D (Children) [2014] EWFC B57 (20 May 2014)

IN THE FAMILY COURT AT LEICESTER LE13CO1377

Before His Honour Judge Clifford Bellamy

(Judgment handed down on 20^th May 2014)

Re D (Children)

Miss Nassera Butt for the local authority

Miss Laura Vickers for the first respondent mother

Mr Chris Wells for the second respondent father, JM

Miss Pami Dhadli for the third respondent father, ND

Miss Nicola Beese for the fourth respondent father, DB

Mr A Wisniewski for the Children’s Guardian

This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

JUDGE BELLAMY:

1. On 5^th December 2013 Leicestershire County Council (‘the local authority’) applied to the court for care orders in respect of four children, David aged 7, Helen aged 5, Philip aged 4 and Ben aged 2 (not their real names). The mother of all four children is SM. David’s father is JM, Philip’s father is ND and Ben’s father is DB. Although the mother belatedly told the court that she believes AR to be Helen’s father she claims not to know his present whereabouts.

2. Since these proceedings were issued David has been placed in foster care. The local authority seeks a final care order and proposes that he should remain in long-term foster care. Philip now lives with his father, ND, The local authority propose that he should remain in his father’s care under a child arrangements order. Those plans are not contentious though there remain some issues concerning parental and inter-sibling contact.

3. Throughout these proceedings Helen and Ben have remained in the care of the mother and DB. The local authority seeks final care orders. It proposes that Helen and Ben be removed immediately and placed in foster care. The present plan for Helen is that she should remain in long-term foster care though the local authority does not rule out the possibility that it may at some point issue an application for a placement order. The plan for Ben is that he be placed for adoption. In his case the local authority applies, therefore, not only for a care order but also for a placement order. The local authority’s plans for Helen and Ben are supported by the Children’s Guardian but opposed by the mother and DB.

Background

4. The family has been known to this local authority since January 2007 when David was just a month old. The family was then living temporarily with David’s paternal grandmother. This was the first of ten different addresses the mother has lived at since David was born. The home was overcrowded. Paternal grandmother was noted to be providing most of the care for David. There were concerns about the mother’s apparent lack of attachment to David.

5. Later that year the family moved to their own home. In September 2007 David sustained a fractured leg. The explanation given, and accepted, was that his leg had become trapped in a stair gate. Whilst in hospital, ward staff noted that the mother was not proactive in attending to David’s care.

6. Incidents of domestic violence led to the mother and JM separating. The mother left JM in February 2008. She and David moved back to live with maternal grandmother. Later that year the mother and David moved to live in their own accommodation. This was David’s fourth home. He was not yet eighteen months old.

7. It was at about this time that the mother began a relationship with ND. Helen was conceived in or around June 2008. It is clear that ND (and possibly also the mother) believed that ND was the father.

8. Helen was born in March 2009. The local authority’s concerns about the family were ongoing. On 29^th December 2009 the local authority completed what was to be the first of three core assessments.

9. Though still living with ND, by the beginning of 2011 the mother was in an intimate relationship with DB. Her fourth child, Ben, was conceived in February 2011. The next month the mother left ND and set up home with DB. This was David’s fifth home.

10. In August 2011 ND issued an application for contact with Helen and Philip. The issue of paternity was raised with respect to Helen. The outcome of DNA tests was that ND was excluded as being Helen’s biological father.

11. During the course of 2011 the local authority provided support through its Early Years Service and Family Steps. Family Steps raised concerns about the mother’s parenting capacity and her ability to meet the children’s needs

12. On 21^st December 2011 the local authority received a referral from David’s school as a result of bruising to David’s cheek. David gave various explanations of how he had come by this bruising including, at one point, suggesting that he had been kicked in the face by DB. This is the first of four occasions when David has indicated that he has been physically abused by DB. The local authority accepts that there is no evidence that would justify a finding that DB has physically abused DB. The fact that David has made these allegations remains a concern.

13. The referral on 21^st December led to an investigation pursuant to s.47 Children Act 1989. Concerns were noted about David’s behaviour and the condition of the home. No further action was taken. This was the first of six investigations under s.47.

14. In March 2012 the local authority completed a second core assessment. Apart from concerns about the state of the home the assessment also raised a concern that the mother did not appear to have a strong attachment to any of the children. That same month ND contacted the local authority expressing concerns that Helen and Philip were often dirty and smelled of urine, He also raised concerns about bruising to the children.

15. It was also that same month that the family moved home. David obtained a place at the local Infant and Junior School. There were concerns about David’s behaviour. The Special Educational Needs Co-ordinator arranged for a Family Outreach Worker to work with David. David was then aged 6. He was noted to be functioning at the age of a 3 year old.

16. In May 2012 the local authority undertook an initial assessment as a result of concerns about neglect of the children. The assessment raised a number of concerns about household conditions and the basic care of the children. It recommended a detailed assessment.

17. No sooner had that recommendation been made than David’s school made a further referral. This referral related to David presenting at school with bruising to his upper back, scratches to his lower back and a sizeable bruise on his finger. This led to a second investigation under s.47. The mother is reported to have said that she didn’t realise David had any injuries. She said that he had fallen down stairs. Home conditions were noted to be sparse. There was minimal food in the home. The children were dirty with overgrown nails. A risk assessment was undertaken. That assessment concluded that the primary concern was of neglect.

18. In August 2012 Philip was observed to have a 6 inch graze to his shoulder. This led to a third s.47 investigation. The local authority proposed to undertake a parenting assessment. The mother said that she would not co-operate.

19. In September 2012 ND contacted the police requesting a safe and well check in respect of Philip. The police reported that Philip was fine but that home conditions were poor with rubbish, dirty bedding and clothes strewn on the floor.

20. In November 2012 David’s school noted that he was covered in flea bites. The health visitor, social worker and family support worker all reported that home conditions were poor.

21. In a report dated 5^th December 2012, prepared pursuant to s.7 Children Act 1989 for the purpose of the private law proceedings between ND and the mother, senior child protection social worker Kim Taylor said,

‘I have raised concerns throughout this report about the care the children receive. It is important to note that there has been a significant improvement since the summer holidays…There are positives to the care that the children are receiving from their mother and from my observations I believe that they have a positive emotional relationship with their mother…’

22. In January 2013 the local authority completed a joint parenting assessment of the mother and DB. The outcome was broadly positive. The report concluded that,

‘Overall at the present time the home conditions have improved and the children are being parented on an acceptable level, however SM and DB need to maintain their motivation to ensure the current changes continue, and in the future they might need support in helping the children to understand and accept their position within the family and to start or maintain relationships with their respective birth families.

I feel SM would benefit from the support of a Homestart or SureStart worker to support [her] and to keep her motivation going to continue with the changes already made for the family.’

23. The private law proceedings between the mother and ND concluded in February 2013. Philip was made the subject of a shared residence order, the parents having agreed that he should spend four nights a week with his mother and three nights with his father.

24. In 2012 JM issued an application for contact with David. In April 2013 a s.7 report prepared by the local authority noted the concerns to which I have already referred but went on to say that ‘there have been significant improvements and whilst David is currently considered to be a child in need…he is not considered to be at risk of significant harm’.

25. By this time the mother was in arrears with payment of rent. Possession proceedings had been issued. On 29^th April 2013 those proceedings were adjourned, the mother having informed the court that she and DB had separated and that she needed time to claim benefits.

26. The next day the local authority completed a third core assessment. The assessment concludes by saying that,

‘In summary the parents have made good progress in addressing the concerns. There is currently no ongoing role for Specialist Services although CYPS involvement is still required. Therefore I recommend that the family are transferred to early help services. Parenting assessment was positive and good enough. Professionals agreed that family could be supported by early help. This would reduce risk of harm.’

27. Once again those improvements were not sustained. There was worse to come. The mother had not resolved her application for housing benefit. When the possession proceedings came back before the court on 21^st June 2013, the District Judge made a 28-day possession order.

28. The Housing Association then had to consider whether to enforce that order. An internal memo written by a Housing Officer states,

‘Total amount owed to EMH = £2484.18. 28 day possession order granted…on 21/06/2013. This was due to high arrears and the fact that SM had failed to make a claim for housing benefit or pay £3.60 per week as ordered on 29/04/2013 when the case was adjourned to give SM time to sort out her housing benefit claim. There have been arrears on the account since the tenancy began as SM and her partner had an overpayment (sic) from their previous address…’

29. The local authority was completely unaware of what was going on. The mother did not inform the local authority of her predicament. She did not seek any help.

30. Disaster struck on 28^th August when mother and children were evicted from their home. The family was initially placed in hotel accommodation. On 9^th September the family was allocated temporary accommodation in Loughborough. They did not move in immediately. First, they spent a few days staying with a friend. They moved into their temporary accommodation on 19^th September.

31. That same month school noted that David had injuries to his hips and wrists. A fourth s.47 investigation was undertaken. A child protection medical was undertaken on 11^th September. The medical report states that,

‘David has bruising to his left hip consistent with the history of a fall at school. He also has scratch marks on his torso consistent with the history given and multiple bruises on both arms and legs and over the right hip for which there is no clear explanation, which would be consistent with accidental injury sustained by an active child, with a known background of difficult behaviour. This does raise some concerns regarding the level of supervision that David has been under, and also the challenge that managing his behaviour presents to his mother, and others involved in his care.’

32. The Bridge is a voluntary organisation which assists families with housing problems. In light of her difficulties the then allocated social worker, Tina Morris, made an appointment for mother at The Bridge. The mother failed to attend.

33. On 26^th September David was noted to have another injury, this time to his head. This led to a fifth s.47 investigation.

34. Finally, almost six years after it first became involved in the life of this family, on 2^nd October 2013 the local authority held an initial child protection conference. All four children were made the subject of child protection plans under the categories of neglect, physical abuse and emotional abuse. The next day, following yet another referral from school, this time resulting from a disclosure by Helen that ‘mummy hurt my arm’, there followed a sixth s.47 investigation.

35. On 8^th October, after taking legal advice, such was ND’s concern about the mother’s care of Philip that he decided not to return him. Philip has since lived continuously with his father. The mother has had regular contact.

36. These latest events led to the local authority convening a legal planning meeting. This was held on 22^nd October. The meeting decided that the mother should be sent a pre-proceedings letter. A pre-proceedings meeting was fixed to take place on 1^st November. At that meeting the mother agreed to David being accommodated by the local authority pursuant to s.20 Children Act 1989.

37. On 5^th December the local authority issued these proceedings. Although initially the local authority intended to seek interim care orders with a view to removing Helen and Ben and placing them in foster care, the Children’s Guardian did not support their interim removal.

The history since proceedings were issued

38. The mother and the two younger children remained living at their temporary accommodation in Loughborough until February 2014 when they moved to their present home, a Housing Association property which they rent.

39. On 10^th December the local authority made a referral to Home Start. A worker from Home Start spoke to the mother by phone on 18^th December and agreed to be in touch again after Christmas. A letter from a Family Support Organiser dated 17^th February 2014 details nine attempts to contact the mother – by phone, text messaging and letter – between 9^th January and 17^th February. The letter ends by saying that, ‘If she does not respond to me this week then I will have to close the enquiry for support’.

40. The most recent meeting of note was a Core Group meeting held on 1^st May. With respect to Helen, the minutes of the meeting note that Helen often arrives at school late. She is struggling academically. She cannot write her name. She is unable to read. She is said to be the weakest in the class. There are difficulties with her emotional and social development. She has few boundaries. She has been observed to flinch when approached.

41. With respect to Ben, the minutes of the Core Group meeting note that he arrives on time at nursery. His attendance is good, He is generally well-presented. However, he is noted to be quite disruptive. He has a short attention span. He has been known to hurt other children by lashing out in temper. His speech is delayed.

Paediatric and psychological assessments

42. David, Helen and Ben have all been the subjects of recent paediatric assessments. David has also been assessed by an educational psychologist, Karen Booth-Clibborn.

43. In a report dated 18^th February 2014, Ms Booth-Clibborn notes that David, ‘has no internal mechanism of control and relies on adults to calm him down if he becomes upset’. Developmentally, he is like a 2-3 year old. She describes him as,

‘a delightful boy who has significant emotional, behavioural and learning needs…It is very likely that his difficulties originate from his early experience of parenting which has eventually led to his removal from his mother’s home by social services…David’s academic levels are delayed and it is likely that this is due to past difficulties accessing the National Curriculum because of his emotional and behavioural needs.’

44. David underwent a LAC medical on 1^st March 2014. The assessment was undertaken by a consultant community paediatrician, Dr Mary Small. Dr Small concludes that,

‘David’s behaviour and language are improving gradually since moving to a stable, nurturing home environment. He has evidence of developmental delay in terms of his learning at school and his language level…In view of his unsettled past history, concerns of emotional abuse and neglect and possible physical abuse, it is unlikely that David’s behaviour is rooted in ADHD. He is also significantly delayed from a learning and speech point of view, which may also contribute to his behavioural difficulties…I suspect that his behaviour will settle down to more normal parameters for his developmental age over time.’

45. On 20^th February Helen and Ben were examined by a community paediatrician, Dr Kershaw. So far as concerns Helen, it is appropriate to set out Dr Kershaw’s opinion in full. Dr Kershaw says that,

1. Helen presents as a little girl who has recognised developmental delay in the context of neglect and a maternal family history of learning difficulties. Helen has on-going support within school for her developmental delay but she has not had a paediatric review and this is recommended.

2. Helen’s weight has remained static over the last 3 months and this is of concern especially in the context of reports to case conference that Helen has appeared hungry at times and that there has not always been adequate food in the house.

3. There is a long history of neglect of the children in this family and in the context of known developmental delay which may be familial, the developmental delay will be exaggerated by neglect.

4. Helen’s mother’s reported lack if (sic) interaction with the children was noted during the consultation. Helen initiated interaction with her mother but no interaction was initiated by mother without prompting.

5. Helen and her younger brother show challenging behaviour and the parents were not able to manage these behaviours during the consultation. These behaviours are likely to increase as the children get older, if they are not appropriately managed.

46. Dr Kershaw expresses a similar opinion with respect to Ben, noting in particular that he ‘presents as a healthy two year old boy who is growing appropriately but who has some delay in his speech and language development. This delay is of concern especially in the context of the history of neglect.’ Dr Kershaw says that during the consultation she ‘heard no words’ from Ben.

The local authority’s evidence

Deputy Head Teacher

47. David has attended the school of which CP is Deputy Head Teacher since April 2012. Helen became a pupil at the same school in September 2013.

48. When David began to attend school he demonstrated behaviours typical of a child aged 3. He was unable to follow simple instructions. He was significantly behind in his educational milestones. His speech and methods of communication appeared delayed. He would be disruptive in class. He would refuse to do what he was asked to do. He would climb on tables, hit, bite and scratch other children and adults. Physical intervention was sometimes required in order to keep him and others safe. CP said that during her time at this school she could only think of one previous pupil who had exhibited similar behaviour to that displayed by David. Although David has made some progress over the last two years, CP said that it is taking ‘a huge amount of skill to be able to maintain him in main stream school’.

49. For a while the school provided David with one to one time in the morning, with him joining a small group of his peers in the afternoon. This did not work. Since November 2013 he has been provided with one to one support throughout the whole of the school day. He has a highly skilled worker working with him. This has led to him making some progress which tends to suggest that when he can access learning he can make some progress. No other child in school has this kind of behavioural and educational support.

50. There have been considerable problems with presentation and hygiene. From the outset, David’s presentation was dirty and messy. In July 2013 he had insect bites on his body. He talked about his bed biting him. He came to school in foul smelling clothes. The following month, for one entire week he came to school in the same very dirty socks and the same grubby T-shirt. On another occasion his T-shirt smelt so bad that his outreach worker reported that the smell had made her wretch. Prior to his removal into foster care, David was frequently late for school. The mother was also late collecting him from school.

51. Although the school has not encountered the same behavioural problems with Helen, her presentation and her educational progress have caused concern. She has become more and more subdued. She needed encouragement to eat.

52. CP reports that Helen’s academic achievements

‘have been in the bottom 10% for her year. When she first joined us in 2013, she had already had preschool intervention. She had had involvement with the Early Years special needs service, with the psychology service and with speech and language services. By the time when she left us in March [2014] she still had some speech and language difficulties. She formed sentences using only 2-3 words and it was sometimes difficult to work out what she was saying.’

She went on to say that the progress which Helen needs to make to catch up with her peer group in educational terms ‘is in my view, massive’.

53. The mother’s engagement with the school has been on the border between poor and non-existent. She has always been passive and difficult to engage. CP says that she is,

‘unable to recall an instance of advice from school resulting in a positive change in the mother’s behaviour for the benefit of the children. This has been so throughout my involvement. I have not seen any significant improvement since David was taken into foster care and she has only had to manage the care of two children. Nothing appears to have changed in relation to her engagement with the school.’

Tina Morris.

54. Tina Morris first became involved with this family on 30^th August 2013. As duty social worker, she took a call from David’s school to alert the local authority of the fact that the family had just been evicted and were living in emergency accommodation at a hotel in the centre of Leicester.

55. The local authority became aware that Charnwood Borough Council had provided the family with emergency accommodation though it did not know any details about the property until the day the family moved in. In her written statement, Ms Morris describes her first visit to the family’s temporary accommodation on 20^th September. She says,

‘I was asked to check that the children were safe and well because David and Helen were not in school that day. I was very concerned about conditions in the accommodation. There was no natural light in the house because the windows were boarded up. There was no gas at the property. The wall paper was peeling off the walls or had been removed in random strips. There was no carpet anywhere in the property. The floor was covered in bare brown tiles. There was no carcass to the staircase. The only sleeping arrangements were 4 mattresses on the floor. There was no sign of any adequate bedding. There was a heap of personal belongings on the kitchen floor which looked as if they had just been emptied out of a big bag. There was nothing available for the children to play with. The accommodation was clearly substandard.’

There was also a pane of glass missing from the back door. Ms Morris said that there had been a suggestion that the property was previously a known drugs den.

56. In addition to Ms Morris’ description of the property another witness, Mr Barrowcliffe, said that he was, ‘concerned about drawings on the bare walls in the children’s bedrooms, left by the previous tenant. These showed pictures of guns and cannabis plants…’ The children were frightened by these images.

57. In Ms Morris’ opinion the property was not fit for habitation.

58. As I listened to the evidence I became increasingly concerned that Charnwood Borough Council should have considered this to be a suitable – if only temporary – home for a mother and her four young children. It is shocking that in twenty-first century Britain a public authority should consider it appropriate to house young children in such appalling conditions. It is equally concerning that this local authority was willing to allow the children to remain there.

59. Ms Morris did her best to help. She arranged for the boarding on the windows to be removed. She arranged for the gas supply to be restored. She booked an appointment for the mother at The Bridge. The mother did not keep that appointment. She declined support from Sure Start. Her housing benefit was stopped because she failed to provide information about DB’s circumstances. Ms Morris says that the mother ‘seemed unable to help herself or to improve conditions in the home for the children’.

60. Ms Morris concludes her written statement by saying,

‘I saw David on several occasions including on my 2 home visits and at school. On each occasion he looked neglected; his school shirt and trousers were always creased. He did not smell very pleasant. He looked unkempt and uncared for. In my view, it appeared that his general hygiene was neglected…My observations of the mother during my involvement caused me concern about her ability to meet her children’s needs for stimulation, boundaries and emotional warmth.’

Ms Morris provided a litany of examples of the mother’s inadequacies and lack of engagement.

Parenting assessment.

61. A parenting assessment was undertaken of the mother and DB over a period of sixteen weeks. The assessment discloses that of nine attempts to meet with the parents the first two visits to the home, both unannounced visits, were unsuccessful as there was no-one at home; on another occasion the mother failed to attend; the mother also cancelled one meeting. Mr Barrowcliffe said that he had tried very hard to make appointments that were convenient to the mother and DB but he had had great difficulty. He said that making arrangements had been ‘very slippery’. DB had been relatively disengaged throughout the assessment.

62. Throughout the first three months of the assessment the family was still living in the temporary accommodation in Loughborough. Mr Barrowcliffe described this property as having a very austere atmosphere. It could at least have been kept clean. It wasn’t. There was a small area in which the children’s toys were kept. The children were given little encouragement to play with them.

63. By the end of the assessment the family had secured alternative housing. That did not lead to any improvement either in the care of the children or in the care of the home. Mr Barrowcliffe said that what he saw had been ‘consistently bad’ at both addresses.

64. In his conclusions, Mr Barrowcliffe says that,

‘The mother and DB have attempted to care for the children as well as their limited skills and insight and character would allow. In my view, they are disorganised in their thinking and struggle to deliver simple daily routines.

From their answers in my assessment sessions, they appear to know what they sould (sic) be doing, but after months of intervention and the multi-agency support…in many areas around the couple/home, there remain significant concerns around the children’s care in almost every area.

It is of concern that even since care proceedings began and the parents knew they were under particular scrutiny, neither the mother nor DB have applied themselves to the assessment process. They appear not to have understood its significance, even though I have repeatedly explained this to them. DB has appeared to want to avoid any scrutiny from Social Care. I am left with some lack of clarity as to the role he plays in the family and how consistently he participated in Ben and Helen’s care. However, it is clear that in practice, the children have not experienced any significant change in living conditions since care proceedings were issued, despite being re-housed.

The historical concerns about home conditions and neglect still exist; I have observed a systematic failure to manage the home and the children’s care effectively – even with extended support.

The cumulative concerns include a lack of routines, lack of basic hygiene, poor standards of safety and supervision, a lack of financial prioritisation, failure to engage with support services, a lack of emotional warmth and a lack of insight into the needs of the individual children.

I therefore cannot recommend that either David or Philip return to the care of the mother and DB at this time. Moreover, that I feel that the care arrangements for Helen and Ben should be reviewed as a matter of urgency since their welfare is compromised by their current living arrangements.’

65. In his oral evidence Mr Barrowcliffe raised a concern identified by others who have observed mother’s interaction with the children. He describes the mother sitting remotely from the children, being very passive and not engaging with them. Although the point has been made on behalf of the mother that she has not been offered the opportunity to attend a parenting course, Mr Barrowcliffe does not believe that she would engage even if such a course were offered.

66. Mr Barrowcliffe described home conditions as being very poor. Whilst he acknowledged that this family lives in a degree of poverty he was also of the opinion that the income the family has is not spent wisely.

67. During the course of these proceedings there has been a cognitive assessment of the mother. Although it concludes that the mother does not suffer from a learning difficulty it does identify that she has a weakness in her Working Memory and recommends that ‘Repetition of advice will help to overcome any limitation in her working memory’. Mr Barrowcliffe did not see this report until after he had completed his assessment. However, he is confident that the way he undertook the assessment was consistent with that recommendation.

Sian Edwards

68. Sian Edwards has been the allocated social worker for these children since 17^th September 2013. In her written evidence, having reviewed the background history to which I have referred, she sets out an up to date picture of the progress of these four children.

69. With respect to David, Ms Edwards notes that concerns about his developmental delay and behavioural problems continue. Of particular note is her comment that,

‘David has recently been excluded for a day following him stabbing a staff member in the face with a pencil. David says that he did this because he became angry. The school have noted that David presents as more unsettled on days which (sic) he has contact. The school feel this is more prevalent when he is having contact with his father. David was again excluded for a fixed period of one and a half days on 18^th March 2014 for physically attacking a lunchtime supervisor by clawing at her face. David had asked his foster carer in the morning if he was naughty at school, would it mean he would not be allowed to go to contact…’

70. With respect to Helen, Ms Edwards notes that she is between 9 and 12 months behind in reading, writing and numeracy. She regularly misses her literacy lessons due to being consistently late for school. She has limited interaction with other children. She notes that school, ‘describe her attention-seeking, and social and emotional isolation as following a similar patter to David’s behaviour’. At home she will regularly have temper tantrums and refuses to follow instructions until she is permitted to do what she wants. She displays little awareness of dangers and requires a high level of supervision.

71. Ms Edwards describes Philip as a very quiet little boy. He is generally very happy and pleasant. He is the only one of his sibling group who is not considered to have some degree of developmental delay.

72. With respect to Ben, Ms Edwards describes him as a very active child who requires a high level of supervision. At his two year developmental review by his Health Visitor he was noted to have delayed speech and was referred for speech and language therapy. Ms Edwards expresses concern that this suggests that he may be following the same path as David and Helen. Ms Edwards makes the point that Helen and Ben’s behaviour is at the level displayed by David when he was at their ages.

73. Ms Edwards notes that the mother’s problems with her parenting relate not to an inherent lack of ability to parent but an inability to maintain a good enough standard consistently.

74. In contact the mother has found it very difficult to manage the needs and behaviours of all four children together. David has complained that she never gives him cuddles. Contact supervisors have noted on several occasions that David has attempted to say goodbye to his mother at the end of contact but she has not responded. Ms Edwards describes the mother as,

‘an excessively passive individual most of the time and is considered to be vulnerable in her own right…Her passivity results in her failing to act on advice and to avail herself of support even when intellectually, she has recognised the need for support. Even during contact, she is unable to put promptings into effect over time. She appears not to recognise the effects on her children of her passive parenting. She reports that they are progressing, when the evidence suggests otherwise. Home conditions and the general care of the children have not improved for Helen and Ben during the course of the care proceedings. For all these reasons, it is difficult to see how she would be able to meet the needs of her children, either as a group, or individually.’

75. Ms Edwards also expressed concerns about the mother’s lack of supervision of the children. Not only has this been evident during contact, Ms Edwards has also seen this when she has visited the mother at home. She refers to an occasion when Helen had climbed onto a work surface in the kitchen. She had had to get her down. The mother had appeared oblivious to the risks. Although there is no evidence that would justify a finding that any of David’s injuries were inflicted either by the mother or by DB, there is good reason to believe that they were the result of poor parental supervision. Ms Edwards notes that whereas David was often seen with bruising when in his mother’s care he has not sustained any injuries at all whilst in foster care.

76. The mother’s engagement with the local authority has also been problematic. Just a few days before this hearing began Ms Edwards went to visit her. The mother claimed to be in the bath. She would not let Ms Edwards in. That same day Ms Edwards had made around 20 attempts to contact the mother by telephone, all without success. There is a pattern of the mother promising to engage but not then doing so.

77. Ms Edwards notes that DB has provided some support to the mother in her parenting of the children. He is actively supporting her in decorating her present home. Yet the full extent of their relationship remains unclear. Although DB says that he only spends two nights a week with the mother, Ms Edwards believes this to be an understatement. She is concerned about the risks to the mother’s entitlement to benefits and the consequent risk of the family facing a further eviction.

78. DB does not demonstrate any understanding of the mother’s limitations. Ms Edwards expresses concern that his,

‘lack of engagement and lack of demonstration of committed positive parenting lead me to the conclusion that he cannot be relied on to make up the deficits in the mother’s care of the children, either as a group or individually’.

79. Notwithstanding everything that this local authority knows about these parents and these children, in her second and final written statement Ms Edwards states that the local authority,

‘requests that the Court make interim Care orders in relation to Helen…and Ben…on the basis that it is not possible to make final recommendations in relation to the placements of these children at present. The lack of conclusion in relation to Helen and Ben’s future placement makes it difficult to resolve the issue of what contact each child should have with his/her siblings.’

She goes on to say that in her opinion,

‘further assessment is required outside of the existing contact arrangements before a firm view can be formed of what long term placement options will best promote the welfare of Ben and Helen…I believe that while such assessment takes place, Helen and Ben should be in foster care. The court has sufficient evidence to rule our further care by the mother and DB. The children should be protected from further harm to their global development by being removed to foster care at this stage.’

80. Notwithstanding that observation, Ms Edwards goes on to recommend that Ben be placed for adoption. The Agency Decision Maker has approved that plan. An application for a placement order is before the court. The problem actually relates to Helen. Ms Edwards says that in her opinion, ‘more time is needed to assess the nature of the relationships between David and Helen’. She says,

‘I am unable to make a final recommendation in relation to Helen. It is difficult to know at this stage the strength of her sibling attachments and whether these should outweigh her nee (sic) for a permanent loving family. I believe that a period of further assessment in foster care is needed before a decision can be made on her future placement, so that the strengths of her sibling relationships can be better understood.’

81. Given those views I was surprised that there was no information before the court of the nature of the assessment to be undertaken, of the identity and experience of the person who is to undertake the assessment or of the timescales within which the assessment is to be completed.

The local authority’s final care plans

82. The final care plan for David is that there should be a care order and that he should be placed in long-term foster care. At present he has contact with his mother and siblings weekly and with his father, JM, for one hour fortnightly. The local authority proposes that the frequency of contact be reduced to three times a year for the mother and six times a year for his father. In addition it proposes monthly contact with his siblings. It is not intended that David’s contact with Ben should continue once Ben has been placed for adoption. The local authority holds out the possibility that over time father’s contact with David may progress to unsupervised and possibly to overnight contact. Although contact would normally be reviewed twice-yearly at LAC reviews the local authority has assured the father that his contact with David will be reviewed more frequently.

83. The final care plan for Philip is that he should remain in the care of his father, ND, under a child arrangements order. The local authority does not consider it necessary for there to be a supervision order. At present Philip has contact with his mother and siblings weekly. It is proposed that contact with mother be reduced to fortnightly and with his siblings monthly. Although the local authority is not to have any formal ongoing role so far as Philip is concerned it has agreed that it will continue to support ND with the contact arrangements until they are settled.

84. With respect to Helen, the local authority’s present plan is that she be placed in long-term foster care. However, following the proposed assessment of her attachment with her siblings the local authority holds out the possibility that it may subsequently change its care plan to one of adoption. That imports a degree of uncertainty into the care planning for Helen. The proposed assessment may suggest that the strength of the attachment between Helen and Ben is such that they should not be separated. The local authority concedes that chance of finding a single adoptive placement for Helen and Ben is slim. No search has yet been undertaken either amongst the local authority’s own approved adopters or by reference to the National Adoption Register.

85. As for contact, at present Helen has contact with David and Philip weekly. Once final orders are made it is proposed that she should have contact with her mother six times a year and with her siblings monthly. In the event that the local authority were subsequently to change its care plan to placement for adoption it is not proposed that there should be any direct post-adoption contact either with her mother or her siblings.

86. The local authority seeks a placement order in respect of Ben. No profiling work has yet been undertaken. No family finder has yet been allocated. The search for an adoptive placement has not begun.

87. At present Ben has weekly contact with David and Philip. It is proposed that after his removal from the care of his parents they should have contact with him initially on a weekly basis but reducing to monthly pending placement with prospective adopters. Post adoption it is proposed that Ben should have annual letter-box contact with his parents and siblings.

88. Helen and Ben have remained in the care of mother and DB throughout these proceedings. Although the local authority wished to remove them at the outset of these proceedings, the guardian did not support that interim plan. The local authority accepted the guardian’s position. The consequence of that is that both of these children will now have a minimum of two moves. If I approve the local authority’s final care plans the children will be removed immediately and placed with therapeutic foster carers. They will remain in that placement whilst the local authority searches for long term placements for each child.

Proposal for sibling attachment assessment

89. If the court is persuaded that Helen and Ben should be removed from the care of the mother and DB the local authority then proposes to undertake an assessment of sibling attachments. Since the precise scope of this proposed assessment was unclear to me – and appeared to be unclear to the local authority – I ordered the local authority to file an assessment plan in advance of the parties filing their written closing submissions. The assessment plan has been prepared by the present social worker, Sian Edwards.

90. It is now clear that although the proposed assessment may have some impact on the local authority’s proposals for inter-sibling contact in respect of all four children, the primary focus of the proposed assessment is Helen. Ms Edwards says that,

‘This assessment is designed to inform its permanency planning for Helen if she does not remain at home with her mother and step father. The authority’s default position remains that Helen will be placed in long term foster care. However, the proposed attachment assessment plan is proposed to inform consideration of whether adoption (with or without Ben) might be a more suitable long term care plan for Helen.’

91. It is unnecessary to set out the detail of the assessment plan. I am satisfied that the proposed assessment is appropriate and that the workers who are to undertake the assessment (one of whom is Ms Edwards herself) are well qualified to undertake this piece of work. What is not clear to me is why this assessment was not undertaken at a much earlier stage.

The mother

92. The mother is hard of hearing. In court she was provided with headphones to assist her to listen to the evidence. She said that she could hear what was going on. I have already noted the concerns about the mother’s passivity and about the poor quality of her interaction with her children. I have had the opportunity to observe the mother in court over three days. Throughout the entire hearing she remained completely impassive. Both when sitting at the back of the court and when giving her evidence there was not a flicker of emotion. She has had two children removed from her care. She is at risk of having her remaining two children removed also. In similar circumstances many mothers would display a range of emotions from distress to anger. This mother was completely unemotional throughout.

93. With respect to the local authority’s final care plans for Helen and Ben, in her written evidence the mother says,

‘I am not happy for Helen and Ben to be removed – I want them to stay with me. I feel that I am able to meet their needs with just the two of them in my care. I accept we still have some way to go but I think with the right support we can get there. Over the last two months we have made some really positive changes such as the house move and school/nursery change. I would like the opportunity to prove that I can sustain the change and continue to make improvements. I know that will be with a high level of intervention and support for now but I continue to be happy to engage with any and all professionals and co-operate with the Court process…’

94. She was asked what she thought it was that had led to the local authority’s concerns. She identified the number of house moves. She said that the house moves were the result of the violent relationships she had been in. Apart from this she said she didn’t think she had done anything else wrong. She believes she has looked after her children very well. She acknowledged that there are concerns about Helen’s low weight but she insisted that it is not her fault that Helen has not been putting weight on. Although the Deputy Head Teacher said that the mother had not attended any parents’ evenings at school the mother insisted that she had attended all of the parents’ evenings for Helen. She understands that Helen is ‘a little bit behind at school’. She does not accept that she has failed to engage with the local authority. She does not accept that she doesn’t interact with the children during contact. She does not accept that she is struggling to care for Helen and Ben.

95. The mother describes her eviction in 2013 and the move to temporary accommodation. She says she didn’t tell her social worker about the eviction because she didn’t know that her social worker would be able to help her. She describes the property in Loughborough as ‘a very horrible house’. She says she was ‘not aware that the children were scared of the graffiti’.

96. The mother acknowledges that she currently has rent arrears from previous properties of around £2,500. She is also two weeks behind in payment of rent on her present home. She is in the process of obtaining a loan from the Job Centre to reduce the arrears. She says that she applied for housing benefit in February but that it has still not come through.

97. Although the mother agrees that David should remain in foster care and Philip with his father, she does not agree the local authority’s proposals for contact. She wants to see David fortnightly but would be prepared to accept monthly. She wants to see Philip every week in her own home. She also disagrees with the local authority’s plans for Helen and Ben. She believes they should remain in the care of herself and DB. She gives a positive description of her relationship with DB and of the support he provides in caring for the children. She describes his relationship with Helen and Ben as ‘very, very good’.

The three fathers

98. As the final care plans for David and Philip are agreed, it is unnecessary to say much about JM or ND.

David’s father, JM

99. JM lives with his partner Ms X. They have been living together for two years. They live in a first floor flat. Ms X has three children from previous relationships. They are aged 8, 6 and 4.

100. Until the first day of this final hearing JM opposed the local authority’s final care plan for David, seeking placement of David into his care. He changed his position on the first morning of this hearing. Having changed his position, he elected not to give oral evidence.

101. JM had no contact with David between March 2010 and October 2013. Contact was initially reinstated by way of indirect contact. By December 2013 this had progressed to direct contact. As I have already noted, the local authority is open to the possibility that over time this may progress to unsupervised contact and possibly even to overnight contact.

Philip’s father, ND

102. ND is pleased that Philip has been placed in his care. He accepts that Philip should have contact with his mother. He assured the court that he will promote contact. He confirmed that Philip enjoys seeing his mother and Helen. However, he expressed concern about the quality of contact. Philip has told him that his mum ‘just sits there’ and doesn’t engage with him. ND is also worried about the mother having little food in the house when Philip visits for contact. He is concerned that if Helen and Ben are removed from the mother’s care her income will go down and the risk of her having little food in the house will increase.

103. ND has concern about DB having contact with Philip. He describes DB as sometimes being very aggressive. He described an incident in the precincts of the court on the first day of this hearing in which he had felt threatened by DB.

104. Within the private law proceedings relating to David, the court granted a prohibited steps order prohibiting the mother from allowing DB to have contact with David. On the same day, in the private law proceedings brought by ND the Family Proceedings Court noted that as a result of the prohibited steps order relating to David, DB would not be able to have contact with Philip when David was present. This effect of this has been as if the prohibited steps order prohibited the mother from allowing DB to have contact with either David or Philip. ND now invites the court to make a prohibited steps order prohibiting the mother from allowing DB to have contact with Philip..

Ben’s father, DB

105. DB has been in a relationship with the mother since late 2010. The expression ‘in a relationship’ is somewhat enigmatic. DB is at pains to say that he and the mother do not live together. He stays overnight with her two nights a week. The other nights he spends at his father’s house. He visits the mother’s home on his days off from work. Although both insist that they will soon live together full-time, no date has been set for this. It is unclear why they do not already live together. The desire not to jeopardise the mother’s entitlement to benefits would appear to be a significant factor.

106. DB is employed as a kitchen porter. As he gave his evidence it became clear that his work is very important to him. Criticism is made of him for not attending some of the contacts with David and Philip, for him not attending all of the ‘Lets Get Talking’ sessions with Ben, for being semi-detached from the parenting assessment undertaken by Mr Barrowcliffe. In respect of all of this DB offered his work commitments as the reason for this apparent lack of engagement. Although DB says that he is willing to move in with the mother on a permanent basis and even to give up his job if that is what the local authority considers necessary in order for them to continue to care for Helen and Ben, I was not persuaded that he was being sincere.

107. DB says that he has given the mother ‘hundreds of pounds’ to pay the rent with. She had not told him that there were rent arrears of in excess of £2,500 in 2013. He did not find out about this until eviction was imminent. This does not suggest that there is an open relationship between them. Indeed, DB was very clear that sometimes he has been given information by professionals which ought to have been given to him by the mother. As he put it, somewhat plaintively, ‘how can I help her when she doesn’t tell me things?’

108. It was not until after this hearing began that DB asked that he should be assessed as a sole carer for Ben. He said that he would get a flat for himself and Ben to live in. It is clear that these are better described as thoughts than as plans. There are no plans and even the thoughts are not properly thought through.

The Children’s Guardian

109. The guardian first allocated to this case was Lorraine Gomes. I noted earlier that at the time it issued these proceedings it was the local authority’s intention to seek to persuade the court to grant interim care orders in respect of Helen and Ben on the basis of an interim care plan that they be removed and placed in foster care. The guardian opposed that plan. The local authority decided not to press ahead with its application for interim removal.

110. In January 2014 there was a change of guardian. The Children’s Guardian now is Vasanti Motivaras. Mrs Motivaras has prepared two written reports. In both she has supported Helen and Ben remaining in the care of the mother and DB. It was not until the first day of this final hearing that she indicated that she had changed her mind. She now supports the local authority’s final care plans for all four children.

111. In her first report, dated 14^th April 2014, the guardian’s position could not have been set out more clearly. She says,

‘41) In respect of Ben and Helen, whilst I acknowledge the home environment and care of the children is not perfect, on balance, I am not persuaded that their current circumstances warrants a removal from the care of their mother and/or DB. In addition, I do not feel that it is in either Helen or Ben’s best interests to be separated from each other; Ben has lived with Helen all his life. As set out above…I am of the view that the children should remain in the care of SM and DB with continued support from the Local Authority; I am also of the view that the children’s needs would be best met via the making of a Supervision Order.

42) Helen and Ben will also need to continue to have contact with their elder brothers David and Philip. The relationship between siblings is the longest lasting relationships most people have; longer than that of the parent/carer/child or husband/wife/ partner relationship. Despite the fragility of the relationships, if Helen and Ben were to be placed for adoption they may cease to have direct contact with each other (if placed separately) and indeed with their brothers David and Philip. I am of the view that this would have a negative impact on all of the children.’

112. The guardian’s second report, dated 2^nd May, was filed in response to the local authority’s application for a placement order in respect of Ben. The guardian makes it plain that she opposes the application for a placement order for the reasons set out in her earlier report.

113. The guardian says that it was not until 30^th April that she received the psychological assessment of David and the medical reports of Dr Kershaw in respect of Helen and Ben. She did not get the opportunity to read them until after the Bank Holiday weekend. She visited the family on 2^nd May. She had a discussion with the social worker on 6^th May when she was updated on the outcome of the Core Group meeting held on 1^st May. She notes that Helen is still arriving at school late most days; that the claim for housing benefit does not appear to have been pursued appropriately thus giving rise to the risk of a further eviction; that the mother needs support but appears to be resistant to receiving it. There needs to be commitment and willingness to engage but it simply isn’t there. All of this had made the guardian reconsider her position. That, in turn, led to her coming to the conclusion that Helen and Ben should be removed. She agrees to them being placed initially in short-term foster care. She supports the local authority’s proposal to undertake an assessment of sibling attachments.

114. The guardian agreed that since her appointment there have been improvements. The mother and DB are working to improve the standard of their home. Carpets are about to be fitted. The children are well-presented at school and at nursery. However, all of this is outweighed by the concerns. It is those concerns that have persuaded her that it is not in these children’s interests to remain in the care of the mother and DB.

115. Late in the day DB proposed that if he and the mother cannot parent the children together then he should be assessed as a sole carer for Ben. The guardian does not support him. She noted that DB had not really engaged with the parenting assessment undertaken by Mr Barrowcliffe. He has had ample opportunity to seek an assessment of himself as sole carer. He has not done so. It is not in the interests of these children that there should be any more delay.

The law

116. Before the court may make any order with respect to any of these four children, it must first be satisfied that the threshold set by s.31(2) Children Act 1989 is satisfied. Section 31(2) provides that,

‘A court may only make a care order or supervision order it if is satisfied –

(a) that the child concerned is suffering, or is likely to suffer, significant harm; 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 reasonable to expect a parent to give to him; or

(ii) the child’s being beyond parental control.’

117. In this case it is accepted that the s.31(2) threshold is met with respect to David. However, the mother and DB do not accept that it is met with respect to Helen and Ben. In their case the local authority asserts that at the time protective measures were taken the children were likely to suffer significant harm. The meaning of the expression ‘is likely to suffer’ has been considered by the senior courts on a number of occasions. It is sufficient for present purposes to refer to the judgment of Lady Hale in Re S-B (Children) [2009] UKSC 17 (para 8),

‘The leading case on the interpretation of these conditions is the decision of the House of Lords in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. Three propositions were established which have not been questioned since. First, it is not enough that the court suspects that a child may have suffered significant harm or that there was a real possibility that he did. If the case is based on actual harm, the court must be satisfied on the balance of probabilities that the child was actually harmed. Second, if the case is based on the likelihood of future harm, the court must be satisfied on the balance of probabilities that the facts upon which that prediction was based did actually happen. It is not enough that they may have done so or that there was a real possibility that they did. Third, however, if the case is based on the likelihood of future harm, the court does not have to be satisfied that such harm is more likely than not to happen. It is enough that there is “a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case” (per Lord Nicholls of Birkenhead, at p 585F).’

118. For the mother, Miss Vickers also reminds me of the more recent observations of Lady Hale in Re B (A Child) [2013] UKSH 33 (para 193):

‘I agree entirely that it is the statute and the statute alone that the courts have to apply, and that judicial explanation or expansion is at best an imperfect guide. I agree also that parents, children and families are so infinitely various that the law must be flexible enough to cater for frailties as yet unimagined even by the most experienced family judge. Nevertheless, where the threshold is in dispute, courts might find it helpful to bear the following in mind:

(1) The court’s task is not to improve on nature or even to secure that every child has a happy and fulfilled life, but to be satisfied that the statutory threshold has been crossed.

(2) When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development.

(3) Significant harm is harm which is “considerable, noteworthy or important”. The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened.

(4) The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect.

(5) Finally, where harm has not yet been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents’ future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a “risk” is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely: see In re J [2013] 2 WLR 649.’

The approach to welfare issues

119. The finding that the threshold set by s.31(2) Children Act 1989 is satisfied is the gateway to the making of orders in respect of these children. Within the care proceedings, in determining the appropriate order the court must follow the approach set out in s.1 of the 1989 Act. Section 1(1) provides that when the court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration. In determining what is in a child’s best welfare interests the court must have regard to each of the factors set out in the welfare checklist in s.1(3). Section 1(5) provides that when a court is considering whether or not to make an order under the Act with respect to a child, it shall not make an order unless it considers that doing so would be better for the child than making no order at all. In public law cases this means that the level of state intervention should be no greater than is necessary in order to secure the child’s welfare. Section 1(2) sets out the general principle that any delay in concluding proceedings such as these is likely to prejudice the welfare of the child.

120. In addition to those statutory provisions, the court must also have regard to the Article 8 rights of these children and of their parents and must endeavour to arrive at an outcome that is both proportionate and in their best welfare interests.

121. So far as Ben is concerned, in addition to a final care order the local authority also seeks a placement order pursuant to s.21 Adoption and Children Act 2002. The court may only make a placement order if either the child’s parents consent to the order being made or if the court dispenses with the parents’ consent. Section 52 provides that the court cannot dispense with a parent’s consent unless it is satisfied either that the parent cannot be found or is incapable of giving consent or that the welfare of the child requires that the parent’s consent be dispensed with.

122. In determining whether to make a placement order and whether to dispense with parental consent the court’s approach must be as set out in s.1 of the 2002 Act. The court’s paramount consideration must be the child’s welfare throughout his life (s.1(2)). In determining the child’s welfare interests the court must have regard to each of the factors in the welfare checklist set out in s.1(4). Once again the court must have regard to the issue of delay (s.1(3)) and to the injunction not to make a placement order unless it considers that making the order would be better for the child than not doing so (s.1(6)). The court must also have regard to the child’s Art 8 rights and to those of his parents.E+W

Re B-S (Children)

123. When dealing with an application for a placement order or adoption order, the court must bear in mind the guidance given by the Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146. The approach to determining whether a placement order is appropriate is stringent. Such an order should only be made (para 22).

‘where “nothing else will do”, where “no other course [is] possible in [the child's] interests”, they are “the most extreme option”, a “last resort – when all else fails”, to be made “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do ”’

124. In order for the court to be able to determine what nothing else but adoption will do (para 34),

‘…there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option…

125. 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 afford paramount consideration to the child’s welfare. It follows, therefore, that (para 84),

‘What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.’

Discussion - the section 31(2) threshold

126. As I have already noted, the parents concede that the s.31(2) threshold is met so far as David is concerned. It is not accepted that the threshold is met so far as Helen and Ben are concerned. Miss Vickers submits that in determining whether the threshold is met ‘each child must be considered in isolation and subjectively; the court is considering whether or not “the child concerned” is likely to suffer significant harm’.

127. Whilst I accept that at the welfare stage each child must be considered separately, I do not accept that that is so at the threshold stage, or at least not in the sense apparently intended by Miss Vickers.

128. There is an abundance of evidence that David has suffered significant harm as a result of the care provided by his parents not being what it would be reasonable to expect a parent to have given to him. It is clear that David’s problems are the result (in large part if not exclusively) of nurture not nature. That alone is a sufficient factual basis to support a finding that so far as concerns Helen and Ben they, too, are ‘likely to suffer’ significant harm.

129. However, the case for concluding that there is a likelihood, a real possibility, of the younger two children suffering significant harm does not depend solely on the finding of deficits in the mother’s parenting of David. There is also clear evidence of deficits in her parenting of Helen and Ben. Earlier in this judgment I set out the background history in much greater detail than would normally be appropriate in a case such as this. I have done so because it is when reviewing that history as a whole that clear evidence emerges of inadequate and neglectful parenting of Helen and Ben.

130. So far as concerns the mother’s parenting of Helen and Ben, there is evidence, which I accept, of limited emotional warmth (for example, the mother’s lack of interaction with the children during contact), of lack of routines (Helen, for example, has regularly been late for school even though the mother lives only 5 minutes walk from the school), of lack of boundaries (noted, for example, in the minutes of the Core Group meeting on 1^st May), of multiple house moves, of inability to manage finances (rent arrears on previous properties are still outstanding, there are rent arrears on her present property, she has not adequately pursued her application for housing benefit) leading to a clear risk of future eviction. These are mere examples. There is no evidence that DB is able to ameliorate, or even that he has any real insight into, any of these concerns. Although the local authority has chosen not to seek a finding that Helen and Ben have already suffered significant harm, the admissions made with respect to David and the facts found proved with respect to the care of Helen and Ben together form a compelling factual foundation for a finding that Helen and Ben are likely to suffer significant harm in the care of the mother and DB.

131. There is a degree of controversy about paragraph (b) of the threshold document, which asserts that,

‘David has alleged on four separate occasions that he has been assaulted by mother or DB, which shows that his relationship with mother and DB is unhappy and troubled.’

Though I am satisfied that the evidence justifies that finding I make it plain that that does not amount to and is not intended to amount to a finding that either the mother or DB have assaulted David.

132. So far as concerns Helen and Ben, I am satisfied that the s.31(2) threshold is met on the basis of the local authority’s final threshold document.

Discussion – welfare issues

133. So far as concerns welfare issues, it is necessary to consider each child separately.

David

134. The parties are agreed that there should be a final care order in respect of David. I approve the local authority’s final care plan that he should remain in long-term foster care and that the present level of contact should be reduced. The local authority proposes that the mother’s contact be reduced to three times a year. The mother would wish to see him fortnightly or, at the least, monthly.

135. JM presently sees David fortnightly. The local authority proposes that this be reduced to six times per year but has promised to keep this under regular review (by which it means more frequently than the twice-yearly LAC Reviews) and is open to the possibility that contact may develop and in due course become unsupervised perhaps leading to overnight. JM is reluctantly prepared to accept this plan.

136. The approach to setting the frequency of contact must be child centred and not parent centred. Even without the benefit of the local authority’s proposed assessment of the attachment between the siblings, the evidence suggests that David’s need for contact with his siblings is greater than his need for contact with his mother. The local authority proposes that inter-sibling contact take place monthly. This means that in total David will have contact with his family on at least 21 occasions per year – almost twice a month. It is important that he should be able to settle and have the opportunity to build a stable and permanent home with his foster-carers. Too much contact with his birth family – and in particular too much poor quality contact – runs the risk of destabilising the placement. I am satisfied that the local authority’s final care plan for David is appropriate and in the best interests of his welfare.

Philip

137. The local authority proposes that there should be a child arrangements order confirming that Philip should continue to live with his birth father. It proposes that contact with mother be reduced to monthly. ND and the guardian support the local authority. The mother seeks contact on a fortnightly basis.

138. If Helen and Ben are no longer living with the mother the local authority accepts that contact can be unsupervised and take place at the mother’s home. The mother and the guardian say that contact should be unsupervised and should take place at the mother’s home irrespective of whether Helen and Ben stay with their mother.

139. I accept that monthly contact is sufficient to meet Philip’s welfare needs. He will also be meeting with David (and, depending upon the final orders made with respect to them, perhaps also with Helen and Ben) on a monthly basis. This means that, together with contact with his mother, Philip will be having contact with family members twice a month. I am satisfied that that is appropriate. I approve the local authority’s plan for Philip.

140. ND also seeks a prohibited steps order prohibiting the mother from allowing Philip to come into contact with DB. In light of the history I am satisfied that it is appropriate that there should be such an order.

Helen

141. In its final care plan for Helen the local authority proposes that there should be a care order based on a plan for Helen to remain in long-term foster care. The plan is supported by the guardian but opposed by the mother.

142. Though described as a ‘final’ care plan It is clear that this is not necessarily the ‘final’ care plan for Helen. The local authority holds out the possibility that the outcome of the proposed assessment of sibling attachment may lead it to conclude that an application should be made for a placement order. In her final witness statement the allocated social worker, Sian Edwards, says that in her view,

143. Section32(1)(a) of the Children Act 1989 provides that an application for a care or supervision order must be disposed of ‘without delay’ and ‘in any event within twenty-six weeks beginning with the day on which the application was issued’. No-one could have been in any doubt about the court’s intention to complete this case within 26 weeks. I am surprised and concerned that the proposed assessment of sibling attachment, an assessment which I accept is necessary, was not undertaken at a much earlier stage.

144. The local authority, supported by the guardian, proposes that I should make a final care order in respect of Helen on the basis of the current plan for long-term foster care. If it should later appear that adoption is a more appropriate outcome then the local authority will apply for a placement order.

145. To proceed in this way would not only leave uncertainty concerning the ultimate plan for Helen’s future, it would also leave uncertainty about the local authority’s plans for contact between Helen and her siblings and her mother. In my judgment, that approach is not appropriate. There are two principal reasons for arriving at that conclusion.

146. Firstly, s.31 Children Act 1989 provides as follows

‘(3A) A court deciding whether to make a care order –

(a) is required to consider the permanence provisions of the section 31A plan for the child concerned, but

(b) is not required to consider the remainder of the section 31A plan, subject to section 34(11).

(3B) For the purpose of subsection (3A), the permanency provisions of a section 31A care plan are such of the plan’s provisions setting out the long-term plan for the upbringing of the child concerned as provide for any of the following –

(a) The child to live with any parent of the child’s or with any other member of, or any friend of, the child’s family;

(b) Adoption;

Section 34 (11) provides that.

(11) Before making, varying or discharging an order under this section or making a care order with respect to any child, the court shall –

(a) consider the arrangements which the authority have made, or propose to make, for affording any person contact with a child to whom this section applies; and

(b) invite the parties to the proceedings to comment on those arrangements.

147. Given the uncertainty concerning the local authority’s final care plan for Helen, both in respect of the type of placement which may ultimately be sought and the impact that may have on the plans for contact, the court is not at this stage able adequately to comply with the statutory obligations to which I have referred.

148. Secondly, compliance with the requirements of Re B-S (Children), to which I referred earlier, is to be regarded as mandatory. In her final witness statement Ms Edwards acknowledges that the plans for Helen and Benn are at present inchoate. In a section of her statement headed Evaluation and Conclusions there is a sub-heading Helen and Ben: Foster care or Adoption? Although, as between adoption and foster care, the analysis relating to Ben is compliant with the requirements of Re B-S (Children), that is plainly not the case so far as Helen is concerned. In the penultimate paragraph of her statement, Ms Edwards says,

149. The consequence of not approving the final care plan for Helen is that so far as she is concerned these proceedings cannot be completed within 26 weeks. Further amendments to s.32 Children Act 1989 permit the court to extend the period of 26 weeks by 8 weeks (s.32(8)). The court may extend the 26-week timetable ‘only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly’ (s.32(5)).

150. In Re S (A Child) [2014] EWCC B44 (Fam) the President of the Family Division, Sir James Munby, has recently given guidance on the criteria which may justify an extension beyond 26 weeks:

‘33. There will, as it seems to me, be three different forensic contexts in which an extension of the 26 week time limit in accordance with section 32(5) may be "necessary":

i) The first is where the case can be identified from the outset, or at least very early on, as one which it may not be possible to resolve justly within 26 weeks. Experience will no doubt identify the kind of cases that may fall within this category. Four examples which readily spring to mind (no doubt others will emerge) are (a) very heavy cases involving the most complex medical evidence where a separate fact finding hearing is directed in accordance with Re S (Split Hearing) [2014] EWCA Civ 25, para 29, (b) FDAC type cases (see further below), (c) cases with an international element where investigations or assessments have to be carried out abroad and (d) cases where the parent's disabilities require recourse to special assessments or measures (as to which see Re C (A Child) [2014] EWCA Civ 128, para 34).

ii) The second is where, despite appropriately robust and vigorous judicial case management, something unexpectedly emerges to change the nature of the proceedings too late in the day to enable the case to be concluded justly within 26 weeks. Examples which come to mind are (a) cases proceeding on allegations of neglect or emotional harm where allegations of sexual abuse subsequently surface, (b) cases which are unexpectedly 'derailed' because of the death, serious illness or imprisonment of the proposed carer, and (c) cases where a realistic alternative family carer emerges late in the day.

iii) The third is where litigation failure on the part of one or more of the parties makes it impossible to complete the case justly within 26 weeks (the type of situation addressed in In re B-S, para 49).

151. In this case I want to make it very clear that the reason for granting an extension beyond 26 weeks falls into category (iii) of that guidance. The assessment of sibling attachments could, and therefore should, have been completed in advance of this final hearing. Notwithstanding the apparent complexity of dealing with a family group of four children each with a different father, each with different needs, I am in no doubt that the application in respect of Helen could, and therefore should, have been completed within 26 weeks.

Ben

152. So far as Ben is concerned, the local authority seeks a final care order and a placement order. Belatedly, the plan is also now supported by the guardian. It is opposed by the mother and by DB.

153. Helen and Ben have always lived together. Without the assessment of sibling attachments it is unclear what the impact would be on Ben of separating him from his sister. Even if the final care plan for Ben were to be approved, it is clear that the local authority does not intend to act on that plan until the assessment of sibling attachments has been completed. Although the guardian would not support a plan of long-term foster care for Ben, the possibility that the local authority may yet propose that Helen and Ben be placed together in long-term foster care cannot be ruled out.

154. I have come to the conclusion that against the background of uncertainty which I have described, it would be inappropriate for the court to consider making final orders with respect to Ben. The applications relating to Ben and Helen should continue to run in tandem. In both cases what is required now is robust case management in order to ensure that the delay is kept to a minimum.

Next steps

155. On behalf of the local authority, Miss Butt submits that if the court concludes that it is unable to make final orders at this stage it should nonetheless rule out the mother and DB as long-term carers for Helen and Ben and make interim care orders permitting the local authority to remove them and place them in foster care. In support of that proposition, Miss Butt relies upon the judgment of Black J (as she then was) in North Yorkshire County Council v. B [2008] 1 FLR page 1645 in which she said (paras 18 and 19):

‘If the evidence is available I see nothing wrong in the court determining in advance of the local authority presenting its Final Care Plan and the court considering ‘disposal’ that a particular individual is not going to be in a position to care for a child's safety in the sort of timescale that the child needs. It is not at all uncommon for a parent or other individual to be ruled out after a fact‑finding hearing…It seems to me that the question is not therefore whether it is lawful or an admissible exercise of discretion to deal with things in this way but whether the evidence is available to take that decision at this stage.’

156. The history of the local authority’s involvement with this mother goes back for more than seven years. Over that period there have been times when the mother’s care of children and home has been just about adequate. However, taking a long view, it is clear that even when the mother’s care of children and home has been acceptable she has been unable to sustain it. There has always been deterioration. The local authority has tried to work with the mother but she has always found it difficult to engage. Her ability to meet the needs of her children has been fitful and unreliable. The consequences of that for David have been profound. The evidence suggests that Helen and Ben are also being affected and that their presentation today is similar to David’s presentation when he was their age. History is repeating itself. Although I am unable to make final orders in respect of Helen and Ben, I am satisfied that the mother is not able to parent them to a good enough standard throughout the remainder of their minority. The evidence does enable me to rule out the mother, at this stage, as a long-term carer for Helen and Ben.

157. What then of DB? DB requests that the court should require the local authority to undertake an assessment of him as a sole carer for Ben. It is arguable that the fact that I am not, today, making final orders in respect of Ben means that to require an assessment of DB will not cause delay. There is some force in that argument. Against it, though, is the fact that DB was very much intended to be part of the parenting assessment undertaken by Mr Barrowcliffe but his engagement was semi-detached. He has had the opportunity to move in to live with the mother on a full-time basis yet has not done so. He has appeared to prioritise his work commitments over his responsibilities towards the mother, Helen and Ben. If he has recognised the inadequacies in the mother’s parenting of her children – and the evidence suggests that he has not – then he has not been able to make up for those inadequacies. DB was not an impressive witness. I am not persuaded that justice requires that he be given time and opportunity to undergo an assessment as sole carer for Ben. On the contrary, I am satisfied that the evidence enables me to rule him out at this stage as a long-term carer for Ben.

158. Having ruled out the mother and DB as long-term carers for Helen and Ben and there being no kinship carers able and willing to care for them it is clear that their welfare interests require that they be cared for either in foster care or in an adoptive placement. They have a journey to make. It is not appropriate to delay that journey any further. In this case there can be no doubt that delay is prejudicial to the children’s welfare. The local authority has identified a foster placement with experienced specialist therapeutic foster carers. It is proportionate, just and in their best welfare interests that Helen and Ben should now move to that placement.

Conclusions

159. With respect to David and Philip, I shall make the orders sought by the local authority. With respect to Philip, I shall also make a prohibited steps order in the terms set out earlier.

160. As for Helen and Ben, I shall extend the 26 week timetable by 8 weeks and upon formal handing down of this judgment I will give further case management directions to include a direction that the local authority’s assessment of sibling attachments be completed within 6 weeks.

161. I rule out both the mother and DB as long-term carers for either Helen or Ben. With respect to both Helen and Ben I shall make interim care orders on the basis that they will immediately be removed from the care of the mother and DB and placed in foster care.

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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> D (Children) [2014] EWFC B57 (20 May 2014) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B57.html Cite as: [2014] EWFC B57

England and Wales Family Court Decisions (other Judges)