IMPORTANT NOTICE
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of her family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: FN12C00001
IN THE SWANSEA COUNTY COURT
IN THE MATTER OF THE 
CHILDREN ACT 1989
AND IN THE MATTER OF W (A CHILD)

Swansea Civil Justice Centre, 
Caravella House, 
Quay Street, 
Swansea, 
South Wales 
SA1 1SP
Date:28/02/2014 

Before :

HER HONOUR JUDGE MIFFLIN
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Between :

	NEATH PORT TALBOT CBC	
Applicant	
	- and –

	B

- and –

C

- and –

A
 (BY HER GUARDIAN)

- and –

D AND E

	First Respondent

Second Respondent

Third Respondent

Fourth Respondents

	

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Hearing dates: 21st 22nd and 23rd January 2014
SITTING AT NEWPORT (GWENT) CIVIL AND FAMILY COURT

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JUDGMENT
HHJ MIFFLIN: 
1.	The child in this case A, has been the subject of proceedings during virtually all her life. She is now 2 years old having been born in 2011. This Court had a number of substantive hearings before making final orders in July 2013. All three previous judgments of this Court have been transcribed and so repetition in unnecessary.

2.	Subsequent to the final Orders the mother appealed supported by the Local Authority. The Court of Appeal allowed the appeal on 11th October 2013 and remitted the case back to this Court for the Court to give further consideration of what Order, if any was proportionate, see [2013] EWCA Civ 1227. There was substantial criticism of the Local Authority’s failure to provide the Court with an adequate care plan. The Court of Appeal reinforced the duties of a Local Authority to a Court, many of which had been largely ignored by this Local Authority. Those that had been complied with amounted to no more than window dressing in my judgment.

3.	The Court’s findings of fact and the formulation of the Threshold Criteria as found in the judgment dated 11th March 2013, survive the hearing in the Court of Appeal. This Court therefore does not have to revisit those findings. In addition there was no challenge to the Court’s analysis of risk based upon those findings. These matters therefore are the starting point for the welfare analysis. 

4.	The parties to this hearing are:
Neath and Port Talbot CBC represented by Mr Tolson QC
B (Mother) represented by Lorna Meyer QC
C (Father) represented by Sian Parry
Mr D and Mrs E (Paternal Grandparents) in person
A (Through her Children’s Guardian Elin Elias) represented by Ruth Henke QC.

5.	This hearing therefore has primarily focused on the issue of what Order, if any is necessary in light of the fact that it is almost a year after the last judgement of this Court. There is divergence in the position of the parties. The Local Authority, Father, paternal grandparents and Children’s Guardian invite the Court to make a Care Order. The Mother suggests that no order is necessary but if the Court takes the view that the Local Authority should have a statutory order then she would accept a Supervision Order.

6.	However, in addition to the welfare analysis, once again the Court has been asked by one or more party to consider making further findings of fact. These are in respect of a number of issues namely:
The actions of the mother around bruising sustained by A in July 2013;
The motivation behind Mother lying (accepted by her) to the Local Authority about whether a male friend, Mr Z, had spent a period of time (and overnight) at her home.
The reaction of Mother to a request by the paternal family that A attend her cousin’s christening.

7.	In addition, there has also been a side issue about the way in which contact between A and the paternal family should move on; in particular whether it is appropriate for there to be staying contact at the home of the Paternal Grandparents. 

8.	The starting point it has to be remembered is the judgment of this Court handed down in March 2013. The Court made clear and detailed findings as to factual issues and also evaluated each party’s credibility, the respective profiles of the family members and gave an analysis of the risk posed to A by her Mother. The Court found that A was at risk of significant harm from the possible actions of her mother. The risk was dynamic, unpredictable, likely to be longstanding in nature and emanated from Mother’s psychological functioning. The Court also set out the reasons why at the time of the judgment it considered the imposition of a Care Order to be both a necessary and proportionate response to the identified risk of harm. That reasoning survives the judgment of the Court of Appeal. Accordingly the content of that judgment should be read in conjunction with this and the Court does not propose to repeat the same here. The Court therefore has to consider whether what has happened since that decision might affect or undermine the decision of the Court.

9.	The events of the last year have to be seen in the context of the role adopted by the Local Authority immediately after the decision of the Court. It does them no credit in my judgment that in effect they made a decision to manage this case as if the Care Order had not been made. The message that was given to the Mother is quite clearly seen from the first contact with the Social Worker after the making of the Care Order [L249 Social Worker recording 3/4/13]. The Local Authority’s refusal to accept the judgment was made clear in the documents filed by them leading up to the making of the final order. They continued to ignore the rulings of the Court that they should manage the risk under a Care Order and share parental responsibility. There were no LAC Reviews, no compliance with the Placement with Parent Regulations (PwP), and in fact at times no acknowledgement that it was a Care Order that they held. This led to a situation whereby there was no effective risk management. These acts and omissions were both arrogant and short sighted from a Local Authority who continued to lack insight into the complexities of the case. The justification given was that there had been an appeal lodged. There was no stay in place. It seems to this Court that a simple assertion that a decision of the Court of Appeal was awaited is not a credible explanation for the course of conduct and ignores the potential consequences of their actions for the child who after all, is the most important person. 

10.	The effectiveness of the role of the Local Authority has been further undermined by the fact that since the making of the Care Order, A has had 4 different Social Workers. The Social Worker at the time of the making of the Care Order was heavily criticised in the Court’s judgment. But it was the understanding of the Court that she would continue to manage the case as she had “a good working relationship” with B. It appears that the next two allocated Social Workers paid only lip service to the findings of this Court. Undoubtedly they were aware of the approach to this case that the Local Authority had taken, that the Local Authority did not accept the risk analysis of this Court. It is even if viewed in the most favourable light, poor social work practice that there was no attempt even to familiarise themselves with the Court’s judgment. However, having heard the present Social Worker, this Court is satisfied that no similar criticism can or should be levied at her. She was an impressive witness who had taken time to analyse the dynamics of the case. This Court is satisfied that she has invested time in order to gain and understanding of this case. In addition she quickly gained experience of the pitfalls in having to work with the mother.

11.	Prior to considering the welfare analysis, it is appropriate to deal with the findings sought by the parties (excluding the Mother). The first finding relates to Mother’s behaviour around the time immediately after the discovery of bruising to A’s leg in July 2013.

Bruising in July
12.	The first point to make is that although the Local Authority have had concerns around two separate incidents of bruising to A, to the leg in July 2013 and an a bruise to her check in January 2014, sufficient to warrant a Child Protection Medical it is not part of the Local Authority’s case that these were inflicted (accidentally or otherwise) by Mother or anyone else. The Local Authority’s position has been clear throughout the hearing and repeated in final submissions. The Court will not and should not permit any suspicion to the contrary. The Local Authority and other parties have invited the Court to explore the Mother’s actions around the enquiry that was put in place by the Local Authority in July as suggestive of Mother’s failure to work in partnership with the Local Authority. 

13.	The Court accepted the invitation to explore the circumstances in July 2013 as part of the overall picture and to assist the consideration of welfare issues. The important parts of the chronology are as follows.

14.	On 25th June 2013 the Social Worker organised a planning meeting to encourage the family to agree a means by which contact for the paternal family could be progressed. The records show that was clearly a difficult meeting. This was confirmed by the Social Worker Mr Fraser during his evidence. No agreement was reached and relationships were fraught. The meeting was brought to an abrupt end when the Mother and Maternal Grandmother left the meeting indicating that they would be speaking to Mother’s solicitor. Contact however would continue in accordance with the arrangements that were in place at that time.

15.	As planned on 28th June, Father had contact with A between 3pm and 5pm. The child was returned to Mother. Nothing was said to indicate that there had been any issue during the contact period. The Court is not clear when Mother first saw a linear bruise to the child’s leg. It was sometime between the 2nd and 4th July. What is clear is that on any account it was a number of days after the contact.  The bruise was sufficiently significant to warrant Mother not only taking a photograph of it but sending the photograph by email to her solicitor, asking for advice. She told the Court in evidence that she spoke to both her mother and father as each had had contact with Ain the days after contact with Father but before the bruise was noticed. At no point did Mother take steps to notify Social Services. Nor it seems was she advised to do so by her parents. In fact Mother spoke to the Social Worker on the telephone on 3rd July but made no mention of the bruise. The Social Worker visited the home on 4th July and, if the Social Worker’s note (and recollection) is correct Mother pointed out the bruise to him but not until the end of a visit lasting over an hour. Mother indicated to the Social Worker that she had tried to make a GP appointment that morning but no appointments were available. Despite telephoning the GP she made no attempt even at that stage to contact the Social Worker.  

16.	However, in the conversation that she had with the Social Worker Mother says that she thought that the bruise had occurred in contact with the paternal family on 28th June. B reinforces her position that the bruises occurred whilst with the paternal family by suggesting that A often returns from contact with bruises. It is accepted that Mother had not previously raised this as an issue with the Local Authority. Surprisingly Mother suggests that she had not noticed the bruising until 2nd July, some 5 days later. During the course of this conversation, Mother makes no mention of the Maternal Grandparents having had contact during the period or of having any discussion with them as to causation of the bruise. This conversation must be seen in the context of Mother having had time to reflect upon her position. This was a planned visit to her home. She had had discussions with her own parents and had had the opportunity of discussing matters with her solicitor. 

17.	It causes the Court some concern that the Social Worker having seen the bruise advised the Mother that she should take responsibility for arranging an appointment for A with the GP the following day. That is an unacceptable way to deal with a clear child protection concern. The Social Worker, Mr Fraser, seemed surprised that anyone should take that view of his actions. To her credit, Mother did organise an appointment with her GP the following morning.

18.	Mother saw her GP, Dr S on the morning of 5th July. The Maternal Grandfather accompanied his daughter and granddaughter to the appointment. During the consultation, Mother told the GP that she first noticed the bruise on 2nd July. The note also reads “Mother has noticed when the child has contact with the Father (supervised visit with Grandparents) she comes home with bruises.” A had two linear bruises to her lower leg. Unsurprisingly in light of what she had been told and what she had seen, the GP took the view that a Child Protection Medical was warranted. The GP had clear concerns; the shape and location of the bruise, the lack of explanation for them and no doubt the account given by Mother that the child often had bruises after contact.

19.	Dr S filed a witness statement and gave evidence before the Court. There is little doubt in my view that the doctor made it plain to Mother that Social Services were to be informed of the bruising and that they would need to make the arrangements for the appointment. Dr S had tried to make the appointment herself but had been informed that the Local Authority had to take responsibility for that. The GP was clear in her evidence that in concluding her consultation she had told B to expect a telephone call from the Social Worker that day. Although Mother disputes that she was told to expect a phone call that day (it could be that day or Monday), the contemporaneous notes support the recollection of the GP. In any event by that stage it should have been obvious to mother that the professionals were sufficiently concerned about the bruising to be organising a review by a paediatrician. 

20.	Mother told the Court that she had planned to go to Birmingham that weekend. She had been let down by her father who had cancelled a trip to London that weekend and so she had decided at short notice to take A away. She indicated to the Court that everything was last minute and that she had made the arrangements the night before; although her father thought he had a recollection of arrangements being made earlier in the week. 

21.	It appears that, notwithstanding the turn of events at the GP’s, neither Mother nor Maternal Grandfather took the view that the trip to Birmingham ought to be rescheduled.  No explanation has been given as to why Mother had to go to Birmingham that weekend, other than she had made some late arrangements. She had not in fact purchased her train ticket as that was done immediately before travel.

22.	After leaving the GP’s surgery, Mother and A went to Mother’s home. A then went down to sleep whilst Mother packed for the trip. Maternal Grandfather then took them to the station to catch the train just after 2pm. The Maternal Grandfather apparently had suggested to his daughter that if the Social Worker had not contacted Mother by that time, that she should leave. It seemingly did not cross his mind to suggest that either of them contact the Social Worker.

23.	After Mother had boarded the train there were repeated attempts by the Social Worker to contact Mother. Mother accepts that despite what had occurred that morning she had her put her phone on silent. The only explanation for that was that “is what teenagers do.” It seems to this Court that Mother was determined that nothing should interfere with the trip. The Social Worker therefore did not make contact with Mother until late afternoon when she had arrived in Birmingham. At that stage Mother did offer to present the child to a local hospital, but that was not compatible with the organisation of a Child Protection Medical.

24.	Having heard the GP this Court is of the view that Mother and Maternal Grandfather would have been left in no doubt that the wheels were in motion for a Child Protection Medical to take place. Mother was determined to go to Birmingham that weekend although the Court has not been given any clear reason why the trip could not be postponed. Indeed, a concerned mother suggesting that a child was repeatedly returning from contact with bruises would have wanted the medical enquiry as quickly as possible. She would have made that a priority. This mother did not. 

25.	This Court is concerned that even now, Mother in her evidence continued to assert that the bruises might have been linked to contact, as she said that she had no other explanation.  Mother did not accept that if this child had returned with bruises on 26th June, it is highly unlikely and frankly not credible that Mother would not have seen them until 5 or so days later. Additionally, Maternal Grandfather told the Court that prior to the visit to the GP he had offered a possible explanation to his daughter for the bruises. He had thought that A might have sustained the bruise on a piece of equipment in the park. Mother says (through her counsel) that she has no recollection of this. This in itself is surprising as the family would have been searching for an innocent explanation. Further, it is unusual that there is no suggestion by Mother either at the time or since of Maternal Grandfather offering a possible explanation. Nor did Mother raise as a possibility that the bruises may have occurred in the care of either of her parents.

26.	The Social Worker was clear that the bruise in July needed to be properly investigated. It was not. It is clear that Mother thwarted the process. This Court is left with the conclusion that she wanted to prioritise her trip to Birmingham. The bruises are unlikely to have occurred in contact with the paternal family as that would require an acceptance that Mother had failed to notice them for 5 or so days. However, Mother saw the opportunity to use the fact of the bruises to undermine contact by the making of what undoubtedly were false allegations as to the child sustaining regular bruises during contact. This is likely to have been a direct response to the stressful meeting that had taken place on 25th June. This appears to be a further example of Mother’s responses to stressors.

Mr Z
27.	Mother told the Court that Mr Z is a friend that she met using the internet connection of her Xbox prior to the birth of A. She said that she and Mr Z would often chat and play games together. He lives in the North of England. Despite the longevity of their acquaintance, there was no face to face meeting between them until June 2013. At that stage they meet for a few hours and then on a monthly basis. Mr Z would travel 5 hours by train in order to spend but a few hours with Mother before travelling back that same day. On any view this was a very long trip for a very short period of time with B, without even considering the financial cost.

28.	 During the week between Halloween and Bonfire Night in 2013 (for 5 days and 4 nights) Mr Z stayed at Mother’s flat. Both B and A were present. The sleeping arrangements were confirmed by Mother. She accepted that he shared her double bed, although Mother suggests that there was and is no ongoing relationship between them. The Court does not understand why he did not sleep on the sofa.  Mother told the Court that this trip was arranged as Mr Z wanted to spend more time with Mother but also that he wanted to spend more time with and get to know A.  Mother’s perception of this is unlikely to be valid, although it may well have been Mother’s distorted belief. So it was that a relative stranger not only occupied the home but shared intimate domestic arrangements. There appears to have been no sense of caution in operation on Mother’s part before introducing to her home and to A a man with whom her only contact had been through the internet in pursuit of online gaming. 

29.	 Mother was asked by Ms H (Social Worker) on their first meeting where Mr Z had stayed. Mother had said that he had stayed in a local hotel. Mother accepts that this was a lie. The Social Worker was making enquiries as Mr Z had been seen entering Mother’s home after a fireworks display. This was not an isolated incident as Mother repeated the lie subsequently to the Social Worker. 

30.	As the Court has recorded, Mother accepts that she lied but gave an explanation that she had felt concerned that the Social Worker might consider removal of A. However, that makes little sense when Mother does not actually accept that she was aware that she had to notify Social Services about his presence. Much reliance was placed on Mother‘s behalf on the absence of any PwP agreement. This is an intelligent Mother who must have had a motive for lying. The motive is that Mother either knew or would have realised that the Local Authority would need to know details of this man. In that situation she took a deliberate decision not to share relevant information with the Social Worker and went on to lie about the situation.

31.	In my judgment this is yet a further example of Mother’s way of dealing with issues when she is challenged. Often her response is to lie. This is her maladaptive way of coping with the situation. It matters not whether the lies are significant as in this case or are not. It renders Mother an unreliable source of information. On this occasion it was a significant event for the current Social Worker not only because of the lie that was told, but it reinforced for her just how plausible and credible Mother presents when telling lies. 

32.	It became apparent during the evidence that Mother also lied to her father (and I think her mother) about the sleeping arrangements that were in place when Mr Z visited B’s home. Maternal Grandfather had been told by B that the sleeping arrangements were for Mr Z to sleep downstairs on the sofa. What was surprising and of concern is that despite Maternal Grandparents having very little information about this man neither sought to raise any concern with B about her decision that Mr Z should be in the home with A overnight. There was no attempt to challenge their daughter or even offer advice. In fact even during his evidence Maternal Grandfather did not seem to understand the concern that had been raised by others about this arrangement. They should at least have asked B to be cautious about this course of action. Their failure to do so must be seen as an indication that the Maternal Grandparents are either unwilling or unable to adopt a protective role for their daughter and granddaughter. 

33.	These are once again significant lies told by Mother and considerable failings on the part of the Maternal Grandparents. This Court is concerned that the Maternal Grandparents do not seem to have any protective instinct, no ability to conceptualise risk and therefore cannot be relied upon to intervene to supplement any protective framework. 

34.	Given the circumstances as outlined by Mother in her evidence this Court is far from satisfied that Mother has been truthful, even now, as to the nature of her relationship with Mr Z. The circumstances as outlined by her are difficult to understand. The impression that the Court has been left with after hearing her evidence is that Mother has only volunteered what she felt was necessary for the Court to hear. In my judgment she has at the very least been economical with the truth. Once again B will understand the consequences of her decision not to be open and honest.

35.	Accordingly it is the finding of the Court that the concerns around B’s functioning identified at the hearing in March last year are still present. Further, little has been done by the Local Authority in the time since the making of the Care Order to make the task of keeping the child safe more manageable.

36.	It is against that background that the Court has to consider the welfare analysis. In this case there is no issue that A should live with her mother. The issue for the Court is what order if any is required in order to allow Mother to adequately parent the child in her care. The Court should not consider the Mother in isolation but look at whether there are others who may reduce the indentified risks. In March 2013 the Court made a number of findings about the extended family of A. These can be summarised as follows:
•	That C was a weak and immature man. He had failed to acknowledge any responsibility for the situation that he found himself in.
•	The Paternal Grandparents had at times tried to make up for the failings of their son. They were alert to his failures and hurt by them. They had over-indulged their son and relieved him of his responsibilities. The Paternal Grandmother was torn between trying to parent her son and protect the welfare of A.
•	The Maternal Grandparents had no conception of any risk posed by their daughter to their granddaughter. They were described as naïve and incapable of challenging B. She was found to be manipulative of them.

37.	Having listened to the evidence and read the updating material, the Court does not wish to alter or amend those findings. It is satisfied that each of them is as pertinent today as they were in March 2013.

38.	The Court therefore has to ask itself whether the risk that B poses to her daughter has changed or ameliorated? Having considered the up to date evidence the Court is firmly of the view that it has not reduced. The framework for the management of risk as outlined by Prof Grey has not been put in place. The Local Authority largely abandoned risk management after the judgment in March 2013. The services that were provided were not those that were envisaged. There has not been any real attempt to identify appropriate alternatives.  A mental health advocate and a CS volunteer have, at various times, engaged with B but neither of these has undertaken the role envisaged by Prof Grey. For example neither has access to the judgment and neither has had any role in dealing with the issues that impact upon risk.  B has not moved on in terms of displaying any recognition or insight into her difficulties despite the passage of time and the wealth of material that she has had access to. In relation to risk factors it is as if time has stood still.

39.	A further and significant criticism of the Local Authority is that they have not provided for A the benefit of effective social working. Since the final hearing she has had a number of social workers who have merely dipped into the case and who have failed properly to understand the complex risk management issues that need to be marshalled for effective protection of A. These Social Workers have no doubt been misled by the view taken by senior local authority managers during that period that this is a “simple case” and their resolute refusal to accept the Court’s analysis of risk. This deficit was reinforced by the failures of the Local Authority even to comply with the formal requirements for placement with the mother. This, I am satisfied had the effect of leaving this child without any appropriate protection until September 2013, when the first LAC Review was convened. Even at that stage the Independent Reviewing Officer was labouring under a misapprehension as to the child’s status. It was not until this Court’s expectations were reinforced by the judgment of the Court of Appeal that the Local Authority took any appropriate steps to protect the child.

40.	However, this Court accepts that whilst the past twelve months are important, it is the future for A that this Court has to consider. The question therefore is what Order if any is required in order to protect her from the risks identified and particularised in the judgment of May 2013 (the Court having already considered that these risks and found that they have not changed or diminished since that time).The Court therefore is required to conduct “the necessary and proper proportionality exercise”

41.	First the Court accepts the general submission made by Miss Meyer that in light of the recent authorities coming from the Higher Courts that the approach of this Court should be one of a “global holistic multi-faceted evaluation of the child’s welfare, which takes into account all the negatives and the positives all the pros and cons of each option” see Re B-S (children) [2013] EWCA Civ 1146.

42.	The first matter to have in mind is that all parties expect that A is to remain in her mother’s care. The plan is that short of an emergency they should not be separated. In addition it is conceded by the Local Authority that they have a responsibility to and will provide all services identified in their plan as being needed by the child irrespective of any order, if necessary as a “Child in Need.” Therefore The Court accepts that an order is not necessary to secure that provision. 

43.	The Court also has in mind that there are very real disadvantages to a child in being the subject of a Care Order. One of which is that in sharing parental responsibility with the parents, the Local Authority has power to remove the child from the placement. However, that power of the Local Authority is not absolute it is circumscribed by their duty to act in accordance with the law. It must be discharged legitimately and in circumstances which are both transparent and accountable. It is not and should not be for the Court to assume otherwise. There is a legal framework within which the Local Authority can act. There is, in my judgement, whatever other charge may be levelled at this Local Authority, no justifiable criticism that they have sought to act outside the law. However, the Court accepts that the knowledge that this is a feature of a Care Order does on occasion cause stress for parents who are subject to these Orders. This is a considerable negative by-product of the order. The fact that this power exists adds weight to the balancing exercise when the Court considers the impact of each type of order. 

44.	The Court must also have in mind that a Care Order may be intrusive for the child concerned. This is an intrusion, especially as the child becomes older and more aware of the consequences of being a “looked after” child. The issues are well rehearsed, they do not need repeating but I bear them in mind. These are particular to the nature of Care Orders and are not features of a Supervision Order.

45.	The underlying purpose of a Supervision Order is to advise, assist and befriend the child. However, as Mr Geekie Q.C (Counsel for the child) reminded the Court of Appeal a Supervision Order has no teeth, that is no mechanism for securing compliance of a parent short of returning a parent to Court by virtue of a further application to the Court for a Care Order. Unlike the regime under a Care Order, with a Supervision Order there is no regulatory regime of planning and support in place to underpin the Supervision Order. There is little or indeed nothing to distinguish the duties of a Local Authority under a Supervision Order from their statutory duties in meeting the needs of a particular child under a “Child in Need” plan. By its very nature therefore the Order is less intrusive and does not impact on the parents’ exercise of parental responsibility.

46.	The Court therefore has to consider the general but important features of these Orders and commit them to analysis of the factual matrix in respect of this child using the framework of the welfare checklist.

47.	The general starting point is the findings of fact both in the judgement of 11th March 2013 (all have survived the appellate process) and the findings contained within this judgement. The Court’s analysis as set out earlier is that there is no evidence of change in the risk that B poses to A. In fact quite the reverse. There is evidence which the Court has accepted which shows that the risk has not changed. There has in fact been a further opportunity for Mother to engage with the Local Authority in pursuance of their duty to protect of A. Whilst there has been partial compliance, B has engaged on her own terms. In addition this engagement has been in circumstances where she has not been subject to any significant challenge, in particular around her own lifestyle choices. It is not that the Local Authority have not had the opportunity to challenge; they have, as when the Local Authority had cause to become concerned on the facts as then known (the trip to Birmingham and Mr Z staying at the home). The Local Authority have not taken the opportunity to do so. The present Social Worker does not know whether the Mother has yet to be taken through the judgements of this Court. 

48.	History tells us that it is generally but not exclusively at times of conflict with those in perceived authority that B withdraws from the relationship, (see findings in the previous judgment as to the relationship with the foster carer). It was the observation of the Court in the March judgment that B had said in the (then recent) past that she will not change who she is, even if it meant losing A (para 62). She has clearly, in my judgment, not learned from her mistakes. That is likely to be because, even now after the passage of time and with the benefit of significant material and advice, she does not see the findings as mistakes. The Court is reinforced in that view by her oral evidence, during which she showed little or no insight into the events of the last 12 months. There was no reflection let alone regret. 

49.	Therefore in my judgment B continues to manipulate and undermine by the use of lies. Her behaviour is pathological in nature. For example B heard during the previous proceedings Prof Grey in evidence indicating that one of the possible concerns might be that B would lie about injuries to A at the hands of her Paternal Grandparents or father. B must have understood this to be a flashpoint yet she was unable to curtail her compulsion to lie about this when A sustained the injury to her leg in July. There is no evidence other than this was a lie. There has been no attempt to raise this as an issue when the Court has been considering contact. In addition her immediate reaction when cornered by the Social Worker as to whether Mr Z had stayed at the home was to lie. A lie which was repeated when she had had time to reflect upon the situation and had the ongoing assistance of legal advice. Once again B’s demeanour was such that it was not obvious to the Social Worker that B was indeed lying. It was, as usual, a lie told in a deceptively plausible way by B. The instinct of Mother when challenged is to disengage, to lie and not to work in partnership with the Local Authority. 

50.	It can be said in broad terms that B has promoted contact during the last twelve months. However, this has been on the basis that she has had overall control. This has been allowed to happen as the Social Workers on the ground have been disabled by their lack of understanding of the case. The Court nearly a year ago was working on the basis that there would be staying contact within a short time after the conclusion of that hearing. It has not happened and whilst the Court accepts that there have been some issues in the recent past, in my judgment it should have been promoted by the Local Authority within a short while after the last hearing. These are grandparents who have been positively assessed to care for A. They are loving and committed. There can be no doubt that they would properly look after A when she is in their care. It is unfortunate that C still continues to display immaturity and lack of enthusiasm at prioritising his daughter. That is likely to remain the position for the foreseeable future. Recent events show that there is little catalyst for maturity. That should however not undermine A’s relationship with her Paternal Grandparents. The Local Authority should now move this forward.

51.	The Court is hopeful that there is light at the end of the tunnel. Ms H the current Social Worker was allocated on 4th November 2013. She gave evidence before the Court and was an impressive witness. She has, this Court is satisfied, read into the case and has a more informed understanding of the issues. She is therefore substantially more equipped to protect A. She has had recent experience of B being plausible but lying. This has no doubt brought a graphic illustration to the issues in this case. The fundamental problem is the psychological makeup of Band the inability of those closest to her to recognise the risk factors, let alone effectively intervene to diminish them. This remains a complex case and will continue to be so as neither age nor maturity of B is likely to reduce the maladaptive ways of Mother. She will in all likelihood continue to use lying as a coping mechanism particularly at times of stress. It will be an ever present feature of B’s personality. Her mother’s love or ability to meet her physical needs will not be a protective factor for A. Nothing that has emerged since B’s return to the community has given this Court any confidence for a finding that the risks have been reduced. On the contrary the recent incidents have shown that B’s behaviour (as described in the Court’s previous judgments) will continue to put A at risk.

52.	This Social Worker understands that the risks are difficult to manage partially as a result of the difficulty in recognising or predicting the behaviours of B. Any professional working with Mother must be vigilant and alert to the constant need to verify information that is given by her to them. Even when resources are put in place there can be no assumption that B is working in partnership with the Local Authority in an open and honest way. Nor should it be left to B to report any difficulty or to seek out help. The Local Authority will have to be proactive rather than reactive. That is the only effective way of managing risk. There needs to be an understanding that collaborative working is likely to be impossible. There should be a procedure adopted within the Local Authority for core information and analysis to be available to any person taking over case responsibility or dealing with any issue in the absence of the case holding Social Worker.

53.	In addition for reasons outlined both in this judgment and previously, the Local Authority need to accept that they are unable to rely upon a productive risk reduction framework based upon the extended family. Recent history has shown that the Maternal Grandparents in particular cannot be relied upon either to prioritise A over their daughter or to give their daughter sound advice.

54.	How should the Court then decide what Order, if any, is necessary? The law is set out in the judgment of 11th March 2013. No issue has been taken with the Court’s identification of the relevant law and so the Court is not going to repeat the same. In addition I have in mind the references set out in some detail in the written final submissions of Ms Meyer which highlights the impact of recent case law. 

55.	There is no issue here but that A will live at home with her mother. The Court could make no order and rely upon the Local Authority to provide services as part of a Child in Need package. The Court could formalise the arrangement by the imposition of a Supervision Order, but in my judgement that would bring little additional benefit to the child. The Court could impose a Family Assistance Order, no party suggests that and that Order brings little if any additional benefit over the other Orders.

56.	The Court should start by considering whether the least interventionist order will meet the risk(s) identified. The difficulty in this case is that the Mother cannot be relied upon to identify and/or prioritise the best interests of her daughter. Recent events have shown that she has put her own needs first, with the possibility of risk to her daughter. This is a Mother who is psychologically impaired and probably unable to achieve collaborative working with the Local Authority. Under a Supervision Order the Local Authority would be powerless to be reactive to Mother’s failings or proactive to prevent any course of action. This is clearly seen from the events of the last twelve months. Either No Order or a Supervision Order would leave A exposed to the potential of harm. 

57.	The principal reasons for considering whether a Care Order is necessary are rehearsed in the case law and in the Court’s March judgment. The first is the possibility of removal without prior judicial sanction. In reality this could be achieved by the use of an Emergency Protection Order or an urgent application for an ICO on reduced notice.  The sort of circumstances where removal could be envisaged are likely to fit that scenario.

58.	The second reason is the necessity of the Local Authority to share parental responsibility. Care Orders are of course at the most draconian end of the spectrum of public law orders, they are a significant infringement of a parent’s and a child’s Article 8 rights. Accordingly a Care Order should only be made where it is deemed proportionate to the identified risk(s) and necessary (in the sense that nothing else will do) in the circumstances. 

59.	In my judgement the Local Authority needs to share parental responsibility with the parents of A. There is merit in the submission of the Children’s Guardian that it would be unworkable for the person whose psychological functioning is impaired to be (effectively) the sole repository of parental responsibility. B will have dealings with professionals though her daughter’s life. The impairment in her functioning is not likely to change and will be something that is liable to affect one or more aspects of   A’s life. At these times the Local Authority may need to intervene to ensure that A’s interests are prioritised. They will not be able (or be permitted) to intervene if they do not share parental responsibility. The ability of the Local Authority to manage the risk by intervention is at the heart of the care plan. A Supervision Order or indeed any other order short of a Care Order will not facilitate that. That is why a Care Order is necessary. Nothing short of that order will do.

60.	First the major issue for the safety of A is effective management of risk. The Local Authority will be unable to manage risk if they do not have the ability to force issues, if necessary. This has been clearly demonstrated by B deciding to prioritise her own needs by first leaving for Birmingham when any reasonable parent would have checked on the arrangements prior to leaving. Additionally, by making a conscious decision to leave her telephone on silent during the journey. It is clear she had made her decision to go and nothing was going to interfere with that decision. 

61.	A second example is allowing Mr Z to stay in her flat despite her having very little information about him. Contrary to her protestations to the contrary she must have known that this was not permitted or indeed acceptable behaviour otherwise it is difficult to understand why she would lie to the Social Worker. She also lied to her parents as to the sleeping arrangements; again she must have known that this was unlikely to have been viewed by them as suitable behaviour as A was part of the household. She acted against the interests of A despite this. Once again this is prioritisation of her own needs over those of her daughter.

62.	In respect of these actions, this Court is satisfied that even with the benefit of hindsight B still does not recognise or accept that her behaviour was selfish and inappropriate. The Court cannot therefore be satisfied that it has formed part of a learning curve for her (or her parents). Similar decisions are likely to be made in the future and the Local Authority will need to intervene.

63.	Having considered both the nature of the risk and the Local Authority’s ability to manage the risk under the Orders that are available to the Court, the Court has decided that only a Care Order will sufficiently protect this child from the impact of the risk that emanates from her mother. The root of the ability to manage the risk comes from the sharing of parental responsibility with the parents.

64.	Contact is another important but not determinative issue. It must be accepted that disputes as to contact per se should not and do not warrant intrusion by the State into what are in essence private matters. The issue of contact is underpinned by Mother’s opposition to contact moving on. Additionally, there is the very real danger (as already seen) that the child herself will be affected as she will become the subject of false allegations made against the paternal family to support the Mother’s opposition to contact. The dynamic is further complicated by concerns around C and the Paternal Grandparents. There remains also a high level of ill-feeling and mistrust between the two sides of the family. Whilst the Court accepts that there has been some flexibility in the arrangements that the Mother has been prepared to promote, the impression of the Court has been that Mother’s attitude to contact has been boundaried by the fact that the Local Authority has shared parental responsibility since the last hearing. In particular the Court has in mind the inability of the paternal family or indeed the Local Authority to satisfy mother in respect of the arrangements for the christening  of A’s cousin’s. Yet Mother went on to have A christened without any reference to the Father let alone offering any invitation to attend.

65.	Furthermore there is her inability or unwillingness to give a full account to professionals of who had had contact with Ain the days leading up to the bruising in July. This was part of her determination to promote the view that the bruises were caused at contact with the paternal family, even though the consequence of that was a finding that she had not seen the bruising for days. B then embellished this by the suggestion that A regularly returns from contact with bruises.  This was a lie to undermine A’s relationship with the paternal family. How would this be managed without the sharing of parental responsibility?

66.	The relationship between Mother and the paternal family continues to be strained and is likely to remain so after yet another period of litigation. The Mother cannot be relied upon to take decisions in respect of contact between A and her paternal family that are governed by the best interests of the child or rooted in fact. It is to be anticipated that the move to overnight stays will not be without further difficulty that now has to be managed by the Local Authority. 

67.	Some of the Court’s time has been taken with the consideration of contact between A and her father and the Paternal Grandparents. At the conclusion of the proceedings there was to a large extent agreement between the parties that the Local Authority need to undertake a short assessment of matters which had come to light during the evidence. I approve of that course. However, the Local Authority must in my judgment take responsibility for driving contact forward between A and her paternal family. Staying contact has been under review for some time, it has to be remembered that the Paternal Grandparents are approved by the Local Authority. Contact was also intended to be part of the protective network for A.

68.	The Local Authority have now produced a care plan that the Court is able to approve. In doing so I have had regard to s1 of the Children Act 1989, “the welfare checklist”. I am satisfied that A’s welfare lies in her remaining with her mother. But it is also a necessary part of her welfare needs to have ongoing contact with the paternal family. In order to keep her safe from the potential harm the Local Authority needs to share parental responsibility. I am satisfied that albeit belatedly the Local Authority recognise the complexities of his case. It is the Court’s hope that the present Social Worker will be in post for some time. The Local Authority have now complied with the expectations of the Court. However, this does not bring any diminution of the duties that they owe to A under the Care Order that I propose to make. I endorse the views of the Children’s Guardian that a system of recording on their internal files needs to be achieved whereby those charged with making decisions for A have a means of assimilating relevant information relatively quickly. How the Local Authority achieve that system is a matter for them. I also agree that it is important that all relevant documentation should be disclosed to the Independent Reviewing Officer.

69.	In light of the Court’s comments above, I do not propose making a s34 Order as that would be difficult in the context of an outstanding assessment.

HHJ MIFFLIN
21st February 2014
Handed down 28th  February 2014