IN THE MATTER OF [THE CHILDREN ACT 1989]
AND IN THE MATTER OF [X, Y and Z] (CHILDREN)
B e f o r e :
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Bradford City Council |
Applicant |
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- and - |
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M(1) F(2) M2(3) The children |
Respondents |
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(instructed by ) for the
Hearing dates: 2,3,4,5,6,11,12,13 December 2013 and 3 February 2014.
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Crown Copyright ©
Parties and representation
Background
Threshold
Issues for determination
Law
Statutory framework – Care orders and Special Guardianship orders
Burden and Standard of Proof
[49] Having adopted a flexible test of likelihood, it became all the more important to hold that an objective factual basis was required from which to draw the inference that future harm was likely. This was controversial in Re H (Minors) (Sexual Abuse: Standard of Proof) but has been firmly established ever since and for very good reasons. Care courts are often told that the best predictor of the future is the past. But prediction is only possible where the past facts are proved. A real possibility that something has happened in the past is not enough to predict that it will happen in the future. It may be the fact that a judge has found that there is a real possibility that something has happened. But that is not sufficient for this purpose. A finding of a real possibility that a child has suffered harm does not establish that he has. A finding of a real possibility that the harm which a child has suffered is 'non-accidental' does not establish that it was. A finding of a real possibility that this parent harmed a child does not establish that she did. Only a finding that he has, it was, or she did, as the case may be, can be sufficient to found a prediction that because it has happened in the past the same is likely to happen in the future. Care courts need to hear this message loud and clear.
"The likelihood of harm is the prediction from existing facts or from a multitude of such facts about what had happened in the past, about the characters and personalities of the people involved and the things which they have said or done,"
"The decisions In re H, Lancashire County Council v B, and In re O fit together as a coherent whole. The court must first be satisfied that the harm or likelihood of harm exists. Once that is established, as it was in both the Lancashire and Re O cases, the court has to decide what outcome will be best for the child. It is very much easier to decide upon a solution if the relative responsibility of the child's carers for the harm which she or another child has suffered can also be established. But the court cannot shut its eyes to the undoubted harm which has been suffered simply because it does not know who was responsible. The real answers to the dilemma posed by those cases lie elsewhere - first, in a proper approach to the standard of proof, and second, in ensuring that the same judge hears the whole case. Split hearings are one thing; split judging is quite another."
"If a legal rule requires the facts to be proved, a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are nought and one."
"In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue. The party with the burden of showing that something took place will not have satisfied him that it did, but generally speaking, a judge is able to make up his mind where the truth lies without needing to rely on the burden of proof."
Accidental or non accidental injury
"In my judgment a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made."
"Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard or not."
"A factual decision must be based on all available materials, be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be."
"In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus human agency, a court can reach a finding on the totality of the evidence that either a) on the balance of probability an injury has a natural cause or it is not a non-accidental injury; or b) that a local authority has not established the existence of the threshold to the civil standard of proof. The other side of the coin of course is that in a case where the medical evidence is that there is nothing diagnostic of non-accidental injury of human agency and the clinical observation of the child, although consistent with non-accidental injury or human agency of the type asserted more usually associated with accidental injury or infection a court can reach a finding on the totality of the evidence that on the balance of probability there has in fact been a non-accidental injury or human agency as asserted and the threshold is established."
Pool of perpetrators
First principles
"Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.
It was as long ago as 1988 that Lord Brandon identified in Re KD (A Minor) (Access: Principles)[1988] AC 806 that:
… the best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered. Public Authorities cannot improve on nature. Public authorities exercise a supervisory role and interfere to rescue a child when the parental tie is broken by abuse or separation.
The Least Interventionist Approach
"the court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children … unless there are cogent reasons to the contrary." […]
"It will be the duty of everyone to ensure that, in those cases where a supervision order is proportionate as a response to the risk presented, a supervision order can be made to work, as indeed the framers of the Children Act 1989 always hoped that it would be made to work. The local authorities must deliver the services that are needed and must secure that other agencies, including the health service, also play their part, and the parents must co-operate fully."
That was said in the context of supervision orders but the point is of wider application. […]
Sufficiency of Evidence and Analysis
34. [T]here must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option. As Ryder LJ said in Re R (Children) [2013] EWCA Civ 1018, para 20, what is required is:
"evidence of the lack of alternative options for the children and an analysis of the evidence that is accepted by the court sufficient to drive it to the conclusion that nothing short of adoption is appropriate for the children."
The same judge indicated in Re S, K v The London Borough of Brent [2013] EWCA Civ 926, para 21, that what is needed is:
"An assessment of the benefits and detriments of each option for placement and in particular the nature and extent of the risk of harm involved in each of the options".
McFarlane LJ made the same point in Re G (A Child) [2013] EWCA Civ 965, para 48, when he identified:
"the need to take into account the negatives, as well as the positives, of any plan to place a child away from her natural family".
And (Re B-S) "In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.
The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare.
We need not quote the next paragraph in McFarlane LJ's judgment, which explains in graphic and compelling terms the potential danger of adopting a linear approach.
44. We emphasise the words "global, holistic evaluation". This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54):
"What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options."
Final Care Plan and parties' positions
Evidence
Submissions
My assessment of the professional evidence.
My assessment of M's evidence
My assessment of F's evidence.
Collusion.
Findings on disputed issues
Was the lesion caused by an allergic reaction to a Hyoscine patch?
Was the lesion caused by a thermal burn incurred by placing Y on an overheating apnoea pad?
Was the lesion caused by scalded skin syndrome?
Do I have sufficient expert evidence to determine this issue or should I adjourn the case to enable the instruction of a Consultant Dermatologist?
Was the lesion caused by a thermal burn and if so how?
Was this an accidental or non accidental injury?
Having found that the lesion was caused by an inflicted thermal burn can I identify the perpetrator of this non accidental injury?
Should M and F have obtained earlier medical treatment for Y and administered pain relief?
Threshold
Consideration of Welfare checklist
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);X has a good relationship with F and with M. She also has a good bond with AH and her half sister Kr who lives with AH. She is close to her brothers and cares for them. She clearly would like to be with M and F if possible but equally has said that she would like to live with AH. I imagine she is very confused about her circumstances and what has happened to Y.
Y has a good bond with his M and with F as far as one can tell. He cannot express his wishes but I am sure he would like to remain within his birth family if possible.
Z has a good relationship with his parents and although he cannot yet verbalise his wishes, I am sure that he would wish to be brought up by his parents and to remain with his siblings. Z has always been with his sister X and there is a bond between them. His contact with AH has been positive.
(b)his physical, emotional and educational needs;
X has an urgent need for her circumstances to be clear and to know where she is going to spend her childhood. She has already had a change of residence from her M to her F therefore needs physical and emotional stability.
Y has very significant additional needs due to his disability. Those needs will change over time but it is particularly important for him to have his health and educational needs met in order for him to reach his full potential.
Z is still a baby. He needs emotional and physical care and stimulation to help him develop.
(c)the likely effect on him of any change in his circumstances;
X I am concerned that any change in circumstances for X needs to be permanent because of the disruption to her life thus far.
For Y the most important thing is that he is cared for in a family setting by people who understand his profound needs. He should be with M and F if it is safe for him to be there. If he remains in foster care it is very important that his current placement is maintained as it takes time to understand his needs and interpret his feelings. Residential care would not be suitable for Y.
Z has formed good attachments to his parents and his foster carers. He is able to form good bonds with his carers but it is important that any change should be to a permanent home.
(d)his age, sex, background and any characteristics of his which the court considers relevant;
X is close to her siblings and it is important that that closeness is promoted as she has had an unsettled past.
It is particularly relevant that Y is a little boy with serious cognitive impairment and developmental delay.
Z is a normal baby who is developing well.
(e)any harm which he has suffered or is at risk of suffering;
Y suffered a burn to his left buttock described by Ms Falder as a deep thermal wound. When examined by the treating paediatrician on the 8th July it was described as 9 x 11 cm in size at its maximum and consisted of a shape that had a straight edge and side edge at right angles to each other. The burn was sustained at some time following Dr Wood's examination of Y after approximately noon on the 15th July and prior to approximately 10 am on the 16th July. Y would have been extremely distressed at the time this burn was sustained, and those who knew him well would have known he was in considerable distress. Thereafter when the affected area was touched he would have been very uncomfortable and would show it through grimacing. Y has therefore suffered significant physical harm in the form of a contact burn and neglect of his needs whilst in the care of his mother and father. He is at risk of suffering significant physical harm and neglect if returned to their care.
X and Z have not been harmed. The case in relation to them is put that they are at risk of significant harm if returned to their parent's based on the harm suffered by Y. I do not have to be satisfied that such harm is more likely than not to happen. It is enough that there is "a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case". The feared harm in this case is very serious. Their brother had a serious contact burn inflicted upon him in unexplained circumstances. Without knowledge of whether M or F caused the injury and the triggers which made them act as they have, I am satisfied that there is a real possibility, which cannot be ignored, that they too could suffer significant harm.
(f)how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
M or F or both together have injured Y by causing him to have a significant burn. They have lied about the surroundings so much that it is not possible for me to say what happened and to identify a perpetrator. I am satisfied that if one parent caused the injury the other knew and that they worked together to avoid detection until it became clear that Y had to be admitted to hospital. This meant that although Y was in pain he was not given appropriate relief. Their actions show an inability to meet the needs of their children by protecting them from harm and keeping them safe.
SH has been thoroughly assessed as able to care for X and Z both now and throughout their childhoods.
(g)the range of powers available to the court under this Act in the proceedings in question.
I have a full range of powers available to me. I could make no order which would mean that the children would return to M and F. I could adjourn the proceedings and direct further assessment of M and F either with or without the children or any combination of the children in their care. I can make orders under s 8 including residence orders, which I could make in favour of M or F. If threshold is proved I can make care or supervision orders in relation to each or all of the children. I can make a Special Guardianship Order in favour of AH in relation to X and Z.
Analysis of Placement Options
Placement of the children with M and F
Placement of X and Z with AH supported by a supervision order
Placement of X and M in foster care
Placement of X and Z for adoption
Placement of Y in foster care
Placement of Y for adoption
Comparison of options
Adjournment for further assessment
Decision
Order
1. There shall be a Special Guardianship Order in favour of AH in respect of X and Z
2. There shall be supervision orders in respect of X and Z in favour of Bradford City Council for 12 Months.
3. There shall be a Care order in respect of Y in favour of Bradford City Council.
4. There shall be no order for costs save Public Funding assessment of the Respondents' costs.