NORWICH COUNTY COURT						No. NR03C00997
											The Law Courts
											Bishopsgate, Norwich

											24th November 2004 

B e f o r e:-

HIS HONOUR JUDGE BARHAM

NORFOLK COUNTY COUNCIL
													Applicants
v

WEBSTER
													Respondent

JUDGMENT
(As Approved by the Judge [and subsequently anonymised by Mr Justice Munby])

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MR. BUTTERWORTH appeared on behalf of the Local Authority.
MR. WARDLOW appeared on behalf of the Father.
MR. FLETCHER appeared on behalf of the Mother.
MR. HIGGIN appeared on behalf of the Guardian.
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Nº of words:  4099
Nº of folios:      57

His Honour Judge Barham : 

1.	In these proceedings I am concerned with three children: [A], who was born [in early] 2000; [B], who was born [in late] 2001, and [C], who was born [in mid] 2003, aged 4, 3 and approximately 15 months.  The parents are Mr. and Mrs. Webster.  
2.	The applications are brought by the Local Authority.  They are applications for a care order with a care plan for adoption and a freeing order in respect of all three children.
3.	In considering the applications for care orders I first have to be satisfied that the threshold criteria are satisfied.  I then have to consier whether care orders should be made.  In doing so I bear in mind the paramountcy principle, the welfare checklist, the no order principle and the care plan.  An order, I accept, should only be made if it is both necessary and proportionate.
4.	Until this hearing the position of both parents was that they oppose the care orders and sought the return of the children to their joint care.  
5.	A report dated the 15th November 2004 from [I] changed their minds.  The report concluded that there was little or no prospect of success in an assessment of the parents for the parents of reunification with their children.
6.	The parents’ present position is as follows.  They would, of course, like the children to be returned to them.  They accept the Court will not make such an order.  The parents therefore seek an order whereby the children should live with the maternal grandparents.  The maternal grandparents are not parties.  Hitherto their position was that of supporting the parents.  Now the grandparents ask the Court to allow them to care for the children.  
7.	It is pointed out on behalf of the parents and the grandparents that, if the children go to live with the grandparents, they will be living with adults that they know; they will be living in their own family; they will be kept in contact with their extended family.  On the other hand, if there was a care order and adoption follows, the children are likely to be split. The proposal at the moment is that they be split with [A] and [B] being kept together and [C] being adopted separately. It is nevertheless possible that each child will be adopted separately.
8.	The mother is now aged about 24 and the father about 31.  They met when the mother was only 13.  They formed a relationship when she was about 16.  
9.	After [A]’s birth, [in] 2000, they separated for about a year from early 2000 to early 2001.  They married on the 15th September 2001.  [B] was born [in late] 2001.
10.	In January 2002 the family were evicted from their home.  They were accommodated in bed and breakfast accommodation between January 2002 and September 2002.  They moved into their present home in September 2002.  
11.	In April 2003 the parties again separated and they remained separate and apart at least until about September 2004.  [C] was born [in mid] 2003.  This separation, like the previous one, was one in which the father lived with his brother nearby and visited the family home almost daily and helped in the care of the children.  It was the mother’s case that the separation was purely for financial reasons.  The father had said to one of the professionals that it was due to relationship difficulties.  It may be that the cause was both, but it certainly would have included relationship difficulties, not merely financial ones.
12.	What is significant is that the parents kept from their parents the fact that they had been separated.  They also kept from the Social Services the fact that they had been separated, and were still separated, until March 2004.  It was only then discovered by the Social Services what the true position was whilst they were in the process of carrying out an assessment of the parents.  
13.	On the 9th November 2003 the parents took [B] to hospital.  There was a fact-finding hearing on the 21st May 2004, conducted by me.  I concluded that [B] had suffered six fractures to his ribs, to his arms and to his legs.  I concluded that they had occurred on at least two, and possibly on more than two occasions.  I concluded these injuries were all non-accidental and that the only possible perpetrators were the parents. 
14.	As a result of the Social Services investigation, [A] was found to have extensive dental decay.  [B] was found [21 words omitted referring to a particular condition affecting B].   
15.	All three children have been in foster care since November 2003.  There has been regular and frequent contact to the parents.
16.	In the Guardian’s report she repeats the grandmother’s description of the mother as somebody who is “timid”.  The Guardian described the mother as “passive and ambivalent” in her relationships with her husband and her family. The father was described in a passage in the report as being “aggressive and agitated”.
17.	I turn to consider the threshold criteria.  Clearly, in respect of [B], they are met by the findings of fact which I have already referred to.  
18.	I consider the question of [A]’s teeth.  There is a letter from a dentist, Dr. [J], dated the 5th December 2003 which attributes decay of her teeth to dental decay.  He recommended a dental clearance of all her teeth.  He said: “In thirty years I have never recommended a dental clearance for a child.”
19.	The parents agree that [A] was never taken to a dentist, save for one occasion when, on the prompting of a health visitor, the father took [A] with him when he had an appointment with the dentist.  It seems that [A] was about eighteen months old at the time.  The dentist, according to the father, looked at [A]’s teeth and told the father that she needed to see a dentist.  The parents did not take [A] to the dentist despite that advice.  In my judgment, they were guilty of neglect in failing to do so.  It matters not, in my judgment, whether or not the parents are responsible for the decay either before or after the visit to the dentist referred to by the father.
20.	I turn to consider the [4 words omitted relating to the condition referred to in paragraph 14].  In my judgment I cannot be satisfied that that is attributable to the care given by the parents.  Accordingly, I make no finding in respect of that.
21.	I now turn to consier the issue of emotional harm.  Dr. [K], a Consultant Child Psychiatrist, has reported to the Court.  He gave evidence.  He was provided with information from foster carers, who he saw.   It seems that [A], in foster care, suffered severe nightmares.  She lived in a fantasy world.  She was very demanding, controlling and jealous without a sense of humour.  She had said that she was scared at her mother’s home; that she had been slapped by her parents, and alternatively said that she had not been slapped by her parents.  She was recorded as having talked of how [B] had broken his ankle.  She had given contradictory accounts about that.  After Dr. [K] saw [A], [A] told the foster carers on the 19th September 2004 that the mother had broken [B]’s leg and body.  On the 30th September 2004 [A] told the Guardian that her mother had caused the injuries to [B].
22.	Dr. [K] had concerns for [A]’s emotional welfare.  He said: “One has to be worried that she was subjected to a regime that was frightening and also either deliberately or inadvertently confusing for her.  She behaves as though she once knew something about [B]’s injuries or was once spoken to about them”.  He described her as “suffering from relative emotional deprivations and a troubled girl”.
23.	The Guardian reports: “[A] exhibits anger towards her mother on occasions, and is ambivalent on others”, and suggests that the reason for this is explained by her disclosure of her mother as the perpetrator of the injuries to [B].
24.	[B], in my judgment, must have suffered emotional harm as a result of his injuries.  In addition, he is described as being “intensely anxious and a wary child”, and as having a sense of uncertainty and fearfulness when with his parents.
25.	The Guardian submits that both have suffered emotional harm whilst in the care of the parents. I agree that that is so.  
26.	Accordingly, the threshold criteria are satisfied, in the case of [B], on the grounds of physical and emotional harm and, in the case of [A], clinical and emotional harm.  Each has suffered significant harm.  All three children are at risk of suffering significant harm in the form of physical abuse or emotional harm if returned to their parents’ care.
27.	It is significant to consider the attitude of the parents towards the findings of non-accidental injuries in respect of [B].  Each denies causing the injuries.  Neither blames the other.  In the past the approach of each has been to attack the medical evidence.  In her third statement, dated the 9th October 2004, the mother expressed concerns about the possibility that the X-rays identified as [B]’s were wrongly labelled and do not relate to [B] at all.
28.	The Guardian, in her report, said that the parents were unable to take professional concern seriously, and that it would not be possible for any essential changes to be effected to safeguard the children’s wellbeing and welfare.  Thus, all three children would be at risk of physical and emotional harm and neglect of their needs if returned to the parents’ care.
29.	The document from [I], to which I have referred earlier, dated the 15th November 2004 was based solely on the written material provided for them.  The conclusion was:
“There is little or no prospect of success.  If one were to embark upon an assessment in person of [I]’s programme of work in respect of the parents, the prospect of a safe, successful and enduring reunification would be very unlikely”.
30.	It was on the basis of that report which was obtained on instructions of the parents that the parents’ attitude changed at the beginning of the hearing.
31.	It is to the future care of the children that I now turn.  
32.	The parents’ case, at the end of the hearing, was to the effect that there should be an adjournment for an assessment of the grandparents.  It was said that the Local Authority had a duty to investigate the grandparents as potential carers.  The grandparents have made it known throughout that they were willing, if necessary, to care for the children.  No proper assessment of the grandparents has been undertaken by the Local Authority. 
33.	The grandparents’ reluctance to accept the Court findings against the parents was understandable. When they were presented with the judgment concerning the fact-finding hearing, they were prepared to accept it.
34.	On behalf of the Local Authority, supported by the Guardian, it is said that both grandparents were assessed in June 2004 when what is described as an “initial screening” took place.  The Local Authority were hampered in their assessment because the parents would not allow the Local Authority to tell the grandparents that the parents were separated.  In any event, the grandparents rejected outright the allegations that the parents were responsible for the injuries.  No further assessment was either possible or necessary.
35.	The Local Authority and the Guardian also contend that the grandparents still do not accept in their heart of hearts that the parents caused the injuries.  An assessment in the next six months will not record any change in their approach.  After that there is no guarantee that the grandparents will ever accept that the parents were responsible for the injuries.  A delay of six months is contrary to the interests of these children.
36.	Dr. [K] was asked to consider the proposal that the grandparents bring up the children.  He had not, of course, seen the grandparents.  The Court adjourned to enable him to consider the relevant documents.  
37.	He suggested that it was necessary first to decide that the grandparents were, as he put it, very serious contenders as carers.  If not, no assessment was necessary. If they were such contenders then a judgment had to be made in the light of the advantages of an assessment as against the disadvantage to the children caused by delay.
38.	Dr. [K] set out the nature of the problems that the grandparents would have to face.  There was the need to protect the children from physical and emotional harm and confusion.  In particular, there would be confusion about the reasons for the children being in the care of their grandparents as opposed to their parents.  The grandparents in due course would have to be able to explain the reasons for that.  If the parents were to have contact to the children the grandparents would have to supervise it.  To do so meant many years supervision in view of the age of the children. 
39.	I make it plain that in my judgment the parents would not give up seeing their children if they were in the care of the grandparents.  It would be quite understandable that they would wish to see their children.  I have no doubt the grandparents would let them. 
40.	Dr. [K] considered there was great risk to the children if they lived with their grandparents unless they recognised and accepted that there was a risk from the parents themselves.  I agree with his judgments.  Dr. [K] said that the children would be placed in what he called an “impossible position”, that of the grandparents telling them one thing, if they are speaking truthfully, about the cause of [B]’s injuries, whereas the parents telling them something else.
41.	It is against that background that I consider the grandparents.  I recognise that any grandparents would be very reluctant to accept that their child, or their child’s husband, had injured their children, and would take time to come to terms with it.  
42.	It is necessary to consider their attitude through these proceedings.
43.	On the 8th June 2004 the Local Authority carried out the initial screening, to which I have referred. The grandparents expressed in strong terms their disbelief that the parents were responsible for [B]’s injuries.  
44.	The Guardian interviewed the grandparents on the 19th August 2004.  Mr. Hardingham said that [B] had suffered only one fracture, that of the rib, which was caused by the hospital staff.  The other injuries were, as he put it, “a put up job by the professionals who were trying to justify their actions”.  He went on to say that the Judge was also part of the conspiracy with other professionals when he was told of the Court findings that the injuries to [B] were non-accidental and caused by the parents.  
45.	The grandmother was unable to accept that her daughter would harm the children.
46.	The grandfather sought in evidence to suggest that he had not said anything about the Judge being part of a conspiracy.  The Guardian took contemporaneous notes.  I accept her evidence that she has accurately recorded what the grandfather said.
47.	On the 17th September 2004 the Guardian again interviewed the grandparents.  By then they had seen the medical reports and the fact-finding judgment.  They were shocked at what they had read.  Both said they had to accept that [B] had suffered several non-accidental injuries. 
48.	It was obvious that both found it hard to accept that [B] had suffered non-accidental injuries.  The grandmother said: “They think it was Mum or Dad, so it must have been.”  The grandfather said that some of the injuries may have been caused when the children or the family were in bed and breakfast accommodation.
49.	On the 20th September 2004 the grandparents withdrew their application, which they had made only in August 2004, to be made parties.  
50.	On the 22nd September 2004 the grandmother’s statement was filed.  It was adopted by the grandfather.  In it, at paragraph 4, she said:
“We can understand how the Court have made the findings and we understand the future welfare of the children is the utmost importance”.
51.	At paragraph 5 they said:
“We support the mother and father in their application for the children to be returned to them”.
52.	In paragraph 10 they said:
“In the event that the Court decides that the children should not be returned to their parents, we would like to put ourselves forward as carers of all three children”.
53.	The comment is made, and it is a valid comment, that if the grandparents really accepted the findings in the fact-finding judgment, they would put themselves forward as carers and would not have supported the parents as carers.
54.	I saw both grandparents give evidence.  In my judgment, there has been little if any change in their approach since their statements of the 22nd September 2004.  There may have been some limited change in the grandmother’s approach, but there is none in that of the grandfather.
55.	It is also significant that the grandfather likes to think the best of people and does not think the parents would cause any further injury to the children.
56.	Another significant factor is that the parents have succeeded in keeping important matters from the grandparents.  They kept from the grandparents two lengthy periods of separation, despite the fact that they were in regular contact with the grandparents.  This in turn adds to the difficulties that the grandparents would have of ensuring that the grandchildren would be kept safe.
57.	The Guardian’s opinion in her evidence remain unchanged from that in her report.  At present the grandparents would not be able to provide a safe placement for the children.  They find it very difficult to accept and understand that the parents caused the injury to [B].  The grandparents do not accept that the parents neglected [A] or caused emotional harm to the children.  She said in her report:
“Without an understanding of what the children have experienced, both physically and emotionally, and what they require protection from, they will be unable properly to meet the needs of the children”.
58.	I agree with that assessment.
59.	I turn to consider the possibility of a further assessment of the grandparents.  If the Court were to order an assessment Dr. [K] could report by early February.  
60.	That is only an assessment.  It is the Guardian’s evidence that they would need more time than that to accept the parents’ responsibility for the harm caused to their children.  It is her assessment of the grandparents that they would not come to such a position within the next six months, and possibly not even after that. 
61.	I accept the Guardian’s view.  No favourable assessment of the grandparents in the next six months will occur.  A delay of six months is very harmful to the children.  I remain pessimistic about any positive assessment even after the six-month period to which the Guardian has referred. 
62.	In considering the welfare checklist I conclude that paragraphs (e) and (f) are particularly significant in the case of these children.  The children have suffered in the care of their parents.  They are at risk of suffering physically and emotionally if they are returned to either their parents or their grandparents.
63.	It was said on behalf of the parents that without an assessment of the grandparents the Court would not be dealing fairly or justly with the decisions relating to the children and that, if an assessment is required, a delay is consistent with the children’s welfare.  Reliance was placed quite properly on Articles 6 and 8 of the Convention of Human Rights.
64.	I conclude that, quite apart from the fact that a limited assessment was carried out in June 2004, an assessment which has any prospect of success is contrary to the interests of the children because it cannot be effected within a timescale which is within their interests.  
65.	The care plan is for adoption.  It is proposed that [C] should be adopted separately from [A] and [B].  This is a matter which was considered at length by the Adoption Panel, which approved this course by a very large majority.
66.	I am satisfied on the evidence that all three are likely to be placed with adopters within twelve months.  There are reservations about whether a placement can be found for [A] and [B].  The proposal is that if no adoptive placement is found within six months, they will be adopted separately. 
67.	I bear in mind of course the advantages of the children being brought up together and together in their family or extended family.  Nevertheless, for the reasons I have given, I have concluded that they cannot be safely brought up by their grandparents and, accordingly, I conclude that there should be care orders.  I approve the care plan for adoption.
68.	The issue of contact has been raised.  It is proposed that there should be direct sibling contact post-adoption at least three times a year.  On the evidence I have heard, I am confident that such direct contact will take place and that proposed adopters will be selected with that in mind.
69.	It is necessary, in my view, to make an order under section 34(4) of the Children Act 1989 authorising the Local Authority to terminate contact. 
70.	I turn to the second application, which is an application for freeing orders in respect of all three children.  
71.	I am asked to make an order dispensing with the consent of the parents to the making of adoption orders on the grounds that such consent is being unreasonably withheld and to order that the three children are free for adoption.  I must be satisfied that adoption is in the best interests of the children.  I must have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the children throughout their childhood.  I must then be satisfied, on the balance of probabilities, that the grounds for dispensation are made out. I must also be satisfied that the children are likely to be placed for adoption within twelve months.
72.	I am satisfied that the children will be placed within twelve months.  A freeing order will widen the pool of potential adopters, particularly in relation to [A] and [B].  
73.	I have already concluded that the children cannot be brought up safely by the grandparents in a timescale consistent with their needs. There is no prospect of a return to their parents.  Adoption is in the best interests of the children.
74.	In the light of these findings, I conclude that the parents are withholding their consent unreasonably.  Accordingly, I make the orders I am asked to make; that is, orders dispensing with the consent of the parents on the grounds that they are unreasonably withholding consent, and orders declaring the three children free for adoption.
75.	Those are the orders that I make.  I shall make the usual costs orders that are needed.

This is to certify that paragraphs 1 to 75 have been produced according to the procedure set out in the AVTS Quality System.

Signed:  Linda Burton 

2627/W3704