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 his/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 would be a contempt of court.

Case No: MH13C00576

IN THE FAMILY COURT at Manchester 
IN THE MATTER OF THE CHILDREN ACT 1989 
AND THE ADOPTION & CHILDREN ACT 2002

Manchester Civil Justice Centre
1 Bridge Street West, Manchester. WC2A 2LL

Date: 13th August 2014

Before :

HIS HONOUR JUDGE IAIN HAMILTON 
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Between :

MANCHESTER CITY COUNCIL 	
Applicant 	
	- and -		
	
JG	
1st Respondent	
	-and-		
	
MAA	
2ndRespondent	
	-and-		
	
IMA	
3rd Respondent	
	(a child by his children's guardian, David Delahunty)		

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Ms Sarah McEwen (Solicitor Advocate) for the local authority
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
 
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Judgment

Introduction

[1]	I am concerned with the interests of the child who for the purposes of anonymity I will refer to as IMA, who was born on the 19th August 2013 and is now almost 12 months old. I will refer to the parents by initials for purposes of anonymity where appropriate in this judgment but will primarily refer to them as “the mother” and “the father”. His mother is JG who is 22 years old. IMA is her first child. The father of IMA is MAA who is 32 years old. He is understood to have four other children although only the details of those aged 10 and 8 years are known for certain owing to the father's reluctance to share the information about the other two with anyone.  

[2]	The applications before the court made by the local authority, Manchester City Council, are for a care order in respect of IMA pursuant to section 31 of the Children Act 1989 and for a placement order pursuant to section 22 of the Adoption and Children Act 2002. The application for the placement order is not currently being pursued as the court was informed at a hearing on the 23rd May 2014. If the local authority succeeds in obtaining a care order, its plan is to place the child with a paternal aunt, RA, who has been favourably assessed as a potential carer.

[3]	These proceedings concern a new born baby who has never suffered any harm in his parents’ care. If he has suffered any harm to date, it is the loss of the relationship with his mother during the first year of his life due to the fact that he was removed from her care when he was a week old. He has been in foster care for the subsequent 12 months throughout these very protracted proceedings. He is settled in his foster care placement and has developed well and formed good attachments to them. He has benefitted from contact with his mother three times a week from early on after the commencement of the proceedings. She has committed to him and provided well for his needs in contact. She is confident and loving in her interactions with him and it is common ground that she can meet all his basic needs.

[4]	The principal issue with which the court is concerned in relation to these proceedings is whether the 'threshold criteria' required by section 31 (2) of the Children Act 1989 has been established so as to permit the court to consider IMAs welfare in accordance with the checklist of factors set out in section 1 (3) of the Children Act 1989.   

Circumstances leading to the proceedings

[5]	The local authority received a referral from the Midwifery Safeguarding matron on the 30th May 2013 as JG and her partner had walked out of an anomaly scan after finding the sex of the baby but without waiting for the full anomaly scan to be undertaken.  It was also noted that JG had apparently lied about the reason that she was involved with the Probation Service and attended all appointments in pyjamas. 

[6]	Unsuccessful attempts were made on three occasions by a social worker from Children's Services to visit the mother at her parents’ address. On the third occasion on the 20th June 2013 the social worker was followed by the mother and the father as he was leaving the area of her parents’ home. They stopped him and the father threatened to sue the social worker for harassment. 

[7]	It is unclear as to what steps were taken by Children's Services to engage further with the mother and her partner between June and mid August as there is no information on the court bundle. The case as presented is that, as the mother and the father refused to engage with Children’s Services, it was not possible to explore the risk identified in the initial referral.  Reference is made to an Initial Assessment being completed on the 11th June 2013 at C28 but there is no documentation to support that. Similarly, there is reference in the Chronology to two strategy meetings with the police taking place on the 9th and the 13th August 2013 although the only record in the bundle refers to the meeting on the 13th August at F62. 

[8]	It appears that the key social worker, Mr Shyam Baker, had attended at an ante-natal appointment at the mother’s GP’s surgery to discuss concerns with them but they refused to engage and the father initially refused even to provide the social worker with his real name.   The identity of the father was established as MAA. Although the Record of the Strategy Meeting recites that the social worker “established that MAA was not the male identified though police intelligence as of significant concern, however, a link is established given the nature of the intelligence.” The meaning of that now appears somewhat abstruse. 

[9]	The local authority case is that MAA’s domestic violence history and violent criminal history was then made clear although that is not apparent from any of the documents on the bundle. He was found to be wanted by the police to answer allegations of kidnapping and possession of drugs with intent to supply and had evaded their attentions for a period of 8 months. The father was arrested at the hospital at the birth of IMA on the 19th August 2013. The mother agreed to return to the family home of her parents and to reside there.  On the basis that the police thought that the father would be held in custody, the decision was made to allow the mother to return to the home with her baby. 

[10]	She was visited later on the 19th August by two social workers, where she was informed that MAA had a violent history that could pose threat to her and her child. The social worker says she refused to hear the information and refuted its veracity. 

[11]	Contrary to the expectations of the social worker and the police, the father was in fact bailed and released.  Although the social worker asserts in his first statement at C4 that the mother was visited by midwifery services and by the police on the 20th, 21st, 22nd and 23rd August 2013 each morning and that on each occasion she was not present and visiting services were informed that she had ‘popped out’, that does not appear to be wholly borne out by other information in the bundle. So at C13 the Senior Specialist Midwife Safeguarding confirms that on the 21st August the “mother and baby were visited at home by the Community Midwife (CMW). She has recorded that the baby was breastfeeding well and had no concerns. A plan was made to visit again on the 24th August 2013.” However, following a further conversation between the social worker and the CMW led to a plan being made for the CMW to visit daily. This was said to reflect the seriousness of the concern following the release of the father from custody. It is unclear as to whether that plan was ever communicated to the mother. 

[12]	Although two midwives visited the property on the 22nd August and did not see the mother, there is a record in a FWIN at F45 of the “child seen safe and well” at 1536 hours on that day. An attempt was made to relate that information by phone to Social Services but without success, it appears. 

[13]	On 23rd August, the mother was given a letter asking her to meet social workers to discuss a working agreement.  She was visited later on by the social workers with a copy of the working agreement and advised to seek legal advice. She was advised that if she did not sign the working agreement then the local authority would seek an Emergency Protection Order.  The local authority asserts that she refused to engage with the social workers. She was given the information that the father had assaulted a previous partner in front of their child after forcing entry into her home. The mother did not respond to this information; instead challenging it stating he had not been convicted. She did not interpret the information as potentially indicative of a threat to her or her child.  

[14]	According to the statement of the social worker at C4 significant efforts were made to communicate the risks to her and her child. She refused to engage with Children’s Services in any way - to the point of keeping her child’s name secret and not sharing a telephone number with workers. In light of the mother’s refusal to work with Children’s Services to protect her baby, an Emergency Protection Order was sought and granted at 7.20pm on the 23rd August 2013. 

[15]	The FWIN entries for the 23rd August 2013 are somewhat confusing. At F47 it is recorded that at 1300 hours the social worker had contacted the police to ask for assistance in going to the property to deliver news which he considered might cause the family to be violent. The social worker had informed the  police that the father was believed to be involved with firearms.  There was a delay in response because of the need to have two police officers present. However, at 1410 the social worker  called back and said he was not now going to deliver the news but that they were going to take the child but were not telling them that. They were going to ask them to sign a working agreement and did not want the police to attend. However, in the FWIN at F46 at 1538 hours on the 23rd August what is recorded is “welfare check carried out after request from Children's Services and both mother and child were safe and well. The property was clean. There was plenty of food and nappies for the child. JG was adamant that she was working with Children's Services and that they were only clashing heads on issues…She stated she did not know where her partner was or where he was staying. Her belongings were at the property and she confirmed that she lived there.”

[16]	There is a later FWIN starting at 1954 on the 23rd August 2013 at F49 relating to a call commenced by the social worker which relates that there is “intel with the that states father may have access to firearms and has a history of violent assaults”. Efforts were made to remove the child but the attempt to execute the warrant at 22.47 was unsuccessful. There was no other address known at which to search. At 02.36 a caller from Children's Services informed the police that the enquiry could be stood down until the morning when the social worker was back on duty but she confirmed that “there was no immediate risk to the baby, that the EPO was taken out as there was a history of dv between the parents and that both parents were not engaging with Social Services.” [F50] The mother and the father evaded attempts by Children’s Services and the police to locate them and their child throughout Saturday, 24th August. IMA was eventually found at 1649 on Sunday, 25th August and accommodated with foster carers after being taken to hospital to be checked out. The mother and father were both arrested on suspicion of being involved in the possession of cannabis with intent to supply. They were subsequently bailed to the 21st October 2013.

[17]	On the 30th August 2014 an application to extend the Emergency Protection Order was made. The order was extended until the 6th September 2014 without opposition from either the mother or the father. The court recorded that the father attended court and gave instructions to his solicitor before leaving court. These were to the effect that he had four other children and was not sure that he was IMA’s father. He was not in a relationship with the mother. He would not be registered on the birth certificate. He wanted no contact with IMA. He did not want to play any part in the proceedings. He would not participate in any assessment and would not provide a sample for DNA paternity testing. The mother indicated that she had separated from the father. In view of what the local authority asserted were concerns raised by the police in an e-mail and the father's position, the local authority sought a direction from the court that no contact between the mother and IMA should take place until and assessment had been done and the local authority was satisfied that contact could be undertaken safely. That application was apparently supported by the children's guardian but opposed by the mother. In extending the Emergency Protection Order until the 6th September 2013 the court refused the local authority’s application in respect of contact. 

[18]	The present proceedings were issued on the 2nd September 2014. 
 
Progress of proceedings

[19]	The child, IMA, has remained with the foster carers he was placed with on Sunday, 25th August 2913 to date. 

[20]	The local authority issued the care proceedings on the 2nd September 2013. The proceedings were allocated to District Judge Stonier and listed before her for a Case Management Hearing on the 15th October 2013. Both the mother and the father attended that hearing. The mother confirmed that she remained separated from the father and sought to resume the care of IMA. On behalf of the father, it was indicated that, contrary to previous indications, he would participate in DNA paternity testing. The local authority indicated that if MAA was shown to be the father by the testing the local authority would offer him the further opportunity to engage in a social work assessment. 

[21]	The local authority confirmed that it was undertaking a social work assessment of the mother. It was to continue that and would take into account the recommendations of the psychologist, Dr Pickering, in respect of how the assessment should be conducted. On behalf of the mother her solicitor asked that she should be provided with a list of the dates of the assessment sessions and the topics which were to be covered in order to enable her to prepare for the sessions. The local authority had agreed to provide that information. It was also recorded that the mother had refused to give her consent for IMA to undergo a pre-permanence medical. The local authority would now sign the forms on behalf of the mother and make the referral for the medical. This was on the premise that the local authority was looking to book a slot for the ADM briefing on the 19th December 2013 for a decision as to whether IMA should be placed for adoption. Case management directions were given including for the DNA paternity testing. The proceedings were timetabled through to an Issues Resolution Hearing on the 27th January 2014. The directions made included presumptive directions to be made on any placement application which might be issued by the local authority. 

[22]	On the 6th January 2014 the court, at the request of the parties, retimetabled the filing of the evidence in the proceedings without a hearing although the Issues Resolution Hearing was to remain listed on the 27th January 2014. The retimetabling of the evidence was necessitated by the delay in the father agreeing to details of his convictions and the domestic violence allegations against him being disclosed to his family members as part of their assessments. That had resulted in the local authority not being able to complete its final evidence or make a decision to the Adoption Decision Maker.
 
[23]	At the Issues Resolution Hearing on the 27th January 2014 it was recorded that the section 31 threshold was disputed by both parents. The local authority had completed its assessments and was seeking a care and placement order in respect of IMA. The mother did not accept the outcome of the local authority assessment and sought the return of IMA to her care. The father challenged the basis of the local authority involvement and supported the return of IMA to the care of the mother. The children's guardian supported the local authority position for a care order with a plan for adoption. The proceedings were then listed for final hearing  before me (in preference of trying to bring in a recorder as the District Judge was unable to accommodate a hearing within that timescale)  with an estimated length of hearing of two days.

[24]	When the proceedings came before me for final hearing on the 17th February 2014 the local authority was seeking care and placement orders in respect of IMA with a care plan of adoption.  The local authority had recently but belatedly issued the placement application. The mother and the father did not accept the local authority position and the mother sought the return of IMA to her care which position was supported by the father. The guardian’s position is recorded in the order as him provisionally supporting the local authority’s applications for a care order with a plan of adoption but felt that an assessment of the paternal aunt, RA, must be conducted so as to be able to fully explore and consider all the potential options. The guardian only met with RA and formed this opinion on the 16th February 2014, the day before the hearing.  The guardian, mother and father sought for the matter to be adjourned so that there could be an assessment. The local authority agreed to undertake the assessment but indicated that it required 12 weeks to be able to do so. 

[25]	It was also recorded that the court indicated that it was troubled by the apparent lack of available evidence before it to substantiate the contentions made by the local authority, and supported by the children's guardian, that the father posed a risk to IMA. Although the focus of part of the guardian’s report was on whether the local authority plan for IMA complied with the requirements of Re B-S (Children) [2013] EWCA Civ 1146, the court considered that missed the point and was more fundamentally concerned about whether the 'threshold criteria' could be established on the evidence before it in respect of a child who had not been harmed. The court considered that the judgment of the Supreme Court in In the matter of B (A Child) [2013] UKSC 33  was more apposite and that it might well not be able to make a decision on the presently available evidence as to whether the 'threshold' was crossed. If the local authority was to make good the apparent deficits in the evidence then  more substantive police evidence was required in respect of the alleged risk the father posed to IMA and the issues of the alleged domestic violence between the father and the mother than was currently available. 

[26]	The court noted the positives in relation to the mother’s commitment to contact and the care she was able to provide to IMA and her handling of him in contact which would have to be balanced against whatever risks to IMA’s development were able to be established on the evidence. Although the father had not really engaged in the proceedings until quite recently, the report of his contact with IMA was positive and the court considered that the local authority should make arrangements for him to have regular supervised contact.  

[27]	The court took the view that, in light of its concerns about the lack of substantive evidence about the alleged risk posed by the father, it wished to review the issues in the proceedings when the local authority had been able to revise and update its threshold once it had received further disclosure from the police. A hearing was listed for that purpose in April. The matter was also provisionally listed for final hearing again on the 4th June 2014 before me with an ELH of 3 days.

[28]	On the subsequent hearing on the 14th April 2014, the court was informed and it is recorded on the face of the order that the further information received from the police has disclosed no evidence of domestic violence in the parents’ relationship and no past offences in relation to domestic violence.  The police had also taken no further action in relation to the kidnapping and drugs allegations on which the father was arrested at the time of IMA’s birth and which were significant concerns at the time of the issue of proceedings.  The local authority confirmed that it would therefore urgently consider its position as to threshold in this case and as to what other arrangements might need to be put in place if a section 31 application was not ultimately pursued.

[29]	The local authority assessment of the paternal aunt, Ms RA, was to be filed by 12 May 2014 and it was understood this was likely to be positive. Both parents continued to dispute that the threshold was met and sought return of the child to the mother’s care. The father did not put himself forward as a carer but supported the mother’s case. The court expected the local authority to make its decision on its approach to the case and threshold in good time in accordance with the amended timetable. The court listed a further hearing to review the position on the 23rd May 2014. 

[30]	At the hearing on the 23rd May 2014, the court was informed and recorded in the order made that the local authority did not believe it would be in IMA’s best interests to return to the care of his mother or both parents, but proposed placement with paternal aunt, RA, under a full care order.  The placement order was not to be pursued, on that basis. The guardian supported the local authority care plan and believed that there was sufficient information available to cross the section 31 threshold.

[31]	The parents’ position was that both continued to dispute that threshold was met and sought the return of the child to the mother’s care. The mother stated that she had obtained a property for herself in her sole name; it was not clear whether she supported the father’s intention to resume cohabitation once IMA was placed with her. The father did not put himself forward as a carer but sought to live with the mother and the child once he was returned to her care. The matter therefore remained listed for a contested final hearing on the 4th June 2014.

[32]	With a view to assisting the parties, the court indicated that on the basis of the evidence currently before it there was a real possibility that the court might not find that the Section 31 threshold was established. The court considered that the parties should explore what other options might be available in the event that the Section 31 threshold was not established.  The court indicated that it would be unlikely to return IMA to the mother’s care at this stage and particularly if she was intending to continue her relationship with the father. The court indicated that placement of IMA in the care and control of RA, under the wardship jurisdiction, was a possible outcome if the court did not accept that the threshold for intervention was met but acknowledged that there may be financial implications for RA which would need to be addressed by the local authority. 

The parties’ positions

[33]	The local authority position is that it seeks a care order for IMA based on its care plan which is predicated on the basis that he should be placed with his paternal aunt, RA.  If the court approves the local authority plan and makes the care order, there is an uncertain timescale as to placement with RA because of the need for her to resolve issues with regard to her employment, accommodation and finances as well as attending a basic parenting course. The proposal is that such placement is to take place within eight to twelve weeks of the final hearing. There will be a schedule of increased contact between IMA and RA which would dovetail with reduced contact to the mother and the father. In the longer term, the local authority is proposing direct contact for IMA with each of his parents every two months at the home of RA.  The children's guardian supports the local authority’s plan for IMA and the order sought. 

[34]	The mother opposes the local authority’s plan for IMA. She disputes that the 'threshold criteria' are established and wants IMA returned to her care. She considers there is no reason why IMA should not be returned to her care. She would be happy for that to be under a care order.

[35]	The father opposes the local authority case and wants IMA to be returned to the care of his mother. 

Legal Framework

[36]	A care order or supervision order may only be made on the application of a local authority if the Court is satisfied that the “threshold criteria” under Section 31(2) Children Act 1989 are established. Section 31(2) provides that:

“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; ……..”

[37]	Section 31(9) defines “harm” as meaning ill-treatment or the impairment of health or development and “development” as meaning physical, intellectual, emotional, social or behavioural development and “health” includes both physical and mental health.

[38]	The burden of proof rests on the local authority to establish the factual matters that support its assertion that the threshold criteria are met. The standard of proof is the civil standard of proof, a simple balance of probabilities. Re B (Care Proceedings: Standard of Proof) [2008] 2 FLR 141. 

[39]	If the threshold is established, the court then has to pass on to the ‘welfare’ stage with a view to considering what, if any, order is to be made. Consideration of this requires me to have regard to section 1 of the Children Act 1989 and to treat the child’s welfare as paramount and to apply the ‘welfare checklist’ or relevant parts of it in arriving at my decision. 

[40]	The “welfare checklist” is set out in section 1(3) of the Act and requires the court to particular regard to:
(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.”

[41]	An order should only be made if I consider that making an order is better for the child than making no order at all. If the court considers that an order is necessary it should go on to consider the range of options available to it, which include where appropriate private law orders under section 8, Special Guardianship Orders under section 14A as well as supervision or care orders under section 31. Before making a care order the court has to consider the local authority’s proposals for contact with the child and has to have considered the local authority’s care plan for the child. The court should only make such order as the facts require, and only then in compliance with the principles of necessity and proportionality set out in Article 8 (2) of The European Convention on Human Rights and Fundamental Freedoms 1950. 

[42]	Given the issues as to the 'threshold criteria' which arise in this case and the submissions made by the local authority, I make these further observations in relation to the law which must be applied. Firstly, in order to establish that a child is likely to suffer significant harm, the court must be satisfied on the balance of possibilities, that the facts upon which that prediction is based did actually occur; it is not enough that they may have done or that there was a real possibility that they did. Re S-B (Children) [2009] UKSC 17, [2010] 1 FLR 1161

[43]	The applicant must satisfy the court that that there is a risk that the child is likely to suffer significant harm in the future. In this sense “likely” means a real possibility, a possibility that cannot be sensibly ignored having regard to the nature and gravity of the feared harm in the particular case. Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563

[44]	The relevant date for determining whether a child is ‘likely to suffer’ significant harm is the date upon which the local authority initiated arrangements to protect the child, provided such arrangements have been continuously in place until the court’s decision on the 'threshold criteria'. Re M (A Minor)(Care Order: Threshold Conditions) [1994] 2 FLR 577

[45]	The Supreme Court has recently visited issues in relation to the 'threshold criteria' in the cases of In the matter of J (Children) [2013] UKSC 9  and In the matter of B (A child) (FC) [2013] UKSC 33  and provided helpful guidance in the task that judges are required to undertake. At paragraph 192 of In the matter of B (A child) Lady Hale sets out the following – 

“….where the threshold is in dispute, courts might find it helpful to bear the following in mind:
[1]	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.
[2]	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.
[3]	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.
[4]	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.
[5]	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 [2013] 2 WLR 649.
[46]	In the matter of J (Children) at paragraph 44 Lady Hale reminds judges and others that – 
“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.” 
[47]	Pertinent to the issues under consideration are some of the observations made by Black LJ in Re P (A Child) [2013] EWCA Civ 963 at paragraph 112 where she said 
“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.”  
The Evidence

[48]	The only expert assessment which has been undertaken in these proceedings has been the Cognitive and Capacity Assessment of the mother undertaken by Dr Laura Pickering which is dated the 29th September 2013 and is to be found at E7-25 of the bundle. At paragraph 4.3 at E18 Dr Pickering concluded that 

“..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.

[49]	In reviewing the evidence, it is I think pertinent to remind myself that both the mother and the father have criminal records. The records for the mother appear at F6-12 and F131-137 in the bundle and for the father at F13-19 and F124-130. The mother has convictions for robbery and racially threatening and abusive behaviour in December 2007 in respect of which she received a custodial sentence of a 12 month Detention and Training Order. She was then aged 15. She is now 22. Her subsequent convictions are for what might be property described as minor offences and failing to comply with the requirements of community orders imposed as sentences. It is self-evident from the nature of the convictions, that she is not likely to respond well when attempts are made by those in authority to impose on her. It is unclear to me whether the social worker ever appreciated that. 

[50]	The father has 3 convictions between 2000 and 2006 for offences involving possession of offensive weapons for which he has received sentences of a fine and community orders. None of those could properly be described by anyone who has a knowledge and understanding of criminal justice as serious offences. He has other convictions for disorderly behaviour and driving offences which demonstrate that he is something of a social nuisance. In 2010 he was sentenced to two separate terms of suspended imprisonment for dangerous driving and benefit fraud. In May 2011 he was sentenced to 12 months imprisonment for offences of possession of class B controlled drugs – cannabis – with intent to supply. Finally, there is a conviction for an offence of harassment on the 10th December 2013 in respect of which he was made the subject of a community order with an unpaid work requirement and a restraining order. This conviction relates to his former partner, RK. I will say more about this later. These convictions are of course a matter of record and are not disputed by either the mother or the father. The issue, as will become apparent, is how they have been interpreted and relied on by the local authority to substantiate the 'threshold criteria' it contends for. 

[51]	I have read all the documents in the bundle and have heard oral evidence from the key social worker, the mother and the father and the children's guardian during the course of a hearing which effectively took 4½ days as opposed to the 3 days estimated. The hearing which started on the 4th June was not able to be completed until the 5th August since I was absent on leave for a period of 4 weeks from mid-June to mid-July. 

Shyam Baker, social worker 
[52]	The first witness I heard was Mr Baker has been a qualified social worker since 2012. He has been the allocated key social worker responsible for IMA since in or around June 2013 prior to his birth. He has prepared and filed four statements in the proceedings which are to be found at [C2-10 dated 29th August 2013], [C56-73 dated 14th January 2014], [C118-142 dated the 20th May 2014] and [C176-187 dated the 1st August 2014]. He undertook and wrote up the Child and Family Assessment dated the 22nd November 2013 at [C26-47]. He was also responsible for the care plans of which there have been five in total which are at [D1-7], [D8-14], [D15-26 – final care plan dated 14th January 2014], [D27-38 – amended final care plan dated 28th January 2014] and [D39-53 – final care plan dated the 20th May 2014]. He was also the author of the Child Permanence Report which is at F262-305 but is undated.

[53]	In his final statement at C68 paragraph 5.11 in respect of the risk of IMA suffering significant harm what the social worker wrote was 

“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.

[54]	In his further statement in May 2014 (at C137 paragraph 4.12) Mr Baker repeats  almost verbatim what is said above in his analysis of the harm he asserts that IMA is at risk of suffering. He describes steps taken by the local authority to consider a plan for potential rehabilitation flowing from discussions at the review hearing on the 14th April 2014. The mother attended for a meeting with the social worker and his manager to discuss this and told them that she would resume a relationship with the father if IMA was returned to her care. She asserted that there had been no domestic violence in their relationship and they were “good together”. Although he acknowledges that the local authority has no evidence of domestic violence between them, he went on to assert that she is a “vulnerable young woman and appears to be under (the father's) control to a significant extent”. 

[55]	There is no clear explanation as to why the move towards rehabilitation did not proceed although at paragraph 2.65 on C133 there is a recital of unannounced visits and their outcome which led him to say that it “may be interpreted as evidence that (she) was not at her stated home on this date.” However and by whom the decision was made not to proceed towards rehabilitation, the local authority had completed a positive assessment of the paternal aunt, RA, and amended its care plan to one of placement of IMA with her under a care order subject to some caveats about the time she would need to make appropriate arrangements and attend a parenting course. 

[56]	Mr Baker gave evidence over nearly one and half days. He was subjected to lengthy and challenging cross-examination around many issues including his assessment of the mother. He was also questioned about his understanding of the police intelligence and information upon which he had acted and formed his views about the parents and the risk he considered they posed to IMA. He was uncertain about some specific dates and unable to demonstrate from the written records available some of what he was saying. His lack of experience as a social worker was evident. 

[57]	I do not propose to review all the evidence which he gave but to pick on what I consider to have been pertinent issues in the local authority processes and procedures in respect of its investigation and assessment and the issue of the 'threshold criteria'.  

[58]	I was somewhat worried and perplexed by what he said about his attempt to undertake two assessments pre-proceedings; an Initial Assessment and a pre-birth assessment in connection with which he had limited contact with the family. There are no written records of these assessments before the court. The Initial Assessment was started in May 2013 because of a referral from the mid-wifery service. However, he said he had not written to the mother to explain why the Children's Services were undertaking any assessment. I found that surprising since it showed an absence of good practice. He said in his initial statement that the mother and father refused to engage with Children's Services and it was not possible to explore the risk in the initial referral. If he had written to set what the issues of concern for the local authority were, he might have received a better response. He said he was not provided with an address or phone number for the father and was not clear about the father's identity in the early part of the initial enquiries. He said the mother and her family were hostile in response to discussion and they were unwilling to engage.

[59]	He said the father's identity was identified through the police on the 13th August 2013. The information from the police informed the local authority that the father had a history of domestic violence and a “violent criminal history”. He was wanted by the police for questioning in connection with allegations of kidnapping and possession of drugs with intent to supply.  Children's Services made a decision to allow IMA home with his mother after the birth on the basis that is thought that the father would be remanded in custody following his arrest which was in due course effected at the hospital following IMA’s birth. 

[60]	He said that after discharge from hospital, the mid-wifery service and the police made attempts to visit the mother and IMA at her parents’ home where she had said she would be living. On each of the visits, said to be made in the early morning when the mother and new born baby would be expected to be at home, the mother was not present and was said to have “popped out”. 

[61]	On the 23rd August Mr Baker met with the mother at her home to discuss a Working Agreement. She was advised to get advice from solicitors about the Working Agreement but advised that if she did not sign it the local authority would make application for an Emergency Protection Order. She was said not to respond to information given about the father's behaviour to a former partner but challenged it saying that he had not been convicted. He described her as being obstructive in refuting the Children's Services concerns. The local authority applied for an Emergency Protection Order later that same day after the mother had said she would not sign the working agreement. 

[62]	After the police had found IMA and taken him into foster carer and whilst he was still the subject of the Emergency Protection Order which was extended, Mr Baker then undertook a Child and Family Assessment which commenced on the 29th August 2013 (before these proceedings commenced, I observe) and was concluded on the 22nd November 2013. This appears at C32 in the bundle. This assessment was supposed to be informed by the psychological assessment which Dr Pickering was to undertake and which, as I understand it, was not authorised by the court until either the 2nd or 5th September.  The mother attended 5 sessions with the social worker and the father one. He described a lack of engagement and being unable to assess whether there was a risk to IMA. 

[63]	In cross-examination by Ms Kilvington, he was not able to demonstrate how report from psychologist informed a changed approach to the assessment. He was very confused about when the report had been received by him. He did not help himself or the court when he sought to assert that he had received the report and made use of it in advance of the date on which it could have been received. The reality is that in fact the report could only have actually informed the local authority approach to how to assess the mother in time for the last two sessions on the 18th and 19th November 2013. The assessment record at C31 recites that “following receipt of the psychologist’s report changes were made to the assessment structure” and goes on to recite how she was provided with written questions “three days before the first session” which on any view could not be right when the psychologist’s report was not available until after the first three sessions of the assessment had been completed since, as was subsequently confirmed by the child's solicitor, it was only sent to the local authority on the 7th October. 

[64]	He became very defensive in reply to Ms Kilvington asserting in very strong terms that it was a “very thorough assessment” when she sought to explore some of the issues in respect of it. That was a worrying response which smacked of the over confidence of someone who did not have the knowledge and experience to demonstrate a degree of circumspection and humility since it was clear, to me at any rate, that the thoroughness of the assessment was not evidenced in what has been produced to the court. Mr Baker’s response on the issues raised in connection with the conduct of the assessment and the confirmation of the unreliability of his evidence in respect of the assessment process was profoundly worrying.

[65]	What became apparent was that there might well be an issue about how the social worker has had difficulty in engaging with the mother because of the way in which he communicated with her. On account of the way in which the assessment record has been completed and written up, there was little evidence of what the mother was asked within the assessment and it appeared there was no separate written record of the questions. At the resumed hearing on the 4th August I was provided with a short handwritten note [F320] which had been made at some session but which was largely illegible and which is dated the 8th October. That date cannot have been correct as no assessment session took place on that date if the written up report of the assessment at C26 onwards is accurate since it says that the session on the 8th October was cancelled. 

[66]	He was challenged about the fact that the mother not been given time for reflection in the assessment in accordance with the advice of Dr Pickering. It is to be noted that the last two sessions which took place on successive days on the 18th and 19th November flew in the face of the advice of the psychologist.  It was remarkable that Mr Baker said that he thought that a day was sufficient to enable her to absorb issues arising from assessment sessions and again asserted that he had made proper allowances within the sessions. That was, I thought, profoundly worrying since it demonstrated a very flawed understanding of the mother’s limitations as well as a lack of social work practice experience of dealing with someone of the mother’s abilities. It also reflected that he had probably not properly read and understood what advice Dr Pickering had given which rather goes to defeat the purpose of instructing her in the first place. I cannot conceive of any competent social work professional thinking it proper to compress the last two sessions of such an assessment of a mother with JG’s limitations into two consecutive days especially given that there had been a gap since the last session which had actually taken place nearly 6 weeks earlier on the 2nd October. There is an open question as to whether the social worker was being driven by the imperative of having to have completed the assessment in time for the LAC review which was to, and did, take place on the 20th November 2013. 

[67]	He conceded that nothing had ever been set out in writing by him or anyone else to describe the local authority concerns for the mother or the father. That also reflected a marked lack of social work experience in dealing with people like the mother and the father. Although he asserted that he had given the mother clear advice to separate from the father he was not able to point to a date or a situation when this done. 

[68]	Mr Baker confirmed that neither he nor the other professionals had any criticism of mother in contact with IMA and there were only positive observations about the quality of her care for IMA. When he was asked about how the information communicated to the mother when local authority was proposing to discuss rehabilitation in May, he said that it was the manager who countermanded proposed rehabilitation plan on basis that information provided by the parents was not sufficient. I observe that the manager has not produced a statement nor has she come to court to give any evidence but, given the information available, it seemed to be a somewhat surprising decision. 

[69]	When questioned by Mr Lord for the father, Mr Baker said he thought the concerns from the police were sufficient to justify taking proceedings.  He described the “worrying police intelligence” which he said the Children's Services were given which included concerns about firearms offences, money laundering and drugs. He clearly considered the information from the police sufficient to justify actions taken to protect IMA. He did not re-evaluate his views of the father after the police released him on bail after his arrest on the 19th August 2013. He acknowledged that he had not considered that the police may have over egged the issues so far as father was concerned but his response was to say that the assessment of risk to IMA was discussed with Kerry Mehta, Head of Service. He considered that the father’s convictions were relevant to the 'threshold criteria'.

[70]	When he was asked about why the PLO procedures had not been adopted by Children's Services in its investigation and enquiry into IMA’s circumstances, his response was that it had been a management decision to respond by applying for an Emergency Protection Order because it was believed that the mother was not living at her parents’ address. In respect of the delays in setting up contact for the father after he had asked for it in December, Mr Baker set the manager had decided there was a need to review contact and undertake a risk assessment. Similarly, when asked about what happened to rule out the rehabilitation plan which was raised in an e-mail exchange on the 7th May, Mr Baker again replied that it was a decision by management. 

[71]	Mr Baker remained of the view that the local authority was unable to work with the mother as she not honest with them. He said that the maternal grandfather wants nothing to do with the child. He considered that her family would not work with them and that the mother is anti-authoritarian. He said the local authority would offer no support if IMA were to be returned to care of the mother. Placement with the mother would not be considered under a care order. He confirmed that the local authority would only support placement with the paternal aunt, RA, if IMA was under a care order to the local authority. 

JG (Mother)
[72]	The mother has filed four statements in the proceedings which are to be found at [C15-25 dated the 8th October 2013], [C78g-78k dated the 11th April 2014], [C150-C162 dated the 3rd June 2014] and [C163-C169 dated the 18th July 2014. A statement from her mother, RG, dated the 18th July 2014 has also been filed at C170-C175]. She gave her evidence on the third day of the hearing. She told the court that she was currently living with her parents and brother, JG. She had four sisters and a brother. Her plan was to get her own accommodation but she was unsure what she would do if IMA not returned to her care.

[73]	She got to know the father about two years ago through her brother LG who was friendly with him. They had lived together for about 10 months in a place in Cheadle. She was aware of his previous relationship with RK. She said RK had found out that she, the mother, was pregnant by the father when she had bumped into her car. She had then been round knocking on her parents’ door causing trouble.

[74]	She said that the father was fine with her and had never hit or pushed her or tried to take her phone off her. She said she would not let him. She said he was happy when she found out she was pregnant. She did not tell her parents about her pregnancy at first but did so when challenged by her mother. She said her parents thought the father was fine.

[75]	In respect of the father's convictions, she said she had not thought he was up to no good. She was not worried about him involving her or the baby in criminal behaviour. 

[76]	She had not gone to the ante-natal clinic in May in pyjamas as had been suggested. When she heard this was raised as an issue she thought the social worker was criticising her and she did not feel comfortable with him. Of the meeting with the social worker in June she said she was on her way to her mother’s when her father phoned to say a social worker had been to see her. He had no idea what it was about. When she and MAA spoke to the social worker she agreed that she had given her sister’s telephone number to the social worker and that the father had given a false name. She said she did not know what the Children's Services concerns were then,

[77]	She next saw the social worker when he attended at an ante-natal clinic on the 13th August. She said he repeated the reasons why referral had been made to Children's Services. He had attended at the birth of IMA although she had not known he would be there. She was discharged by the hospital and told she could go home. She said the social worker came to see her with a document when IMA was 5 days old. At the time she said she did not see any reason why the father could not see the baby. She did not get the chance to read through the document and said the social worker did not suggest that she should phone a solicitor. 

[78]	In discussing the social work assessment she said she received nothing in the post about the assessment and she was not given any leaflets or anything to help her understand what the assessment was about. She said the social worker rang her to tell her of the first date for the assessment. She thought the assessment was to be about whether she could look after IMA. She never got any guidance as to what the assessment was about. She was not given anything to take from the sessions as “homework”. She did not understand why she was going but considered that she had answered all the questions asked of her. The social worker kept repeating the questions which she had already answered. He asked about the father's criminal history, his other children and the reports that he had been violent to their mother. She had told him that the father had not been violent to her. She believed that there had only been an extra person in the last two of the assessment sessions. She did not recall the meeting on the 23rd November but said the social worker had not been through the assessment with her.

[79]	By contrast she said she had got on well with the psychologist and had no problems with her. The meetings with the children's guardian were fine she said.

[80]	In respect of her current relationship with the father, she said that they see each other at court and at contact but not socially. She said they were friendly but not in a relationship. Ideally she said she would like them to live together. She said that the father says he would always continue to be a part of his other children’s lives.

[81]	She said that IMA is settled with his foster carers. He knows her and she says he is a happy baby. She thought it might be hard for him to separate from his foster carers. She thought IMA should spend more time with her. There would be no problems with social worker visiting if IMA was at home with her and she said she would try and engage with them.

[82]	Under cross-examination by Ms McEwen for the local authority, the mother said she did not know much about the father when she started going out with him. She did not know he had been to prison or had a criminal record. She had not been worried when she found out she had been sentenced for a drugs offence. She said the social worker did not tell her these things. She was surprised when she found out about his criminal history because he did not come across to her as being a criminal. 

[83]	She said they had stopped their relationship when IMA was taken from her care. They separated because there was too much going on. She was unclear about when they had got back together again. They had bumped into each other in Asda and talked about how things were going. They arranged to go on a holiday which she said had been booked before IMA was born. They had gone to the airport together taking the same taxi from different houses.  The spent 4/6 days in Tenerife. On their return the father was arrested at the airport. At the next court hearing she said they had  remained separated. She conceded she had lied to the children's guardian about having no contact with the father since August 2013. She said she did not know why she had lied.

[84]	When the father was arrested on the 19th August she was worried as to the reasons for that but was told she could go and live at her parents home with IMA. The father spoke to her on the phone the next day after he was bailed. She stayed at her parents. On the 23rd August when the social worker came with a letter, she said he did not tell her of the Children's Services concerns. 

[85]	At this point in her evidence the mother became very distressed and upset and responded with a very angry outburst which was very much like a stream of consciousness. This was the first sign of an emotional reaction on her part in the hearing. It came at the end of 3 long consecutive days in court and was in response to the probing under cross-examination by Ms McEwen for the local authority at that stage around issues relating to her refusal to sign the Working Agreement. Although distressing to watch and listen to, I was impressed by this response which, as I noted at the time, seemed to be the first time the mother had really got her voice in the proceedings and expressed her feelings for her child and the intrusion in her life and on that relationship by the social worker which she clearly resented. That occurred at the end of the day on which the proceedings should have been finalised. Knowing that the hearing would not be able to be concluded before I departed on leave for a month on the following Thursday, it was agreed to reconvene to allow the mother to complete her evidence first thing on Monday morning. 

[86]	Ms McEwen dealt with issues around the 23rd August and IMA’s recovery by the police on the 25th August. The mother did not accept that she had put IMA at risk. She agreed that the police said they found drugs in the property where she was found with IMA and the father. She and the father were both arrested and taken to the police station for questioning. Although she has been charged with possession with intent to supply, she denies that the drugs had anything to do with her and has pleaded not guilty. She said she could understand why Children's Services expressed concerns about the drugs etc found in terms of implications for IMA.

[87]	She did not think she needed help to care for IMA and said she would not accept help from Children's Services. She repeated this in response to Ms Davies to whom she said she would get help and support from her family and would take advice from them. She acknowledged that she was aware that the father played a part in the lives of his other children and said she was okay with the fact that she was treated and seen by him as a baby mother.

[88]	When the hearing resumed on the 4th August I had a statement from the mother and a statement from her mother. I had indicated at the conclusion of the last hearing that the court would need to be aware of what plans the mother had for the child if a decision was made to return IMA to her care. When she made the statement she was hoping to move into her own accommodation in a new area on the 21st July. She set out the support she would get from her family and included that she would engage with Sure Start services in her new area. She described aspects of how she would care for IMA and what she would do with him. Her statement concluded by asserting that the Children's Services had not contacted her since the last hearing but confirmed that she would let the social workers come and see how she and IMA were getting on and would engage with any services which they recommended.  In her statement, the maternal grandmother briefly described the help and support which she and other members of the family would provide for the mother to help with the care of IMA.

[89]	The mother was recalled to give some short evidence about the delay in being able to move to her new property which was now not going to be available until the 5th August. She was also asked about observations made by a social worker which had been recorded in a further statement for the key social worker, Mr Baker, to the effect that the other social worker had said there was no sign of her living there and no clothes etc. Her evidence was clear that she had been and was still living there and that her clothes were on view hanging on hangers etc. She denied living anywhere else. She confirmed that her telephone number had never changed throughout the proceedings. She said she had answered if the social worker had called her. She said in reply to Ms McEwen that sometimes she did not have credit and could not give any explanation as to why the social worker said that sometimes her phone was “unavailable”. 

MAA (Father)
[90]	The father has filed two statements. The first dated the 6th March 2014 is at C78a-78f and the second dated the 2nd June 2014 is at C143-C149. I do not propose to dwell in detail on the father's evidence which largely demonstrated that he was selfish and self-centred, immature in his attitude to professionals as well as being quite dismissive and mocking in how he responded to cross-examination and had what most reasonable people as well as child care professionals and others would consider to be a very unattractive attitude to women and others. 

[91]	It was evident that any relationship with any woman including those who had borne his children would be on his terms and it was unlikely that he would play any really significant part in his children’s lives. He lacked any real insight as to what children needed in terms of paternal care suggesting that if a child missed him as a consistent presence he would get over it if the child was bought the right toy. 

[92]	His assertion that he refused to co-operate with the social worker who was “ignorant and arrogant” was remarkably ironic in the context. He clearly failed to appreciate that he had done nothing to help the mother further her cause with the Children's Services in asserting her wish to care for IMA. He made it clear that if IMA was returned to the mother he would not set up home with her. He would expect her to be the primary carer and to ask him for help if she needed it. He would provide financial support. 

[93]	Under cross-examination, in relation to questions posed about his criminal record and lifestyle he was arrogant and dismissive of issues. He accepted that he had deliberately lied to professionals including the mid-wife about his identity in August. He was demeaning about, and dismissive of, the key social worker in a way which did him no credit at all. He conceded that he had been obstructive and had deliberately not engaged. What was remarkable was that he said he had put in a complaint about the social worker for having disclosed details of his convictions to them in order to inform the assessment process the social worker had to undertake. That was remarkable because the evidence shows that he did give his consent to that albeit very belatedly.

[94]	His assertion that he would stay away from IMA and the mother if the court decided that he should not have any contact and that the court could be confident if he gave his word rang very hollow in light of his presentation when giving his evidence. 

David Delahunty (Children's guardian) 
[95]	David Delahunty, the children's guardian, has prepared 3 reports in connection with the proceedings being an Initial Analysis Report dated the 4th October 2013 [E25a-25j], a Final Analysis Report dated the 26th January 2014 [E29-E44] and an Addendum Final Analysis dated the 2nd June 2014 [E45-E73]. 

[96]	In his first Final Analysis report the guardian observes at E31 that

“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.

[97]	The guardian also premised his conclusions in respect of the mother on the basis of an acceptance of the risks that the father may pose to the child as if that had an established factual basis which is not evident in the evidence before the court at that time. This is evident at E37 where he asserts that 

“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”. 

[98]	In respect of the 'threshold criteria' he says at E41

“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”.

[99]	The guardian undertakes an analysis of the local authority care plan for adoption in the light of the recent judgment of the Court of Appeal in Re B-S. He suggests that the local authority evidence filed has addressed all the options in the detail required. He also asserts that there has been a thorough social work assessment of the mother. He supported the plan for adoption and the making of a care order to support that. 

[100]	In his Addendum Final report the guardian repeats much of the previous history of the proceedings but includes reference to the psychological assessment of the mother by Dr Pickering with the suggestion that her recommendations were taken into account in the assessment sessions. He refers again to the same risk analysis in the social work assessment which he had quoted in his earlier report. In taking issue with the mother's acknowledgement and understanding of the risks presented by the father and the status of their relationship, the guardian still describes the risks as “unassessed”. [E54 at paragraph 45]

[101]	The guardian had been able to see and interview the father at some length. Despite the concerns which arise from the information available about the father and his former partner which the guardian expressed his concerns about, the guardian acknowledges being 

“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.”

[102]	At paragraphs 106 to 114 of his report the guardian purports to address the 'threshold criteria' and refers to having considered the judgment in Re B. His approach has been to ask three questions – (i) what is the risk of harm? (ii) is it significant?; and (iii) how likely is it to happen? The answers he purports to give are both unsatisfactory and confusing, in my judgement. The suggestion that the risk of harm is that IMA will be a member of a household in which his emotional and social development is impaired is not evidence based on any factual foundation before the court. The suggestion that the father's circumstances provide a “potential for disagreement and tension” with the mother that does not provide “a sound basis for a stable and harmonious household” does not appear to be factually founded. It is speculative and ignores the fact that there is no evidence of any domestic violence between the mother and the father. 

[103]	At paragraph 110 he says he “finds it difficult to assess whether the risk of harm is significant or not” and that “it may be significant or it may not.” He then asserts that he is satisfied that the “risk may be significant” but he then goes on to consider that the parents’ ability to work openly and honestly is relevant to the assessment of whether the risk, as opposed to the harm, is significant which misses the point. His conclusion at paragraph 113 that 

“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. 
[104]	However, based on his conclusion in relation to the 'threshold criteria' he goes on to support the local authority plan for placement of IMA with his paternal aunt, RA.

[105]	In his oral evidence, the children's guardian said that having heard the evidence in this hearing he said his views remained the same. He had not been reassured by the evidence of the parents. He said he recalled the observations which the court had made about threshold etc at the final hearing in February which he said, I thought somewhat disingenuously, fitted with his own analysis at the time. The subsequent evidence which had been made available did not change his view of the risk of significant harm. He had set out the risk factors in his most recent report and dealt with threshold at C110.
 
[106]	He was concerned as he had no clear picture of what sort of household IMA would be living in if he were returned to the mother. He would have great concerns if he were to be living in a house like the one in which he was found in August and would not be assured that he would not be living in a household involved in criminality and drugs.

[107]	Asked about the local authority handling of the case, he said that criticisms of the process of assessment could be made and he referred to the timing of the sessions. He did not consider that it could be said to be fundamentally flawed. He considered that the conclusions were sound even though the process was flawed and they echoed his own conclusions. 

[108]	He said that neither parent had helped themselves by adopting an obstructive approach and demonstrating a lack of engagement. He found it difficult to understand why there should have been such persistent lack of engagement when they said they wanted the child back. He considered that the fault lay more with the parents than the local authority. The local authority had been given intelligence which raised concerns and had simply tried to investigate but the parents had refused to engage.

[109]	So far as the mother’s care of IMA was concerned he said that all he had observed and the contact notes he had read were positive about the care she gave to IMA. His concern was around what sort of household they would be living in and what life she might offer to IMA. He was not clear about the role that the father would play but considered that it would be his choice and not the mother’s.

[110]	He remained impressed by the paternal aunt, RA, who he had spoken to again recently and still had the potential to provide a home to IMA. He thought she was an impressive woman who had given a lot of thought to her decision. 

[111]	In reply to Ms McEwen, he acknowledged that he had difficulty in trying to get a picture of the household that IMA would be living in if were with his mother. He considered there was the father who remained as an unassessed risk despite the efforts which had been made and accordingly that left there being a likelihood of harm. He did acknowledge that the suggestion that IMA might be exposed to risk of conflict in the parents’ relationship was speculation.

[112]	The evidence for his conclusion was, he said, based on evidence relating to the nature of the relationship between the parents; evidence of the father's previous relationship; the father's past involvement in criminal behaviour; and the parents persistent lack of honesty and openness with professionals. He was surprised that the mother had not engaged better with the social worker since the last hearing. Although he acknowledged the support that would be available from her own parents, he said the maternal family have a hostility to the local authority.  

[113]	In response to Ms Kilvington for the mother, the guardian said that he had not made any further enquiries of either the mother or the father since the hearing was adjourned on the 9th June as he did not consider it necessary. 

[114]	He had found the mother difficult to engage in his dealings with her and described her as “wary and slow” in interview. She presented differently in contact where she was much more relaxed. He said she was a likeable young woman who, as he had said in his report, had demonstrated a commitment to IMA throughout the proceedings and had engaged with the assessment directed by the court. He said her oral evidence had been more illuminating with regard to her love for IMA. She had come across powerfully especially when she had been distressed when giving her evidence at the end of the day at the hearing in June. He said no one disputes her love for IMA. 

[115]	So far as the father was concerned he said that when he had seen and interviewed him on two occasions, he had come across a lot better than he had in giving his evidence today. The guardian said that on his own the father he was quite an engaging personality and not threatening or difficult. He thought it unfortunate that the father did not do himself any favours in the way he presented in giving his evidence. 

[116]	Mr Delahunty was resistant to making any concessions in respect of questions put to him by Ms Kilvington on behalf of the mother relating to the 'threshold criteria'. In respect of the criminal charge pending against her in respect for the drugs, he accepted that there were 3 persons involved and that it may be that the mother was unaware of the presence of the drugs as she has asserted. He agreed that did not assist with 'threshold criteria' but that it was relevant information as to the welfare disposal in the proceedings. 

[117]	He agreed that criminality in itself was not a reason to remove a child from a person’s care. He acknowledged that there had not been any convictions in the past 3 years. He accepted that the intelligence shared by the police which gave rise to serious concerns was not based on established facts. In respect of the issue of domestic violence, he agreed that there was no evidence which had been tested before this court on the issues in relation to the father’s past relationship with his former wife, RK. There was no evidence to suggest that he had been violent to this mother and she had never made any complaint about him nor was there evidence of him having been violent to any other women. 

[118]	Despite those answers, the guardian asserted there was a possibility of IMA being exposed to domestic violence based on RK’s description coupled with the father's attitude to fatherhood. He was concerned that there would be disharmony in the relationship between the mother and the father.

[119]	He was concerned about the unconventional relationship and lack of clarity around what the nature of the household would be. Despite that he acknowledged that there were many positives for the mother in that she understood the basics of parenting; she had the support of her mother and siblings; she had the tenancy of a new property in her own name and was easy going about the father's relationship with the mother of his other young child. 
             
[120]	Despite being pressed by Ms Kilvington, he said he remained of the view that there was a risk of significant harm to IMA but found it particularly difficult in this case. He considered that IMA may be the member of a household with instability and disharmony which might give rise to a risk of harm.     

Discussion of Evidence 

[121]	I have been able to consider the written submissions made by the three advocates which were very helpfully produced for the court’s assistance overnight when it adjourned on the 4th August. I am grateful to all the advocates for their assistance throughout the hearing which has been both sensibly and sensitively handled by them. 

[122]	There is no suggestion that the local authority has not acted in good faith in seeking to bring the proceedings relating to IMA before the court. The court accepts that the local authority was bound to consider and act on the information provided by the police. The question, however, arises as to whether a more experienced social worker would have acted with greater circumspection and sought to clarify the factual basis for the “intelligence” he was given and its accuracy. This should have been apparent when the father was released from custody and bailed for further enquiry on the 19th August and should have resulted in the social worker re-evaluating the Children's Services position. None of the information provided by the police as disclosed to this court and the parties appeared to establish that he was a direct risk to a child or children and, it seems to me, on my analysis of the evidence available open to question as to what the “emergency” was that justified the application for the Emergency Protection Order.

[123]	The court acknowledges that the local authority has put all of the evidence before the court, including hearsay evidence, to enable it to determine the outcome of the proceedings. I am bound to observe, however, that until my intervention on the 17th February 2014 that was not the case. Of the 326 pages of documents in section F, only 123 were before the court in February. It was only as a result of this court’s criticisms in respect of the threshold and lack of supporting evidence that the local authority took steps to obtain further disclosure and to amend the 'threshold criteria' document. 

[124]	The local authority threshold document which was before the court for consideration when this matter came before me for final hearing on the 17th February 2014 was dated the 2nd September 2013 and to be found at A1-2 of the bundle. The nature of the likelihood of harm alleged was multi-faceted and expressed as “III-treatment; (ii) Neglect; (iii) Impairment to the child's physical, intellectual, emotional, social and behavioural development; (iv) Impairment to the child's physical and mental health; and (v) Impairment suffered from seeing or hearing the ill-treatment of another”.

[125]	The facts relied on to support those findings were set out as follows - 
“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.”

[126]	The observations I make on this threshold document on the basis of all the evidence before me on the 17th February 2014 when, as I remind myself the matter was listed for final hearing, are as follows – 

(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. 

[127]	It will be seen that had the matter proceeded to hearing on the 17th February 2014 it seems very likely that the 'threshold criteria' would not have been established on a final basis. The matter was, however, adjourned to permit the late assessment of the paternal aunt, RA, as a potential carer for IMA. This court has never suggested that the interim threshold has never been made out or that the grounds for the making of the Emergency Protection Order or interim care orders did not exist albeit this court raises the question of what the “emergency” was in respect of the Emergency Protection Order. The issue which Ms McEwen seeks to take at paragraph 36 of her Written Submissions in respect of an observation which I made about parental co-operation is misplaced as she failed to understand that I was quoting from an observation made by Lady Hale at paragraph 207 of  In the matter of B (A Child).

[128]	Ms McEwen seeks to question whether I have prejudged the outcome of this case. It is a bold submission to make when she has not been the instructed advocate in any of the previous three hearings I have conducted. I expressed myself as explicitly as I did at the hearing on the 17th February because I had prepared the case fully to deal with what I understood to be the contested final hearing and had read and considered all the available documentation. In saying what I did I was trying to provide material assistance to help the local authority put its case on track. In doing so I was being appropriately interventionist. I do not regard anything I said at the subsequent hearings on the 14th April or the 23rd May as doing anything other than that. The observations which I made at the May hearing were simply made to alert the parties to the potential difficulties with which they and the court might be faced. It was intended to be, as I actually recall saying in court, a helpful invitation for the parties to consider the wider options which might need to be canvassed if IMA was not able to be returned to his mother's care. I do not share Ms McEwen’s view that anything I have said has been in any way contradictory and my consistent concern has been the one question of whether the local authority is able to establish the section 31 threshold on a final basis. Having said that, I am not at all clear what the purpose was in Ms McEwen seeking to raise that as an issue in her submissions.

[129]	I do not need reminding as to what orders the court previously made based on its finding that the interim threshold was met. I have already acknowledged that. I cannot answer for what other judges do within their conduct of proceedings before them. I have already explained my position in relation to the hearing on the 17th February 2014. I should, however, point out that Ms McEwen has erroneously suggested that the mother did not seek to challenge the legal basis for the proceedings until the hearing on the 14th April when in fact it has been recorded on the face of every order made on and after the CMC on the 15th October 2013 that the threshold is in dispute. 

[130]	It is, I think, pertinent that I should consider the local authority’s amended threshold document which is before the court at A9-11 in the bundle and dated the 28th April 2014 in the same way as I considered the first threshold document above. I do this  despite the fact that none of the advocates have referred to it directly within any of their submissions and nor did they use it directly as a tool to explore any of the issues with any of the witnesses. The key part of the document provides as follows - 

“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.  

[131]	In respect of this amended threshold document I make the following observations and findings based on my assessment of all the evidence which has been put before the court –  

(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.

[132]	I do appreciate that the court is not bound by the local authority threshold document in any case or any agreement which might be made between the parties. I am and always have been clear that the 'threshold criteria' is a matter for the court to determine based on its evaluation of all the facts as found on the evidence before it.

[133]	As is apparent from the recital of the evidence above, the social worker struggled to identify the basis of the threshold. The basis on which he purported to deal with the issue in his written evidence as recited above at paragraphs [53] & [54] was woefully inadequate. In her written submissions Ms McEwen sets out at paragraph 49 as to threshold which include the parents’ dishonesty which is not a  relevant consideration and three issues relating to lifestyle which are entirely speculative and not evidenced on any factual foundation before the court. 

[134]	Ms Kilvington for the mother reminds the court that it is for the local authority to prove its case and to establish the threshold to the court’s satisfaction. It is not for the parents to disprove the local authority allegations. In cases where there is a dispute the court can often be assisted by an independent analysis undertaken by a professional and experienced children's guardian if her or she is able to assess, analyse and outline the relevant issues and facts on which it is considered the threshold can be founded. Unfortunately, although the guardian attempted to undertake this analysis in his Addendum Final Report and his oral evidence, the review and analysis of his evidence as undertaken by me above at paragraphs [89] to [94] show that he failed to do so in any satisfactory way, in my judgement.  Some of his assertions are simply not made out on the evidence and what he said about the issue of risk was entirely speculative.

[135]	Both the local authority and the children's guardian rightly have criticisms in relation to the parents’ failure to co-operate and their lack of openness and honesty in their dealings with professionals. In fairness to the mother it has to be  said that she did engage with the proceedings and the assessment undertaken by the psychologist and co-operated with the children's guardian in his enquiries. She engaged with the local authority assessment and attended al the sessions as required despite her apparently limited understanding of what the assessment was for. She has made a very strong commitment to contact with IMA albeit there have sometimes been issues around her timeliness. She has been available at contact if the social worker has ever wanted to contact her and I have some difficulties now reflecting on the evidence as to why the social worker did not on occasions make more effort to go to see her at the contact venue if he needed to discuss issues with her. It is, I think, very clear that the mother has had issues around her relationship with the social worker and communication. However, these are not issues which go to threshold and, as Ms Kilvington observed in her submissions the mother's lack of honesty on occasions or the lies she admits to having told do not denote harm.

[136]	The social worker and the children's guardian were both clearly very troubled by having no clear understanding of how the mother and the father might conduct their relationship in the future. Let me say that I entirely agree that the father as demonstrated by him in his evidence is a very unprepossessing, and unappealing character based on what he said about the conduct of his relationships with women and the children he has. Having said that there is no reliable evidence before this court to indicate that he has ever harmed any child or posed any risk of significant harm to a child. I accept the submission made by Ms Kilvington that it is a matter for the mother and the father how they might conduct their relationship and whether they should be part of the same household or not. It is not for this court or others to judge or interfere with parental relationships unless it can be properly established that there is an identifiable risk of harm for the child or children.

[137]	Mr Lord for the father raises issues in relation to the father’s criminality in his submissions. There are issues about the convictions and the way in which the local authority purported to rely on them. The age of the convictions relating to allegedly “violent’ offences are relevant as is the sentence imposed by the court as a real indicator of their seriousness or otherwise. My judgment, informed as it is in part because I sit as a judge in crime in the Crown Court, is that these cannot be classified as serious offences. I was concerned that in her submissions and in her opening Statement of Issues for the court at the commencement of the hearing Ms McEwen sought to go behind the convictions. If a local authority intends to do that then it needs to do more than try and extrapolate information based on hearsay material and documentation obtained from the police. I say that because all too often the written material presented by the police and CPS to the family courts does not necessarily substantiate the evidence put before the criminal court.   I say that because very frequently and especially when a defendant has pleaded guilty it will be on a very specific basis which may be far removed from the basis upon which the police investigation and prosecution started.
 
[138]	There are real issues in this case about the Children's Services reliance on police “intelligence” as a basis for the actions taken by the social worker and others. The “intelligence” referred to has never been produced to this court or the parties and it is unclear as to exactly what information has been given by the police to the social worker or others within Children's Services. There are two written documents before the court from the police which I found to be worrying within the context of these proceedings. There is an e-mail which appears at C1 in the bundle dated the 28th August 2013 which follows some meeting with the police on the previous day after the recovery of IMA and the arrest of his parents on the 25th August. I can understand how a social worker as inexperienced as Mr Baker reacted the way he did to this. However, I question the validity of the police risk assessment in relation to contact made by this police officer which, as I understand it, was put before the court when it was considering the extension to the Emergency Protection Order and the court was invited by the local authority to refuse contact between the mother and IMA until after a risk assessment had been undertaken. Fortunately, the court refused the local authority application.
 
[139]	Perhaps more worrying though is a statement from a CD Acton at F208 dated the 24th March 2014 which was written in response to a request for clarification as to why it was thought that the father was a risk to women and children. She describes that the case was deemed as high risk according to a DASH assessment. DASH assessments are based on a victim’s self report in answer to set questions. They are not objectively evidence based. That is an issue in this case given that the father has never been prosecuted for any offences of actual violence against his former wife, RK. This statement is I think very much open to question in respect of much of its content but for the present purposes I simply make the final observation that the assertion that the father “has been arrested in regards to sexual offences against females as well as violent offences against this victim” is not evidenced on the basis of any information before this court and appears demonstrably unreliable. It calls into question the reliability of any of the “intelligence” given to this social worker and how he responded to it.

[140]	Having said that, I concur with the submission made by Mr Lord to the effect that what the local authority has done is to conflate the allegations made by RK with risk factors which they say will exist in the mother's household. However they have done so without making any attempt to clarify or test the allegations made by RK or to consider or assess the impact of the father's alleged behaviour on his older two children in respect of whom it should perhaps be observed no local authority has ever thought necessary to intervene.

[141]	In her submissions, Ms Davies for the guardian acknowledges that further enquiries ought to have been made of RK. The other issues which she raises in her submissions have already been addressed elsewhere. 

[142]	I have found this to be both a worrying and troubling case especially in the light of its outcome for a child who has never suffered any harm in his life other than the removal from his mother’s care for what is now a fraction under a full 12 month period. It is not a case which reflects well on the participants or indeed the system, in my judgement.

[143]	I have real concerns about how the local authority responded to the initial referral and subsequent information given by the police. I do not understand why the PLO pre-proceedings procedures were apparently never initiated when dealing with a young, first time mother who should have been encouraged to seek early legal advice which might, and I cannot put it any higher, have resulted in a different direction being taken in respect of the removal of IMA from her care under the Emergency Protection Order when he was a week old. The social worker was not able to give an adequate explanation for not implementing the relevant procedures.   

[144]	I was also troubled by the Child and Family Assessment record and the process of the assessment undertaken by the social worker. I have commented above on the timing of the relevant sessions with the mother which demonstrates what I would consider a real training issue which needs to be addressed with the social worker. However, I was also troubled by the electronic record of the assessment which appears to make no provision to actually describe what questions were actually asked of or explored with the mother in circumstances where this social worker failed to keep any contemporaneous notes which he was able to produce when being challenged about it. This is a practice issue which the local authority and its managers need to consider and address since it is likely to arise as an issue in many cases which are brought before the courts.

[145]	There are I think real issues about this social worker and his role in these proceedings which largely emanate from his lack of experience. The view I formed of him was that he was an inexperienced but highly intelligent and articulate young man who was committed to trying to promote and safeguard the welfare of IMA in circumstances which he found to be extremely challenging. He unfortunately appeared to me to have a lack of understanding and awareness of how to communicate with the mother in particular at a level which was basic enough to enable her to engage effectively. There were times in his evidence where he became very confused and resorted to saying things he was unable to properly substantiate. That was regrettable since it undermined his reliability so far as this court was concerned. 

[146]	I should also add that I am troubled by the role of the social worker’s manager in relation to steps taken within the proceedings. It was clear from the social worker’s evidence that many of the decisions made had not been his but those of his manager. The clearest example being in relation to the decision not to continue with any rehabilitation proposal or plan in or around the 7th May 2014. I found it surprising that the local authority did not consider it either appropriate or necessary to ask her to provide a statement or indeed to invite her to attend at court to provide an explanation.

Conclusion & Orders

[147]	I have reviewed the evidence in this case and have borne in mind all the guidance for  the Supreme Court set out above in arriving at my conclusion which is that I do not find the 'threshold criteria' established for the purposes of section 31.
 
[148]	I am acutely aware of the consequences of any finding that the 'threshold criteria' is not made out and especially in proceedings which have been ongoing for as long as these because of the impact and implications such a finding has for the child and parents. On any view, a finding that the 'threshold criteria' is not made out self evidently means that not only has a considerable disservice been suffered by the parents and the child but also an injustice given the way in which these proceedings have been conducted and the length of time the proceedings have been ongoing. That, however, is no basis to shrink from doing what I consider to be right for the child, IMA, on the basis of the evidence before me which I can properly accept.

[149]	In the circumstances, I propose in due course to dismiss the care order and placement order applications in respect of IMA which are before the court. Consideration will now have to be given to what arrangements can be made for IMA to be returned to his mother’s care. 

[150]	The guardian visited the mother in her new property to on Monday, 11th August 2014 as requested by me. The brief report of his visit which has been circulated by his solicitors says -  

“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.
 
[151]	I did invite the parties to consider what if any orders might be able to be put in place to provide any help or support for the mother in the event of my reaching the conclusion which I have. I flagged up the possibility of whether or not a Family Assistance order might be apposite. Whilst such an order would be acceptable to the mother if it were to be made to Cafcass, I sense from the submissions made on behalf of the guardian that this is not something which he considers to be properly within the Cafcass remit given the guidance under which Cafcass operates in relation to such orders.

[152]	Another solution suggested by Mr Lord would be if the local authority were to consider making a new start with this mother by seeking to engage her trust. That of course could be done by treating IMA as a child in need and providing voluntary help and support to monitor the early days of IMA’s return to her but it would require someone entirely new from the local authority being available to take over from the current team.

[153]	These are issues which will have to be further explored at the hearing listed later today as will the timetable for IMA to be returned to the mother and any other issues which might arise in respect of the judgment.   

[154]	This concludes the judgment.

Postscript – 18th August 2014 
[155]	This judgment was circulated electronically to the parties on the 13th August 2014. At the subsequent hearing late that afternoon, the court was informed that the parties had agreed that the reintroduction of the child, IMA, to his mother’s care should be part of an agreed rehabilitation plan underpinned by agreement from both of the parents for IMA to remain accommodated until he was placed in her care. The  rehabilitation plan as agreed has been spelt out on the face of the final order approved by the court. It is not necessary for me to recite the provisions of the plan but simply to record the court’s approval of what has been agreed.

[156]	In addition to the rehabilitation proposals, I was also told that the local authority which confirmed that it did not intend to appeal the decision made by the court, had made a referral to the local authority Children’s Services department for the area to which the mother has now moved on 31st July 2014 to appraise them of the situation in respect of IMA and of the fact that it was thought highly likely that he would be living in their area from on or around the 13th August 2014. I will refer to that local authority as “local authority 2”. The local authority provided a copy of the court bundle to local authority 2 for their information and they were invited to consider whether or not IMA should be considered to be a ‘Child in Need’ in their area. The local authority has agreed to inform local authority 2 of the content of the judgment handed down today. It was intended to arrange a meeting between the two local authorities (if at all possible on Friday, 15th August 2014) to discuss the referral further. If local authority 2 accept that IMA is a ‘Child in Need’ in their area, then Manchester Children’s Services proposes that it co-works the case with local authority 2’s Children’s Services for approximately 8 to 12 weeks. However, it is also agreed that if Manchester’s involvement is hindering the process then it will review whether its involvement should continue for this period of time. 

[157]	That was an entirely constructive response by the local authority to the determinations made by the court and which I considered addressed the concerns raised for consideration at paragraphs [151] and [152] above. Those steps have now been incorporated in to recordings to the orders made which have now resulted in orders to dismiss both the section 31 care application and also the placement order application.

[158]	The final issue which I wish to address (and which I had not addressed with the advocates at the hearing due to my oversight) was my intention to invite the local authority to ensure that a copy of the judgment could be sent to its Assistant Director of Children’s Services to consider the issues raised within the judgment given the criticisms made by the court of some of the social work practice and procedure issues. Having now had the opportunity to consult with the advocates, I am informed that there is no objection to that proposal. I have accordingly provided for the local authority to send the judgment to its Assistant Director with a request for him to inform the court of what, if any action, is to be taken as a result.