England and Wales County Court (Family)

Neutral Citation Number: [2010] EWCC 61 (Fam)

IN THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION

 

 

First Avenue House

42-49 High Holborn

London

WC1V 6NP

 

Thursday, 25^th November 2010

 

 

 

 

Before:

 

HIS HONOUR JUDGE HAYWARD SMITH QC

 

 

B E T W E E N:

 

 

LONDON BOROUGH OF GREENWICH

 

and

 

EH

 

and

 

AA

 

and

 

A

(Children)

 

Transcript from a recording by Ubiqus

Clifford’s Inn, Fetter Lane, London EC4A 1LD

Tel: 020 7269 0370

MS HELEN SOFFA appeared for the Local Authority

MR ROBIN TOLSON QC appeared for the Mother

MR ALEV GIZ appeared for the Father

MS SUSAN COTTERILL appeared for the Maternal Grandmother

MR DAVID VAVRECKA appeared for the Guardian

 

JUDGMENT

(Approved)

HHJ HAYWARD SMITH QC:

 

Introduction and Position of the Parties

1.               This is the final welfare hearing of this long-running case.  The two children concerned are R, who was born on the [DOB] 2005 and now aged 5, he will soon be 6, and RA, who was born on [DOB] 2007 and is now aged 3½.

2.               The history of the case and the reasons why it has taken so long to determine are set out in judgments given by me on the 28^th November 2008 and the 9^th October 2009, judgments of the Court of Appeal, given on the 23^rd March 2010 (reported at [2010] 2 FLR 661) and a further judgment by me on the 8^th September 2010.  I will not repeat anything in those judgments, save where necessary.  It is essential to read those judgments for a full understanding of this one.

3.               When the incidents giving rise to these proceedings occurred R was aged two, nearly three, RA was just over five months old.  They have spent a large proportion of their young lives being away from their parents with their current foster carers, with whom they were placed in May 2008.  RA is likely to remember no other home.  R’s recollection of any other home is dimming.  It appears that he may no longer recognise his father.  He has pointed to a photograph of a white man and asked if that was his father.  It clearly was not.

4.               The Local Authority seek full care orders and placement orders for adoption in respect of both children.  There has been a good deal of discussion in the evidence before me particularly from one of the social workers, WG, as to whether long-term fostering, or special guardianship, or adoption would be the preferred option for these children.  Those are matters that can, if it becomes appropriate, be considered as part of parallel planning, even if I make placement orders.  Placement orders should not preclude other options being considered, if appropriate, although the care plan is for adoption.

5.               The foster family is committed to the children and they wish the children to remain with them.  The Local Authority’s intention is to place the children with that family if possible.  One of the social workers, VC, saw the foster parents on Thursday, 11^th November last, a few days before this hearing began.  She has produced a note of that meeting.  The foster parents have considered the implications of long-term fostering, special guardianship and adoption.  VC told me, and I accept, that the strong preference of the Local Authority is for adoption, whether or not by the current foster carers.  The foster carers would, it appears, be likely to opt for adoption, although that is not yet entirely clear. WG was not at that meeting and gave evidence before he knew what had been discussed.

6.               Further discussion is required as to the views of that family, as to whether they would be agreeable to any form of direct contact between the children and any members of the natural family, particularly the mother and the maternal grandmother.  It is highly unlikely that they would agree to any direct contact between the children and the father.  They are fearful of reprisals from the father and are very anxious that he does not know their address.  The reaction of the natural family to a placement order would be an important factor in whether any form of direct contact would be agreed.

7.               The children need stability, as does the foster family.  Any attempt to undermine a final placement with the foster family, or indeed any other family, would irrevocably harden their stance against agreeing direct contact.  It may even cause the foster family to decline to adopt the children.  It is clear from VC’s note of her meeting with them that although they are very committed to the children, they are becoming frustrated by the lengthy delays in determining this case and the frequent involvement of social workers in their family life.

8.               The guardian supports the Local Authority’s case for care orders and placement orders.  She too would prefer a placement with the current carers, but agrees with the Local Authority that if necessary there should be placement with another family.

9.               The mother’s case is put in a number of alternative ways.  She now lives in Scotland with her mother and her mother’s new partner, RH.  Although their surnames are the same, they are not related.  The mother’s first preference is for the children to live with her, separately from, but under the maternal grandmother’s watchful eye, in the vicinity of the maternal grandmother’s home. 

10.            An alternative would be for the children to live with the mother and the maternal grandmother and her partner, in the maternal grandmother’s home, with the mother as the main carer.  Another alternative would be for the mother to live in that home with the maternal grandmother as the main carer.  The final suggestion is for the children to be placed with the maternal grandmother and the mother to have only contact whilst living elsewhere.

11.            The mother does not seek to have the children with her wholly independently of the maternal grandmother.  The mother opposes the children living with the father, or any members of his extended family.  She opposes adoption or placement in any form with any other family, including the foster family.  The mother has researched the availability of schools and housing and other facilities in the area in which she now lives.  VC says that she has done a good job in that respect, although VC is concerned that the mother appears to have little or no social life in Scotland and appears isolated.

12.            The father’s case is that the children should live with him, or with members of his extended family, cousins P or J.  He opposes the children being in the care of either the mother or the maternal grandmother and would prefer the children to be adopted by the current foster carers if he, or any member of his family, cannot care for them.  In any event the father seeks direct contact with the children.

13.             At this hearing the maternal grandmother has participated as a party and been represented by counsel Her case is that the children should be placed with her as the primary carer, either with the mother living with her and her partner, or nearby, and having regular contact with the children.  The maternal grandmother’s new partner would continue to live with her and play a part in caring for the children.  The maternal grandmother hopes that eventually the children could be returned to the full time care of their mother.  It is not clear who would make that decision, apart from the maternal grandmother and the mother, or in what circumstances.  The mother suggested that social services would have to decide.  The maternal grandmother’s alternative proposal is that the children should remain with their current foster carers and that she should have direct and indirect contact with them.

14.            The children are settled and thriving in their current placement.  The foster parents have three children aged 16, 14 and 12.  The children are attached to them and the attachment is mutual.  R has attended his present school for three years and could stay there for another five years.  He is doing well there.  RA has successfully started nursery school.

15.            The mother told me that the father has known the foster parents’ address since August 2009.  She has said that there is a risk of the father abducting the children from the foster placement.  The father denies that he knows their address.  I do not know who is telling the truth about that.  If the father does know it, he has not been there as far as I know.  The father himself says, as I have said, that if the children cannot be placed with him he would prefer them to stay with the foster carers.

16.            VC and WG became joint social workers to the children in April 2010, after the decision of the Court of Appeal.  VC told me about the events in July 2010, which are related in my judgment of September 2010.  The mother was then indicating that the children were in great danger from the father.  The foster family were told that they must go into hiding, or the children would be removed from them.  The family, including their own three children, went into hiding. The children were told it was a holiday

17.            VC told me that the foster family showed enormous commitment to the children at that time and the need for them to hide brought home to the foster family just how strongly they cared for R and RA.  The mutual bond between the children and the foster family is very strong.  VC described R’s attachment to the foster family as “a deep sense of belonging”.  The maternal grandmother told me that she believed that their primary attachment was to the foster carers. The mother agreed that they were so attached.

18.            VC was cross-examined vigorously by Mr Tolson QC for the mother, along the lines that she was pushing the Local Authority’s case too hard and was in effect gilding the lily.  Those are my words not Mr Tolson’s.  I reject that criticism.  I was very impressed by VC at the hearing in September 2010 and again at this hearing.  She is a highly competent social worker.  I did not agree with everything she said, but I accept most of what she told me.  I believe that she has approached this case with an open mind, as has WG.

19.            The children are of mixed race and colour, as are the foster family.  The mother has been having contact with the children twice a week.  The maternal grandmother’s contact was re‑established in mid-October 2010.  The father has had no direct contact with the children since January 2009.

20.            Since the judgment I gave in September 2010 VC and WG have continued to work with the family.  VC has concentrated primarily, but not exclusively, with the mother and RA,  WG primarily with the father and R.  Their work has however overlapped and they have been working together.  VC undertook a social work assessment of the mother in October 2010 and produced a detailed report about that assessment, dated the 28^th October 2010.  WG has prepared a viability assessment of the father and members of his family as potential carers for the children, namely P., J and D, following a number of meetings with them.  His report too is dated the 28^th October 2010.

21.            VC and WG have produced a final joint statement, also dated the 28^th October 2010.  WG has prepared a statement in relation to whether it would be in the children’s interests for the father to resume contact with them. WG and VC have put a great deal of work into this case. Their conclusions are that it would not be in the interests of either child to return to the care of their parents, or any members of their respective wider families, or to resume contact with the father.  I will consider in more detail in this judgment some of the points made in those reports.  Save where otherwise stated in this judgment, I accept the concerns raised in those reports and their conclusions.

22.            After the last hearing, in September 2010, a dispute arose as to which expert should be instructed to provide a further report for this hearing.  Professor I was the first choice, but was unavailable to prepare a report by the date of this hearing.  She suggested an alternative expert, but the mother wanted Mr M, clinical psychologist, to be instructed again.  I acceded to the mother’s wish.  Mr M provided a further report, dated the 2^nd November 2010.  His report raises a number of concerns.  He believes the risk of returning the children to either of the parents would be too great.

23.            SCO, independent social worker, has provided an assessment of the maternal grandmother, dated the 22^nd October 2010.  She concludes that the maternal grandmother would do everything she could to protect the children if they were placed with her, but her view is subject to many other factors and caveats, including the views of Mr M.

24.            I have also had further statements from the parents, the maternal grandmother and the father’s cousin, J.  All the above mentioned persons have given evidence before me at this hearing, apart from father’s relatives P and D.  In addition I have a detailed report from the guardian, although it has been severely criticised by Mr Tolson on behalf of the mother. He suggested it was a poor report. I do not accept that criticism

The Principles to be applied

25.            In the context of this case and its lengthy history, and arguments advanced on behalf of the mother by Mr Tolson and Miss Boye, I think it important to set out the principles which I have applied in my task of deciding the future of these children.

26.            R and RA should be brought up by both of their natural parents, or either one of them, if at all possible.  It is likely to be in their best interests to be in the care of a natural parent, if that could be achieved without unacceptable risk.  The parental role of the mother and father should only be displaced for very strong reasons, grounded in the welfare of these two children.  It is the welfare of the children that must guide my decision as to where they should be placed, but the right of these children and of the parents to have a family life together is a strong one.  I have Article 8 of the European Convention well in mind.

27.            I must apply that principle and not simply give it lip service.  In the context of the present case I must not perform a simple balancing exercise and ask myself whether either of the parents, or the maternal grandmother, or the father’s cousins, or the foster family, or any other family, could provide a better home for the children.  The claims of other parties to care for the children should only be considered if the claims of the natural parents cannot be met because they are unable properly and safely to care for these children.

28.            I must therefore first consider the parents’ applications and only if I reject them should I go on to consider the wider natural family, namely the maternal grandmother and the father’s cousins.  Only if they are rejected should I consider claims of non-family members.  I must not indulge in social engineering.  In any event I should adopt the least interventionist approach.  I should consider making no order.  I should then consider a residence order before considering a care order.  Adoption is a last resort, as being the most interventionist approach.  I should make a placement order only if such an order is positively required in the interests of these children and I should dispense with the parents’ consent to such an order, only if the welfare of these children positively requires that I should do so.

29.            I must apply the relevant welfare checklists, both under the Children Act and under the Adoption and Children Act and I propose to do so expressly in this judgment.  I have been referred to C and B (Children), a decision of the Court of Appeal on the 30^th March 2000, Re P (Placement Orders: Parental Consent) [2008] 2 FLR 625, Re S (Adoption Order or Special Guardianship Order) [2007] 1 FLR 819.  I have read and considered those authorities.

30.            Finally, I remind myself that irritation with the continued lying of the mother and the father must play no part in my thought process.  I make it clear that I feel no irritation.  If I did, I should recuse myself from deciding this case.  As I said in my judgment in September 2010, I did not feel it right to recuse myself and I remain of that view.  I must employ a child‑centred approach and no other.  I make these points, which may appear obvious, out of deference to the arguments addressed to me on behalf of the mother.

The Mother’s Parenting Ability

31.            I have recorded in earlier judgments that the mother has positive parenting qualities.  She has regularly attended contact and there have been no concerns about her own interaction with the children at contact.  That remains the position today, according to recent contact notes.  She is recorded as having a strong bond with the children, particularly R.  The contact notes about the mother are positive.  To break the bond between the mother and the children is a very serious step to take and should be done only if the children’s welfare positively demands it.  R in particular would be likely to be very distressed if he no longer saw his mother.  Nevertheless, notwithstanding the positive nature of the contact notes, there is no doubt in my mind that the mother, in some respects, is seriously lacking as a parent.

32.            The contact notes, when the father and the mother were having contact together, show that the father was often inappropriately very strict with R; too strict for R’s age.  The mother did not intervene; she did nothing to protect R; she supported the father.  She was wrong.  R had a severe speech impediment. It was a major problem.  Reference to it was made in a report of VC in July 2010.  It includes the following:

‘R’s communication difficulties appear to have been severe and isolating for him.  It is very concerning that R had become so used to not being understood that he would repeat his requests to himself over and over.  It also makes the parents’ reluctance to agree to speech therapy services even more concerning, as clearly this was a very limiting factor for R.  R’s fear of new men, and particularly strong response to the foster father as the second black male care giver in his life, is also concerning.  It does not fit with the happy and easy-going relationship that the mother describes between R and his father at home.  It appears from the foster father’s description that R was constantly waiting for him to get angry or become frightening.  This fits more with the mercurial moods seen by the contact supervisors with the father, rather than the home life that the mother describes.’

 

33.            As far as the speech impediment was concerned, the mother did not take appropriate steps to help R, although she was urged to do so by her own mother, the maternal grandmother.  The mother was wrong in not doing so.

34.            Furthermore, as appears from the passage that I have quoted, when R went to the foster carers he was frightened of the male foster carer.  I infer that when in the care of the mother and the father he had been treated in an inappropriate manner to cause him to be so fearful.  The details of why R may have behaved in that manner are not clear because neither the mother nor the father have told the truth about their life together.  In failing to be truthful they have failed to protect their children.  R was not properly protected while they were living together and RA suffered a severe injury.

35.            When R went to the foster carers he had very bad eczema.  The eczema became worse at times when he spoke to his father on the telephone.  When R started nursery school, after leaving his parents, he was about a year behind in his development.  He has now caught up.  His untreated speech impediment, his fear, his eczema, his backwardness indicate that he was not thriving as he should in the care of his parents.  He was mainly in the care of his mother because his father spent most of his time at work.

36.            The mother’s lack of parenting skills in themselves were not sufficiently serious to justify removal of the children, as VC conceded, but the mother was far from the perfect mother she would have everyone believe.  In my judgment of the 28^th November 2008, I said this at paragraphs 19 and 23:

‘Prior to RA’s fracture there had been no social services involvement with this family.  According to AC, a social worker who gave evidence before me, there are positive reports from the GP’s practice, the health visitor and R’s nursery school.  I also find that R has suffered no injuries and was thriving in the care of his mother and his father.  RA too has suffered no other injury apart from the fracture.  She too was thriving in the care of her mother and father.’

 

37.            I then had no detailed evidence of the matters I have referred to above, apart from concerns as to the father’s treatment of R at contact.  I emphasise the Local Authority do not rely on those aspects of the case to justify the removal of the children from the care of the mother.  I do however modify my earlier findings in the light of the new evidence.  It is suggested that the matters I have referred to could not have been very serious, otherwise they would have featured in the evidence at the hearings in November 2008 and July 2009.  They were indeed no part of the Local Authority’s case for the removal of the children.

38.            I have found the mother to be a possible perpetrator of the injury to RA’s arm.  The mother has failed to give a credible account of how RA’s arm came to be injured, or her role, if any, in causing that injury, or in seeking medical help for, or the family dynamics which may have led up to that injury, whether or not caused by the mother.  The mother’s habitual lying throughout this case shows her continuing inability to place the children first.

39.            The mother’s account of her life with the father has recently changed again.  In October 2010 she told VC that the father had been far more aggressive and violent than she had said before.  She gave evidence to me about that.  She told me that it had been difficult for her to be frank about what had occurred and that it has taken her a long time to be able to do so.

40.            I do not ignore how some people may find it difficult to disclose violent treatment, but this mother has had a very long time.  She has had many many opportunities.  She has had abundant support, including her lengthy time in the Refuge.  She has not just found it difficult to disclose violence (if what she now says is true) she has gone to enormous lengths to hide it and she has spun a web of deceit of wholly extraordinary proportions, as outlined in my last judgment in September 2010.

41.            At this hearing the mother told me how she had counselling when at the Refuge, but she also said that she had been lying to the counsellor about her separation from the father, at a time when she was in fact still living with him for much of the time.  She told the guardian how much she was benefitting from the counselling.  Lie was built on lie.  I reject the mother’s explanation of finding it difficult to disclose the violence.  Even now I do not know if she is telling the truth.

42.            If what she now says is true, time and time again she has protected the father rather than the children and she has tried to have the children returned to her care in wholly inappropriate circumstances.  She is very far from the good mother portrayed in the contact notes.  Throughout, her contact has been supervised and she has not had care of the children alone since RA was injured.  It is not suggested now that she could have them alone, without the maternal grandmother being on or near the scene to keep a watchful eye.

43.            VC told me that she has concerns about the mother’s parenting skills if living alone with the children.  I share those concerns.  The ability successfully to undertake supervised contact does not in this case necessarily equate with an ability to care for the children, on a permanent basis and unsupervised, in an appropriate way.

Relations between the Mother and the Maternal Grandmother.

44.            The proposal that the mother and the maternal mother should live together, or near each other, in Scotland needs careful examination.  The picture they seek to paint is in effect a scene of domestic harmony, with the children the focus of attention and the maternal grandmother keeping a watchful eye.  I do not believe that that is a realistic picture.  Relations between the mother and the maternal grandmother have in the past been very difficult for long periods.

45.            When the mother was young her mother was involved in at least three violent, abusive relationships. The maternal grandmother initially told me that it had been only two such relationships, but the papers before me reveal that there were three.  Details are given in the papers at pages E260 to 263, in a report in May 2009 by SC.  The maternal grandmother told me that she finds it distressing to talk about these matters and I see no reason to add to her distress by reading the passages from those pages into this judgment.

46.            In addition, the maternal grandmother has had problems with her sons C and G.  C in particular had serious difficulties as the result of witnessing domestic violence in the maternal grandmother’s home.  For six months he had treatment at the Maudsley Hospital.  The maternal grandmother told me that she had not appreciated until recently how the mother herself had been affected by her past life in violent households.  If the maternal grandmother herself had been a good and attentive mother, protecting her own children, she should have appreciated it. I now have serious misgivings about the maternal grandmother’s parenting skills.

47.            The mother felt excluded and neglected by her own mother.  She told Mr M that she had been abandoned as a child.  In Mr M’s opinion there are many unresolved issues between the mother and the maternal grandmother.  He went so far as to suggest that there may be an underlying hatred.  On reflection he withdrew that word during his oral evidence, but he did not withdraw his opinion that there is a substantial risk of and potential for future problems in the relationship between the mother and the maternal grandmother.

48.            At one point in his evidence he said that he was speculating about that, but I did not take him to mean that he was speculating inappropriately.  All he meant was that he was looking into the future and no one can know for certain what the future will hold.  He remains of the view that there is a substantial risk of a breakdown in the relationship between the mother and the maternal grandmother.  He has not seen the maternal grandmother; he has only seen the mother.  He bases his opinion on his assessment of the mother and what the mother has told him, and on what he has read about the maternal grandmother.  In my view he is entitled to be concerned about their relationship.  I believe he is right.  I accept his evidence.  Mr M told me that his sense of risk has deepened with his greater knowledge of this case.

49.            In the past the mother and the maternal grandmother did not speak to each other for about eight years.  The mother gave evidence to me at this hearing about her past relations with her mother and her brothers.  Her evidence included the following passages:

‘I have unresolved issues with my mother.  I didn’t like my upbringing, which involved witnessing violence.  I was about five or six.  I saw it on a couple of occasions.  It made me feel angry.  I think my mother had a couple of violent partners.  When I moved away from my mother I was 19, I wasn’t then talking to her.  I hadn’t spoken to her for a few months.’

 

50.            I pause in the quotation to observe that I asked the mother about that and she dismissed it as a teenage thing.  I believe it was far more than that.  She went on to say:

‘I told the father that I had a strange relationship with my mother.  My mother hardly knew the children when they went to live with her in January 2008.  I criticised the way my mother was looking after them.  They weren’t being kept to routines.  I found out from a social worker that my mother was going to my brother’s wedding and leaving the children and I wasn’t happy about that.  I didn’t go to his wedding; I’m referring to my brother G.  I haven’t spoken to my brother G since 2002.  Mine is a fractured family.  My brother C and I fell out.  I’ve spoken to him once on the phone, but not face to face since May 2008.  When my mother went to Scotland she didn’t leave her address with me or C.  I don’t know why she kept it so secret.  I was against my mother looking after the children at the end of January 2008, after RA’s injury, because we weren’t speaking and we hadn’t spoken for two months.  I don’t remember why, but we’d fallen out.  I hadn’t told my mother about the injury and that RA was in hospital.  I don’t know why I didn’t tell her.  I never went to my mother about domestic violence because I knew she’d have told me to leave him and I was in love with him.  Although my mother would have known what it was like to be hit by a man she loved, but not want to leave him.  In February 2009 at court was the first time we’d spoken, my mother and I, since May 2008.’

 

51.            During the mother’s relationship with the father, her relations with her mother were very strained.  After RA’s injury to her arm the children stayed with the maternal grandmother from the end of January 2008 to May 2008, but the mother was very unsupportive of the maternal grandmother and the maternal grandmother had difficulties in looking after the children.

52.            In a statement of a previous social worker, CC, in April 2008, there appears the following passage:

‘The maternal grandmother indicated that she struggles to cope with R’s behaviour and she finds him difficult to manage.  R seems to be well behaved, obedient and subdued in the presence of his father.  However, his behaviour is totally opposite with his mother and grandmother.  The maternal grandmother said that R is acting in a very defiant manner at times, he does not listen to her and throws temper tantrums when he does not get what he wants.  The maternal grandmother is concerned that he has become physically aggressive towards her.  He is constantly seeking her attention and appears to be jealous of his baby sister RA.  The maternal grandmother thinks R’s speech is poor and would greatly benefit from going to nursery.  She feels he needs a nursery place in order for him to be with his peers and this in turn would help him with his speech.’

 

53.            The reference to R’s speech problem was I think the only reference in the evidence before me in November 2008 and July 2009 as to that problem. Counsel too could not direct me to any other reference.

54.            In a report of the guardian prepared in the early part of 2009, the following passages appear:

‘I met the maternal grandmother on the 29 ^th March 2008.  She raised concerns about R’s behaviour and her ability to contain him.  She told me that R had wrecked her floor in a temper and described him as destructive.  She noted that he had kicked the baby walker with RA in it and he had slammed the fridge door on her fingers and kicked the kitchen table and pushed everything off the table.  She did not have any concerns in managing RA, whom she described as a contented child.’

 

The report goes on to say:

‘On the 1^st May 2008 the mother contacted me in what appeared to be an agitated and frustrated state.  She told me that her mother would not talk to her and she told me she wanted the children moved from her care, stating she did not get on with her.  I pressed the mother, but she was not able to give any concrete concerns of an extreme nature and again repeated that she did not get on with her mother and their relationship had deteriorated.  She told me that when she had managed to have a conversation with her mother, her brother C took over the telephone conversation and told her that their mother could not cope anymore and had asked for the children to be moved.’

 

55.            The mother and the maternal grandmother met at court during these proceedings in February 2009.  There appeared then to be a reconciliation between them, or at least the beginnings of one.  It was an aspect I considered in my judgment in October 2009.  In July 2010 it became apparent that the mother had been seriously deceiving her mother and everybody else about her relationship with the father.

56.            During an assessment of the mother, which took place between April 2010 and July 2010, the mother continued to be critical of the maternal grandmother over a year after the purported reconciliation in February 2009.  The report of VC in July 2010 includes the following passage:

‘The mother felt that the maternal grandmother was over exaggerating her fears of reprisal from the father.  She pointed out that her mother had been willing to stay in the house for almost a year after she had placed the children in foster care and even now is allowing the mother’s younger brother, wife and child to live in the house.  The mother said that she found it unlikely that if her mother was so scared of repercussions that she would allow this arrangement.  The mother stated that she felt the maternal grandmother was using the father as an excuse to try and get a higher priority of housing exchange to Scotland, where she is currently spending most of her time.’

 

57.            At the hearing before me in September 2010 the mother accused the maternal grandmother of not always being truthful.  The mother and the maternal grandmother now contend that they can live in harmony in Scotland and bring up the children together.  Mr M has grave doubts whether that is likely to happen.  VC described it as a fantasy.

58.            There is no doubt in my mind that the mother’s relationship with the maternal grandmother and her brothers is dysfunctional.  There is a long history of problems in this family.  In my view there is a pattern of discord which I find is highly likely to continue.  I reject the picture of a future serene and contented and calm life in Scotland that the mother and the maternal grandmother would have me accept.  It is highly likely that there would be serious and major disruption for the children.

59.            During the course of her evidence before me at this hearing the mother said:

‘I don’t know how long it will take for me and my mother to build a relationship of trust.  I know I have been a great disappointment to her and I have to prove to her that she can trust me.’

 

60.            I too do not know how long it will take, if ever.  The children cannot wait.  They have waited far too long already.  VC told me that she would be concerned when the first conflict of parenting styles occurs between the mother and the maternal grandmother.  I very much share her concern.

61.            The Local Authority has raised two matters about the placement of the children in Scotland, with which I do not agree.  The children are of mixed race.  It is suggested that racially they would find life difficult in Scotland because there are very few black families there.  Mixed-race children are a feature of this family.  One of the maternal grandmother’s sons is of mixed race.  Race is not an issue for this family and I have no reason to believe that it would be an issue in Scotland.  The racial point raised by the Local Authority forms no part of my reasoning, save to reject it.

62.            Furthermore, VC has expressed concern about the mother’s social isolation in Scotland.  She is no doubt mindful of mother’s social isolation when with the father.  The mother has made no new friends since she moved to Scotland, but she has only been there since July.  She has frequently travelled south to have contact with the children.  She has put much effort into researching the available housing and schools and other facilities in the area in Scotland where she is living.  I do not find it of concern that the mother has not yet made friends.  She says she would be likely to make friends through the children’s schools.  I accept what she says about that.  The mother has however lost her friends in the London area.  She told me that they had ceased being friends with her because she had deceived them so badly.

63.            The maternal grandmother has had, and continues to have, problems with her two sons.  She and G do not see each other at all.  She has lost contact with her grandchild by G.  In her report of the 8^th May 2009, SC refers to the maternal grandmother having a good relationship with G.  She was wrong about that.  G is estranged from the mother and did not support the maternal grandmother looking after R and RA in the early part of 2008.

64.            Her other son, C, was a great help to the maternal grandmother when she was living in London and was fearful of the father.  She said that she was afraid to go out.  She kept her curtains drawn.  Her son C stayed with her, so did G from time to time at that point.  Yet after she moved to Scotland C did not know her address.  The maternal grandmother says that C did not need to know her address.  I find that very surprising.

65.            When the maternal grandmother saw SC in October 2010 she had not seen C since she moved to Scotland.  Furthermore, the maternal grandmother did not give the mother her address and said the mother did not need to know it.  There is an air of secrecy about the maternal grandmother’s move to Scotland which concerns me and it has nothing to do with her fear of the father.  The history of the maternal grandmother’s relationship with her sons and with the mother is very worrying.  There have been major problems in the past and the problems continue.  It is much too early to be confident that serious disruption in the relationship between mother and daughter will not recur.

66.            The maternal grandmother herself is cautious.  She said that if the children move to Scotland she would be watching the mother constantly, 24 hours a day.  She said the mother needs help.  She told me that the mother has to prove that she can be trusted again.  She did not know how long that would take.  The maternal grandmother said that the mother was not yet ready to have the children on her own because she has many things from her past life to sort out first.  If I were to make an order permitting the children to go to Scotland, under any of the alternative proposals suggested by the mother and the maternal grandmother, I would be running a very grave risk if relations between the mother and maternal grandmother broke down.  I think such a breakdown would be highly likely to happen.

67.            The mother may continue to deceive the maternal grandmother; she has proved very adept at doing so.  The mother may resume her relationship with the father, although she and the father both hotly deny that possibility.  The mother may try and disappear with the children, with or without the father.  She has admitted that that was her intention when being so deceitful in the past.  Although the risk of the mother using physical violence on either of the children is said by the Local Authority to be low, I cannot rule it out.  It is impossible to determine what future pressures the mother may be under and if under pressure she may resort to violence.

68.            The guardian points out, I believe correctly, that it is very difficult to gauge the risk of physical violence because the lies told by both the mother and the father leave a very unclear picture of the dynamics that led to the fracture of RA’s arm.  It is of course possible that no harm would come to the children in their mother’s care, either emotional or physical, but it will take time to find out.  In my view, there is an unacceptable risk and the children cannot wait.

69.            These children have already waited nearly three years for their future to be determined.  They cannot wait any longer.  In my judgment to place the children in Scotland, as proposed, would be an experiment or a gamble. I am not prepared to gamble or experiment with these children. The risk is far too great for it to be in their interests that I should do so.  Article 8 rights are not so strong that they justify such a gamble.

The Maternal Grandmother and her Partner RH

70.            In addition to the above matters, serious questions have been raised about the maternal grandmother’s commitment to the children.  I have not criticised the maternal grandmother before.  As with the mother, I wanted to believe her and until this hearing I had no reason not to believe her.  That has changed.

71.            Between the end of January 2008 and May 2008, when the children were placed with the maternal grandmother, it is to her great credit that she tried to look after them.  As I have already recounted, she had no support from the father and very little support from the mother and she found it very difficult.

72.            The mother blamed the maternal grandmother for the problems.  The situation came to a head when there were a number of disputes between the mother and the father and the maternal grandmother.  There was the dispute about G’s wedding, to which I have referred.  There was a dispute over a bottle of milk, which I referred to in an earlier judgment.  The maternal grandmother felt that she could no longer look after the children and handed them over to social services and they went to their current foster carers.

73.            The Local Authority has suggested that the maternal grandmother at that time abandoned the children.  That is an unfair criticism and I reject it.  It was one of the few areas of VC’s evidence with which I disagreed.  Nevertheless, it is a fact that the maternal grandmother found it difficult to control R.  Thereafter the maternal grandmother had regular contact with the children at weekends on an unsupervised basis.

74.            At the hearing before me in July 2009, the maternal grandmother gave evidence.  She then went to Scotland to honour a pre-arranged commitment to lay her mother’s ashes to rest.  She returned to London, but soon afterwards decided to move to Scotland on a permanent basis to the area where she had once lived.  She did not give her address to any of her family.

75.            When I gave judgment in October 2009 I was surprised that the maternal grandmother was not present, although she was represented by her counsel, Miss Cotterill.  Miss Cotterill had no instructions as to why the maternal grandmother was not present.  She had ceased to be in contact with her solicitors.  I have a letter from her solicitors to the Civil Appeals Office, dated 11^th March 2010, in relation to the appeal of this case.  It contains the following passage:

‘The maternal grandmother did contact us in February 2010 to confirm that she has moved to Scotland and agreed to provide us with her address.  Unfortunately we have not received this information from her.  We have attempted to contact her by phone regularly over the last few weeks, but have been unable to get in touch with her.’

 

76.            She had moved to Scotland many months before.  She had moved to Scotland before I gave judgment in October 2009, yet her solicitors did not have her address.  I find that astonishing.  I said when I gave the October judgment that I could draw no inference from the maternal grandmother’s absence, although it should have been an important occasion for her because at the July 2009 hearing preceding that judgment, the maternal grandmother was putting herself forward as a carer for the children.

77.            I now know more about this aspect of the case and I do now draw an inference adverse to the maternal grandmother for absenting herself from the case and from the children, from July 2009 onwards.  More seriously, when she moved to Scotland, she did not tell the children or social services of her intention to move.  She just disappeared from the children’s lives at a time when there was outstanding a judgment which was to consider, in part, whether she was to care for the children.  I criticise the maternal grandmother for that, in view of her claim to be the primary carer for these children.

78.            In December 2009 the maternal grandmother came down from Scotland.  She asked social services if she could see the children.  She had not seen them or had any contact with them since July 2009.  Social services informed her that there would have to be an assessment to determine whether it would be in the children’s interests to resume contact with her.  She went back to Scotland.  Thereafter social services tried to contact her on a number of occasions, but failed.  She appeared not to be answering calls.

79.            The maternal grandmother pretended to be mystified in the witness box at this hearing as to why social services could not contact her.  I do not believe she was pursuing either contact with the children, or their care, with the vigour that she should have done if she was serious in this matter.  She could have contacted social services and her solicitors.  She did not.  She told me her solicitor had suggested that she should obtain lawyers in Scotland.  I do not understand why such advice was given, if indeed it was.  In any event, the maternal grandmother did not go to other lawyers.

80.            She told me that she did not pursue contact further at that time because she did not know she could challenge the Local Authority’s plans.  That was untrue and she knew it was untrue.  She had solicitors.  She told me that she did not know that she could have contact at weekends.  That too was untrue and she knew it to be untrue.  She had in the past been having contacts at weekends.  I have no doubt that the maternal grandmother was lying to me about why she did not pursue contact with the children.  Her appearance in the witness box at being mystified as to why her solicitors or social services could not communicate with her was a sham.  She had in reality disappeared from the scene and she intended to do so.  She has lied to me on an important aspect of this case, namely her unannounced and unexplained departure from the children’s lives and from this case at a very important time.

81.            I ask myself why she has lied in accordance with R v Lucas 73 Criminal Appeal Reports 159.  I ask myself whether she might have lied for an innocent reason.  She has lied in order to try and persuade me that she is a fully committed grandmother to these children.  In the past I have found the maternal grandmother to be an honest witness without guile.  As with the mother I wanted to believe her.  She has attempted to deceive me.  I no longer trust her.  My finding that she lacked guile was wrong.  The new evidence has changed my mind.

82.            VC suggested that in July 2009 too the maternal grandmother abandoned the children.  I agree. She did.  In May 2009 the maternal grandmother told SC that she preferred to lead a single life.  Yet in July or August 2009 she began a relationship with her present partner.  It is her proposal that she and her present partner should care for the children together, or oversee the mother’s care of them.

83.            Her partner has never met the children.  He has not been assessed, he has not given evidence.  At one point during this hearing, Miss Cotterill, on behalf of the maternal grandmother, told me that her partner RH. was outside court and asked if he could come in.  I commented that it might be better if he were to give evidence before me so that I could have some impression of him.  I was surprised when the suggestion was not taken up, although the maternal grandmother was in court when I made the suggestion and she had counsel. On the basis I assumed RH would give evidence I did not then rule on whether he could come into court and the case proceeded. Later I felt I should revisit the matter and enquired whether RH still wished to come in. I was told he had returned to Scotland.

84.            I have therefore not seen RH, and have no evidence from him. Although I know nothing to his detriment, he is an unknown quantity as far as carer for the children is concerned.  The relationship between the maternal grandmother and RH began in the summer of 2009, although they had known each other in the past.

85.            In mid‑October 2010 the Local Authority permitted the maternal grandmother to resume contact with the children.  The contact has gone well and the children enjoy seeing her, but the Local Authority did not consult the guardian before permitting such contact to resume.  The guardian feels that it was unwise for such contact to resume so near to this hearing because it sends out mixed messages to the children and may have to be stopped if a placement order is made.  I agree with the guardian.

86.            The maternal grandmother is aged 57, her partner, RH, is aged 61.  He suffers from diabetes and angina.  I have no medical evidence about his health, but I am told that his health problems do not curtail his ability to lead a normal life.  He retired from being a steel fitter in September 2010. If his health deteriorated the maternal grandmother may be torn between caring for him and looking after the children.  When RA reaches the age of 18 the maternal grandmother will be 71 and RH will be 76. 

87.            RH has not introduced the mother to members of his family with whom he is in regular contact.  VC finds that surprising; so do I, bearing in mind the proposed role that the mother and her children would play in his life.

88.            If the children leave the foster family, where they are bonded and settled, and move to Scotland, there are likely to be difficulties.  Grave doubts have been expressed as to whether the maternal grandmother and her partner could cope with those difficulties, with or without the mother’s help.  I have already referred to the problems that the grandmother had when the children were going through a difficult period, particularly R, in the early part of 2008.

89.            In her assessment of the mother, dated July 2010, the mother was blaming the maternal grandmother for the deterioration in R’s behaviour at that time.  VC’s report of July 2010 includes the following passage:

‘The mother said that R was with the maternal grandmother for three months and in that time his behaviour fell apart.  I asked her to describe the significant change.  The mother said he was acting out all the time, he was throwing things, smashing ornaments, picking up pillows to throw and throwing food on the floor.  She wondered whether this was because her mother was not consistent with the use of the naughty chair.  She also wondered whether it was because R was not at home.  This behaviour became apparent within a week of R arriving at the maternal grandmother’s home.’

 

90.            The matters that I have set out under this heading re-inforce my belief as to the unacceptable risks for these children if they move to Scotland.

The Relationship between the Mother and the Father

91.            Both the mother and the father say that their relationship is over.  They had a very strong relationship for many years, until July 2010 when their deception was discovered.  I do not believe that their feelings for one another have evaporated in July 2010 or since.  The father has said that he still loves the mother.  He moderated that in his evidence to me at this hearing.  He told me that he still cared for her, but did not love her.

92.            The extent of the mother’s deception prior to July 2010, which enabled her to continue a clandestine relationship with the father, demonstrates the depths of her feelings towards him until July 2010.  I question whether their current protestations of animosity towards one another are genuine.  Both have told me so many lies that it is difficult to accept at face value anything they say.

93.            Mr M expresses doubt whether their relationship is truly over.  The guardian shares that doubt.  I too expressed such doubt in September 2010.  I continue to have doubts whether their relationship is truly over.  If the mother resumed a relationship with the father, she is capable of again deceiving the maternal grandmother about it.  There is in my judgment a significant risk of that happening.

94.            The father says that he has received two unknown phone calls in about October 2010, after the September hearing.  He says that the calls were to his mobile phone and the mother knew the number.  He suggested it might have been the mother.  The mother denies that.  The evidence is too tenuous for me to make a finding that the mother did phone the father on those occasions.  In the context of this case I would not rule out the possibility.  I can put it no higher.

95.            There is also a risk that the mother might try to disappear with the children, with or without the father.  Her intention throughout much of this case was to obtain the children by subterfuge. 

The Mother and Social Services.

96.            The mother has shown that she is incapable of working with any local authority.  I have not forgotten my criticism of the way previous social workers approached this case and the difficulties the mother experienced with them.  VC and WG came to this case in April 2010 with an open mind.  VC in particular told me that she was initially of the view that the Local Authority should work towards rehabilitation of the children with the mother.

97.            The President in his judgment made it absolutely clear to the mother how she must be frank and open.  Yet the mother continued to deceive the Local Authority, even after the allocation of social workers sympathetic to her.  If there were problems in Scotland which called for Local Authority intervention, even intervention sympathetic to the mother, the mother could not be trusted to cooperate.

98.            A facet of the mother’s continuing deception is her continuing protestation of her innocence in relation to the conviction that led to her imprisonment.  That aspect of the case has been considered in more detail at this hearing than at previous hearings.  The mother gave evidence about that, which I found astonishing.  She said this:

‘There was a scam going on in the office where I was working.  I and another member of staff notified the management.  An investigation took place and five members of staff were sacked, I resigned before being sacked.  Parking tickets were apparently being cancelled and there was no documentation.  The father worked in the same office.  I told him about the scam.  I was charged with theft.  I was advised to plead guilty.  It was my first offence.  I was sentenced to five months’ imprisonment.  All I had done wrong was to plead guilty. I had done nothing else wrong.  The judge was asked to order a probation report but he said he didn’t need one.  I was heavily pregnant with R at the time.  The judge sent me to prison immediately, although it was my first offence.  I had a solicitor, but I did not know I could appeal.’

 

99.            She was released from prison in December. R was born the following month.  I find that story highly unlikely and I do not believe it.  The court clearly took a very serious view of the mother’s behaviour and sent her to prison immediately without asking for a pre-sentence report, although it was the first time she had committed any criminal offence and she was heavily pregnant.

100.         When giving her evidence to me the mother was brazen in her protestation that she had done nothing wrong.  She showed no remorse, she showed no regret.  The fact that she went to prison for something that she said she did not do, when heavily pregnant, she appeared to shrug off as of no great moment.  She was trying to persuade me that far from being guilty of the offence, she had reported the dishonesty of others to her employers.  I do not believe her account.

101.         The father gave evidence about it.  He said this:

‘The mother has never said to me that she went to prison for something she didn’t do.  She knew she did it.  I was there when it was happening.  She cancelled parking tickets.  It was something to do with a computer and the person who got the parking ticket would pay her £20 for cancelling it.  I don’t know how much she made from it.  I would take her and drop her at the address of the person who’d had the parking ticket.  She’d go and get the money and come back with £20.  I knew what she was doing was wrong.  I did on occasions tell her that, but she wouldn’t listen so I left it.  This went on for a year.  I was working as a traffic warden at the time.  Her lawyers advised her to plead guilty in order to get a lighter sentence.’

 

102.         Both the mother and the father have told so many lies that it is difficult to disentangle truth from fiction.  I should be careful before preferring the evidence of one or the other.  Furthermore, I do not have any record of that hearing.  I therefore must be cautious in my approach.  The mother’s version strikes me as wholly incredible.  The father’s version is much more likely to be true and accords with the sentence passed.  I do not know whether the mother really believes that she did nothing wrong.  I think it probable that she finds it so difficult to tell the truth that sometimes she comes to believe her own lies and this is an example of it.

103.         During the October 2010 assessment of the mother she told VC that she had not been a liar before she began to lie after RA’s arm was injured.  That was in itself untrue.  Her conviction, her imprisonment and her evidence about that all demonstrate yet again that she is a deeply dishonest woman.

Mr M and SC

104.         The above concerns are reflected in the evidence of Mr M.  He told me that he now had a greater feeling of concern about the mother than when he was last involved in the case.  He said that the father is vulnerable to emotional disturbance.  He said the father’s history of anti-social behaviour elevates the risk of further violence from him.  He found the mother’s account of separating from the father unconvincing.  He said that the mother needs long-term psychotherapy and the children cannot wait.

105.         SC assessed the maternal grandmother as carer for the children and her assessment is broadly positive, but she made it clear that her assessment of whether the maternal grandmother could safely parent these children was subject to the views of Mr M and to the relationship between the mother and the maternal grandmother.  She said that there were worrying seismic shifting changes in their relationship.

106.         I do not share SC’s view that the maternal grandmother could safely parent these children and I do not believe that that was SC’s final considered view.  Evidence of the above concerns are worrying individually.  Taken together there is in my judgment far too high an unacceptable risk that the proposed care of these children by the mother and maternal grandmother in Scotland will fail.  Is the risk so high that it would be dangerous to place the children in Scotland under any of the proposed alternative arrangements, with either the mother or the maternal grandmother?  My answer is clearly yes.

Summary of Conclusions Relating to Mother and Maternal Grandmother

107.         The mother asked me to place the children with her in the following circumstances.

A)  Her five-month-old baby daughter suffered a very serious fracture of the arm.  The mother has never given a proper explanation as to how or why the fracture was caused.  She has persistently lied about it.  The dynamics leading to the injury are still unknown because neither the mother nor the father have given a credible account of what happened, or the events leading to it.

B) The mother’s own case is that I could not place the children with her without some support or supervision from the maternal grandmother.

C) Relations between the maternal grandmother and the mother have in the past been appalling. There are still major problems in their relationship and a further breakdown in that relationship is highly likely.

D) I no longer trust the maternal grandmother; she has lied to me.  I cannot rely upon her stated intention carefully to monitor the mother; in part because I think such monitoring to be wholly unrealistic.  The mother would not put up with it for long and I doubt the maternal grandmother’s commitment to it, or her ability to do it.

E)  When the maternal grandmother looked after the children between January 2008 and May 2008, she found it very difficult and eventually the children were handed over to the Local Authority.  Whilst I appreciate the difficulties stemming from the lack of support from the mother and the father, the maternal grandmother could not control R and I very much doubt if her problems in that respect were wholly the fault of the mother or the father.  The maternal grandmother’s parenting ability is not good, as demonstrated by her inability to control R and her lack of perception of problems that her past relationships were causing to her own children, particularly the mother.

F)  The maternal grandmother is in a very new relationship with her current partner untested by the pressures of caring for children.

G) The maternal grandmother and her partner are no longer young and there is a question mark over her partner’s health.

H) I am far from satisfied that the relationship between the mother and father is over.  It is pointed out that logically the father’s current stance in these proceedings at this hearing indicates that it must be over.  Logic plays little part in the complexities of this case, or in the relationships between the various family participants.  As recently as September 2010 the father told me that the mother was a perfect mother and that he still loved her.  He said that the only reason he was no longer supporting her was that she had moved to Scotland and that he would not see the children.

I)    If I were to place these children with the mother and maternal grandmother, I believe and I find that there would be major problems.  Many figures of speech come to mind to explain what I feel about this.  The figures of speech include a cocktail of risks, or a powder keg waiting to explode.  I am not prepared to risk the future of these children.  They would not have stability, they would in my view certainly come to significant emotional harm and I cannot rule out the risk of physical harm.

J)    If I were to place the children with the mother alone there would be an unacceptable risk of her returning to the father and an unacceptable risk of physical and emotional harm.

 

The Father and his Cousins

108.         The father has behaved impeccably in court before me, both when giving his evidence and when sitting in court. He gave his evidence quietly and calmly, but I am sure that the quiet, calm man that I have seen in court is not always the true aspect shown by the father.  I have made findings in the past that the father can be temperamental and controlling.  I refer to my judgment of the 28^th November 2008, at paragraph 95(ii) and (iii), after an analysis of the contact records.

109.         At paragraph 199 of that judgment I found that the father was violent to L and MH.  At paragraphs 21 and 22 of my findings of fact in my judgment of 8^th September 2010, I found that the father had been violent to the mother.  He is one of the possible perpetrators of the injury to RA. In an earlier judgment I found that the father’s behaviour towards the maternal grandmother was inappropriate.  In January 2009 the father suffered some form of nervous breakdown.  He has been volatile and difficult with social workers.  As recently as October 2010 he walked out of a meeting with WG and his cousin J.

110.         The mother now says that the father was far more physically and verbally aggressive than she has said before.  Whether or not that is true, in the light of the father’s volatility and tendency to violence, it would not be in the interests of these children to place them with their father.  I also remind myself of the father’s inappropriate treatment of R during contact sessions.

111.         The father has never looked after these children on his own and indeed at the hearing in November 2008 there was specific evidence, both from the mother and the father, that he had never looked after them on his own.  I accepted that evidence and there is no reason to change that finding   The father has not seen the children since January 2009.  RA does not remember him and R’s recollection of him is fading.

112.         On the 28^th December 2008 Professor I provided a report about the father.  She concluded her report with the following passage:

‘In view of the complexity of the current case with regards to clinical psychopathy, denial of actions, history of intimate partner conflict and emotional management difficulties with regards to anger and stress, I would recommend intervention that is relatively long term.  By this I mean a minimum of 12 months in duration, at a frequency of no less than one one-hour treatment sessions a week.  Ideally I would recommend a frequency of at least two sessions a week, but this is unlikely to be obtainable in community settings.  I would also note here that although the father reports to have engaged in both an anger management and a violence programme some years ago, I do not feel that he was able to provide evidence of internalised skills development.  I was left with the opinion that he had attended therapy, but had not learnt significantly from it.  I would therefore consider allowing the father the opportunity to engage in further structured intervention to be essential in the current case.’

 

113.         The father does not accept what Professor I said.  He has never undergone the intervention suggested by Professor I.  His position is that he has never done anything wrong.  I am sure that it would not be in the interests of these children to place them with their father.  Furthermore, if there were problems in such a placement, the father would not cooperate with social services.  His proposal is wholly unrealistic.  It is likely that if the children were to live with the father alone he and the mother would reunite.  That was what he was hoping for during the period of subterfuge, prior to July 2010.

114.         One of the father’s cousins is P.  A viability assessment was carried out on P by WG.  The assessment includes the following passages:

‘P spoke during our second visit of the parents having a second chance.  She said she believes in giving people second chances and believes the parents should have another opportunity to raise their children.  She held the position that it would be difficult for her to accept the reports of the professionals in the case that were shared with her.’

 

Later in the report:

‘P did not accept that the father has ever physically assaulted any other person.  She would not accept the assessments as being valid in any manner, that neither were they an accurate portrayal of the father.  She does not believe that the father is a risk to his children or could have possibly hurt them.’

 

115.         P has expressed great difficulty accepting the concerns in the assessments performed by Mr M and Professor I.  She has never met the children.  The Local Authority contend that placement with her is not viable. I agree.  It would be tantamount to placing the children with their father because P does not accept any criticism of the father and would not protect the children from him.

116.         Another of the father’s cousins is J.  She too was the subject of a viability assessment by WG.  She has met R twice and RA once.  R cannot remember who she is.  The recent report of the assessment dated 19^th October 2010 includes the following passage:

‘J is unable to acknowledge in any manner that the father would ever engage in issues of domestic violence with a partner and believes that he would never injure his own child (admitting if he did so accidentally).  She maintains his innocence and has constantly seen the father as a victim in the proceedings, minimising the statements of the professionals who assessed him.  She is clear in her expression of the view that R and RA should be returned to the care of the father.  She does not believe that he has any issues that would prevent him from caring for the children and that he was justified in the actions he took with the court and all other parties in the proceedings.’

 

 

117.         J gave evidence before me.  She appeared a nice lady and I know nothing to her detriment.  She did not think that WG’s assessment of her was fair and she seeks a further assessment.  For part of WG’s assessment she had influenza and did not give of her best.  She knew nothing about the children being in care until July 2010.  The proposal that she should care for the children was therefore made about two and a half years after the children were last in their parents’ care.

118.         J told me that it upsets her to hear the father criticised because she does not know that side of him.  She sees him calm and collected, as indeed he appears in court.  On the other hand she said this:

‘The father has a lot of pent up emotion.  In July and August 2010 his body language was very agitated, he was walking up and down a lot.  He wasn’t able to sit still for long.  He was crying a lot.  He was emotional.’

 

119.         She told me that if the children were placed with her, she would not allow the father into her home.  She said the father would see them at a contact centre.  I do not believe that.  She knew nothing about any of the father’s convictions, apart from the first one.  She said that none of his past violence was against children.  She was wrong about that.  She repeated that she still could not believe that he could do anything like that and that she does not believe that the father injured RA.

120.         The Local Authority do not believe it to be in the children’s interests to place the mother with J.  I agree.  Again in my view it would be tantamount to placing them with their father.  I do not think there is anything to be gained by a further assessment of J.

121.         The father’s other cousin, D, decided that she could not care for the children and withdrew.

The Submissions of the Parties.

122.         I have received detailed and very helpful written submissions from all the parties and I propose to refer to them. They were supplemented orally.  The submissions on behalf of the mother by Mr Tolson QC and Miss Boye in essence made the following points:

1) Adoption is a last resort.  It is a draconian order and I should only make such an order if I positively reject the parents as carers.  I should not conduct simply a balancing welfare exercise. I agree.

2) This is at heart a relatively simple case.  If there is no substantial risk of the mother causing any further physical injury and if she has separated from the father, the children can safely be returned to her because she is a good mother.  I should not punish the mother for lying.  I regard this case as far more complex than that.

3) In any event it would be inappropriate to make a placement order now.  I should adjourn to consider the position of the foster carers and in any event the placement application is procedurally unfair.

 

123.         The mother’s written submissions are lengthy, they run to 27 pages and they follow similar written opening submissions, also prepared by Mr Tolson and Miss Boye.  I hope this summary does them justice, but I make it clear that I have read both documents very carefully.

124.         Within those submissions there are a number of points with which I should deal in more detail.  Mr Tolson and Miss Boye ask for my ruling on the question whether the mother is now in a relationship with the father.  I do not know, but I am quite sure that an unreasonable degree of risk of a resumption remains, despite everything said by mother and the father and their respective advocates.

125.         They were together for 10 years.  The father recently said he still loves her.  She repeatedly deceived everyone in continuing a relationship with him.  The only reason it ended was because the phone records revealed the truth.  Both the mother and the father agree that their relationship would still be continuing if the phone records had not been produced.  They are both so devious that I cannot find as a fact that their relationship is permanently over; indeed I doubt it is.

126.         Mr Tolson has submitted that the father’s stance on this application and the submissions of his counsel, Miss Giz, which are highly critical of the mother, demonstrate that they must have separated.  I have already said that I am wary of applying such logic to this case.  Not long ago, in September 2010, the father told me that the mother was a perfect mother and that he loved her.

127.         In their submissions Mr Tolson and Miss Boye are highly critical of the guardian in a number of respects. They suggest that the guardian has dismissed the maternal grandmother’s case, without having interviewed her since May 2008.

128.         The guardian told me that she felt that she need not see the maternal grandmother again, in view of all the other evidence about her that she has seen and read.  In my view the guardian is entitled to reach the conclusion that she has in supporting the Local Authority.  It is a conclusion that I would have reached without input from the guardian, and I say that without meaning any disrespect from the Guardian.

129.         In their written submissions on behalf of the mother Mr Tolson and Miss Boye include the following passage about the guardian’s report:

“The guardian should have investigated the position of the present carers in her capacity as guardian within the placement order application. However we can find no such analysis. Her analysis of the actions of the Local Authority is short and plainly proceeds on the basis of stranger adoption. Her comments on post contact adoption proceed on the same basis. So too do her brief comments on the effects of adoption. There is no mention of the present carers under the section dealing with the ‘relationship which the child has… with any other person in relation to whom the court or agency considers the relationship to be relevant’. There is no other relevant comment or analysis. In short we submit there is not so much a gap as a yawning chasm in her report.”

 

I reject those criticisms although the guardian was not as intellectually rigorous as Mr Tolson would have liked when she faltered during his cross examination. This is not an application by the foster carers; it is an application by the Local Authority. It seems to me that the approach suggested by Mr Tolson would run the danger of inviting the balancing exercise which is to be avoided. At the invitation of Mr Tolson and Miss Boye I have re-read their written submissions and the guardian’s report again since I delivered oral judgment. Save to the limited extent I have indicated above I do not accept their criticisms of the guardian and I do not propose to burden this lengthy judgment further with a detailed analysis of the guardian’s report. I do not accept that the guardian has approached this case with a closed mind as they suggested. On the contrary she has in my view been very fair to the parents. I recall her fairness when she gave evidence before me in July 2009.

130.         Mr Tolson suggests that the Local Authority have not properly and fairly followed procedures for a placement order and I therefore propose to consider the correct procedures.  Mr Tolson suggests that placement orders are not required and placement orders would be illegal.  He suggests that if the parents and their respective wider families cannot care for the children the position of the foster parents must be considered before an adoptive placement, or a placement order is made.

131.         If the foster parents were to continue to care for the children in the long term, under the aegis of fostering or special guardianship, the parents would continue to have parental responsibility.  The parents would be at liberty to seek to reopen the placement, subject to any order made under section 91(14) of the Children Act.  Social services would continue their involvement.  The placement would lack permanence and stability.  It would fail to give the children the sense of belonging to the foster family as their “forever family”.  The Local Authority and the guardian believe that these children need that sense of permanence and security and that only an adoption order would provide that.  I believe they are right.

132.         Mr Tolson suggests that I should adjourn, on the basis of a further interim care order, so that the position of the foster family can be definitely determined.  If I were to do that and the case came back before me, with the foster family seeking adoption, I would be likely to make a placement order.  If the foster family did not want to adopt the children, but would prefer long-term fostering or special guardianship, I would be very surprised.  I think such an outcome highly unlikely and I doubt if it would be in the best interests of the children.

133.         If the foster parents decide that the risk of disruption of their family by the mother or the father is so great that they decide to relinquish the care of the children, the Local Authority would seek to place the children with another adoptive family.  In that event I would be likely to make a placement order.  I can therefore see nothing to be gained by prolonging this case yet further by making another interim care order.

134.         As to the procedure, Ms Soffa, for the Local Authority and Mr Vavrecka for the guardian, submit that the Local Authority have followed the correct procedure for a placement order.  Section 21(1) of the Adoption and Children Act 2002, reads as follows:

‘A placement order is an order made by the court authorising a local authority to place a child for adoption with any perspective adopters who may be chosen by the authority.’

 

135.         Whilst the statute provides for the prospective adopters to be chosen by the local authority and not by the court, I express the hope that the foster carers will seek to adopt these children because I believe that to be in the children’s best interests.  I cannot compel that result and I do not believe that I should try to do so.  I am not considering an application by the foster carers.  I am considering an application by the Local Authority.

136.         Rule 29 of the Family Procedure (Adoption) Rules 2005 provides that if directed to do so the Local Authority must file a report on the child and birth family containing matters set out in the Practice Direction, Part 5C, Annex B.  Annex B is headed: ‘Report to the Court Where There Has Been an Application for a Placement Order’.  It contains three sections.  Section A is headed: ‘The Report and Matters for the Proceedings’.  Section B is headed: ‘The Child and the Birth Family’.  Section C is headed: ‘Recommendations’.

137.         Under each section there is a list of matters to be covered in the report.  The Rule 29 reports of RA and R cover all the matters required.  It is not necessary for the report to consider the position of the potential adopters.  There is as yet no application by any potential adopters. Miss Soffa for the Local Authority and Mr Vavrecka for the guardian submit that it would not be appropriate to involve the foster parents directly in these proceedings or to require any formal reports about them when they have not yet finally decided whether to apply for adoption orders and have made no adoption application. I agree and I reject Mr Tolson’s submissions on this aspect of the case.

138.         Rule 24(3) provides that a local authority may be ordered to report on reasons for placing a child for adoption.  Mr Tolson contends that I should direct a report on the suitability of the foster carers for adoption, but there is no application by the foster carers and therefore the requirement for a report about them has not arisen.

139.         I reject Mr Tolson’s submission that the placement application is flawed or unfair.  If I make placement orders, the Local Authority may if appropriate consider whether a fostering placement or a special guardianship placement is appropriate as part of parallel planning, together with the issue of whether the mother or the father, or the maternal grandmother, should continue to have contact with the children.  That does not require me to adjourn the placement application pending that work being done. I doubt very much if any type of placement other adoption is appropriate for these children.

140.         I turn to the closing submissions by Ms Giz on behalf of the father.  The father’s position is that he denies that he had done anything wrong at all.  He denies being aggressive or threatening; he denies that anyone need be afraid of him, particularly the maternal grandmother or the foster carers.  He does not accept Professor I’s conclusions.  Ms Giz analysed much of Mr M’s evidence as to his concern about the mother’s failure to explain RA’s injury.  She submits the mother poses a risk of physical harm to the children.  She cited Mr M’s evidence that there seemed to be an internal block in the mother’s ability to look at her actions more closely.  She cited Mr M’s account of what the mother had said in relation to picking RA up roughly by the arm.  Mr M described the mother as acting in frustration and anger and demonstrating a wish to hurt.  He said that she described a very angry act towards an infant.

141.         He was concerned that the mother could not elaborate on whether she felt angry or if she did, what made her angry.  I share the concerns of Mr M and I accept what Ms Giz says in her skeleton argument about that.  Mr M referred to the mother’s internal struggle around the injury.  Mr M’s view is that much of the mother’s subsequent behaviour makes sense if she was indeed the person who injured RA.  He pointed out that the mother has never accepted or confirmed the finding against the father and he said much of her behaviour makes sense if she was the one responsible.  He said:

‘if she was responsible and she went back to the father with feelings of guilt and felt guilty about the father’s breakdown in early 2009, it all makes sense if she were the perpetrator of the injury.’ 

 

Whilst I accept what Mr M said, it does not lead me to find that the mother did in fact cause the injury rather than the father.  His evidence does however underline the fact that I must not and cannot discount any risk of physical violence by the mother towards either of the children.  Even if the risk is low (as the Local Authority concede) it is still there to an unacceptable degree. 

142.         Ms Giz referred to Mr M’s views relating to a great degree of tenacity in the mother’s dishonesty.  Mr M felt at a loss to explain why the mother had continued to lie and had pursued a relationship with the father when she had all the sympathetic and supportive environment of a refuge, if indeed it were the case that the father had been persistently violent to her.  Mr M felt that I could not place any trust in anything the mother says.  I agree with all of that. 

143.         Ms Giz referred to the mother’s more recent allegations towards the father.  She now suggests that he was far more violent to her than she had ever said before.  Mr M was unconvinced about that.  Mr M had taken into account that abused women often go back to the abuser but he pointed out that this mother had been helped in a very real and constructive way.  I am left in a position that I do not know now whether or not the mother is telling the truth about this.  Both parents have lied and I do not make findings that the mother’s more recent allegations of violence by the father are true save to the extent found in my judgment of the 8^th September 2010.  Ms Giz points to the further risk of harm flowing from the dysfunctional relationship between the mother and the maternal grandmother.  I agree.  Ms Giz suggests that the presentation of the united approach between mother and maternal grandmother is what she referred to as a ‘last ditch attempt’ to persuade the court that the care of the children can be entrusted to them.  I agree.

144.         Ms Giz criticised the maternal grandmother in her submissions along the lines that I have referred to already.  I agree with those criticisms. Although I agree with a great deal of Ms Giz’s submissions, nevertheless I cannot accede to her contention that these children should be placed with their father.  As far as contact is concerned, the father wishes to re-establish contact with the children and Ms Giz says that I should adjourn this application and make an interim care order and give an indication as to contact and that I should discharge the order under section 34(4) thereby removing the power to refuse contact with the father.  I am going to come back to the question of contact between the children and their father but I am quite satisfied that now is not the time to resume it, if ever.

145.         I turn to the grandmother’s closing submissions put before me by Ms Cotterill.  Ms Cotterill quotes from SC’s report and submits that SC reached a firm conclusion that the maternal grandmother can safely, properly and appropriately parent these children.  She quotes SC as saying:

‘I do think that the maternal grandmother has the ability to place the children’s needs first and foremost if she is given the opportunity to care for them and that she would do everything she could to protect the children from risk of harm.’   

 

With respect to Ms Cotterill, that is only part of the quotation and I propose to refer to it in full.  The full quotation reads as follows:           

‘There are a number of complex issues in considering if the maternal grandmother could safely care for the children throughout their             minority.  One of these issues must be if and how far the mother and indeed the father, continue to present a risk.  They may have shifted their position, developed insight or atone for their behaviour in any way.  It is my understanding that Mr M may have been charged with addressing some or all of these issues. 

Mr M’s views are an important element in considering the issues involving the maternal grandmother.  I do think that the maternal grandmother has the ability to place the children’s needs first and if she is given the opportunity to care for them, she would do everything she could to protect the children from risk of harm.   The question I am unable to answer is to what extent it is felt that the mother and the father will continue to pose a risk and how father’s risk could be managed.’

 

146.         In her oral evidence, SC said that the maternal grandmother needs some sort of mediation process.  She said it is difficult to say how long that should go on for.  SC said: 

‘I would not say the maternal grandmother has forgiven the mother at all.  She supports her daughter but still struggles with it.  The mother and the maternal grandmother have a potential to have an okay relationship but probably not a great one.’

 

147.         SC’s evidence does not give me confidence in acceding to the grandmother’s application.  Ms Cotterill points out that the maternal grandmother does not know when she will be able to trust the mother.  Ms Cotterill suggests that this degree of mistrust by the maternal grandmother of the mother is, in itself, a safeguard.  It is also, in my view, a potential for very serious conflict between them.  Ms Cotterill suggests that the maternal grandmother wants to have a residence order for the children’s minority so that she has the whip hand.  I regard that as being wholly unrealistic.  I do not believe that the mother would be likely to be able to accept it for long.  There would be trouble.

148.         Ms Cotterill also submitted that the past could not be more different than the present as mother is now an integral part of the new home with a good relationship with the maternal grandmother’s new partner.  She suggests that this is probably about the best therapy possible; the family have come together and are standing with her and backing her in the one thing they all want most, the return of the children.  Given the history of the relationship between them and the history of this case, I regard it as wholly unrealistic.  VC referred to it as fantasy and I agree.

149.         As far as the Local Authority’s submissions are concerned, there are one or two points that I disagree with.  I have already mentioned them in this judgment.  Subject to those points, I agree with the Local Authority’s submissions provided for me by Ms Soffa and there is nothing I feel I need add by way of comment.  As far as the guardian’s submissions provided for me by Mr Vavrecka I agree with the thrust of those submissions.  I firmly reject the suggestion that the guardian has not approached this case with an open mind.

The Welfare Checklists and Contact.

150.         The care plans for the children are for adoption either with the foster family or elsewhere.  Before making a care order I must consider the welfare checklist in section 1 of the Adoption and Children Act 2002.  I refer first of all to the Children Act, Section 1.  ‘When the court determines any question with respect to the checklist in section 1 of the Children Act 1989.  Before making a placement order I must consider the welfare upbringing of a child, the child’s welfare shall be the court’s paramount consideration.’  That is the test I adopt. 

151.         Furthermore in any proceedings in which any question with respect to the upbringing of a child arises, I must have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of a child.  There has been very substantial delay in this case.  The root cause of the delay stems from the continued lying of these parents.  I must have regard to the ascertainable wishes and feelings of each of the children in the light of their age and understanding.  RA is too young to express a view.  R has said that he would like to share his time between his mother, his maternal grandmother and the foster carers.  It is what one would expect from a six-year-old child but it is a goal which is unlikely to be achieved subject to any resolution in favour of the parents and the maternal grandmother in relation to contact.  I am coming to that point later.

152.         I must have regard to each of the children’s physical, emotional and educational needs. These children need to be safe both emotionally and physically and to attend school regularly without interruption and unnecessary change.  I must consider the likely effect on each of the children of any change in their circumstances.  The present circumstances of both children are that they are settled and have bonded with their foster carers.  All parties agree that; including the mother. 

153.         The children are seeing both their mother and their maternal grandmother.  If there is a move from the foster carers, the bond with the foster carers will be broken.  That would be likely adversely to affect both children.  As against that, if there is no contact between the children and their mother in particular and also their maternal grandmother, the children would be adversely affected.  R, in particular, would be adversely affected by his bond with his mother being severed.  The effect could perhaps be ameliorated to some extent by a gradual reduction in contact and help given to R to come to terms with the loss.  I regard it as a very important feature of this case.  I should not likely bring about the severance of that bond.  But the severance of the bond with the foster carers would also have a significant effect on the children. 

154.         Until 15^th July 2010, the mother was having contact with RA five times a week and with R three times a week to fit in with R’s school hours.  Contact on each occasion was for two hours.  In addition, the mother had telephone contact with the children five times a week.  When the foster family went into hiding in July 2010, direct contact with the mother ceased for five weeks.  Phone contact ceased for two weeks.  Contact with the mother has now been reduced to twice a week for one and a half hours each time and telephone contact has been reduced to once a week.  The children showed no adverse affect from the cessation of contact following 15^th July or the subsequent reduction in contact.  Such reduction does not of course equate with termination of all contact. 

155.         The Local Authority accept that the children will need help and support if contact is further reduced and then terminated.  VC told me that she believed that the children would settle well either with the foster parents or with another family.  If for any reason the children were not placed permanently with the foster family and an alternative family has to be found, the children would suffer the breaking of the bond with the foster family as well as with the mother and the maternal grand mother.  That would be particularly unfortunate and I hope that will not be the outcome but it must be faced as a possibility.  An alternative home would have to be found for the children together.  There is no question of separating them.  The bond between the children is very strong.  A suitable family had been found prior to the Court of Appeal’s ruling earlier this year but those arrangements had to be cancelled when my earlier decision was overturned. The foster carers were not then putting themselves forward as long term carers 

156.         VC believes that a suitable family would be found again.  The foster family would do all they could to help the children settle into a new home.  If the foster family kept the children, they also would do all they could to help the children separate from the mother and the maternal grandmother. In any event, VC is confident that a new family could be found and that the children would settle.  

157.         I must also have regard to the children’s respective ages, sex, background and any characteristics of either of them which I consider relevant.  I have already referred to their ages.  The older R gets, the more difficult it might be to place him with another family.  The delay in deciding this matter has been unfortunate. I have to consider any harm which either of the children have suffered or are at risk of suffering.  RA suffered a broken arm.  If returned to either parent or the maternal grandmother or the father’s cousins, both children would be at substantial risk of emotional and psychological harm.  In addition, there would be risk of physical harm.  Their futures would be very uncertain.  I would expect problems between the mother and the maternal grandmother and the risk of the mother returning to the father.

158.         The risk of physical harm from either of the parents cannot be ruled out.  The risk of physical harm from the mother may be lower than that from the father but, I repeat, it cannot be ruled out. The father has a history of violence. The mother does not but on the evidence of this case I cannot say who is more likely to have injured RA.  If I were to sanction the return of these children to either parent in line with any of their proposals, I would be very worried indeed about the future of these children.  I must consider the capability of each of the parents in meeting the needs of the children and of any other person in relation to whom I consider the question to be relevant.  I have referred in detail to this aspect of the case.  I repeat, for the reasons I have given, I do not believe that any members of the family, the mother, the father, the maternal grandmother or the father’s cousins, would be capable of appropriately caring for these children.

159.         I have to consider the range of powers available to the court.  This is clearly not a case for no order and it is not a case for a residence order to any of the participants.  I should make a care order only if I approve the care plan for adoption.  If I were to make a placement order, I cannot be sure that the children would be placed for adoption with the current foster parents.  I have, however, already recorded my view that the best outcome for these children would be to place them with the current foster parents and I hope that will be the outcome. 

160.         I repeat there should be no question of separating these children.  There is a strong bond between them.  I would be appalled were I to find that following any order I have made, these two children were adrift in the care system with no permanent adoptive family.  The prospect of that happening is very slim.  It should not deter me from making the order that I think appropriate. 

Contact

161.         Before turning to section 1 of the Adoption and Children Act, I should consider what, if any, contact arrangements should be made for future contact between the children and the mother and the father and the maternal grandmother.  As far as the mother is concerned, severance of the mother’s contact would be likely to upset the children.  Whether contact should continue long-term and if so, in what form or whether it should be terminated must be keptunder review.  The views of the long-term family must be considered.  It would be wrong of me to impose any orders for contact, certainly at this stage, in the absence of any evidence from the long-term family.  As far as the father is concerned, his contact ceased a long time ago. The children hardly remember him. 

162.         R has started talking about seeing his father break RA’s arm.  It is thought doubtful that he did see that or would remember it if he had.  It is unclear whence he has gleaned that information.  The point is made that R may have a view of his father as a bad man and that might be changed if he saw his father.  If these children are to be placed away from their natural family, I see no advantage to the children of resuming contact with their father now.  From the father’s point of view, of course he would very much like to have contact.  Any contact order I made would be, in my judgment, be for the benefit of the father and not for the children.  There are other ways, such as life story work as to how R’s view of his father may be improved.

163.         As for the maternal grandmother, the position is similar to that of the mother.  The issue of her contact should be kept under review but it would not be right for me to make any order for contact without knowing the views of the long-term family.  Both children, particularly R, are fond of the maternal grandmother. 

164.         I turn to section 1 of the Adoption and Children Act 2002 .  The paramount consideration must be the welfare of each of these children throughout their lives.  I have to consider the long-term future of these children.  The question of delay is also a factor which I have already referred to.  I must have regard to the children’s ascertainable wishes and feelings considered in the light of their age and understanding.  I have referred to that already.  I must consider the children’s particular needs; I have referred to that already.  I must consider the likely effect on each of the children throughout their lives of having ceased to be a member of their original family and become an adopted person.  I have considered that in the context of termination of contact. There would be an adverse effect and I am well aware of that. 

165.         I have to consider each of the children’s ages, sex, background and any of their characteristics.  I have nothing to add to what I have already said.  I have to consider any harm which each of the children has suffered or is at risk of suffering.  Again I have nothing to add.  I must have regard to the relationships which each of the children has with relatives and any other person in relation to whom I consider the relationship to be relevant.  I have to consider the likelihood of any such relationship continuing and the value for the child in its doing so.  I have to consider the ability and willingness of any of the child’s relatives or of any such person who will provide the child with a secure environment in which the child can develop and otherwise meet the child’s needs.  It is an aspect which I have covered in some detail. I have nothing to add about that.

166.         I have to consider the wishes and feelings of any of the children’s relatives regarding the children.  The mother desperately wants the children with her.  The father desperately wants the children with him. They have gone to enormous lengths to bring that about by wholly misguided actions and it is a tragedy that a stage has been reached where I have to say that despite their wishes and feelings, I have to make the orders that I am about to do.  I had hoped as long ago as November 2008, when I gave the first judgment in this case, that these children could return to their mother and their father, but they cannot.   

167.         Having considered all the evidence and the submissions and the law, I am of the very clear view that it is not in the interests of either R or RA to return to or remain in the care of the father or the mother or the maternal grandmother or the father’s cousins.  Whether they will be able to stay with their foster parents, I know not.  I hope that may be but that is not for me to decide at this hearing. 

168.         I approve the care plan for adoption and I make care orders.  I consider that the welfare of these children positively requires that I dispense with the consent of the parents for adoption.  I therefore accordingly dispense with their consent and I make placement orders in relation to both of these children.

169.         Any report of this judgment must not contain any material that could lead to the identification of the children

 

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