Neutral Citation Number: [2011] EWCC 5 (Fam)

In the County Court

Before:
HHJ X
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Between:

	A Local Authority	Applicant	
	And		
	A Mother	1st Respondent	
	And		
	A Father	2nd Respondent	

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Hearing dates: 21-Oct-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
1.	
	These proceedings relate to J, who was born on 7th June 2007.  His mother is KH and his father is SV.  The parents were in a relationship for almost five years until their separation in August 2009.  It was a hostile relationship, characterised by violence and verbal altercations contributed to by alcohol and drug use and by mother’s mental health.	
2.		After separation, immediate problems arose in relation to contact.  Father said he was not permitted to see J for two weeks.  When he did, he discovered bruising and arranged for J to be examined at the Royal Glamorgan Hospital.  As a result, J stayed with father, who at this stage was living with his parents, G and RV.  J had contact with his mother three times a week, which included one overnight stay.	
3.		  As a result of the Local Authority’s escalating concerns at this time, J was registered on the Child Protection Register on 16th October 2009 under the category of “Physical and Emotional Abuse”.  	
4.		Private law proceedings were commenced.  They led to a shared care arrangement by virtue of an order dated 2nd December 2009.  At the same time, the Court made an interim supervision order.	
5.		Further bruising was then discovered in December.  On this occasion, the bruising was discovered by mother, who took photographs of it on a mobile phone and arranged for a further medical examination.  She said that the bruising was detected after J had been returned from his father.  	
6.		A combination of the concerns arising from these injuries, which were suspected to be non-accidental in origin, the poor relationship between the parents and the nature of their relationship with professionals led to intervention by the Local Authority.  J was placed with his paternal grandparents, Mr and Mrs V, on 23rd December 2009 and he has remained with them ever since.  They put themselves forward as prospective foster carers for J and were approved on 28th May 2010 after a full assessment.  J has had supervised contact with each parent, initially on three occasions each week, but reducing in frequency latterly.  	
7.		An interim care order was made in respect of J on 14th January 2010 in response to the Local Authority’s application of 12th January.  That application is for a care order on the basis of a care plan that has evolved but which now provides that J should remain in permanent foster placement with his maternal grandparents and have supervised contact with each of his parents.  It is proposed that that contact be monthly in the case of father and bimonthly in the case of mother.  It is proposed further that father’s contact be supervised by his aunt, with a gradual reduction from the current level to the new proposed level.  Mother’s contact has been sporadic recently, and it is proposed that, in her case too, there be a phased transition to the new pattern of contact with her.	
8.		Mother agrees the terms of the care plan and its provisions in relation to contact, subject to there being a care order.  She neither agrees nor opposes the making of a care order.  Father supports the Local Authority’s application and a care plan in its current form.  The analysis by J’s Guardian is also supportive of the Local Authority.	
9.		The first question for the Court is whether the threshold criteria under section 31 of the Children Act 1989 are met.  	
10.		The parties have presented what is now an agreed schedule, dated 23rd June 2010.  The Local Authority relies essentially upon 12 allegations.  These allegations relate to domestic violence; verbal disputes; police involvement in the home, often in J’s presence; to offences of assault by each against the other; to father’s alcohol consumption; to ongoing hostility between them; to their occasional cannabis use; to mother’s aggressive and unco-operative attitude towards and with professionals; to issues arising out of mother’s mental health; to poor engagement by them both with professionals; to issues arising out of father’s learning difficulties and his own mental health; and then to the injuries to J in September and December, which, whilst not explained, at the very least are indicative of a lack of supervision by both parents.  	
11.		I have applied my own mind to these matters and I have read the evidence in relation to them.  Having done so, I agree that the threshold is crossed.  J had suffered, and was likely to suffer, significant harm.  The harm and the likelihood of harm were attributable to the care given to him, or likely to be given to him, not being what would be reasonable to expect a parent to give him.  	
12.		That being so, I turn to the outcome proposed and what it is that should happen to J in the future.  The basis of the Local Authority’s position and the evidence of the social worker that J should not be rehabilitated to either parent but instead be placed in foster care is found in the expert evidence obtained in this case.  	
13.		Firstly, Dr Jamil undertook psychiatric assessments of both parents.  She assessed mother in February 2010 and noted the history of behaviour, which was recorded as aggressive, abusive and unpredictable.  There were considerable problems historically in school and there had been a referral to child and adolescent mental health services.  Mother had a history of self harm and of presentation with depressive symptoms, although there was no evidence sufficient to support a diagnosis of clinical depression.  The probable diagnosis was of an emotionally unstable personality disorder, which Dr Jamil considered to be mild in severity at the time of examination.  That condition makes sufferers intense and unstable in their relationships, impulsive and anxious.  They have problems in their sense of identity, feel low and experience difficulty in managing anger and painful emotions.  Dr Jamil identified these features in mother.  This demonstrated as well an inability or prioritise J’s needs over her own.  Dr Jamil said that significant stress will exacerbate the problem.  She said:
“Under these circumstances, her ability to meet the physical and emotional needs of a child would be compromised to a considerable degree.  She could not care if she experienced a full blown episode of depression.  If she had significant support within her family or within her relationship, that would have a buffering effect.”
In this case, she has neither.  
“Mother does not demonstrate a willingness to change and, without therapy, the prognosis is bleak.  She is considered highly likely to experience recurrent mental health problems in response to stress or difficulties in relationships and a recurrence of the difficulties which could include a reversion to self harm, further instability and anger.  Were she to engage in therapy, it would take a long time, a minimum of 12 to 18 months, even assuming in the first place that such therapy could be made available to her.”	
14.		In relation to father, who was assessed in April 2010, Dr Jamil recorded historical issues in relation to his learning difficulties, low self worth and self-esteem and his resultant behavioural difficulties.  He revealed a low mood and alcohol abuse at the age of 19 and gave a history of substance misuse.  He has consulted his general practitioner since then, but Dr Jamil felt that there was no convincing evidence of clinical depression.  There was no current evidence of abuse of drugs or alcohol, nor that he is suffering from a major mental illness.  He did not satisfy the criteria for any individual personality disorder.  He had previously engaged in maladapted strategies, but seems now to have managed transition to independent living reasonably well.  The issue in relation to father, however, amounts to this.  He needs necessary support and structure in his life to ensure his psychiatric and physical wellbeing.  Without these, and if his coping skills become stretched by conflict, or if there should be a lapse in relation to drugs and alcohol, then a child would not be safe in his care.  	
15.		Dr Parsons undertook psychological assessments of both parents and prepared his report of 25th February 2010.  I have read that report in detail, from which the following principal points emerge.  Mother has no cognitive deficit.  Father has a mild learning disability, which would not of itself of course preclude him from providing a good enough standard of parental care.  Both have a psychological vulnerability to the use of substances, and father is at enhanced risk of maladapted strategies involving the use of them.  Mother has a fundamentally conflicted personality structure and is extremely ego-centred.  Due to chronic stress, she has very little emotional availability for others and has limited ability to see the events from the point of view of others and is at significant risk of engaging in verbally and potentially physical aggression.  Mother would not be inhibited by the presence of a child, who would therefore be exposed to at least an immediate risk of harm or neglect.  In addition, she would have what Dr Parsons described as “significant difficulty” putting a child’s needs before her own.  Father would have difficulty in understanding the needs of others, of putting a child’s needs ahead of his and in adapting to a child’s ever-changing needs.  He has paranoid and impulsive sensation-seeking traits and he is likely to engage in aggression in personal relationships, thereby posing a risk of harm to a child if in his presence.  Neither of them showed any real understanding of the effects of domestic violence.  	
16.		In his oral evidence yesterday, Dr Parsons amplified his analysis of father in these terms.  Father had shown consistency in attending contact and there was no significant concern in Dr Parsons’ mind about that.  He does not pose a direct risk of violence.  If, however, he were involved with a new partner, and if that partner were to be involved in contact, further assessment would be needed.  Dr Parsons highlighted the risks.  The management of them, he said, was a matter for others.  The concerns were of father’s rigidity and his inability to recognise change and adapt to it.  His mild cognitive difficulty would make it more difficult for him to meet the needs of a child by multitasking.	
17.		Miss Helen Blackwell, an independent Social Worker, undertook a parenting assessment of both parents.  In her report of 7th June 2010, she identified the features of her assessment that informed her conclusions that, if J were placed in the care of either parent, he would suffer further emotional and possible physical abuse and that contact between J and his parents should be supervised.  Those matters were as follows: firstly, what she saw as mother’s lack of commitment to the assessment itself as well as to contact with J; secondly, the very poor parenting model provided to mother during her own childhood; thirdly, the assessments which had been undertaken of mother’s personality and mental health problems; fourthly, mother’s lack of insight into J’s emotional needs at contact and her propensity for violence in personal relationships; fifthly, father’s mental health difficulties and his history of drug and alcohol abuse; and, sixthly, father’s engagement with J and his poor relationship with his own mother.  	
18.		The analysis undertaken by Dr Jamil, Dr Parsons and Miss Blackwell explain much of the past and the problems that the parents have encountered.  It also paints a bleak picture in many ways about the risks there would be to J if cared for by them or either of them.  Those risks materialised in this case in the form of actual physical harm in the bruising to J in September and December 2009.  	
19.		Dr Payne undertook a thorough paediatric overview and investigation.  The result of that is some uncertainty about how the bruising was caused.  The threshold has been agreed and I, therefore, approach this aspect of the matter on the basis that it certainly amounts to lack of adequate supervision of J by both of his parents, whatever the underlying cause.	
20.		In considering the outcome, I remind myself that J’s welfare is the Court’s paramount consideration.  I must consider all of the circumstances of the case and, of course, the criteria specified in section 1(3) of the Children Act 1989 known as the “welfare checklist”.  I have the benefit of a thorough analysis undertaken by the Guardian by reference to the welfare checklist, which I agree with and adopt.	
21.		Firstly, in terms of J’s ascertainable wishes and feelings, he is of course too young to express views.  Feelings, however, can be gleaned not just from what someone says, but how a person and a child presents.  There is much to show he is happy and settled where he is.  He greets Mr V in a way suggesting he regards him as his primary male carer.  There is a strong attachment.  He is settled and progressing well in school.  His behaviour has improved.  He is more settled at night than he was when he was first placed.  All of this suggests he has feelings of ease and happiness about his current environment.  	
22.		In terms of his physical, emotional and educational needs, they are those conventional needs of all children.  They are all currently being met in his placement and in his school.	
23.		In terms of the likely affect of any change of circumstances, leaving his placement, if that were to be an option, would deprive him of all of the current advantages it presents.  His strong attachments which he has currently formed to his grandparents would be disrupted and, if he were to return to either or both of his parents, he would be exposed to a repetition of the shortcomings of the past and the specific difficulties identified by the experts.	
24.		J is three.  He is placed with his paternal grandparents.  His is male, of course, and there are no cultural issues or issues of ethnicity that need to be addressed or achieved in this case.	
25.		In terms of harm, it is clear from what I have already observed that he has suffered physical harm in the form of bruising.  It is obvious as well, by reviewing his history and what has happened to him, that he must have suffered emotionally from the exposure to the fall-out of the relationship between these parents and their own failings in relation to him.  Indeed, in terms of their capability and the capability of others involved, the parents’ failings have been addressed fully in the reports to which I have already referred.  Both have a range of difficulties that compromise their abilities as parents.  	
26.		The grandparents have been fully assessed by the Local Authority and have, in-keeping with the findings in that assessment, provided consistent care of a high standard since J was first placed with them in December last year.  	
27.		The Court has a range of powers available to it.  It could make no order, it could make a supervision order or it could make a care order.  Arguably, it could make a residence order in favour of the grandparents, with no other order on the Local Authority’s application.  	
28.		Rehabilitation to the parents is not an option in the face of the evidence before me.  Conversely, the placement with the grandparents and its preservation is essential in order to achieve an outcome consistent with the child’s paramount welfare needs.  In view of J’s past, his future needs and particularly bearing in mind the understandable and reasonable view of the grandparents that they do not wish to be responsible for or be part of the contact arrangements between J and his parents, nothing less than a care order will be sufficient to meet J’s needs.  The Local Authority need to share parental responsibility to implement and monitor a regime whereby J can live with his grandparents in permanent foster care and have contact with his parents. 	
29.		The conclusion, therefore, that I come to independently is that a care order is a necessary and justifiable interference in the life of these parents and of J.  It is in pursuit of a legitimate objective, namely his welfare.  It is the least intrusive order that can be made and, therefore a proportionate order to make in his case.	
30.		The care plan provides for contact to be supervised with different regimes for mother and father because of their different circumstances.  In view of the inconsistency there has been in contact and because of the issues identified by the experts, I agree that contact should be supervised on the basis that the entire regime will, of course, be subject to review in the course of LAC reviews as J develops and progresses.  I, therefore, approve the care plan.	
31.		Finally, in the course of this case, the parents have made major concessions that included those made yesterday when they reached the point at which the Court needed to hear no further evidence.  In recognising and addressing, as I must, all of the negatives about them and the problems of the past, it is appropriate to acknowledge that what they did yesterday represents a positive step by them both.  I acknowledge that none of that would have been easy for them, but wish to record that, in my view, they have shown in that respect that they do have some capacity to identify J’s needs and to put those needs ahead of their own.  I hope that that portends for the future for J and them on a basis different from the past.  I acknowledge too that, in-keeping with what I would expect of everyone involved, a huge amount of effort has gone into assisting the parties in difficult circumstances to achieve this outcome, which is highly preferable to that which would follow a contested hearing.  I wish to thank everyone for that, and that includes the Guardian, the Social Workers and everyone involved in the case.