Neutral Citation Number: [2010] EWCC 20 (Fam)

In the County Court

Before:
District Judge A
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Between:

	Local Authority X	Applicant	
	and		
	A Mother	1st Respondent	
	and		
	A Father	2nd Respondent	
	And		
	Child A, B & C via A Guardian	3rd 4th & 5th Respondents	

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Hearing dates: 8th June 2010  

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WRITTEN REASONS

The written reasons are being distributed on the strict understanding that in any report, no person may be identified by name or location (Other than a person identified by name in the reasons themselves) and that in particular the anonymity of the children and the adult members of their family must be strictly preserved

Judgement

Introduction

In these Public Law proceedings the Applicant Local Authority seeks a Care Order in respect of 3 children. Their care plan is for long term fostering, and for the children to be accommodated separately with regular inter sibling contact and regular contact to the mother. The father of the eldest child [female] refused to participate in the proceedings. The father of the 2 youngest children [males] is currently serving an 8 year prison for sexually abusing the eldest child his step child when sexual intercourse took place on 2 occasions when she was aged 11. This child had also been sexually abused in 1996 when she was 6 months old by a another man who was present in mother’s life at that time but who was found not guilty in the subsequent criminal proceedings. I had no details before me of any civil proceedings following that case.

Family Dynamics
The children for whom I am concerned and whose welfare is my paramount consideration are a female aged 14, and, 2 boys age 9 and 5. They have been in foster care with the consent of mother since Oct 2008. Neither father was present at the hearing but the father of the 2 boys as were the other parties legally represented. Mother has since formed a new relationship with another male, but he was not a party to the proceedings and did not participate in the hearing. The children’s’ mother had experienced negative and abusive parenting as a child herself which has clearly impacted on her ability to provide care for these child.

Chronology
There is a detailed chronology set out at the beginning of the bundle which I adopt for the purposes of this judgement. In summary mother had a long association with social services, herself being the product of the care system The children had witnessed domestic violence between mother and the father on a regular basis. Mother had failed to maintain the children with her chaotic lifestyle; the home being messy unhygienic and cluttered, coupled with inappropriate chastisement as the children said they were beaten by a mother by a belt. In addition the mother had failed to protect the daughter from sexual abuse on 2 separate occasion spanning some 12 years with 2 different men. The eldest boy is monosyllabic and has speech difficulties. Mother has also displayed over the years a propensity to choose inappropriate partners which has acted to the detriment of the children.

Threshold
In a Public Law case a Court has no jurisdiction to make any Public Law Order unless and until the so-called threshold criteria set out in S 31 of the Children Act 1989 are established. (According to Re H (Minors)(Sexual Abuse: Standard of Proof) 1996 1 FLR 80,) I have to be satisfied on the balance of probabilities, that the child concerned, and there are 3 here, “as suffering or are likely to suffer significant harm or likelihood of harm and that the harm or likelihood of harm is attributable to the care given to the child or likely to be given to him/her if the order were not made not being what it would be reasonable to expect a parent to give to him/her.
Mother and the father of the boys have conceded the threshold criteria at 20th October 2008 for the 2 boys and 27th October for the daughter, and S31.2 of the Children Act which appears at bundle B12 – 17 inclusive. In summary this included
•	The father of the 2 boys is a schedule 1 offender serving an 8 year prison sentence for the rape of the eldest child who was under 13 at the time
•	Mother used inappropriate chastisement on the children, sometimes with a belt
•	Mother failed to protect the eldest child form sexual abuse.
•	The home conditions were poor
•	The children witnessed domestic violence by both parents
•	The children medical appointments were missed
•	Mother admits she has anger management problems 
•	Neither parent admit they failed to engage with social services each blaming the other

The Burden and Standard of Proof. 

The burden is on the Local Authority as the applicant.
In re: B 2008 UKHL 35, Baroness Hale stated ‘…I … would announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold at s31(2) or the welfare considerations at s1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies’.

Considering the above, I accept the composite threshold document lodged with this court and those findings that appear in the schedule at B12- 17 inclusive namely that on 20th – 27th October 2008 threshold was crossed when the children were put in voluntary care by the mother as there was failure to protect the children from sexual abuse, allowing them to witness domestic violence and subjecting them to poor home conditions and excessive chastisement. Beating a child with a belt is unacceptable. I make a finding of such under S31.2 Children Act

Capability
In arriving at this decision, it was useful to remind myself of what Hedley J said in re L [care; Threshold Criteria ] 2007 1 FLR 2050
“society must be willing to tolerate very diverse standards of parenting including the eccentric and barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. 
It means that some children will experience disadvantage and harm while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the province of the state to spare children all the consequences of defective parenting.

On the facts of the case what looks like significant harm may not be significant when investigated and analysed by a trial judge. However in the current action I am satisfied it does, and that the finding should be made that the children had been exposed to significant harm as a result of the parents lack of basic parenting.

Disposal 
Once the threshold criteria are established the court has to ask a number of sequential questions. The essential questions are: 
•	Whether an order should be made at all, and if so, what kind of order.
In answering these fundamental questions, the Court has to apply the principle that the Child’s Welfare is the paramount consideration; apply the statutory Welfare Checklist; not to make an Order unless the Court considers that the making of an order would be better for the child than making no order at all; and before making a Care Order, to consider and approve the Care Plan and the proposals for future contact if any.

Decision 
On all the evidence I have heard and read it is clear that an Order has to be made. The only real option upon a proper consideration of the welfare checklist under S. 1.3 of The Children Act is for a Care Order. Both the allocated social worker and the guardian have completed the detailed exercise of the operation of the Welfare Checklist and in the circumstances of this case I agree with their views and adopt them. 
There has been a report from and independent child psychologists who reported that it would be premature to consider returning the children to the mother as she is erratic and cannot control her emotions. She continually refuses to accept that the children’s needs arise before hers. She is impulsive and the speed of her new relationship with her current partner is evidence of such concern, which was also reflected in the report of the Independent Social worker who expressed similar views to the psychologist, the guardian and the local authorities social worker. 
Additionally the independent social worker concluded that because of mother’s own poor childhood she had little understanding of how abusers work; she presented herself as a vulnerable and needy young lady who was grateful for some love and attention. However and despite the considerable input by the authorities, over many years, of various resources in assisting her on routine day to day matters on parenting, for some reason she has not been able to implement those. There were no long term benefits for the children.

The final care plan that has been lodged is subject to some further minor which have been approved by all the parties and which shall be lodged before on 9th June 2010. Subject to those amendments it is approved. The children will remain in separate foster care placements with regular inter sibling contact and contact to mother on a 2 weekly basis. It is likely the daughter will be moved to her final placement shortly and an attempt will be made to keep her in her current school as she will shortly be commencing her preparations for GCSE s. The eldest boy is making great strides with considerable input from the local authority as is the youngest boy. 
Mother has shown some improvement in addressing her lack of parenting skills by recognising her failure to protect her daughter and is now beginning to work with the applicants team of social workers. Sadly however there were no acceptable carers or kinship carers who could be identified as being suitable for all 3 children. She has accepted and taken on board those recommendations of the Independent Psychologist and the Independent Social Worker and that it would be premature to seek the Childrens return. 
The father of the 2 boys who sexually abused the daughter cannot be considered for parole for at about 4 years. He will have sanitised letter box contact only.

The Human Rights Act 1998
The principle of proportionality must always be considered alongside the welfare checklist of s1 Children act 1989.

Hale LJ in re ; C&B 2001 1 FLR stated;
‘Intervention in the family must be proportionate, but the aim should be to reunite the family where the circumstances enable that, and the effort should be devoted to that end. Cutting off all contact and ending the relationship between the child and their family is only justified by the overriding necessity of the interest of the child’

I have considered the relevant articles of the Convention on Human Rights. I am satisfied that the interference with the mother and the 2 father’s right to family life is both justified in law and pursues a legitimate aim, namely the welfare of the three children. By the same token the interference fulfils a pressing need and is proportionate to that need.