IN THE MATTER OF THE CHILDREN ACT 1989
AND THE ADOPTION & CHILDREN ACT 2002
1 Bridge Street West, Manchester. WC2A 2LL
B e f o r e :
MANCHESTER CITY COUNCIL
|- and -
|(a child by his children's guardian, David Delahunty)
Ms Sarah Kilvington (Counsel instructed by KHF Solicitors) for the mother
Mr Matthew Lord (Solicitor Advocate Pluck Andrew Solicitors) for the father
Ms Jennifer Davies (Solicitor Advocate Bromleys Solicitors) for the child
Hearing dates: 4th, 5th, 6th & 9th June & 4th & 5th August 2014
Crown Copyright ©
Circumstances leading to the proceedings
Progress of proceedings
The parties' positions
"A court may only make a care order or supervision order if it is satisfied (a) that the child concerned is suffering or is likely to suffer significant harm; and (b) that the harm or likelihood of harm is attributable to the care given to the child or likely to be given him if the order were not made, not being what it would be reasonable to expect a parent to give him; .."
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable are each of his parents, and any other person or relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question."
" .where the threshold is in dispute, courts might find it helpful to bear the following in mind:
 The court's task is not to improve on nature or even to secure that every child has a happy and fulfilled life, but to be satisfied that the statutory threshold has been crossed.
 When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development.
 Significant harm is harm which is "considerable, noteworthy or important". The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened.
 The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect.
 Finally, where harm has not yet been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents' future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a "risk" is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely: see In re J  2 WLR 649.
"Time and again, the cases have stressed that the threshold conditions are
there to protect both the child and his family from unwarranted interference by the state. There must be a clearly established objective basis for such interference. Without it, there would be no "pressing social need" for the state to interfere in the family life enjoyed by the child and his parents which is protected by article 8 of the ECHR. Reasonable suspicion is a sufficient basis for the authorities to investigate and even to take interim protective measures, but it cannot be a sufficient basis for the long term intervention, frequently involving permanent placement outside the family, which is entailed in a care order."
"Care cases involve "professional evaluation, assessment, analysis and opinion" (ibid) brought to bear on facts. As the President said, we need to distinguish clearly between what is fact and what falls into the other category which, for the sake of argument, we might loosely call the processing of the facts. The assessment and opinions of social workers and those of other professionals will only hold water if the facts upon which they proceed are properly identified and turn out actually to be facts."
And paragraph 115
"Where a parent does not accept what is asserted in the threshold statement, or only accepts it in part, as here, it will be necessary for the parties to consider what to do about this. Allegations which are denied are not facts. If the local authority need to rely upon them as part of their case, they will have to produce the evidence to establish them."
"..her general cognitive and intellectual performance is below average but there is no evidence of learning disability. However she has specific difficulties with verbal performance and comprehension and she requires additional time and support to assist her when attending to and processing verbally presented information. The evidence suggests that she has the capacity to understand the proceedings and instruct a solicitor but the recommendations in the section below should be considered by professionals working with (her) during the proceedings to enhance her participation."
She then set out her recommendations in six separate but explicit and clear paragraphs of what professionals working with her should consider. I do not need to review or consider these for the purpose of this judgment.
Shyam Baker, social worker
"This harm may take the form of harm experienced through witnessing domestic violence between MAA and JG. MAA has assaulted a previous partner in front of their child. MAA's criminal convictions and Police information suggests that, in addition to having perpetrated significant domestic violence, that he is a violent man with links to criminals. His lifestyle may then necessitate his involvement in situations where his child is at risk through the consequences of that lifestyle, possibly through reprisal from other criminals."
This is how the social worker addresses the issue of the 'threshold criteria' in this statement. In the subsequent paragraph while acknowledging the positives in respect of the mother's parenting ability and the emotional care she provided for IMA, he contended that these indicators should not be relied "upon solely or predominantly to evaluate (her) ability to meet IMA's long-term and evolving needs" as this would overlook the significance to protect IMA from emotional or physical harm and to prioritise her own needs over (his)".
The plan for IMA at that stage was for adoption which had been approved by the Agency Decision Maker.
David Delahunty (Children's guardian)
"The relationship between JG and MAA is understood to have been a volatile one and has included incidents of domestic violence."
That was, as has now become apparent, an erroneous and unfortunate view which had been shared by the local authority.
"the father in my view presents serious risk to IMA".
However, he later goes on to say at E39
"In view of the father's lack of engagement in the local authority's assessment, the risks that the father presents to IMA remain unassessed. His criminal history and his relationship history raise understandable concerns. He appears to play a peripheral role in the lives of his other children. It is unclear what role he would play in IMAs life if he was placed in his mother's care . I share the local authority's view that the potential risks presented by the father to IMA remain as relevant as at the outset of these proceedings".
His report proliferates with references to the risk the father presents to IMA as being "unassessed".
"I am in no doubt that the grounds for making an order under Section 31 of the Children Act 1989 are satisfied in the case of IMA. I am satisfied that IMA would be at risk of suffering significant harm if placed in the care of his mother in the sense that there would be a risk of his emotional and social development being impaired. I am also satisfied that the likelihood of harm is attributable to the care likely to be given to IMA not being what it would be reasonable to expect a parent to give to a child".
"no nearer to being able to assess the risk that the father may present to IMA". [E61 para 73]
He adds at paragraph 80 at E63
"The risk that the father may present to IMA remains entirely unassessed. It is difficult to measure whether the risk is high, medium or low. The risk is unassessed due to the father's lack of engagement. I share the local authority's view that given the mother and IMA's vulnerabilities caution should be exercised."
"there is a real possibility of IMA suffering significant harm. There is a real possibility of him living in a household characterised by instability, disharmony and the use of intimidating or threatening behaviour. There is a risk of his emotional and social development being impaired if he is living in such an environment"
appears to lack any factual basis evidenced in the information available to the court to satisfy the 'threshold criteria' at the time the local authority implemented it protective measures for the child.
Discussion of Evidence
"1. The mother's partner and putative father of IMA, MAA, has an extensive criminal history. This includes:-
i. domestic violence to his former partner in the presence of their 2 year old child;
ii. Possession of offensive weapons including a machete;
iii. Drugs offences including possession, intent to supply and cultivation of cannabis.
2. MAA is presently on police bail in relation to offences of kidnap and possession with intent to supply relating to at least 5kgs of cannabis.
3. It has not been possible to assess the risk posed by MAA due to the failure of the parents to engage with Children's Services.
4. JG has failed to allow social workers into her home to discuss the issues, minimised the seriousness of previous domestic violence incidents, refused to sign and working agreement.
5. MAA has failed to engage on any level with social workers and has threatened to sue social workers for harassment.
6. Having agreed to reside at her parents' home following her discharge home with IMA, neither JG nor IMA were at home when agencies visited on 3 consecutive days between 9am and 10am.
7. As a result, there are reasonable grounds to believe that JG is unable and/or unwilling to protect IMA from the threat of harm posed by MAA.
8. Following the making of an emergency protection order on 23 August 2013, JG and MAA evaded the attention of police and Children's Services until 25 August 2013 when they were eventually found at a property in Prestwich.
9. Also found at the property were a further quantity of cannabis, drug paraphernalia and paperwork implicating the couple in fraud and money laundering offences."
(1) There were no recorded convictions against MAA relating to allegations of domestic violence. The relevance of the other convictions is open to question.
(2) Although at the time the document was prepared the father was on bail pending further enquiry in relation to the allegations of kidnap and possession of drugs, the police never proceeded to prosecute him. Despite him not being charged, the local authority never sought to revise this part of the threshold.
(3) There was no dispute that the local authority had been unable to assess the risk said to be posed by the father owing to his failure to co-operate. Failure to engage does not go to threshold.
(4) The mother had refused to sign the working agreement. The issue about the extent she had minimised "the seriousness of previous domestic violence incidents" was an open question in the absence of any established facts.
(5) The father had failed to engage and had threatened to sue the social worker for harassment but that does not go to threshold.
(6) The evidence did show that there were 3 consecutive days when the mother and IMA were not at home when visited by agencies between 9.00am and 10.00am the information before the court showed that she and the child were seen on the 19th, 21st, 22nd and 23rd August 2013.
(7) In respect of the suggestion that the mother was unable or unwilling to protect IMA from the threat of harm, there was no indication of what harm it was alleged the father posed and against which the mother was supposed to protect.
(8) Paragraph 8 is not in dispute but the question is, so what? There was no suggestion that IMA had suffered harm or ill-treatment as a result.
(9) In respect of paragraph 9, there is no factual basis for asserting that the mother and the father were implicated in fraud and money laundering offences.
There was no evidence before the court to suggest ill-treatment or neglect of IMA or any impairment of his development. There was no identification of any failing in parental care to which any alleged harm could be attributable and the facts recited related entirely to the character of the parents albeit primarily the father. On any view it was a wholly and woefully inadequate document which, it seemed to me at the time, had never been adequately addressed by any of the parties. That is why I made some quite trenchant observations which I am bound to say appear on the face of the order drawn as reasonably temperate observations.
"The nature of the likelihood of harm alleged is expressed as "(i) Impairment to the child's physical, intellectual, emotional, social and behavioural development; (ii) Impairment to the child's physical and mental health; and (ii) Impairment suffered from seeing or hearing the ill-treatment of another.
(1) The father, MAA, has an extensive criminal history. This includes:-
(a) Possession of a machete in 2001;
(b) Arrested 8 February 2006 in possession of a knuckle duster, wearing body armour and in a car with 4 other men similarly equipped; drugs found at his home
(c) Drugs offences including possession, intent to supply and cultivation of cannabis for which he served a 13 month prison sentence in 2011
(2) On 19 August 2013, the day of IMA's birth, MAA was arrested at the hospital in relation to an offence which took place on 29 November 2012 when he and two other males were alleged to have attacked an acquaintance and driven off in his car with the victim's legs hanging out of the open door; a considerable quantity of cannabis was found in the boot. The case was not proceeded with by the CPS
(3) In 2013, MAA pursued a campaign of harassment against his ex-wife, involving regularly attending at her home threatening her, threatening violence to any new boyfriend, and stating he would persuade Children's Services to remove her children from her
(4) She was so frightened that she moved into a women's refuge with her children for 4 weeks in August 2013. (On a further 10 occasions recorded between 2 September and 8 October 2013 he visited her home and made similar threats)
(5) MAA was arrested on 13 October 2013 and charged with harassment. MAA's ex-wife gave a police statement in which she stated that he had been violent towards her during their relationship as well as extremely controlling and she had been "terrified" by him.
(6) Following a strategy meeting on 13 August 2013, when JG was identified as a vulnerable person who may be at risk from MAA, a joint police and social work visit caused further concern when MAA would not provide his name, and refused to accept any concerns or co-operate with any form of assessment. JG took the same position. It was therefore not possible to obtain a clear assessment of any risk posed by MAA due to the failure of the parents to engage with Children's Services either during the first visit or thereafter. This attitude of complete non-co-operation continued.
(7) JG failed to allow social workers into her home to discuss the issues, minimised the seriousness of previous domestic violence incidents and criminal drugs history involving MAA and refused to sign a working agreement.
(8) Although she agreed to reside at her parents' home following her discharge from hospital with IMA in August 2013, neither JG nor IMA were at home when agencies visited on 3 consecutive days between 9am and 10am.
(9) JG's refusal to engage in assessment or to accept any possibility of risk, despite information provided to her, demonstrated that she was unable and/or unwilling to prioritise IMA's safety and protect him.
(10) Following the making of an emergency protection order on 23 August 2013, JG and MAA evaded the attention of police and Children's Services until 25 August 2013 when they were eventually found at a property in Prestwich. Both their families colluded in the family hiding from agencies.
(11) There is evidence that the parents were involved in drug dealing activity at least up until IMA's birth, as also found at the property in Prestwich were a further quantity of cannabis, drug paraphernalia and paperwork implicating the couple in fraud and money laundering offences. Although the CPS have not proceeded against MAA, JG faces criminal charges in relation to intent to supply cannabis, 165g having been found at the property.
(1) The father's convictions are a matter of record which, absent specific offences involving harm to children or violence to women with whom he is or was in a relationship, have no relevance for the purpose of threshold and relate only to the character and personality of the father and not to parental care. This paragraph should be struck out.
(2) Given that the police took no further action against the father in respect of these allegations and did not prosecute him, none of what is alleged in this paragraph can be established as a fact. This paragraph should be struck out.
(3) So far as paragraphs (3), (4) and (5) are concerned, the issues cited post date the local authority intervention in respect of IMA. The issues raised relate to the father's character and personality and not directly to any aspect of parental care relevant to IMA. These paragraphs should be struck out.
(4) A refusal to co-operate with Children's Services (or the police) as identified at paragraphs (6), (7), (8) (9) and (10) does not go to threshold as there is no legal duty to co-operate unless the threshold is crossed. See Lady Hale at paragraph 207 of In the matter of B (A Child). These five paragraphs should be struck out.
(5) In respect of paragraph (11), any evidence of alleged drug dealing cannot go to threshold unless there is clearly established factual link to demonstrate that there is likelihood that a child will suffer harm resulting from a failing in parental care arising from such activity. There is no such evidence against either parent it being noted that, in any event, the father has not been charged with any offences arising from the circumstances related. This paragraph should be struck out.
Conclusion & Orders
"I visited (the mother) at her new home (address provided) on Monday, 11th August. It is a two-bedroomed privately rented terraced house. It is on a quiet street off a main road. (She) gave me a full tour of the property. Material standards are good. The lounge is comfortably furnished. There is a kitchen/dining room to the rear. JG is in the process of equipping the kitchen. She has bought a fridge but told me that it was faulty and would have to be returned. She has yet to obtain a washing machine but told me that she could take any washing to her parents for the time being. The upstairs rooms are also furnished to a good standard. There are two bedrooms and a bathroom. (She) is planning to put IMA in his own room as he has been sleeping in his own room at the foster home. She has a cot for him and many baby clothes. She also has a new baby buggy and a high chair. There is a safety gate at the bottom of the stairs. (She) has another safety gate which she was planning to put at the top of the stairs. This is an awkward space and we discussed how it could best be made safe. There is also a small lawned back garden. (She) seems well prepared for IMA. She appears to have made her new home very comfortable in a short space of time. My visit raised no concerns about the physical environment in which IMA would be living."
Given that she only received the keys to get access to the property on the 5th August it is clear that she has made an impressive start in preparing a home for IMA which is reassuring.
Postscript 18th August 2014