and whether intervention is necessary and proportionate, the primary question will often be (and is in this case) whether the risk of harm to which the child will be exposed if they remain within their family can be adequately managed within the available legal framework and with available authority support. Only if the risk of harm is too great to be adequately managed is it likely to be either proportionate or in the best interests of the child to be removed from their family. That is because removal of a child from their family is not itself risk-free. The most obvious, immediate consequence is that it makes children, and the rest of the family, unhappy and may have significant longer term consequences which I consider further, below. As Sir James Munby asked, rhetorically, in A LA v MM [2009] 1 FLR 443, 'What good is it making someone safer if it merely makes them miserable?' While those words were written in a case concerning the best interests of an incapacitated adult, they are equally applicable to the best interests of children, as the surrounding context of the quote makes clear (emphasis added):
[120] A great judge once said, 'all life is an experiment,' adding that 'every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge' (see Holmes J in Abrams v United States (1919) 250 US 616 at pages 624, 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good in particular to achieve the vital good of the elderly or vulnerable person's happiness. What good is it making someone safer if it merely makes them miserable?
Decision for the court
Procedural issues
(a) The application for a care or supervision order should be determined without delay otherwise the child's welfare is likely to be prejudiced: s 1(2).
(b) The Court should only find such facts as are necessary for it to determine what is in the child's best interests.
(c) The procedure by which the Court makes its order must be fair to all the parties and compliant with the procedural guarantees of Article 8. In particular, the Court must be satisfied it has all the relevant evidence available to enable it to discharge its function, including an appropriately specific care plan: Re. W, [64], [93]; Re. S, [99].
Welfare analysis
Option 1: the case for a final supervision order permitting the children to return home
(a) An occupation order and non-molestation order under the FLA 1996 with geographical exclusion, with a power of arrest, restraining F from returning to the family home and from contacting M and the children other than by way of supervised visits.
(b) A prohibited steps order and/ or an injunction pursuant to the inherent jurisdiction prohibiting M from allowing F into the house or to have any contact with any of the children.
(c) Enhanced monitoring by way of announced and unannounced visits by the LA social work team.
(a) Both children have made it clear that they wish to return to live with M. At 13, Child 3 has sufficient age and understanding for considerable weight to be placed on his ascertainable wishes and feelings. Child 4, who has just turned 6, is capable of expressing his wishes and feelings and these carry some weight in the balancing exercise. To make an order that has the effect the children cannot return home, contrary to their expressed wishes, will cause them harm.
(b) A return home is a return to their immediate family (albeit without F), their wider family (a maternal uncle and his children), their community and their culture. All witnesses attest to the strong bond of love between M and the children and between the siblings. At home the children will benefit from the presence of their older brother, Child 2, and visits by their older sister, Child 1. I heard little evidence about their wider community and culture but the family regularly attend their local Hindu temple and have a circle of friends who invite them to parties, such as the party on 30 November 2023.
(c) Although M accepts that she lacks parenting skills, she is willing to undertake the recommended work and to enable her better to protect the children from abuse as set out in the Goals and Expectations document. That work can take place while the children are in her care.
(d) I would add that M has been raising four children, including the two older children, over the course of 20 years. Despite having grown up in a household where domestic abuse occurred, Child 1 has thrived to the extent that she is currently at university. Save for the blind spot she has in relation to her husband's violent behaviour, M's parenting would not justify the removal of the children. I repeat Hedley J's salutary reminder in Re. L that 'society must tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent': above, para 59(h).
(e) F has also undertaken to complete the work on his abusive behaviour, his parenting skills and his alcohol misuse as recommended in the Goals and Expectations document. There is no need for the children to be removed from M for F to complete this work.
(a) The children are hoping that they will be returned to their parents' care; the impact on their emotional wellbeing of being told they are to be permanently separated from their parents can be well-imagined. Child 4, in particular, is at an age where he is likely to be particularly affected by the enforced separation from M, his primary caregiver, although I do not underestimate the impact on Child 3.
(b) The proposed monthly visits with F and twice-monthly visits with M would be essential but will not compensate for this harm. Indeed, the children will experience a repeated sense of loss each time they see, and then must leave, their parents.
(c) The LA's care plan for long-term fostering may mean the children are safe from harm from F and their immediate physical needs met. But a foster carer particularly a carer from a different ethnic background - will be unable to provide the sense of belonging and identity that the children will enjoy within their own community, culture and family, even with its acknowledged failings.
(d) The children's current foster placement is their third since they were removed on 22 December 2023. There was no evidence before me about this new placement, how long it was anticipated it would last or how well (or not) the children were managing. When I asked the Guardian about that placement she told me she had not visited the children and assumed that it was in their best interests to be there because the carers must have been approved by the LA.
(e) The reason for the children's recent foster care move was because Child 4 had been harming the family dog. It is not clear to me what precipitated this behaviour but it is not too remote a possibility that it is connected to the emotional turmoil of being separated from his family. I accept the Guardian's view that it could also be a consequence of his having witnessed F's aggressive and violent behaviour or a result of cultural difference because he has not been raised around pets.
(f) Although the LA care plan anticipates a return home within 12-18 months that is currently only a tentative prospect. The Guardian, for her part, expressed considerable scepticism that it would be possible. If the care plan is not actively and conscientiously focussed on rehabilitation there is a significant risk that the children will remain in foster care for the rest of their childhoods - for 5 and 12 years, respectively. According to recent statistics, only 28% of children taken into care in England are returned to their families: NSPCC Statistics briefing - children in care, January 2024, p. 10. It is well-known that this phenomenon, known as foster care drift, may cause significant harm, particularly if there are multiple care placements: 'Multiple care placements have been shown to have a significant impact on looked after children's wellbeing (Hannon et al, 2010) and are associated with poor behavioural outcomes (Rubin et al, 2007)': ibid, p. 12.
(g) Although the LA's intention is that the two brothers should remain together, the possibility of a separation at some juncture cannot be discounted if further changes of placement are necessary and no foster carer can be identified who is willing and able to take both boys. This risk will increase the longer they are in care.
(h) There is a significant risk that the children will grow up with a profound sense of injustice that the state removed them from their family, rather than protected them from F, when it is they and their mother who were the victims of domestic abuse.
Option 2: the case for a final Care Order authorising the children's permanent removal
Discussion and analysis
(a) I am not satisfied that F will comply with the terms of any occupation order or NMO. I find that he has breached previous orders (the restraining order in 2022, the safety plan in November 2023) by returning home in the past: above, paras 11, 42. It is highly unlikely that either Child 2 or Child 4 will have invented their separate accounts that F had returned home in breach of those orders. I reject F and M's denials that he has done so. In any event, it is concerning that neither F nor M immediately reported to the local authority the meetings between F and the children on 30 November and 2 December 2023 and F's telephone conversations with the children, all of which were a breach of the Court ordered safety plan. These breaches took place while these proceedings were ongoing and the family were under significant scrutiny. It is more likely that F will breach any orders made by the Court once the proceedings are over when that scrutiny will be significantly reduced. In any event, I do not accept F's evidence that he would report any breach to the LA given his record of non-compliance with orders in the past.
(b) I do not accept M's evidence that she would report any breach of the Court order by F, for three reasons.
(1) F and M gave evidence that their relationship has been over since 13 October 2023. I do not accept that evidence. In reaching that conclusion I place weight, in particular, on: the level of contact between F and M revealed by the telephone analysis, including the happy anniversary messages sent by M and F in November 2023; F's instructions to his lawyer at the hearing on 2 January 2024 that he remained in a relationship with M; and the evidence of Child 4 that F had stayed over in M's room in November 2023. I also consider it telling that both M and F have expressed the hope that their relationship could resume, although in M's case I accept that she stated this to be conditional on F changing his behaviour and sustaining that change. In my judgment it would be wrong to return the children to M's care on the premise that the relationship is over. That would be to set them up to fail. Both M and F need to have the time and the opportunity to conduct the necessary work. M, in particular, needs to make a choice whether to prioritise her children over her partner. If she chooses to continue or resume her relationship with F then the LA will need to be satisfied that F has addressed his own behaviour and that the risk of further abuse of M and the children has been reduced to an acceptable level. In the meantime, this factor causes me considerable doubt that M will report any contact between F and the children or any other breach of a NMO.
(2) M has proved unable to protect the children from harm from F in the past, despite significant involvement and input from the LA. M has been in a coercive and controlling relationship with F since 2009 and was in an abusive relationship with her previous partner. As I have had cause to observe elsewhere, the insidious nature of coercive and controlling relationships is such that the victim remains vulnerable to the abuser's influence and will often return to the abusive relationship: Re. EF (Abduction: Hague Convention (Slovakia)) [2023] EWHC 505 (Fam), [65]. Unless and until M engages meaningfully in the work identified in the Goals and Expectations document she will continue to lack insight into the risk that F poses to her and the children and the harm that a resumption of his behaviour will cause. She will therefore remain unable to protect herself and the children from that harm. While I find she is now highly motivated to prove her willingness to engage in the necessary work in order to secure the return of Child 3 and Child 4, that willingness is likely to dissipate if the children were to be returned to her now. She needs to demonstrate a consistent engagement and understanding of the risks posed by domestic abuse generally and by F specifically. That is only likely to happen if the children remain in foster care, at least in the short to medium term. Until then, I do not consider M will be able to provide effective protection for the children in the event that F seeks to return home or that she will report any breach by F.
(3) M has made no application for protective orders against F in the past or in the context of these proceedings.
(c) The children might disclose that F has breached Court orders; they have done so in the past. However, they should not be put in a position where their safety depends upon their own reporting. That would subject them to conflicting loyalties. They would also be at risk of further violence from F who has, in the past, chastised the children for making allegations. Their older brother, Child 2, is a potentially protective factor but he has been the subject of serious assaults by F and could be at risk of further assaults if he were to allege that F is in breach.
(d) Other protective factors are no longer available. The children's elder sister, Child 1, has now left home and, I understand, a neighbour who had previously reported incidents of domestic abuse has moved away.
(e) The LA is unlikely to detect any breaches from the announced or unannounced visits that they are able to make. If the children were returned to live with M under a supervision order the LA are only prepared to provide monthly supervision. Although in her closing submissions Ms. Summers, on instructions, said the LA were prepared to provide weekly supervision, at least for the first 3 months, I am not satisfied that would provide adequate protection if M and F are sufficiently intent on avoiding detection. I note that the LA did not detect the breaches of the safety plan during the course of the proceedings when more intensive scrutiny was in place; these were either disclosed by the parents or by the children.
(a) First, the work that the parents have agreed to undertake as set out in the Goals and Expectations document. The purpose of that work in M's case is to enable her to acquire insight into F's previous abusive behaviour so she can recognise it and avoid it in the future, both for her own sake and that of the children. In F's case it is to reduce the risk that he poses to M and the children from his violent and aggressive behaviour. Once either or both of these goals have been satisfactorily achieved which will require further assessment by the LA - the children must be returned to live with M. Whether that is also with F will depend upon his completion of the necessary work to reduce his risk to the LA's satisfaction.
(b) Second, once Part 3 of the Domestic Abuse Act 2021 has come into force it will be possible for either M or the LA to apply for a Domestic Abuse Protection Order ('DAPO') to be imposed on F, to include a condition of electronic monitoring. That will provide additional protection for the children against F seeking to return home as his movements will be independently monitored and enforcement of the order will not rely upon monitoring by M or the children or detection by the LA, as now. I heard no submissions from the parties on this question but, had a DAPO been available in this case, it would have gone a long way to addressing the Court's concerns about the risks posed by F.
Parental contact
Decision/ outcome
Annex 1 - Rehabilitation Plan
Work to be undertaken prior to reunification
M
1) Freedom programme · 6 8 weeks referral time · 10 12 weeks of sessions · Key sessions must be completed to enable the course to be considered completed
2) Talking therapies · 6 8 weeks for initial assessment · Length of involvement dependent on the recommendations from the initial assessment
3) Parenting support work · 6 8 weeks referral time · 12 16 weeks intervention (more to be considered if necessary)
F
1) Fresh Start · 6 8 weeks referral time · 26 32 weeks of sessions · Those awaiting the outcome of criminal justice process, undertaking work via another DV programme and those attending other counselling or therapy will not be accepted
2) Talking therapies · 6 8 weeks for initial assessment · Length of involvement dependent on the recommendations from the initial assessment
3) Parenting support work · 6 8 weeks referral time · 12 16 weeks intervention (more to be considered if necessary)
4) Assessment of local addiction recovery services · 4 6 weeks for initial assessment · addiction recovery services have confirmed via email that they have already made contact with [F] who stated he did not require their services and the referral has been closed as of 29th April 2024 All referrals have been made by the LA. The timescales for the work to be undertaken by parents needs to be considered as a rough guide and will be dependent on the individual services availability and on the engagement of the parents and ability to make themselves available for all sessions.
Parenting Assessment
Once all of the above work has been completed (approx. 12 18 months) a Parenting Assessment will be undertaken of [M] solely or jointly with [F]. The approximate timescales for this will be 12 weeks but are dependent on the availability of an assessor to undertake the assessment and parents' engagement. If [F] was being assessed as joint carer, further alcohol testing would be required.
Transition
If the parenting assessment is positive a transition plan would be formulated for the return of the children, depending on the recommendations and analysis therein. The timescales of this would be dependent on the level of contact between the parents and children at the time. If contact was still supervised/supported, then this would need to progress to unsupervised before a transition could be considered. Once parents were having regular unsupervised contact with the children (at least 3 times per week) then a transition plan would be formulated. This would be undertaken over approximately 6 weeks. This would start with unsupervised contact within the family home moving to an overnight contact then weekend contact and then full transition. SW visits would be conducted along with input from school and foster carers.
