This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
IN THE CHELMSFORD COUNTY COURT
Re X, Y and Z children (treatment of a family of African heritage)
New London Road,
Essex CM2 0QR.
Thursday, 10th April 2014.
HER HONOUR JUDGE ROBERTS
SOUTHEND-ON-SEA BOROUGH COUNCIL
(3) X (a minor)
(4) Y and Z (minors)
(by their Children’s Guardian)
MISS KELLEHER appeared on behalf of the Applicants.
MR ELCOMBE appeared on behalf of the First Respondent.
MR O’BRIEN appeared on behalf of the Second Respondent.
MISS YOUNG appeared on behalf of the Third Respondent.
MISS HARDY appeared on behalf of the Fourth Respondent.
Digital Tape Transcription by:
John Larking Verbatim Reporters
(Verbatim Reporters and Tape Transcribers)
Suite 91, Temple Chambers, 3-7 Temple Avenue
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01 I am concerned with three children, all girls; X, who is 13, having born on 20th September 2000; Y, who is seven, born on 11th March 2007; and Z, who is five, born on 21st May 2008. This is the final hearing of the application of R for a care order for each child. The parties are R, the Borough Council; M, the mother of the three children; X, who is separately represented at the final hearing; and the younger children, who act by their guardian. On the fifth day of the hearing the father of the younger two children, G, was represented by counsel although he did not attend, but he (G) has participated during the latter stages of this hearing. They have been represented before me by Miss Kelleher for R; Mr Elcombe for M; Mr O’Brien for G; Miss Young for X; and Miss Hardy for Y and Z, who takes her instructions from the guardian for the three children, Debra Jennings.
02 I have read a large ring binder of documents prepared for the hearing including statements from the social workers and from M; a psychiatric assessment of M by Dr Oyabodi; a psychological assessment of the children by Dr Williamson; a parenting assessment by the Marigold Family Centre; two reports from the guardian. I have read many of the contact notes and I have read many pieces of paper which have been presented during the course of the hearing. I have heard oral evidence from Ellie al-Fayad, the manager at the Marigold, who was not the author of the Marigold report but had supervised the work and the report, and the report writer no longer worked for the Marigold. I heard evidence from Julie Brown, the social worker for the children since mid-December; from Kelly Ekwonobi, M’s Probation Officer; from M; from G; and from the guardian.
03 By way of background, M was born in Country L and came to this country 14 years ago and all three children were born here. The family is now British or in the process of completing becoming British. The children’s fathers play no part in these proceedings save that the father of the younger two, G, has been involved in the latter days of the hearing. The father of X sadly died in 2001 in Country L and X has never met him. M has had three elder daughters by X’s father, two of whom have tragically died in young adulthood in Country L. It is accepted by all parties save for G that M came to live in the R area because she was rehoused there via a refuge – indeed two refuges – with the children as a result of fleeing domestic violence from G. She and the children have been in various refuges and places of safety since 2009. In 2004 M accepts that she left X alone when X was very young and asleep at night for a short period. In 2009 M was cautioned for leaving her three children unattended and they were aged between nine months and nine years. Also in 2009 was the death of one of M’s daughters in Country L.
04 In 2011 M sought assistance from the local authority to look after the children because she had to go to Country L. I am unclear whether this was to care for her adult daughter who was ill or to bury that daughter but either way sadly that daughter died and M was not given help to enable her to go to Country L. It has been in my judgment an important factor in this case that M has been desperate to go to Country L since 2011 to pay her respects at her two daughters’ graves but has been unable to do so until recently. She has now managed to go whilst the children have been in foster care. M has been assessed by a psychiatrist, who found no sign of mental illness. She had, all acknowledge, been grieving for her daughters. It is an issue in the case whether M has sufficiently protected her younger three children from her emotional distress. In late 2011 to early 2012 M was given counselling and advice about historical domestic violence.
05 R assessed the children in late 2011 and it was apparent that the main issue was M’s emotional distress and the impact on the children as well as X being left often to look after the younger children. The social worker did not have concerns for the children’s welfare and said there was no indication of alcohol misuse, which had been raised as a possible issue, or of poor management of the home environment. Social Care closed their case in February 2012, having referred M for further support for her bereavement and experiences of domestic violence.
06 In September 2012 another request came via the Dove Project. M wanted/needed to go to Country L. Her need to find out what had happened to her two daughters and to visit their graves had not been dealt with. The referrer said that the children seemed very happy. The referral was made because M had made arrangements for a friend to care for the children and the referrer thought that Social Care should know. No help was forthcoming and the trip did not take place.
07 In the chronology there is then a report dated 10th September 2012 which says:
‘Police called to family home by Mr S [M’s boyfriend] who advised that M had smacked her daughter around the head and had been drinking. Deemed to be malicious as M had ended the relationship with Mr S on that day.’
The social worker’s statement says however:
‘The police officers interviewed X, who confirmed M’s story that she had smacked Z on the bottom as an act of parenting discipline for stealing sweets from sister Y. The attending police officers advised they had no Child Protection concerns, their predominant concerns around not having a working boiler and heating the house with a small heater which the family could not afford.’
In other words the chronology is wholly misleading. After the police alerted Social Care to this event two visits were made and again it was noted that M was very upset. A Family Support Worker was then engaged but I have been told nothing as to what support was given.
08 On 16th March 2013 the children came under police protection and then into care – voluntary care under Section 20 – as a result of M leaving the children unattended and it would have been overnight. M has admitted this although she says she had made some rather loose arrangement with a neighbour and pleaded guilty to child cruelty and has received a community order and a Probation Order, which is still current. This is dealt with in the threshold document. The children have remained accommodated ever since.
09 These proceedings were conducted in the FPC until the final hearing came before me. I have had therefore no opportunity to ensure that the correct case management took place. It has not. These proceedings have been conducted by the local authority in a seriously troubling manner. I am told that an internal inquiry has now started. The inadequacies relate to the social work and the legal work. G was only found between the case being adjourned on Day 4 and resuming on Day 5, a week later, over a year after it started. The information which led to the father being found was on Social Care’s file. These are the circumstances. On Day 3 I was told that the guardian had spoken the previous evening to the girls’ foster carer who told her of an incident last August when the younger girls had told her of something their mother had done to Z which the foster carer had been concerned to hear. The foster carer told the guardian that she had told the social worker at the time. The allegation was, I was told, of sufficient seriousness – though I was not told what it was – for it to be necessary for me to adjourn, and I did so on Day 3 to allow the social worker and the local authority’s lawyer to go and read the files. I wanted to know if there was any record on Social Care’s file. On Day 4 in the afternoon the case resumed and I was told that there was nothing about the allegation on the files. There was however a deleted email sent by the foster carer at the time to the social worker and to the Foster Care Manager. Nobody knows whether these were even read. I was told more about the allegation because it seemed to be agreed that I should be, and having heard that I allowed the social worker to speak to the girls about the allegation reported by the foster carer and for X’s solicitor to take instructions and for the guardian to do what she thought right. I refused to allow the local authority to introduce other matters which their advocate told me were also found when she was trawling through the files, but which did not relate directly to physical abuse of any of the children. I was also told that information had been found on the file which might lead to G being traced. The case had to go over for a week for investigations of the allegations to be carried out. When the case resumed on 7th April Mr O’Brien appeared for G, G having gone to the wrong court. The local authority had managed to trace him but this could have been done months ago. Mr O’Brien clearly needed time to read the papers with his client and so we had to adjourn again until 8th April. Most of three days of court time has therefore been lost, 26th and 27th March and 7th April. Other cases have had to lose their hearing slots and my time and other people’s time has been wasted. I will deal with the material that emerged from the additional disclosure and inquiries later in this judgment.
10 What I will say at this time is this; I only discovered on Day 5 when the social worker was recalled to give evidence that it was not by chance that the guardian was told of the allegation by the foster carer as to what the younger children had disclosed to her in August. It emerged during that evidence that the social worker was telling the foster carer about the hearing in some detail, I conclude, after the social worker had completed giving her evidence but in the middle of the hearing, and the foster carer apparently asked if the August disclosure had not been dealt with. The social worker told the foster carer she did not know about this but as she had given her evidence the foster carer should mention this to the guardian, who would be ringing her later. I was not told any of this, nor indeed was Mr Elcombe. I was led to believe, as he was, that the foster carer just happened to mention this information to the guardian on the evening after Day 2. I did not know that the social worker had directed the foster carer to inform the guardian of this information.
11 The local authority have not acted properly with regard to this at all. I agree with the submission made by Miss Young that the social worker formed the view that the case was not going well and took it upon herself to engineer more evidence being introduced. A local authority in care proceedings has certain duties which include to act fairly. They have not done so. I stated clearly on 7th April after the receipt of the new information and the arrival of G’s representative that my preliminary view was that the case had to be completed this week; that the choices I had were to send the children home to their mother or for them to remain in foster care under a care order. If the children went home there might be an issue of contact to their father to consider but that was unlikely to be an issue which could be resolved this week. If the children could not go home to their mother the case would be likely to be resolved by them remaining in foster care for the time being under a care order with any assessment of the father to take place thereafter if he was wanting to care for any of the girls. No advocate demurred from this although Mr O’Brien had not as yet had the opportunity to read any of the papers. It was only on the next day when Miss Kelleher for R expressed the view but did not formally apply to adjourn that the father needed to be assessed; that no decisions could be made without that being done; and that a risk assessment of the father could be done in four weeks and the case resumed, as far as I understood her to be saying, at that point. I disagreed. I said it was not realistic to imagine that a father who had not seen the girls for over four years could take over the care of the girls, even if he was assessed positively in a risk assessment and even if all the allegations of domestic violence were found to be incorrect, within any reasonable time. The issue before me remained whether the mother, who has always cared for the girls, could resume their care at this time or not. Only if she could not would it make sense to look at G and that would then have to be done by the local authority after these proceedings concluded with a care order. The issue of contact was a separate one. No preparation had been done to resolve that issue and it could not be dealt with in the time scale of these proceedings. I am not surprised that the guardian agreed with these views in her evidence.
12 G produced in his evidence on 8th April, which was Day 5, the initial assessment from 2009 of the London Borough of Merton where the family once lived. I have been given no explanation as to why the local authority have never obtained proper information including such documents from Merton. It seemed obvious to me that further assessments and case conference Minutes must be available and I was not impressed by the local authority belatedly trying to rely on this one document on its own to further their case out of context. I was even less impressed by the local authority appearing to accept and adopt the statement of G, a man of whom they have no knowledge and have not assessed, but whom they understand – and certainly that is the thrust of the evidence to date – to be the perpetrator of domestic violence on M, some of which has been witnessed by one or more of the children. The fact that G says he thought M had only two children in Country L as opposed to three was not the basis for Miss Kelleher to cross-examine M on, questioning presumably whether she had lied about the existence of her children who had died. It was also wrong in the circumstances to ask G questions about parenting customs in Country L as if he was able to give the court expert or remotely independent evidence. The lack of judgment I have seen has been shocking. I did ask Miss Kelleher before she started cross-examining G, because I was surprised in the circumstances that she was doing so, whether she had instructions. It is now clear to me that she did not understand the question which related to the basic rules of advocacy. The lines of questioning by Miss Hardy and Miss Young in contrast were wholly appropriate. Mr Elcombe rightly took the view that he was not in a position to cross-examine G as he had not had the opportunity to obtain full instructions and there was insufficient documentary evidence yet obtained.
13 The internal inquiry which is taking place in R needs also to address the issue of the approach of this authority to a family from another culture. I have been judging full-time for 12 years in London before coming to Essex. In London it was an everyday occurrence for the families being considered by the courts and the local authorities to come from outside the UK. I have conducted many trials involving people from various countries in Africa, although I cannot recall whether I have dealt with a case of a family from Country L before or not. These cases are prepared and presented fairly and appropriately. It may be that there is little experience in R of such cases but the approach in R is not one I have met before. My strong impression is that this family has not been treated fairly throughout this process and my strong impression is that they would have been treated differently if they had been white and the mother British born. There has been no consideration of M’s different culture background or that of her children. The level of ignorance displayed has been shocking. The fact that she struggles to understand and express herself has not been thought about. She has been treated with unreasonable and undue suspicion about irrelevant matters such as where she earns her money and about her family in Country L. I also do not think a white British mother who had had two of her daughters die in this country within two years of each other would have been treated with the very limited compassion this mother has received. I have noted a lack of respect for this mother and a failure to treat her properly in these proceedings. These children have only been accommodated, there have been no interim care orders, and M’s request for more contact or different contact has not apparently been considered. I was told today that there have been ongoing discussions about how a rehabilitation process would work but no one has thought to consult the children’s mother. Most breathtaking of all is the fact that the Marigold Family Resource Centre in their assessment concluded in August 2013 that these children should be adopted. At the time they were twelve, seven and five, and the idea was preposterous. However, the local authority accepted the recommendation and adoption became their care plan. This care plan is unique in my experience. I have had to form the view that this family has been treated differently from other families in R.
14 The local authority plan now is for the children to remain in foster care. It is planned that they stay with their current carer. The contact plan is for the girls to see their mother six times a year but for X to see her an additional twice on her own. The plan is for each contact to be for two hours and initially at least to be supervised. M does not accept the local authority plan and seeks to have the children returned to her care. She challenges the assessment of her as not having been carried out properly. If the children do not return to her care she wants a more generous contact arrangement. G, who has not had the opportunity to be assessed or to put his case, agrees that the children should be made the subject of care orders. He wants to be assessed for contact thereafter. X wants to live with her mother. However she is pulled both ways as she also wants to look after and live with her younger sisters. If the court thought that she could come home but not her sisters she would choose to stay with her sisters. The guardian supports the local authority’s plans for a care order with long-term fostering and also for contact. She has found that aspect of the case the more difficult. She recognises that all three children, not just X, want to return to their mother’s care.
15 The threshold criteria for the making of orders pursuant to Section 31 are set out in a document which was agreed at a hearing in September 2013 and has been amended for this hearing. Mr O’Brien confirmed in his submissions that G does not agree with it because it refers to him as the perpetrator of domestic violence which he denies. That has not been litigated yet. I acknowledge that he does not accept that part of the document. I have read the document and I approve it.
16 The issues I have to decide are these. What is in the best interests of each of these girls? Do I agree with the local authority that they have properly assessed the mother and the father, and that their conclusion that the children would be emotionally harmed if they returned to their mother is right? If so, have the local authority got the right level of contact for these girls in their plans? Alternatively, do I consider that the local authority have not assessed this family properly, bearing in mind their background and the mother’s experiences? If so, what is the way forward? Do I agree with the assessment either way? Should the girls or any of the children return to the mother’s care now, or is there any other work which should be carried out? Is there support which could go into this family to make it more likely that the children would be properly cared for at home? Do I need to address in these proceedings the issue of the possible reintroduction of G into Y and Z’s lives, and perhaps X’s?
17 As the threshold criteria pursuant to Section 31 the Children Act have been dealt with, I have to apply Section 1 Children Act. It is the children’s welfare which is my paramount consideration. I also have to consider the rights of each of the parents and each of the children under the Human Rights Act. In the context of this case I am particularly concerned with the right to respect for private and family life contained in Article 8 and the right to a fair trial contained in Article 6. I am satisfied that it is necessary to interfere with the rights of G in not adjourning for what would be much of the next year for him to be assessed in order to protect the rights and freedoms of the children. I have had to struggle throughout this hearing to ensure that the Article 6 rights of M and the children have been protected, not an experience I can recall having had in a care case before. In this case unusually I have had to go back to that fundamental principle of the children’s welfare being paramount throughout my consideration of what the outcome of this case should be. This is because the presentation of the case by the local authority has been so flawed. I have reminded myself at every point that I must not let my frustration at the inadequacy of the local authority’s conduct to mask what is best for the children. Similarly, the distress of M has been extreme and upsetting for all to behold, but my focus must be on the children. Finally on this theme, I am well aware of the distress of X, the eldest child, who is desperate to go home. My role is to make decisions as to what is in each of the girls’ best interests, not to act out of sympathy alone.
18 Turning somewhat belatedly now to the evidence, the report by the Marigold dated 29th July is the crucial document in this case because all the other assessments rely on it. Yet it is a deeply flawed report. The report itself has many errors in its composition so as to make its meaning incomprehensible at times or requiring the reader to assume it means the opposite of what it says. I am left with a report in which the sense is unclear, which reduces the value of the report. I am left with the impression of a casual approach which reduces confidence in the substantive work. For example, when discussing M’s alcohol use – and there is no evidence that M has an alcohol problem which would interfere with her ability to care for the children – the writer of the report says: ‘JM has evidenced within this assessment that she has been candid with the truth so it would be my view that it would be difficult to ascertain how much alcohol M drinks as well as how often.’ Even if I assume the writer means the opposite of what she says, there is insufficient evidence in the report to support the statement that M has not been candid. I do not find that M has not been candid. Her evidence is not always easy to understand but that is a different matter. Another example, the writer says: ‘It is my view that M is not able to prioritise her needs before those of her children.’ Think about it. I presume I am once again to interpret that as saying the opposite of what it does say. The main evidence given for that conclusion – if that is what it is saying – in the report is M saying that she had to go to Country L for reasons already set out, in October, so if the final hearing was in September she would not be able to have the children back until her return. I do not regard that as M putting her own interests first. The report is full of references to M’s distress and how she cannot give her all to the children whilst feeling as she does and showing such emotional distress. The local authority had previously refused to help her when she tried to go to Country L. She needed to go to Country L, and I accept her reasons for wanting to go. I think she was making a rational and sensible decision when saying the children would have to remain in care until her return. When M’s Probation Officer gave evidence, she told me that M had never been late for an appointment with her and had not missed one either. Yet the Marigold report says: ‘M’s probation manager told me that her life seemed to be somewhat chaotic, being late for appointments etcetera.’ I do not know therefore why the report writer said that. The writer says in her introduction that she has liaised with M’s Probation Officer. If she has done she did so only at the very beginning of her work because the Probation Officer Miss Ekwonobi told me quite clearly that by August M had made much progress and had been reduced to medium risk from high risk of causing her children harm. She had made much progress in her thinking skills. None of this is referred to in the report and yet the writer concludes when discussing the offence of which M was convicted that ‘It is unlikely that her pattern of behaviour will change and she will continue to put her own needs before those of her children.’ I do not agree with the conclusions or the methodology of the writer.
19 As I have mentioned, the report – to my mind bizarrely – recommends adoption for the children aged nearly thirteen, five and seven. All three children wanted to come home and all three want to be together. The proposition that it was either in their interests to be adopted or that it would be possible to find an adoptive family for these three girls together – and there had been no sibling attachment work done by the Marigold – is not remotely reasonable. As Miss Young so succinctly said, the conclusion fundamentally undermines the legitimacy of that assessment.
20 I still do not know what the final recommendations in the report mean. What it says is this:
‘I would respectfully ask that the court considers care and placement orders for all three children to enable them to experience safe nurturing and consistent care; that all three children are placed together with carers that are able to reflect and celebrate their cultural needs. I would also recommend that contact takes place no more than two times a year and that this is to be supervised. However, should the court be mindful to sanction and(sic) adoption order the matter of future contact will need to be reconsidered in the light of this. It is my view that Z and Y would not be adversely effected(sic) should no face to face contact take place; however, X, who is older and has more awareness of the negative experiences of the past, would benefit from limited contact with her mother and older sister S.’
The writer’s recommendations for contact are unclear as to whether they refer to those recommendations being under an adoption order or what. When Miss al-Fayad gave evidence she confirmed that the report was true but did not first make any corrections. Indeed it seemed as if some, if not all, of the errors had not even been noticed by her either when she signed the document or when she re-read the document – which she said she had done, but I seriously doubt – prior to giving evidence.
21 Perhaps of even more importance however in my reaching the conclusion that the document is flawed is that there is no consideration let alone analysis in the report of M’s background as a woman who was raised to adulthood in Country L with a completely different approach to parenting. M’s experience of being parented was not discussed with her and although Miss al-Fayad told me that cultural matters were discussed in planning the assessment I was not at all convinced that anything more than lip service was given to this issue. It is notable that the only reference in the report to different cultural practices is surprisingly to Vietnamese and Japanese cultures. In her evidence Miss al-Fayad said words to the effect that because the children had been born and brought up in England she did not think that how things were done in Africa were that important. They are. I have seen nothing to satisfy me that anybody working on this assessment had any understanding at all of M’s approach to parenting stemming from her own experience of being parented or indeed of raising three daughters in Country L. I have no memory of judging a care case involving a family from Country L before, as I have said, but I have judged plenty of cases about families from other parts of West and Central Africa, and I am well aware that there are very different ideas about parenting in each of the different countries of Africa from our own ideas. I am not of course suggesting that these three British children should be parented in this country according to the ethos of Country L if it does not accord with their needs. What I am saying is that a failure to take into account these important matters makes me have serious doubts about the value of the work done by the Marigold. The assessment was aware that M came to this country having been forced to flee from Country L leaving behind three of her children, two of whom had died as adults in the period leading up to these proceedings. I know that M secured some counselling but I believe that was quite recently. The loss of her children and her inability to find out exactly why this had happened, to visit their graves or to satisfy herself that the third daughter was all right, have been very major issues for M. It would have been appropriate in my view for the Marigold to have assessed what support had been available for M to deal with all that, and what support should could have in the future to make it possible for her to move on and to parent her children well. That is absent from the report.
22 I conclude that the report on this family by the Marigold is not one upon which I can rely nor importantly is it a report upon which any other professional can rely as the basis for their own work. It was of great concern to me that when the current social worker Miss Brown was asked about the Marigold assessment report she could not point to anything wrong with it. She said it was a thorough assessment and there was no concern at all about it. In my judgment that is such an inadequate description of this assessment that it makes me more cautious about the evidence given by Miss Brown herself. I can see that she is a hardworking social worker who has come late to the case and has had a difficult job in preparing her final evidence to be filed some five weeks later. However, contrary to what she has said under cross-examination, I do not think she has sufficiently applied her own mind to the issues in this case but has accepted the assessment of others. She has after all only seen the children for 50 minutes with their mother. She too showed a worrying lack of understanding of the cultural aspect of this case. She told me that to deal with it she consulted an African social worker but it turned out that this social worker came from Zimbabwe. Miss Brown clearly saw nothing wrong with this because the worker was African. As I said yesterday, the distance between Zimbabwe and Country L is the same as from Chelmsford to Kiev. I doubt that Miss Brown would think it appropriate to obtain guidance from a Ukrainian as to how English cultural matters should be approached. Similarly, she told me that she had arranged for an African foster mother to advise the current foster mother about cultural matters. She is well-intentioned but she was unable to tell me where that mentor came from and just repeated ‘Well, she’s African.’ I thought I had made it clear in the first days of this case that being culturally appropriate did not mean finding somebody who is black, yet yesterday it emerged that the local authority considered that the father should be assessed by someone who was culturally appropriate and when I asked – with a sense of some foreboding – what the ethnicity of that person was, I was told that that person again was from Zimbabwe. Clearly this local authority needs to look seriously at its diversity training.
23 Miss Brown also included information from M’s Probation Officer without putting it into context, by which I mean that the information applied at the start of Miss Ekwonobi’s work with the mother only and that the situation had been very different from as long ago as August. It appears to me that Miss Brown has not assessed M afresh after the bulk of the work done by the Probation Officer or importantly after M’s return from Country L in the autumn. Miss Young again has pointed out that there has been no social work with the mother, and that appears to be the case.
24 I turn now to the – I hesitate to call it evidence – but I turn now to what emerged from the adjournment on Day 3 and the trawl by Miss Brown and Miss Kelleher of Social Services files. It appears that the school made some reference to Social Care in January 2012 because of something said by Z when Z was three and a half. She referred to her mother tying her up. The note found from the school is confusing as it is not at all clear who made the note or indeed who had the conversation with the child. The records shown that Social Care did make a home visit and spoke to the mother and the children soon after but no note is made about how that particular allegation was dealt with. The little girls do mention something which appears to be the same incident in August 2013 to their foster carer. They also mention being smacked and it hurting. The context was that the foster carer had first spoken of tying them together to stop them running away. X made it clear it was not something of concern and had not been proper tying up but done loosely as part of teaching Z something. M gives a very similar account to X’s. The younger children did not repeat any of this to Miss Brown when she visited them last week, nor did X, but she was too distressed at yet further questions for the social worker to be able to continue questioning her. I conclude that the social worker in February 2012 did his investigations and did not consider this allegation to be a matter of concern but he then failed adequately to make a recording; that the social worker in August 2013 failed to act appropriately on receipt of information. I make no findings about the incident and consider that a great deal of time has been wasted for no good reason.
25 Looking at the work done or not done in this case I am not able to place sufficient confidence in the judgment of the social worker to rely on her recommendations to the court and this is not something I say lightly.
26 Dr Willemsen provided a report but was not called to give evidence. He is an expert with much experience and one I respect. He saw the children on 9th August and on that day spoke with the foster carer, who appears to have given him information not seen elsewhere in the papers in the form of a note or notes. His report finds that the younger two girls do not seem to have a strong bond with their mother. He concentrates on X, who he is worried about. The main reasons for his concern – and in my view for some of his conclusions – are what the foster mother told him, that X wrote down that she would like to be white and otherwise different. The foster mother also appears to have told him that X is scared of her mother. I do not think that that information comes from any other source. I cannot understand why the local authority did not pick up that documents were being referred to which were not in the papers or why the foster carer, who I am told is experienced, thought it appropriate to introduce documents in this way – or indeed why an experienced expert thought it appropriate to take them into account, certainly without exhibiting them. I cannot rely on conclusions reached in this way and certainly do not find that X is afraid of her mother, an assertion which appears to be based either on something the foster carer told the doctor or on something the foster carer showed the doctor. As far as I know, Dr Willemsen was completely unaware of M’s great progress under her probation order, in part because the previous social worker’s statement did not include that information but did include out of date information.
27 Dr Willemsen provided an addendum in response to questions put on behalf of M. He was asked why he did not observe contact between the mother and the children and his answers show that much of his thought was guided by the assessment done by the Marigold. As I do not consider that that report is a fair or accurate report, it has to mean that Dr Willemsen’s report is of less use and relevance than otherwise. It is unclear to me what Dr Willemsen’s conclusion is as to where these children should live, and again I agree with Miss Young that he does not appear to rule the mother out. I do not think that Dr Willemsen was in a position to reach conclusions about the children’s attachment although he perhaps had sufficient information to raise questions about it. As for his concerns about X, it appears to me that there has been insufficient consideration of the possibility – in my mind a probability – that X’s sense of guilt and poor self-image has developed since her removal from home and was not present before. There is no evidence from the school to suggest there were such problems before; indeed the only evidence from the school appears to be that Z and X have recently shown behavioural problems which did not exist before.
28 I am also not convinced in this case that X would be emotionally harmed if the girls returned home and she continued to play a part in caring for her younger siblings. In many families in this country that is exactly what has always happened and always will happen. It may not be ideal but I do not consider it to be emotionally abusive, amounting to significant harm – not for this child of this age of this background.
29 M’s Probation Officer Miss Ekwonobi impressed me greatly. She has done a great deal with work with M and covered many of the issues in her work which the court wished were covered with parents in care cases routinely. She is very positive about M and considers she has made great progress. There has been a communication problem no doubt between Miss Ekwonobi and Social Care which has resulted in Miss Brown including in her report information from Probation which is very out of date as well as some of the more recent and positive information. Miss Ekwonobi acknowledged that she has not met the children but she is confident in her own skills and her risk assessment. I remind myself that the social worker has only seen the mother with the children for 50 minutes during contact, and Dr Willemsen not at all. I regard the evidence of the Probation Officer to be very important. In effect she tells me that M has not only the capacity to change but has achieved change and that change now needs to be tested as the children are returned to her care. She had no reason to think that alcohol was a current problem for M or that there was domestic violence in her life. Unlike the approach of the Marigold or indeed the social worker, she based her assessment on evidence not on conjecture on these areas. For the avoidance of doubt, I make no findings as to domestic violence or alcohol being a current issue as there is no evidence. I find Miss Ekwonobi’s evidence wholly credible. She has approached her work with independence and commitment and knowledge and not with preconceived ideas. Indeed I regard it as the best evidence I have about this mother’s abilities.
30 Dr Oyabodi is the psychiatrist who did not give oral evidence but examined the mother and found her to be mentally well but having suffered understandable depression in the past arising from the loss of her daughters.
31 M gave evidence on 25th March and then again on 8th and 9th April. One matter which became clear immediately was that M’s English is limited. She can express herself, although not as a person born here would do. But her understanding is imperfect. She did not understand the questions put to her on many occasions except in broad terms. She certainly did not understand nuances or when questions were asked with an assumption in the introduction to a question that her answer needed to deal with the assumption as well. Her accent was not always easy to understand. More worrying to me was that it was apparent that most of the advocates did not appreciate that she did not understand them. I think it is very likely therefore that the other professionals who have worked with her have also not been aware of her limited understanding, save of course for the Probation Officer, who has worked with her every week and therefore will have been able to establish good communication. I have serious misgivings about her various conversations with the social workers and others in this case as I do not think that these limitations have been sufficiently taken into consideration, if at all. An example is the first statement in these proceedings by the social worker Nick Pratt, who says it is understood from the current foster carer of the three children that she supervised telephone contact that took place on 18th March 2013 – I note, two days after the children’s removal – the mother reportedly advised Y ‘I am going to leave you there forever’ to which the child replied ‘Okay.’ M denied it and I do not believe that this conversation took place for one moment.
32 It is the case that M has not just left the children once but at least three times. This is wholly unacceptable and she is fortunate that nothing bad has happened to her children on those occasions. She must not go away from this court thinking that I do not take a very dim view of what she did, and I do not accept that she was let down by others on three occasions. She acted without regard to her children’s safety and put her own wish to have a night out before their needs. She has also smacked the children too hard, and in the future that must not happen; there must be no smacking. The children have suffered as a result. It must have been very frightening for the children first to find themselves on their own as it got dark and then to be removed by the police. However, thanks to the work of the Probation Officer I find that M has developed an understanding of why what she did in March last year was so wrong and dangerous. I find she has some understanding of the criticisms of her emotional care of the children. She has the capacity to change and she can work with professionals. M has sought help and has had bereavement counselling and has attended parenting classes. She is criticised for not meeting the children’s emotional needs consistently. The Marigold say she shows emotional warmth but it is not consistent. That may be so, but in my judgment this is a decreasing problem. The reading of the recent contact notes – and I presume I am not the only one to have read them – showed change. M is focusing on the children consistently through more of the recent contacts and no concerns are raised about any of the issues I have heard about. I do not know why this has not been drawn to my attention. With help I find that M’s consistency in providing emotional warmth will continue to improve. It is notable that X says in her own evidence that things have improved in her mother’s life.
33 M deeply loves her children, she is committed to them, and I reject any suggestion that she is not. Her double bereavement has been a terrible thing for her and because she has such negative support available to her she has not been able to shield the children from such distress. Three things arise from this. Firstly, time has passed and she is no longer so raw. Secondly, she has now been to Country L, as she needed to do, and I find that that has helped her to move on. Thirdly, I reject the suggestion that the younger children should not be exposed to their mother’s grief. I am not saying that the children should be repeatedly subjected to outbursts of very strong emotion by their mother, but I am saying that death and grief is part of life and the children should have some experience of this as it is their sisters who have died. M needs help in the future with ensuring that the children are not over-exposed to her grief but it appears to me that she has made considerable progress since being to Country L.
34 I have said only today that I am not going to make any findings about G’s evidence. He has been at too much of a disadvantage and so indeed have the advocates. Mr Elcombe rightly did not feel in a position to ask any questions of him. I note that G professes to have good reason for not having seen his children for four and a half years; that he denies all domestic violence and that he has a very negative view of M. I also note on the face of it there is a discrepancy between him saying that he has a clear CRB check but also that he has a conviction for breach of a non-molestation injunction. These are matters for the future. It is agreed that his wish to have contact will be looked at first by way of a risk assessment. I make no findings about the piece of paper which G produced which he says was written by X in 2009; first, because I can make no finding as to whether or not it is X’s writing. M says it is not. It does not appear to me to be the same but I do not know. Secondly, because I have no idea – nor does anybody else in this room – and no independent evidence as to how this piece of paper came to be written. I think it is necessary in this particular case to give an example of what I mean. In school books which mother kindly gave me there is a passage in a book from October 2012 which reads:
‘Tara is having panic attacks and is beginning to make herself ill and her mother notices and is very concerned.’
I know that X did not at that time know Tara, the foster mother, which shows that context is important. Similarly, the school work goes on to say:
‘Mum can no longer bear to see her daughter in pain and agony so she goes to the school and tells them to find out what is going on. A teacher talks to Tara and explains that everything is going to be okay. The next thing that happened is the police is involved and finds out that Roxanna and Ronnie are behind all the mischief and are taken away. Tara, she becomes a competent musician.’
I hope that illustrates the point that it would be a grave error to put any weight on this piece of paper.
35 X did not give evidence but I have read her statement and read much about her. She sounds like a very special young person. She must be very distressed by what has happened to her, especially by the prolonged separation from her mother, whom she is desperate to be with, the fact that she was told she was to be adopted and the fact that she has been told she will only see her mother for 16 hours a year. I cannot see how any professional in this case considers that this care plan meets this child’s needs. I reject any suggestion that this young person only wants to be with her mother out of guilt or fear, and I specifically reject any suggestion in Dr Willemsen’s report that X is frightened of her mother. There is no evidence for this. Dr Willemsen has, as I think I have said, been too casual in his approach to evidence and to making conclusions in this case.
36 The guardian does not advocate the children going home and thinks they will be emotionally significantly harmed if they do go home. This is not part of the threshold document and I do not find that to be proven. The guardian relies to a great extent on the work of the Marigold and of Dr Willemsen. I have said all I have to say about those reports. Her own independent work is limited. I am well aware that CAFCASS does not allow much independent work these days; however I needed more in this case. The guardian has not spoken with the mother save before or after contact. Apparently the mother did not keep the one appointment she was given in the last year. She has not spoken with the mother’s Probation Officer. She has only observed two sessions of contact and I do not accept that that is sufficient to make conclusions in this case about the attachment of their children to their mother or the likelihood of them experiencing significant emotional harm. I am pleased that the guardian did some research into the culture of Country L. However, I do not consider that she has the expertise to advise me about the differing approaches to parenting between this country and what happens in Country L in such matters as the custom of showing affection or not to children and what is considered reasonable chastisement in Country L. I would have needed to see the source material to rely on her interpretation of what she was told. I do not think the guardian has taken proper account of the children’s strong feelings in this case and I also do not think her support for the local authority plan for contact is supported by the evidence. What I needed from the guardian in this case, where there have been so many social workers and inadequate work by the local authority, was more application of her independent mind and expertise. I needed her to assess for herself the impact of the work of the Probation Officer on the mother, to ensure that any deficits in the mother’s approach to contact were subject of proper work and follow-up, and to ascertain whether the visit to Country L did have the benefits on the mother’s emotional wellbeing and consequent availability for the children emotionally which M hoped they would. I did not get this and I do not agree with the guardian’s recommendations.
37 Many of the points made in Miss Hardy’s submissions which she kindly put in writing are ones which in my judgment cannot be sustained when one takes into account M’s poor English, and do not in my mind properly reflect the evidence. She says for example that after 14 years here M should have adapted to Western practice about abandonment and chastisement. Chastisement is not part of this case. I have made no findings about this, although M accepts she smacks her children and I have told her that is to stop, and it is my finding that M has now so adapted, but only because she has now received assistance to do so from her Probation Officer.
38 I turn now to Section 1 Children Act; the child’s welfare shall be the court’s paramount consideration. In Re B Lord Justice Macfarlane said that a court hearing such a case as this needed to look at the welfare of each of the children in a global and holistic way. He also said that the court had to make sure that any orders made were proportionate. When deciding whether these three children or any of them should remain in care or be cared for by their mother, I must take a step back from the detail of the evidential points which have been argued out in front of me. When I do this in this case I come to the conclusion that the proposals of the local authority are not proportionate and that the welfare of the children would best be met in the care of their mother. My consideration of the welfare checklist has been key to this conclusion.
39 Their wishes and feelings. There is no dispute amongst the parties that each of the children wishes to return to live with their mother and despite what is no doubt a more comfortable year with the well-supported and experienced foster mother for X the wish is desperate. She cannot contemplate the sort of contact arrangement which the local authority has in mind for her. The most recent contact show how much the children want to go home and I do not think that the professionals in this case have fully understood why. What does not seem to be recognised by the social worker, the guardian, the Marigold or Dr Willemsen is that the children and their mother love each other very much and want to be together. The proposals of the local authority that to start with the younger two children should see their mother for 12 hours a year and X for 16 hours completely ignores these children’s wishes and feelings. X was hugely distressed at this idea. The care plan is dated January and established that X needed time with her mother on her own. We are now in April. Nothing has happened. I do not have confidence that contact will grow in any meaningful way under the LAC process if the starting point so ignores what the children want and clearly need.
40 Turning to their needs, it is not in doubt that M is able to meet the children’s physical and educational needs. The children have not come to the attention of any agency as a result of physical or educational neglect other than being abandoned. They were doing well at school, where their attendance and punctuality was always excellent. I am told that the home environment is now excellent. It is of note, as I have said, that Z and X are for the first time in recent weeks not doing so well at school. This has been put down by the social worker as evidence of them acting out now they feel safe. I do not agree. I do not think there is sufficient evidence to conclude this. The fact that their school performance has deteriorated and their behaviour has deteriorated from how it was when they lived with their mother is more likely to be linked to their change of circumstances and their wish to be at home. Clearly the children’s physical safety would again be compromised if M repeated her actions of March 2013. However, I am satisfied on the basis of the impressive evidence of Miss Ekwonobi that this is not likely to happen again. I also accept what M says that she realises how big a mistake this was and she has repeatedly assured me it will not happen again.
41 The real issue is whether the children’s emotional needs can be met by their mother. I agree that there are aspects of the mother’s parenting which do not fully meet the children’s emotional needs. She needs further work to ensure that X does not parent the children in her place although I have said I do not consider it harmful for any of the children if X assists her mother. I find that M has understood the need to change this area of parenting and has been trying in contact to act differently. M needs to improve her relationships with the younger two children and reassure X that X is not responsible for how she, M, feels. However, in my judgment the emotional care given by this mother is good enough. It is not the role of the State to take children off parents unless it is absolutely necessary to do so and the fact that other carers may meet the children’s emotional needs better is not sufficient reason. As Mr Justice Hedley said in Re L in 2007:
‘Society must be willing to tolerate very diverse standards of parenting including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event it simply could not be done.’
I also factor in what I have learned of X’s current emotional distress and the fact that since removal from home she has developed problems about her self-image and guilt. There is no evidence she had these before. In my judgment M can meet the emotional needs sufficiently.
42 If the children stay in foster care their physical needs will be met. It may be their educational needs will be met. But that very much depends on the children not being moved around, and I also have to bear in mind that children in care do not generally achieve well educationally. These children appear to have the potential to achieve well and in my view their best chances of educational achievement will be with their mother. If I was to make care orders there is no guarantee that Z and Y will spend their childhood with this foster carer. They have many years of childhood ahead of them.
43 Looking at the likely effect of change in the circumstances, these children have been away from their mother for a year and the transition back to her care should be done with care. Fortunately, it appears that the foster mother and M can work together and a sensible plan needs to be developed to rehabilitate the girls home. In my judgment on balance the effect of returning the children to their mother provided there is sufficient support in place will be to their benefit. If they stay in care there will be a drastic reduction in contact from twice a week to a few hours a year and in my judgment that would be very damaging for these children in particular X.
44 Turning to their particular characteristics, in my judgment these children’s identity needs will not be met in care. I have mentioned my previous role in London. Since coming to Essex I have noted of course there is a very different ethnic make-up of the population and hence the children who are subject to care proceedings. What I did not expect however was that the agencies involved with such children were so ill-informed and unready to address issues arising in cases where the children are from different ethnic groups. It is not good enough for the social workers to shrug and say that the foster mother’s mentor is African when asked twice by me which country she is from. The children are losing their ability to speak or understand their mother’s mother tongue for reasons I do not understand. There is strong evidence that X no longer has pride in her colour or ethnicity; she wishes she had a lighter skin. I have no confidence at all that the children’s identity needs will be met if they remain in their current placement. It is unfortunately the case that black children generally do not do well in the care system and where their ethnicity is not properly recognised the outcome is likely to be worse.
45 Any harm they are at risk of suffering? The risk of future harm with their mother is two-fold. Whether she will neglect the children by repeating her behaviours, I have already addressed this and I find that it is more likely that she has learned and changed sufficiently. Secondly, the risk to the children’s emotional needs including X not being used as a carer. M has learned in part from her sessions with Miss Ekwonobi about such issues and the contact notes show positive change. Again I repeat it is a matter of balance. It may be that X will continue to have a role in caring for the younger two and I have said I do not consider that to be so emotionally harmful to justify care orders and separation from their mother. I am satisfied that such caring will not be at the expense of X’s education which the mother clearly values highly, as we know from the history of her elder girls. In any event, this is an area which can be worked on when the girls are at home.
46 The risk of harm if the girls remain in care is also present; all the factors I have already set out, from unhappiness to loss of identity to insecure placements. They have had three social workers at least in their first year of care. I presume the frequent changes will continue.
47 The capability of their parents to meet their needs? I have set out that I do not have confidence in the work of the Marigold. I do have confidence in the work of Miss Ekwonobi. This mother has the ability to provide good enough parenting to each of the girls. The presentation of each of the girls at the time they were received into care does not support a thesis of poor parenting. I have insufficient information to make any conclusions about G.
48 My range of powers? I consider that the appropriate order here is a one year supervision order to R and I will ask R to prepare such a care plan. It must set out the support which will be given to the family. I am very aware that until the beginning of June Miss Ekwonobi will be working with M on a weekly basis and she has said that she will be able to go to M’s home and see her with the children. The local authority must liaise with Miss Ekwonobi and plan to take over her work at the end of M’s order. I do not mean going in every week but replicating some of the support and advice.
49 Section 1 Children Act also refers to delay being likely to prejudice the welfare of the child. In this case there has been very serious delay and I am unclear as to how and why that has happened. The fact that a relation came forward at a late stage to be assessed and then pulled out is not sufficient reason. There has been no sense of urgency. Even when it was identified in December that a final hearing was needed it was not listed for 16 weeks. During this time the behaviour of the children has deteriorated and X has become increasingly upset. If it is true that the advocates were told in December that the first slot available was in late March they should have contacted the DFJ and in any other case I hope that they will do so.
50 Section 1 also says that the court should not make an order unless it considers that doing so would be better for the child than making no order. This in my mind is linked to the question of proportionality. In Re B Lord Neuberger said:
‘It is clear that a judge cannot properly decide that a care order should be made in such circumstances unless the order is proportionate bearing in mind the requirements of Article 8. It appears to me that given that the judge concluded that the Section 31(2) threshold was crossed he should only have made a care order if he had been satisfied that it was necessary to do so in order to protect the interests of the child. By ‘necessary’ I mean, to use Lady Hale’s phrase, where nothing else will do.’
Making a care order would not be better for these children than not making a care order. Making a care order with a care plan of long-term fostering with very limited contact would not be a proportionate response to the issues which started off these proceedings or indeed to those which emerged during the proceedings. Care orders are not necessary and they would be disproportionate.
51 What is necessary is for these children to go home and for the family to receive proper support which will include either X continuing with her psychotherapy and the younger two having play therapy or possibly family therapy. The work of the Probation Officer has to be continued by support from Social Services. I was never told what work was done by the support worker, which makes me doubt that there was much. It seems in this case an experienced support worker could be of assistance to go into the home to assist M with the aspects of emotional care which have been identified as problematic in this case. M also needs to be pointed to where she could perhaps get a support network of friends and others so that she never finds herself in this position again. So for all these reasons I make the supervision order and the children will return to live with their mother. There should be a phased return home and the mother’s views as to how this should be done are to be given proper respect. I do not know what has been discussed but I would expect the children to be back home full-time by the beginning of May. In the meantime clearly supervision of contact stops, X is to have contact on her own, and there is to be no attempt to undermine my decision. I would expect to receive a care plan detailing the work which will be done under the supervision order and a rehabilitation plan by the end of next week.
52 Permission to use the transcript of today’s judgment for the purposes of an application for public funding and in connection with any consequent proceedings.