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 families must be
strictly preserved.
IN THE FAMILY COURT SITTING
AT LEICESTER
CASE No. LE15CO0261
Before His Honour Judge Clifford Bellamy
(judgment handed down on 30th November
2015)
Re
D and R (Children)
Gillian Temple-Bone, counsel for the local authority
Rebecca Fitton-Brown, counsel for the mother of D
Gemma Cole, solicitor for the mother of R
Moira Walsh, counsel for the father
Emily James, counsel for the grandparents
Jonathan Adler, counsel for the aunt and uncle
Sara McCarthy, counsel for the children
JUDGE BELLAMY
1.
On 13th March 2015, Leicester City Council (‘the local
authority’) issued care proceedings in respect of two children, D, now aged
9, and R, now aged 5 (not their real names). The parents agree that the
threshold set by s.31(2) of the Children Act 1989 is satisfied. It is agreed
that R should remain in the care of her paternal aunt and uncle under a
Special Guardianship Order. The main issue for determination by the court is
the appropriate welfare outcome for D.
2.
The family relationships are complex. I therefore begin this judgment by
setting out the profiles of the principal characters.
Profiles of
principal characters
The mother
3.
D’s mother is NH (‘the mother’). She is 28 years old. In February
2013 she began a same sex relationship with Miss T. The mother and Miss T have
been living together since December 2014.
4.
The mother has been diagnosed as suffering from Borderline Personality
Disorder. In 2013 she was referred for therapy to the Personality Disorder Network.
She did not engage. Following psychiatric assessment within these proceedings
she has been re-referred. She is awaiting an appointment.
5.
The mother experiences auditory and visual hallucinations, often
simultaneously. There is no evidence of her responding to unseen stimuli. She
has never experienced command hallucinations. However, she continues to
experience hallucinations daily, even during the course of this court hearing.
Her coping strategies are self-taught. Her principal strategy is to listen to
music on her headphones. The hallucinations are intrusive. At times they make
her feel suicidal.
6.
In February 2011 the mother was admitted to a psychiatric unit following
an overdose. She remained in hospital for a month. Although she says that she
was a voluntary patient there is some evidence in the papers to suggest that
she was compulsorily detained under the Mental Health Act 1983.
7.
The mother has a history of self-harming, mostly by cutting her arms and
legs. The most recent episode of self-harming was in December 2013. She
presented herself to A&E. She was not detained. Arrangements were made for
her to be seen in the psychiatric outpatients’ clinic. It was noted that she
had stopped taking her antipsychotic medication, quetiapine, in June 2013.
8.
As a result of her mental health difficulties, since 2011 the mother has
been registered as disabled. Miss T is registered as her full-time carer.
9.
The mother was in a relationship with D’s father from around 2005 to
2008. Over the years since that relationship ended the mother has been involved
in 7 same-sex relationships. She has lived with five of her partners. Her
longest same-sex partnership has been with Miss T.
10.
The mother seeks a child arrangements order with a provision that D
should move to live with herself and her partner, Miss T.
Miss A
11.
Miss A is the mother of R. She is aged 31. She is learning
disabled. A recent psychological assessment notes that she has a significant
impairment of intellectual functioning. Her overall cognitive functioning
places her within the lower 1% of her age related peers. Notwithstanding her
learning disability, she is assessed as having capacity to instruct her
solicitors in these proceedings.
12.
Miss A has had two children from previous relationships. One is the
subject of a Special Guardianship Order. The other has been adopted.
13.
Miss A accepts that she is not in a position to be able to care for
R. She agrees that it is appropriate for there to be a Special
Guardianship Order in favour of paternal aunt and uncle.
The father
14.
FJ is aged 33. He is the father of both D and R (‘the father’).
The father is disabled. He suffers from skeletal dysphasia. He has a problem
with alcohol. There is some evidence of intimate partner violence.
15.
When he was 9 months old the father’s parents placed him in the care of
his paternal aunt and uncle, BJ and CJ. They have been the only parents he has
ever known.
16.
In 1991, when the father was aged 9, CJ was sentenced to a term of
imprisonment for sexual offences. He was released from prison in 1996.
According to the papers, a psychiatric risk assessment was undertaken. The risk
was assessed as low. CJ was allowed to return home to resume caring for FJ (the
father).
17.
In 2005 the father was convicted of an offence of unlawful sexual
intercourse with a girl under the age of 16. The offence was committed in 2003
when he was aged 21. He was sentenced to a community rehabilitation order for a
period of 18 months.
18.
The father accepts that it is not appropriate for him to care for either
of his children. He agrees that R should continue living with her paternal
aunt and uncle and that there should be a Special Guardianship Order. He agrees
that D should remain in the care of BJ and CJ.
The
grandmother
19.
BJ is D’s great great aunt. She is aged 67. Along with her husband,
CJ, she has been D’s full-time carer for the last two years. D looks on
them as grandparents. They have been described as grandparents throughout this
hearing. Though not accurate, throughout the remainder of this judgment I shall
refer to BJ as ‘the grandmother’.
20.
The grandmother was married to PJ in 1975. They had one daughter, Carol
(not her real name). The grandmother has 3 adult children from an earlier
relationship.
21.
PJ died in 1978. The grandmother subsequently formed a relationship with
CJ. CJ and PJ were brothers. The grandmother married CJ in 1986. Carol is
therefore CJ’s niece and also his step-daughter.
22.
The grandparents have been involved in the day to day care of D
throughout his life. He has lived in their full-time care for at least the last
two years.
The
grandfather
23.
CJ is the father’s great uncle and therefore D and R’s great great-uncle.
For the reasons already set out, I shall refer to him as the grandfather.
24.
The grandfather is aged 74. He suffers from angina. Before his marriage
to the grandmother, he had been previously married. He and his first wife had
two children. They are now adults. He is not in contact with them.
25.
When she was aged between 11 and 13, Carol was sexually abused by the
grandfather. In 1991 he was convicted of offences of unlawful sexual
intercourse and buggery. He was sentenced to a total of 8 years imprisonment.
He was released on licence after serving 5 years. There are no further
convictions recorded against him.
26.
Although the grandfather pleaded guilty, at the time of the criminal
proceedings he insisted to the grandmother that he had not abused Carol and
that his only reason for pleading guilty was because he had been advised by his
legal team that he would receive a substantially lower sentence than if he were
convicted after a trial. The grandmother believed him and disbelieved Carol.
27.
The grandfather maintained his innocence for a quarter of a century. It
was not until after these care proceedings had been issued that he finally
admitted to the grandmother that he had sexually abused her daughter. By then,
they had been caring for D for some two years.
28.
The grandparents and D are devoted to one other. They wish him to
remain in their care.
Miss T
29.
Miss T is aged 37. She has four children aged between 5 and 13. She was
married to the father of the older two children for 8 years. After their
separation she formed a relationship with the father of her youngest two
children. They separated in 2014. By then she was in a same-sex relationship
with the mother.
30.
Miss T lives in a 3 bedroom terraced house in local authority area Y, a
neighbouring authority to Leicester City Council. The mother moved in to live
with her almost a year ago, in December 2014. Though qualified as a teaching
assistant she has never worked in that capacity. She does not work. She is
registered as the mother’s full-time carer.
31.
During the course of these proceedings Miss T has met and now has
contact with D. The contact includes overnight contact.
32.
Miss T supports the mother’s view that D should be placed with her.
She would be happy for D to move in to live with them. The bedroom shared
by her sons is large enough to accommodate D too. D has formed a good
relationship with her children, though she acknowledges that because they are
similar in age there has been a degree of friction between D and her eldest
son (aged 11). She does not see this as more than a teething problem.
33.
Both the mother and Miss T say that their relationship is stable. They
plan to marry in August 2016. In the (as they would see it) unlikely event of
their relationship breaking down and the mother not being able to care for
D on her own then Miss T would be content for D to continue to be a
part of her family on the basis that she would then become his primary carer.
The aunt and
uncle
34.
EF is aged 49. She is the youngest of the grandmother’s three children
from her first marriage. Between the ages of 9 and 18 she lived with her mother
(the grandmother) and her step-father (the grandfather).
35.
When she was aged around 17, EF formed a relationship with HF. HF lived
with her at her parents’ (the grandparents’) home. When she was 18, EF and HF
set up home together. They were later married. They have no children of their
own.
36.
In August 2014, R moved in to live with them. She has remained in
their full-time care since that time. Though it is slightly inaccurate to
describe them as such, throughout these proceedings EF and HF have been
referred to as R’s aunt and uncle. That is the description I shall use
throughout this judgment.
37.
The aunt and uncle wish to be allowed to continue to care for R.
Until the first day of this hearing the local authority’s care plan was that
R should be made the subject of a final care order and placed in long-term
foster care. That position was not supported by any other party. In particular,
it was not supported by the Children’s Guardian (‘the guardian’) who strongly
supported the application by the aunt and uncle for a Special Guardianship
Order.
38.
All parties are now agreed that there should be a Special Guardianship
Order in favour of the aunt and uncle and a one year supervision order in
favour of the local authority.
Background
history
39.
The local authority was involved with the grandparents as a result of
the grandfather’s sexual abuse of Carol. The primary focus of that intervention
was to ensure the safety and wellbeing of FJ (the father), then aged 14, when
the grandfather returned to the home upon his release from prison. The assessment
was that the grandfather presented only a low risk. Local authority involvement
came to an end.
40.
In 2003 the father was himself convicted of unlawful sexual intercourse
with a child under the age of 16. He subsequently formed a relationship with
the mother. The mother later became pregnant. Following the birth of D in
2006, the local authority undertook an initial risk assessment. The assessment
concluded that the father posed a low risk to D. He was therefore allowed
to continue to care for D.
41.
The mother and the father separated in 2008. D remained in the care
of his father. The father was granted a residence order.
42.
Ongoing concerns led to the local authority convening an initial child
protection conference. In May 2010 D was made the subject of a child
protection plan.
43.
It was in that same year that the father began a relationship with Miss
A. By then Miss A had already had two children removed from her care. Miss A
became pregnant. A referral was made to the local authority. The local
authority undertook a Core Assessment. The assessment was completed soon after
R was born. It is clear from that assessment that the local authority was
aware of the significance of the grandfather’s involvement with his
grandchildren. The Core Assessment states that,
‘The
grandfather has been open about his conviction. He has given an assurance that
[he] no longer feels any attraction towards children and will not pose any risk
to D or R. His close family are aware of the past conviction and are
also confirming that they will be protective towards D and R.’
There is no evidence to suggest that the local authority undertook a
formal risk assessment of the grandfather at that time.
44.
It is clear that the father and Miss A struggled with the care of two
children. The mother moved in to live with them for a while in order to assist
in caring for D. The grandparents also provided support. The local
authority was well aware of this.
45.
In April 2011 the local authority closed its file, concluding that any
outstanding concerns could be addressed under the Common Assessment Framework.
46.
At some point in or around 2013 (the precise date is not clear) D
moved to live with his grandparents. He has lived with them continuously since
that time. The local authority became aware of this arrangement in November
2013.
47.
An initial child protection conference was held in December 2013. Both
children were made the subject of child protection plans. The local authority’s
greater concerns were about R. In August 2014 R moved to live with
her aunt and uncle.
48.
The local authority held a legal planning meeting in October 2014. The
meeting recommended that care proceedings be issued in respect of both
children. The minutes of a Child Protection Review Conference held in February
2015 note that,
‘The risk to
D and R must be comprehensively addressed, there is little evidence of
structured planning and adherence to timescales to date, there is serious
drift, and the number of adults involved in the caring of R and D has
potentially obscured the needs of the children.’
49.
It was not until 13th March that the local authority finally
issued these proceedings, 5 months after the Legal Planning Meeting had
recommended that proceedings should be issued.
Expert assessments
50.
During the course of these proceedings there have been a number of expert
assessments of the principal characters in this narrative.
Dr Kelly
Gaskin
51.
Dr Kelly Gaskin is a consultant clinical psychologist. She was
instructed to undertake a cognitive functioning assessment of Miss A. It is her
assessment that although Miss A suffers from a significant impairment of
intellectual functioning, she has the capacity to instruct solicitors in these
proceedings.
Dr Gabrielle
Milner
52.
Dr Gabrielle Milner is a consultant psychiatrist. She saw the mother on
24th June. She has not met with Miss T. She agrees with the mother’s
diagnosis of borderline personality disorder. She notes that the mother
continues to suffer from hallucinations:
‘The mother
also describes having regular images of black shadows, which she identifies as
two males and four females coming to attack her with knives and walking past
her as though they are going to slash her throat. The mother also says she gets
constant voices in her head, which are saying horrible things, such as “You’re
not going to get D. Why don’t you just take an overdose? You’re useless and
worthless”.’
53.
Dr Milner also notes the mother’s description of self-harming:
‘The mother
told me that she used to regularly cut her arms and legs in order to let “the
hurt out of her”. She would find that when the blood trickled down her legs she
felt her pain coming out. She used to do this when she was low – a couple of
times a month until January 2014.’
54.
In Dr Milner’s opinion, at the time of her meeting with the mother her
symptoms appeared to be well controlled. She notes that the mother had not
engaged with treatment via the Personality Disorder Network and recommended that
she seek re-referral through her GP. In her report, Dr Milner says that at the
time of her assessment the mother,
‘appears to
be relatively stable although she does describe some periods of emotional
instability, as well as visual pseudo-hallucinations and hearing voices. She is
able to deal with and manage these symptoms. Currently she does not pose a risk
of harm to D. Although it would appear the risk of physical or emotional
harm at present is minimal, stresses in the mother’s life have resulted in her
having taken an overdose, self-harming and assaulted a partner. If the mother’s
mental state deteriorates as a result of stress there could be a risk of
physical and emotional harm to D.’
55.
A parenting assessment of the mother undertaken in the summer of 2015
reports that she told the assessor that ‘she can get angry when she hears
voices and when she feels really bad she can take it out by punching the walls
and shouting…’ The mother did not make a similar disclosure to Dr Milner.
56.
Although the mother’s condition is currently stable, Dr Milner made the
point that relapse can occur quite quickly.
Dr Melissa
Jackaman
57.
Dr Melissa Jackaman is a chartered clinical psychologist. She was
instructed to undertake a psychological assessment of the father and the
grandfather.
58.
So far as concerns the assessment of the father, as he does not seek to
care for either of his children I can deal with Dr Jackaman’s assessment of him
briefly. Dr Jackaman notes that in addition to suffering skeletal dysphasia,
there are concerns that the father appears to be prone to fits and that he may
have had a stroke. Her assessment of him is negative. She says that he,
‘has a very
limited understanding of the totality of the concerns in this case…he of course
reports that he is innocent of the sexual offence for which he was convicted
and therefore does not believe himself to pose a sexual risk at all...When
asked about the issues of sexual behaviour within the wider family, he seems
quite unconcerned about the loose boundaries in this family, the fact that it
seems entirely normal for family members to be raised by people other than
their birth parents, and for relationships to occur between family members…he
does not see [the grandfather] is a risk and he is not overly concerned about
[the grandmother’s] attitude in the sense that he feels that it makes her a risk
in any way…’
59.
Dr Jackaman’s assessment of the grandfather is of even greater concern,
particularly in light of the fact that he has been heavily involved in D’s
care throughout most of his life and a full-time carer for him for the last two
years.
60.
I noted earlier that at the time of the grandfather’s release from
prison he was assessed as a low risk. Regrettably, that assessment is not
available and so the basis upon which risk was assessed is not known. However,
Dr Jackaman said that over the course of the twenty years since that assessment
was undertaken the approach to the assessment of sexual risk has become much
better understood. She says that,
‘Historically
it was considered that intra-familial offenders i.e. incest offenders were
usually considered to have low levels of deviancy and therefore lower risk of
re-offending, Whilst this holds true for many people, the research has found
that there is a significant proportion of intra-familial offenders who are
actually identified as highly deviant by psychometric assessment. This finding
suggests that what was previously known about re-offence rates of
intra-familial offenders (i.e. that it is low) in risk assessment can lead to a
significant under-estimate of the level of risk in a number of cases, and sadly
the grandfather falls in this category.’
61.
Dr Jackaman describes the grandfather as a ‘high deviance individual’.
She says that he,
‘has been
falsely reassured that he is a low risk, whereas in reality his level of risk
is more significant than the previous assessment ascertained. In particular he
continues to show some very worrying pro-offending attitudes in the form of
distorted thinking patterns regarding children and sexual matters, and very
poor levels of victim empathy either for a hypothetical victim or indeed his
own victim, Carol.
In my opinion
the grandfather therefore presents risk to a female child within the family,
such as R, and I would strongly advise that he is not allowed any
unsupervised contact with this young girl at all…
Whilst I
think the risk of sexual abuse towards D is less, unfortunately it cannot
be totally ruled out. The reason is that high deviance individuals have
been found to have a greater likelihood of cross-over offending…’
Though she has not met with D, on the basis of the evidence she has
read Dr Jackaman expresses concern that D is a ‘malleable, compliant young
boy who might find it harder to make allegations if anything did take place’.
62.
Dr Jackaman notes that the grandfather built a very close relationship
with Carol. They became almost inseparable. Very similar descriptions have been
given of the grandfather’s relationship with D.
63.
Dr Jackaman is concerned not only about the risk of D being sexually
abused by his grandfather. She says that she thinks the grandfather’s,
‘whole
understanding of sexual matters is very skewed, unhealthy and dysfunctional and
he does not have a set of attitudes and beliefs which could promote healthy,
safe sexual guidelines to D. Even if he were never to abuse D, I would
still question his ability to educate and support D in his progress through
adolescence in a way which allowed him to acquire healthy and appropriate
levels of knowledge and beliefs about sexual matters.’
64.
Dr Jackaman also expressed concern about the role of the grandmother, in
particular questioning her,
‘whole
attitude towards parenting and her ongoing prioritisation of her relationship
with the grandfather above anything else, including the needs of her children
and grandchildren.’
65.
There is also an issue concerning openness within this family. Dr
Jackaman notes that the grandparents approach to problems is to avoid
conversation about them rather than to face them head on. Their first instinct
is to sweep matters under the carpet. She made the point that families in which
there are a lot of secrets are families in which inappropriate things happen.
Nicci Vella
66.
Nicci Vella is an independent social worker. She was instructed by the
local authority to undertake special guardianship assessments in respect of the
grandparents and the aunt and uncle. Within these proceedings the court gave
permission for her to be jointly instructed to undertake an independent social
work assessment of the grandparents and the aunt and uncle.
67.
Both the independent social work and the special guardianship
assessments of the aunt and uncle were positive. Ms Vella said that ‘there are
no barriers’ to them continuing to care for R. However, she does identify
the need for them to undergo a parenting skills course with a child development
component, training in respect of sexual abuse and in respect of meeting the
needs of a child who has suffered abuse and protective behaviours work. She
also recommends that there should be what she describes as a ‘Family Safety
Assessment’. These are issues to which I must return later in this judgment.
68.
Ms Vella’s assessment of the grandparents is negative. She says that,
‘In
discussing the issue of previous sexual abuse with the grandparents I have been
very concerned regarding the attitude they take. The grandfather describes his
abusive behaviour in a matter-of-fact way without any remorse and the
grandmother dismisses it as something that just happened. Neither of them shows
any understanding of the impact [on Carol] and in fact there is a sense that
Carol does not exist.’
69.
She goes on to note that the grandfather does not accept that he poses
any risk and views Dr Jackaman’s assessment as flawed because she has used a “new”
model of assessment. The grandmother appears to follow her husband’s lead in
this respect and offers no challenge to his thinking.
70.
Ms Vella acknowledges that the grandparents ‘have a good awareness of
D’s physical and educational needs’ but says that she is ‘concerned about
their capacity to recognise and meet his emotional needs…’ She noted, for
example, the harsh tones in which the grandfather sometimes speaks both to the
grandmother and to D. Although the grandfather claims that he raises his
voice because he has a hearing problem, Ms Vella did not accept that that
accounted for what she observed. She expressed doubt about whether this is
likely to change in the future. It was suggested to her by Miss James, for the
grandparents, that theirs is a ‘warm and loving household’. Ms Vella did not
accept that description.
71.
Ms Vella also expressed concern about the level of D’s knowledge
about these proceedings and about other family members, knowledge which she
believes has come from the grandparents.
72.
Though recommending that D should be removed from the care of his
grandparents, Ms Vella makes the point that removal from their care,
‘is not
however straightforward as D is likely to worry about his grandparents if
he is not with them. Frequent opportunities for reassurance will therefore be
important for him.’
Other
assessments
73.
In addition to the assessments undertaken by independent experts the
local authority has also itself undertaken some assessments. It is appropriate
to refer to two of them.
74.
I have already referred to the parenting assessment of the mother. That
assessment was undertaken by St Andrew’s Contact & Assessment Centre. The
report of that assessment appears in the hearing bundle. The report in the
bundle is undated and unsigned. The author of the report is not identified. The
qualifications and status of the author of the report are not stated. An
unsigned statement or assessment report is of no evidential value. Although I
have read the parenting assessment, in the circumstances I place no weight on
it. In taking that approach I am satisfied, in the light of the totality of the
evidence before me, that no party is prejudiced by that decision.
75.
Given that the local authority proposes that D be placed in the care
of the mother and Miss T and that there should be a child arrangements order in
favour of them both, one might have expected that there would have been a social
work assessment of Miss T. Not until very late in this hearing, after the
social worker, the experts, the mother and Miss T had all completed their
evidence, did the local authority produce an assessment apparently completed by
the allocated social worker in August. The purpose of the assessment is said to
have been ‘to establish if either the mother and her partner are able to
provide consistent and stable environment for D if he was to move into
their care’. This is plainly a very important document. It is therefore a
matter of great concern that it was disclosed so late. It is also concerning
that the copy produced to the court was not signed.
76.
Though I note that that report supports placement of D with the
mother and Miss T it would in my judgment be inappropriate to place reliance
upon the finer detail of that report.
Social work
evidence
77.
The current social worker, WG, has been the allocated social worker
since February 2015. Whilst I am critical of the local authority for several
aspects of the way it has worked this case, I make it plain that for the most
part those criticisms relate to incidents which pre-date the allocation of WG.
78.
Given the gravity of the offences to which the grandfather pleaded
guilty, and notwithstanding the assessment undertaken in 1996 which assessed
him as a low risk, I am concerned that the local authority did not undertake a
robust risk assessment once it became clear that the grandparents had a
significant involvement in the care of D and R and even more concerned
that an assessment was not undertaken at the point at which the local authority
became aware that the grandparents had taken over as D’s full-time carers.
By then more than 15 years had passed since the last risk assessment. The local
authority ought to have been aware of the fact that the approach to risk
assessments has changed significantly over the course of those years. It should
have appreciated that it was neither appropriate nor safe to rely upon the 1996
risk assessment.
79.
It is a matter of equal concern that having become aware in November
2013 that the grandparents had taken over the full-time care of D that it
was to be another 16 months before these proceedings were finally issued. Given
the slow pace at which the local authority meandered along, it is hardly
surprising that its application for an interim care order was rejected by the
court on 30th March 2015. The lack of any sense of urgency and,
equally important, the lack of a robust risk assessment of the grandfather
inevitably meant that the local authority was unable to satisfy the judge that
the test for ordering interim removal was met.
80.
As I have noted, R was placed with her aunt and uncle in August
2014. The local authority was well aware of that placement. It undertook a
viability assessment. That assessment was negative. The assessment report is
dated 27th March 2015. Three days later, on 30th March,
the aunt and uncle, together with the social worker, WG, signed a written
agreement. One of the terms of the agreement was that the local authority would
‘facilitate courses and services that would enable [the aunt and uncle] to
provide appropriate care for R given her of (sic) need’.
81.
The reference to R’s need is a reference to the fact that she is
developmentally delayed. The reference to courses and services reflects an
acknowledgement by the local authority that as the aunt and uncle had no past
experience of parenting a child they needed support and training. The local
authority accepts that in order to be helped to understand and meet all of
R’s care needs the aunt and uncle need the support and training proposed
by Ms Vella. It is both surprising and concerning, therefore, to note that at
some point shortly after the written agreement was signed the local authority
decided that it would not ‘facilitate courses and services’. According to the
social worker, WG, the decision to reverse the commitment contained in the
written agreement was taken jointly by herself, her team manager and the Head
of Service. She fully supported the decision. There is no minute of the meeting
at which that decision was taken. There is no evidence that that decision was
ever communicated to the aunt and uncle. Such high-handed behaviour should not
have occurred and is to be deprecated.
82.
In a written statement dated 7th September, WG says that,
‘11.3 The
Department acknowledges that there have been considerable delays in bringing
this matter to court and sincerely apologise for this. Whilst acknowledging the
delays this does not negate from the risk of harm that the children have been
and are still being exposed to.’
That statement comes nowhere close to excusing the shortcomings in the
way this local authority has dealt with this case.
The mother
and Miss T
83.
The mother is in what she considers to be a settled and stable
relationship with Miss T. They plan to marry in August 2016. She acknowledges
her mental health difficulties and the intrusive and unsettling effect of the
auditory and visual hallucinations. However, the strategies she uses to enable
her to cope with this are effective. Though still registered as disabled and
having a registered carer she has not required in-patient treatment for more
than four years and has not self-harmed for almost two years. On the
recommendation of Dr Milner she has been to see her GP who has re-referred her
to the Personality Disorder Network.
84.
The mother accepts that there has been some friction in the relationship
between D and Miss T’s oldest son. She did not consider this to be a
serious issue. Miss T’s other three children all get on with D very well
and he with them.
85.
The mother assured me that she understands how important the
grandparents are to D. She was at pains to stress that if D moves to
live with her she will not attempt to cut them out of D’s life. She will
support his future contact with them.
86.
In her written evidence, Miss T gives details of an incident said to
have occurred on 16th October outside the grandparents’ house.
According to her, the grandfather was the aggressor and she was the victim. The
grandfather gives a different account. Neither account has been explored in any
detail in oral evidence. I make no finding save that, as set out later in this
judgment, I am concerned that these two adults were unable to control
themselves and allowed this conflict to take place in front of D.
87.
Miss T said that she is ‘vaguely aware’ of an allegation by D that
her children have caused him bruising. The incident led to a s.47
investigation, the report from which states that the social worker,
‘saw the
bruises on both front legs and side of his legs mostly around the knees. D
reported that [two of Miss T’s sons] tripped him and he fell and banged his
knees on the kerb however he said he fell on his side. He said he didn’t tell
his mother as she would say stop “tat tailing D”.’
88.
The local authority arranged for a child protection medical to be
undertaken. The report of the s.47 investigation goes on to say that,
‘Whilst at
the medical D offered the explanation that when he went to his mother’s for
the weekend, him and mother’s partner’s children were playing with a scooter
and they pushed the scooter into the back of his legs. The medical view was the
(sic) the injuries were consistent with D’s explanation offered.’
89.
The outcome of the s.47 investigation is set out as follows:
‘D is
already subject to child protection plan and there are ongoing court
proceedings however, discussions to be had with mother regarding appropriate
supervision whilst D and Miss T’s children are playing.’
90.
Given that the incident which gave rise to a s.47 investigation I am surprised
that Miss T’s recollection of the incident is so vague. She insisted that if such
an incident had occurred it must have been an accident. She said that D
often comes into the house telling tales about other children. She is of the
view that he interprets rough play differently to other children. So far as
this incident is concerned, she believes that D was encouraged (I presume
she means by his grandparents) to make his disclosure.
91.
Miss T confirmed that her relationship with the mother is settled and
stable. Although she is registered as the mother’s carer she gave the
impression that these days the ‘care’ required from her is negligible. The
mother has made great progress in dealing with her mental health difficulties.
These proceedings are very stressful but that stress has not impeded the
mother’s progress. In Miss T’s opinion the mother is now well enough to care
for D on her own, even though she has not yet done so.
92.
I accept that both the mother and Miss T were doing their best to tell
it as it is. I do not regard either of them as being deliberately dishonest. I
do, though, consider that both of them view their present and future
circumstances through rose tinted spectacles. Whilst I understand that it is
difficult for them to contemplate their relationship coming to an end, neither
of them convinced me that they have given serious thought to what would happen
to D if their relationship did break down. Although the contact records
suggest a very positive relationship between the mother and D, both the
mother and Miss T appeared to minimise the difficulty of integrating D into
their family. Neither of them has a strategy for how to deal with the friction
between D and Miss T’s oldest son. They have not considered how they would
address the problem if it were to get worse.
The
grandparents
93.
The grandfather admits that his abuse of Carol went on for two years,
and began when she was aged 11. Carol did not get on with her mother (his
wife). She had therefore become very close to him. In those days the
grandmother was in employment. The abuse took place when Carol arrived home
from school. It took place in the home. It happened once or twice a week. From
the grandfather’s account of the abuse it appears to have happened much more
frequently than was known at the time of the criminal proceedings.
94.
The grandfather entered a plea of guilty. At the time he accounted for
that by telling the grandmother that he had been advised by his legal team that
he would receive a lower sentence by pleading guilty. He nonetheless continued
to assert his innocence. The grandmother believed him and did not believe
Carol. It was not until after these proceedings were issued that he finally
told the grandmother the truth.
95.
Although he said that he now understands the effect that his abuse has
had on Carol, I accept the professional evidence that he shows little remorse
and even less insight.
96.
The social worker is in no doubt that D is receiving a lot of
negativity from his grandparents so far as concerns his mother and Miss T. She
says that in October she was informed by D’s school that the grandfather
had been into school to say that if D moved to live with his mother and
Miss T then he would not be able to take any of his belongings with him.
97.
D adores his grandparents and they adore him. It is surprising,
therefore, that until this hearing the grandfather should have taken such a
rigid stance on what possessions D would be able to take with him if he
left their care. In his oral evidence he was a little less rigid. D has a
large collection of Lego. He said that D would be able to take most of his
Lego and his Tablet. He can also take his favourite soft toy which he takes to
bed with him.
98.
The grandfather agreed that he and the grandmother have told D that
it would break their hearts if he left their care. He has told D that he
will keep fighting for him. D is aware that his grandparents have a low
opinion of Miss T and do not want him to move into their home. He agreed that
he has told D that the area where the mother and Miss T live is a rough,
dangerous place and that it is likely that his bike would be stolen if he was
living there. The grandfather showed no insight into the emotional harm his
behaviour is likely to cause D.
99.
With respect to the incident said to have occurred on 16th
October outside the grandfather’s home, his account is at variance with that
given by Miss T. Their respective accounts have not been challenged in
cross-examination. In those circumstances it is inappropriate for me to make a
finding. It is also unnecessary. In my judgment the real significance of this
incident lies in the fact that it was allowed to occur in front of D.
100.
The grandfather was a very unimpressive witness. So, too, I regret to
say, was the grandmother. The grandmother says that when she heard about
Carol’s disclosures she did not believe her. She accepted the grandfather’s
protestations of innocence. Even when he pleaded guilty she continued to accept
that he was innocent and had only pleaded guilty on advice. She continued to
believe in his innocence for the best part of a quarter of a century until,
after these proceedings were issued, the grandfather told her the truth. She
hadn’t asked what had happened and he had not told her. She had backed him up
because she did not know that he was guilty. I find that account to be
unbelievable and untrue.
101.
The grandmother says that now she knows the truth she does not trust her
husband. ‘I wouldn’t believe him again’, she said. It is remarkable that this
change in her attitude has not led to her separating from him. She appears to
believe that even though her husband has perpetrated the most serious sexual
abuse on her own daughter and has lied to her for years, it is possible for
them to continue to parent D as a couple and that she will be the
protective force.
102.
The grandmother is convinced that D does not like spending time at
his mother’s home. He doesn’t like Miss T. He is bullied by her children. He
would be deeply upset if he were forced to go and live with his mother. It
would be better for him to remain with them. He keeps them young.
The aunt and
uncle
103.
The aunt and uncle are delighted at the local authority’s changed
position. They are pleased to be able to care for R on a long-term basis. The
local authority has agreed to provide the services and support recommended by
Ms Vella. They will engage in that work. They are willing to supervise all
contact between R and her parents and grandparents. The proposals for
contact, including sibling contact, are agreed. It is unnecessary to recite the
detail.
The
Children’s Guardian
104.
In her final report, after reviewing the evidence the guardian comes to
two very clear conclusions. The first is that R should remain in the care
of her aunt and uncle under a special guardianship order supported by a 12
month supervision order. The second is that D should move to live with his
mother and Miss T under a child arrangements order and that the grandparents’
future contact with him should be supervised.
105.
The guardian acknowledges that D wishes to remain in the care of his
grandparents. However, she is now so concerned about his emotional and physical
safety in his grandparents’ care that she urged the court to move him immediately
even if there were to be any delay before judgment is handed down. She
acknowledges the distress this will cause not only to the grandparents but to
D himself. In her opinion any short term distress will be overcome by
longer term gains.
106.
The guardian is concerned not only about the risk of sexual abuse but
also about the risk of emotional abuse. It is clear to her that D’s fears of
moving to live with his mother and Miss T have been fostered and encouraged by
his grandparents. In her opinion, the local authority’s decision in 2013 to
acquiesce in the placement of D in his grandparents’ care was ‘flawed’.
107.
Although the guardian continues to support placement of D with his
mother and Miss T, she does not dismiss out of hand the alternative possibility
of placement in long-term foster care. Indeed, she accepted that there are some
attractions to long-term foster care, not least the fact that it would remove
D from the complexities of the dynamics of his birth family.
108.
The guardian is aware of the allegation by D that he has been caused
bruising by Miss T’s children and that he is unhappy spending time at their
home. She accepts that he finds it difficult to live in such a busy household.
She is unable to assist the court with first hand evidence as to the dynamics
of the relationship between D and Miss T’s children as she has not seen them
together. She has, though, seen D in the company of both his mother and
Miss T. She says that he is ‘comfortable’ when he is close to Miss T.
The law
109.
Before the court may make any public law order it must first be
satisfied that the threshold set by s.31(2) of the Children Act 1989 is met.
Once satisfied that the threshold is met, the approach to the determination of
welfare issues is to be found in s.1. In determining any question concerning
the upbringing of a child, the child’s welfare must be the court’s paramount
consideration (s.1(1)). In determining what is in the best interests of the
child’s welfare the court must have regard to each of the factors set out in
s.1(3) – the welfare checklist. The court must have regard to the general
principle that any delay in determining the question before the court is likely
to prejudice the welfare of the child (s.1(2)). The court must also have regard
to the requirement of s.1(5) that the court shall not make any order relating
to the child unless it considers that doing so would be better for the child
than making no order at all.
110.
In addition to those statutory requirements, the court must also have
regard to the Article 8 right to family life. In particular, the court must be
satisfied that any order it makes is both proportionate and in the children’s
best welfare interests. In this case it is necessary to have regard to Article
8 so far as concerns not only these two children and their three parents but
also so far as concerns the grandparents and the aunt and uncle.
111.
There are three possible outcomes in this case – that D should
remain in the care of his grandparents, that he should move to live with his
mother and Miss T or that he should be placed in long-term foster care. The
court’s approach to evaluating those options is clear. It was set out by the
Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146. The
President made the point that 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’. He went on to say that 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
112.
In this case all three parents concede that the threshold set by s.31(2)
is met. I am satisfied that it is. It is unnecessary to set out the details of
the agreed threshold document.
113.
There is no disagreement concerning the welfare outcome for R. It
remains necessary for me to determine the appropriate welfare outcome for
D. I begin my evaluation of the evidence by undertaking a welfare checklist
analysis.
114.
Section 1(3)(a) requires the court to consider D’s ascertainable
wishes and feelings (considered in the light of his age and understanding).
115.
There is an abundance of evidence, which I accept, that D wishes to
remain living with his grandparents. Whilst his age may suggest that the court
should give some weight to D’s expressed views, his understanding is such
that, in my judgment, little weight should be accorded to them. D is
completely unaware of his grandfather’s convictions for unlawful sexual
intercourse and buggery or, more importantly, of the risk his grandfather poses
to him. Furthermore, there is also evidence, to which I referred earlier, that
the grandparents, and in particular the grandfather, have placed D under
considerable inappropriate emotional pressure. This, too, has had an impact on
D’s wishes and feelings.
116.
Section 1(3)(b) requires the court to consider D’s physical,
emotional and educational needs.
117.
D’s physical and educational needs are the same as those of any
other boy of his age. His emotional needs are not. They are greater. He has
been parented by his birth parents together, by his father and Miss A and by
his grandparents. He has been present during an altercation between his
grandfather and Miss T. He has lived with and been separated from his half-sister.
He is in the process of bonding with Miss T and her four children. His
emotional care has been seriously deficient. He has been described by Dr
Jackaman as ‘malleable’. It is vitally important for his long-term development
and security that his emotional needs should be recognised and addressed.
118.
Section 1(3)(c) requires the court to consider the likely effect on
D of any change in his circumstances.
119.
As I have noted, there are three possible outcomes for D. The first
is that he should remain in the care of his grandparents. If that were the
outcome, that would not lead to a change in his circumstances. The other
alternatives are that he move to live with his mother and Miss T or that he be
placed in long-term foster care. Given D’s strong attachment to his
grandparents, the second and third alternatives would represent a major change
in his circumstances. In the event that the court were to approve either of
those options it is clear that every effort must be made to make sure that
D maintains a relationship with his grandparents and in particular that he
receives regular assurance about their health and welfare. He would also need
to be reassured that he is not responsible for any future deterioration in
their health and welfare.
120.
Section 1(3)(d) requires the court to consider D’s age, sex,
background and any characteristics of his which the court considers relevant.
121.
I am satisfied these issues are adequately taken into account as part of
the court’s analysis of the other factors in the welfare checklist.
122.
Section 1(3)(e) requires the court to consider any harm which D has
suffered or is at risk of suffering.
123.
I have already found that D’s emotional care has been seriously
deficient. Although D has not undergone a formal psychological assessment,
I accept that it is likely that he has suffered emotional harm. I am in no
doubt that if there is no change in his present circumstances there is a real
risk that he will suffer, or continue to suffer, emotional harm in the future.
124.
Section 1(3)(f) requires the court to consider how capable each of
D’s parents, and any other person in relation to whom the court considers
the question to be relevant, is of meeting his needs.
125.
This is the most difficult part of the welfare checklist analysis in
this case. As I have indicated, there are three possible outcomes. There are
positives and negatives about each of them.
Remaining
with his grandparents
126.
I accept that D has a strong attachment to his grandparents. They
are devoted to each other. The grandparents have done their best to provide him
with a stable home. There is evidence that they are able to meet his physical
and educational needs.
127.
Against that, the evidence of Dr Jackaman makes it clear that D is
at risk of being sexually abused by his grandfather. Neither of his
grandparents accepts that that risk is real and ongoing. Both reject the expert
evidence. The risk is of even greater concern when one takes into account their
lack of capacity to demonstrate empathy with a hypothetical victim of sexual
abuse and their total lack of understanding of the impact of the grandfather’s
sexual abuse of Carol.
128.
Neither grandparent has any insight into the concerns about
inter-familial relationships. Neither shows any awareness of or insight into
D’s emotional needs. They appear unable to comprehend that they have placed
inappropriate and damaging emotional pressure on him. There is no basis for
concluding that they would be more capable of meeting his emotional needs in
the future than they have proved themselves to be of meeting them in the past.
Placement
with mother
129.
As a general proposition I accept that, all other things being equal,
the best family placement for a child is with her birth parents. In this case,
contrary to the evidence of the grandparents and the submissions made on their
behalf, I am satisfied that D has a positive relationship with his mother,
that he is attached to her and that there is a strong bond of mutual love and
affection between them.
130.
Placement with mother would not be placement with mother alone but with
the mother’s new family comprising Miss T and her four children. There is no
evidence to suggest that Miss T is anything other than an experienced and
competent parent. She clearly loves the mother and is pleased to fill the role
of her registered carer. I am in no doubt that, between them, the mother and
Miss T would be able to meet D’s day to day care needs.
131.
There are, though, some negative aspects to such a placement. Such a
placement would mean that D would not only be moving home but that he would
also have to change school. His main friendship network currently is centred
around other children at his present school.
132.
Whereas D is the only child living with his grandparents, if placed
with the mother he would join a busy household comprising four other children.
Although he has a good relationship with three of those children, I am
satisfied that there are some difficulties in his relationship with Miss T’s 11
year old son. Those difficulties may be compounded by D being required to
share a bedroom with Miss T’s three sons.
133.
Although it is the case that the mother and Miss T have been in a
relationship together for more than two years and have been living together for
almost one year, there are nonetheless grounds for taking a cautious view as to
the long-term stability of this relationship. Over the course of the last ten
years the mother has been engaged in relationships with 8 people. She has spent
time living with 5 of her partners. Whilst I accept that her relationship with
Miss T is of greater longevity than any of her previous seven relationships
(save for her relationship with the father) and whilst I also note their plan
to marry next summer, if history is an accurate predictor of the future there
is good reason for caution about evaluating the stability of this relationship.
134.
There are also concerns about the mother’s mental health. She has an
established diagnosis of borderline personality disorder. In the past she has
not engaged with therapy. She has recently been re-referred for therapy.
Whether she will engage remains to be seen. In the past she has self-harmed.
The extent of self-harming disclosed in interview with Dr Milner was greater
than that disclosed in her oral evidence. The most recent episode of self-harming
was almost two years ago. I note that it followed a six month period of
non-compliance with medication.
135.
Although the mother sought to persuade me that if her relationship with
Miss T were to break down she is now sufficiently stable in her mental health
to be able to care for D on her own, the evidence does not support a
finding to that effect.
Long-term
foster care
136.
This is not an option pursued either by the local authority or by the
guardian. In my judgment, against the background history I have described, it
is an option that requires consideration.
137.
A positive aspect of long-term foster care would be the removal of D
from this dysfunctional family in which he is at risk of suffering, or
continuing to suffer, emotional harm. Foster care would provide D with a
neutral environment from which to maintain a relationship with key members of
his family – his sister, his parents and his grandparents. He would be removed
from the skewed family dynamics and questionable boundaries that he has had to
endure throughout the whole of his life to date. A foster placement with
loving, insightful carers would give him the opportunity to recover, thrive and
grow.
138.
There are also potentially negative consequences from long-term foster
care. Long-term foster care lacks the security which comes with adoption.
Foster carers are able to give notice to terminate the placement. That leads to
the risk of a child being moved from placement to placement. Long-term foster
care also comes to an end when a child reaches the age of 18. Although many
foster carers provide a home and an integration into family life which endures
well beyond the time when legal obligations come to an end, it is impossible to
know at the time of placement whether that will happen in any particular case.
It is also widely acknowledged that another negative feature of foster care is
the stigma which comes from being a looked-after child. There will be six
monthly LAC reviews and, invariably, periodic changes of allocated social
worker, all of which can be unsettling.
139.
Section 1(3)(g) requires the court to consider the range of powers
available to the court under the Children Act in the proceedings in question.
140.
As I have already indicated, the range of power available to the court
are not confined to the two options proposed by the parties – continuing
placement with the grandparents or placement with the mother and Miss T.
Long-term foster care must also be considered.
Conclusion
141.
As I have identified, there are positives and negatives associated with
each of the three options available. If I am persuaded that one of the two
options proposed by the parties is the right option for D then I can make
final care orders today. If I do not agree with them but consider long-term
foster care to be the appropriate outcome then that will put me at odds with
the local authority and will lead to an adjournment whilst the local authority
considers its position and with no guarantee that the local authority will
accept the court’s conclusion and amend its final care plan for D.
142.
Whilst I acknowledge the possibility of an impasse, I am in no doubt
that that should not dissuade the court from its duty to come to a conclusion
about the welfare outcome which it considers best meets the child’s welfare
needs.
143.
I have no hesitation in concluding that it is not in D’s best
welfare interests for him to remain in the care of his grandparents. He is at
risk of both sexual and emotional abuse and harm. That is a risk I am not
prepared to take. Indeed, I go further. I am in no doubt that to leave this
vulnerable boy in his grandparents’ home would be a gross dereliction of duty.
D must be moved.
144.
The balance between placement with mother and placement in foster care
is less clear cut. I acknowledge the progress the mother has made in terms of
coping with borderline personality disorder. I also acknowledge that her
relationship with Miss T appears stable and may yet prove to be enduring.
However, that is a placement which, in my judgment, has too many risks and
uncertainties. I set out those risks and uncertainties when evaluating that
option. I am satisfied that the risks and uncertainties inherent in that
placement are greater than those which arise from a placement in long-term foster
care. Taking a global holistic view of the evidence, I am in no doubt that the
balance comes down clearly in favour of a placement in foster care. I shall
adjourn this hearing for two weeks to enable the local authority to reconsider
its position.
Interim
measures
145.
Over the course of the four days of this hearing it became increasingly
clear that the level of professional concern about the risks which this young
boy faces daily in his present placement are now so serious that immediate
action needs to be taken to remove him. I accept that evidence.
146.
It is open to me to make an interim care order in the expectation that
the local authority would immediately remove D from the care of his
grandparents and place him in foster care. That would inevitably lead to him
moving into a short-term foster placement pending the ultimate outcome of these
proceedings. That would no doubt be distressing and unsettling.
147.
There is another option. The aunt and uncle have agreed that D
should spend alternate weekends with them so that he can spend time with
R. I was informed by their counsel that they would be willing to provide a
home for D on a short-term basis pending him moving into a long-term
placement. Although I have no doubt that even that is likely to be distressing
for him (for I foresee no prospect of removing him from the care of his
grandparents without some distress) it would have the advantage of his first
placement being with family members whom he knows and would also enable him to
continue to attend his present school. Whether that placement should be under
an interim care order or an interim child arrangements order is a question upon
which I will hear further submissions.
Postscript –
hearing bundles
148.
The quality of the hearing bundle prepared for this hearing is
unacceptably poor. Before I address its shortcomings, I first refer to the
scathing comments made by the President, Sir James Munby, in Re L (A Child)
[2015] EWFC 15 concerning a catalogue of repeated failures by practitioners
to read, mark, inwardly digest and comply fully with the very clear
requirements of Family Procedure Rules 2010 (‘FPR’) Practice Direction 27A. He
ends by giving the following warning:
‘23. This endemic failure of the professions to comply with PD27A
must end, and it must end now. Fifteen years of default are enough. From
now on:
i) Defaulters can have no complaint
if they are exposed, and they should expect to be exposed, to public
condemnation in judgments in which they are named.
ii) Defaulters may find themselves
exposed to financial penalties of the kind referred to by Mostyn J in J v J.
iii) Defaulters may find themselves
exposed to the sanction meted out by Holman J in Seagrove v Sullivan.
The professions need to recognise
that enough is enough. It is no use the court continuing feebly to issue empty
threats. From now on delinquents can expect to find themselves subject to
effective sanctions, including but not limited to those I have already
mentioned. If, despite this final wake-up call, matters do not improve I may be
driven to consider setting up the special delinquents' court suggested by
Mostyn J…
25. The judges of the
Family Division and the Family Court have had enough. The professions have been
warned.’
149.
In this case, amongst a host of failures to comply with the requirements
of PD27A, the failure to ensure that the bundle contains only copies of signed
statements and care plans is the most striking. Of the evidence filed on
behalf of the local authority (8 witness statements by the allocated social worker
and other local authority witnesses, reports from the Early Years Support Team
and the Nursery, a parenting assessment of the mother, a Final Supervision Plan
and a Final Care Plan) only one document bears a signature. That egregious
conduct is completely unacceptable.
150.
Over recent years I have variously encouraged, cajoled, berated and
condemned the profession to try to ensure their compliance with the
requirements of PD27A. I have failed. This cannot be allowed to continue. With
effect from the 1st January 2016 case management orders made in this
court will routinely contain a requirement that when filing a hearing bundle
the party filing it must attach a certificate of compliance in the form set out
in the Appendix to this judgment. The certificate must be signed by the
solicitor with overall responsibility for the case. Continuing failures to
comply will be dealt with robustly.
Postscript
added on 17th December
151.
At an adjourned hearing on 17th December the local authority
agreed to change its care plan to one of long-term foster care.
APPENDIX
CERTIFICATE OF COMPLIANCE
I [name
] of [local authority/firm ]
confirm that I am the solicitor with overall responsibility for the preparation
of the hearing bundle attached. The bundle comprises [ ] pages. I
certify that the bundle complies fully with the requirements of Family
Procedure Rules 2010, Practice Direction 27A.
…………………………
………………..
Signed
Dated
