Neutral Citation Number: [2010] EWCC 37 (Fam)

IN THE COUNTY COURT

Before:

MR RECORDER

Date: 2010  

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RE:  A, B and C (Minors)

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J U D G M E N T

(Approved)

1                 THE RECORDER:  By an application dated (date given) the local authority, the applicant, issued care proceedings pursuant to section 31 of the Children Act 1989 in respect of A who was born on (date given) and is therefore (age given); and B and C who were born on (date given) who are aged (age given).  The first respondent is the mother of A, B and C.  The applicant local authority have been provided with very little information in relation to the father of the children and so have been unable to locate him and he has, therefore, played no part in the current proceedings.  A, B and C, the second, third and fourth respondents in this matter, are represented by their children’s guardian, and the fifth and sixth respondents are the children’s maternal grandparents.  They were made parties to these proceedings by an order of the Judge on (date given).

2                 The applicant local authority seeks Care Orders in respect of A, B and C, the care plans now being that the children should remain in long-term foster care.  I should make it clear that A is placed in one foster home and the twins are placed in another.  There had been some suggestion that the local authority were for a time limited period going to look for an adoptive placement for the twins - I am pleased to say that is no longer that which they suggest and the social worker and the guardian are to be congratulated for seeking to persuade the local authority of the error of their ways in their former view.

3                 The applicant local authority plans do not include any direct contact for the mother and/or the grandparents following the final hearing, but they propose indirect contact between mother and the children twice yearly, namely in July and December, and the care plans are silent as to exactly when that is to come about.  So far as the grandparents are concerned, the local authority also proposes that they have indirect contact with the children and that takes place twice a year.

4                 The mother of the children is currently serving a four year term of imprisonment having been sentenced for offences of child cruelty on (date given).  The index offences of cruelty in respect of D, but the children before the court, that is to say A, B and C were said to be present at the time of the commission of some of the offences, and perhaps more worryingly were encouraged to act in a cruel and humiliating way towards D. 

5                 Although there is no evidence that has been filed today on behalf of mother, she is represented ably by her solicitor, and has made it clear from prison that she did not wish to come to court but that she still, does not want the court to hold that against her - I do not do so.  Mother’s position is clear, namely she does not agree to the making of the Care Orders that the local authority seek or the care plans, but she does not seek to actively oppose them.  That is, with the greatest of respect to mother, a perfectly proper stance for a mother to take.  She asks one thing, and I make it clear from the start I accede to it.  Although I do trust the local authority in this case, mother has indicated that she does not, and therefore she asks that the order of the court when Care Orders are made in respect of the children reflects that there should be twice yearly indirect contact to the mother.  I do so and I ask that the care plan is amended to make that view clear.  It should also be amended to reflect the fact that the fact that I have made that order in respect of mother’s indirect contact does not of course mean that it cannot be varied subsequently if it is found to be appropriate for more to be given when the statutory reviews take place.  The reason I make the order is not because I do not trust the local authority - I do - but mother asks for that order, it is unopposed by the parties, and if it makes mother happier and gives her some small comfort I am prepared to do so.

6                 The position of the guardian, who is an extremely experienced and able guardian, is that she supports the making of the Care Orders in relation to the children and she contends that the care plan, namely long-term fostering for the children in their current placements, should be endorsed by the court.  I pause there and say I have absolutely no doubt - and I will come to more in a moment - that the children need Care Orders to be made and that the care plans are appropriate.  They seem to have excellent placements finally and they are very lucky that that is the position. 

7                 The maternal grandparents support the making of the Care Orders, they have seen the inevitability of that, but they do ask that the court considers whether an order could be made giving them some level of direct but supervised contact to their grandchildren.  I pause again to say that they have told me a number of times that they love their grandchildren - I have absolutely no doubt about that, I have absolutely no doubt that these grandparents want to do what they consider is best for their grandchildren - but what they want is direct contact and it is suggested that that could be approximately once every two months, so six times a year.

8                 I turn now to the brief history of the case and I do so very quickly because unfortunately it is extremely distressing.  The family first came to the attention of this applicant local authority in (year given) when the children were removed from the mother and the children’s father as a result of concerns about high levels of domestic abuse within the home.  The mother separated from the children’s father and the children were subsequently returned home.  Thereafter mother met the stepfather and they formed a relationship and they later married.  The stepfather had two children from a former partner, namely D who was born on (date given) and is therefore aged (age given), and E who was born on (date given) and is, therefore, (age given). 

9                 D was alleged to have digitally penetrated his stepsister A.  As a result of the alleged behaviour D was isolated deliberately, coldly and cruelly by the mother and stepfather from the family.  He was physically abused by his stepmother and his father and his stepmother encouraged A, C and B to behave cruelly and coldly towards him.  D reported the actions of his stepmother and father to the school, the police were informed and D was interviewed by the police in accordance with what is commonly known as ABE interviews, that for the maternal grandparents and for those who do not know - although I am convinced all the advocates do - is achieving best evidence.  During the course of those police interviews he disclosed details about the behaviour of his father and stepmother.  The allegations made by D led to his father and stepmother being charged with the offences of child cruelty for which they were sentenced to four years imprisonment in (date given).  The severity of that sentence tells me, amongst reading the papers, how serious the allegations relating to D were.

10              Sadly it does not end there.  Mother has a long history of alcohol misuse.  Further domestic violence has been a feature of a number of her relationships.  Work was undertaken with the children about their life in the family home which led to them disclosing that they were often locked in their bedrooms whilst living at home and used coded knocks in order to signal when they needed food. 

11              I am told that the threshold criteria of section 31(2) of the Children Act 1989 is agreed, nonetheless I need to consider that.  The applicant local authority contends the threshold criteria of section 31(2) of the Act, namely the statutory prerequisite for intervention in such cases, are met in this case.  They do so by a document entitled Statement of Threshold Criteria, my copy of which is undated and un-paginated and does not appear in the index but I have a copy in my bundle.  Put simply, the applicant local authority state the following.  As at the time the proceedings were commenced in (date given) the children were at risk of suffering significant harm as the result of the volatile relationship between mother and her husband.  The core assessment complete on (date given) identified neglect, emotional and physical abuse of the children, domestic violence, substance abuse, alcohol misuse in respect of mother as features of the case.  All of those issues were having a detrimental effect upon the children’s wellbeing and placed them at risk of significant emotional and/or physical harm.  The mother and her husband were both sentenced to four years imprisonment in (date given), the offences of child cruelty relating to D, and A, C and B were present when those offences were committed and, as I have said earlier, encouraged to behave cruelly towards him.  Finally the local authority indicates that as a result of the cruelty displayed to D and the convictions in respect thereof, the children were at risk of harm at the commencement of the proceedings.  I entirely endorse the suggestion that that was the case.

12              There is no response from the mother to the statement of criteria, namely the findings of fact upon which the local authority say intervention is justified.  I put the case this way, given the nature of the convictions of mother and stepfather, I am completely satisfied way above the standard that I am required to find, namely the balance of probabilities, that A, C and B were suffering and were likely to have suffered significant harm attributable to the care given by their mother such as to satisfy the threshold criteria set out in section 31(2) of the Children Act 1989, the prerequisite of making a Care or Supervision Order.

13              Of course it does not end there.  Before making a Care Order I must satisfy myself that not only is there a legal basis for doing so - I am completely satisfied there is - but it is necessary in the best interests or the welfare of A, C and B for such an order to be made.

14              Section 31(2) of the Act, as I have indicated already, only allows an order to be made if I am satisfied that the children have suffered significant harm.  I have already indicated that I am.  Before, however, I may make a Care Order in relation to a child I have to remind myself of section 1(1) of the Children Act 1989, namely that when making any decision relating to a child, the decision that I make is in that child’s best interests.  I also have to remind myself that when determining what is in a child’s best interests, I must have regard to the so-called welfare checklist set out in section 1(3) of the Children Act 1989, and I do so, but those factors, so that the maternal grandparents can hear them, are as follows.  Namely the ascertainable wishes and feelings of the children concerned considered in the light of their age and understanding; their physical, emotional and educational needs; the likely effect on the children of any change in their circumstances; their age, sex, background and any characteristics considered by the court to be relevant; any harm which the children have suffered or are at risk of suffering; how capable each of the parents are in dealing with the questions of meeting the children’s needs and a range of powers which are exercisable by the court. 

15              I have absolutely no doubt in reaching the view, as is agreed by all of the parties; it is appropriate and necessary in this case for there to be Care Orders in relation to A, B and C.  They cannot be cared for by their mother, she is in prison, even upon her release it is difficult to see how she would for a very long time be able to take care of the needs of these children.  They have, as the guardian spells out in detail in her report - which I found very useful I stress again - they have very difficult and separate needs.  The children already have to have the services of the Children and Adolescent Mental Health Service teams in order to assist the trauma that they have picked up as a result of being in the care of their mother.  So as I said, I have no doubt in reaching the view that the statutory basis for making such orders exists and that orders are necessary to protect and promote the well-being of the children in the future.  I hope that they will be safe and content in the foster homes.  It is clear they have committed carers.

16              The issue before the court is really whether the court today should make an order indicating that the grandparents should have direct contact with their grandchildren.  The local authority summarise the case really as follows.  Firstly, so far as A is concerned and for whatever reason, A does not want to see the grandparents.  Of course I accept that she had a good relationship with them before, superficially that seems to be the case, and they cared for her for the better part of four months when she was removed from mother’s care in the early part of these proceedings - they are to be congratulated for that.  Whatever happened, whatever has gone on in the past, it is clear that A is distressed at the thought, at this stage, of having contact with the grandparents.  Perhaps more importantly in my view is that the local authority relies upon the fact that the maternal grandparents - particularly the grandfather - really cannot be trusted to take on board the concerns of the local authority that these children have suffered significant harm and were neglected by their mother. 

17              I should make it clear that I have heard evidence from the social worker, I have heard evidence from the grandfather who speaks eloquently on behalf of himself and his wife, and I have heard evidence from the guardian.  I have read the whole of the trial bundle and reminded myself about the relevant law when doing so.  I have also had the advantage of reading the guardian’s report.  The reason I specify that separately is that it was not in the trial bundle before me but I read that as well.  What does it come to - well the grandfather has in the past indicated to a number of people that really he did not think that it was right for his daughter to be in prison, that the case against her was rubbish and to tell everybody the truth she should not have pleaded guilty, that is what he set out in the viability assessment that was completed in (date given), which I find at C208 to C215.  I pause there to say that that viability assessment was written after his daughter had been sentenced in (date given) and the grandfather, it seems clear to me, had had the opportunity of listening to at least some of the prosecution case against his daughter.  He tells me that he has now changed his view as a result of what his daughter says - I will come to that in a moment.  It is appropriate that I should read to you his views as late as (date given), and I read from paragraph 12 of C212 in the bundle before me: “The grandfather believes that the current circumstances of the children, subject to care proceedings, are in the main the result of what he describes as ‘lies’ being told by the child D.  The grandfather is unequivocal in outlining his view of his daughter’s parenting skills when he comments: ‘T was a good parent.  I would like all of the kids to go back to their mother.  He has done all this.  She was house proud until he came along.  Anything I can do to get my daughter’s kids back I will do’.  Overall the grandparents appear to be of the view that their daughter caused a degree of the current predicament if she was responsible for ‘slapping’ D.  They do not appear to accept that there were issues relating to child cruelty.  On this issue the grandfather commented: ‘Being fed on sausage skins that’s a lie’.”  The author of the report goes on: “He” - the grandfather: “believes the children had a stable home life and the grandparents were visiting three times a week.  If there was evidence of dysfunctional cruelty, various responsible adults would observe such happening.”  The author goes on: “Overall the grandfather believes his daughter was imprisoned on the basis of inaccurate evidence and information and he observed of her imprisonment that it is: ‘ because there is a load of lies being told about her, she is not cruel’.”  The author goes on in the report: “In this evaluation of the evidence that was heard in court in relation to the criminal matters the grandfather commented: ‘I think it was rubbish to tell you the truth’.”  The author goes on: “He was aware that his daughter pleaded guilty in court and the grandfather believes that the plea was based not on a recognition of her responsibility for wrong-doing, but founded on, in his opinion, inadequate legal advice.  The grandfather states that he would have no difficulty in complying with whatever conditions were imposed upon prospective placement particularly in relation to contact.”  The author goes on at a later part of the report: “In respect of enabling the children to make sense of their complex and distressing past life he commented that his basic strategy would be to: ‘All I can say is not to believe anything that is said about your mother’.”  The author goes on: “In relation to future contact, although the grandfather is clear in pointing out he would observe any stipulations imposed he states: ‘I want her’ - that is the mother: ‘to see A, they are her children.  All of this has been caused by lies’, being a reference to D’.” 

18              Although the grandfather told me today that he has changed his view because his daughter has told him when he visits her in prison that she is responsible for that which happened to D.  I have difficulty in believing the truthfulness of those comments in that, I know that the mother has spoken to the guardian when the guardian visits her in prison, and so far the, mother has not shown to the guardian the same view that her father reports she disclosed to him.  When speaking to the guardian, mother said that she accepted that she had made a mistake in how she dealt with D but referred to it as: “one mistake”.  The guardian reports that mother did not consider herself to be a risk to the children.  The mother told the guardian she felt the local authority was seeking to make her look as bad as possible to ensure that the children were never returned to her care. 

19              It is clear to me that the mother does not accept that she is a risk to these children, she does not accept the enormity of that which she did to D and - and I stress this is important - that these children, A, C and D, would have been significantly affected by that which they saw and that which they were encouraged to engage in. 

20              Even if I had come to the view that the grandfather had changed his mind - and I make it clear that I do not - it is clear to me that these children need their placements to succeed.  The guardian said the following in her evidence and I simply could not put it any better: “The present placements show that the children have committed carers.  They understand the complexity of the needs of the children.  The need to preserve these placements and the attachments of the children should be the court’s paramount consideration.”  I entirely agree.  It is clear that the children will have long-term therapeutic needs.  It maybe that they can have direct contact with their mother in the future.  It maybe that they can have direct contact with the grandparents at some stage but not yet, and I am happy in reaching the view that I do because I know that the local authority must, as they are required to by law, every time there is a statutory review - which must take place at least once every six months - to reconsider and revisit the issue of contact to mother and/or the grandparents at each and every stage.

21              I have asked the local authority to amend their care plans and they have indicated they will, to specify - although they must do it by virtue of law in any event - that each time there is a statutory review the topic upon the agenda will include the question of family contact to mother and also to the grandparents.  The guardian made the point, which I confess I had forgotten about, that the practice these days is that the care plan is sent to the independent chair therefore the amended care plan, which will have in a specific reference requiring the local authority to consider each time there is a statutory review the question of mother’s and the grandparents’ contact, will be before the independent reviewing officer every time there is a statutory review, and I am convinced that the independence and fervour of the reviewing officers will be such that if the local authority fail to do that which they have promised me, failed to do that which they are required by the law to do, that the independent reviewing officer will see that that was a requirement. 

22              Therefore, sadly, I reach the view that the children cannot at this stage have direct contact to their mother; they cannot have direct contact to the grandparents that will be considered in the future.  It is simply too important that anything happens which might disrupt or affect that which the children need - security, stability and a proper family life.

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