England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT

		23 September 2015

JUDGMENT: St Helens Council v M and F (Welfare)

Publication of this judgment was postponed because of the existence of criminal proceedings in 2015 and until the outcome of a rehearing in 2017: [2018] EWFC 1.

Mr Justice Peter Jackson:

Introduction

1. This is the second part of the judgment in these proceedings. The first part, following a fact-finding hearing in March, was given on 21 April under reference [2015] EWFC 33. This judgment concerns the welfare outcome. The two judgments are to be read together and I shall not repeat earlier information.
2. Since April:

(1) C has now reached the age of 19 months. He is walking and beginning to talk. He remains in the care of his paternal aunt, with daily contact with his parents, under supervision by family members for the most part. The quality of contact is very good. C is thriving and has just started at nursery two days a week.

(2) An order made in May provided for further assessment and filing of evidence ahead of this hearing. The assessment by an independent social worker, Dr Peter Dale, was completed in June. The local authority's final evidence and care plan were filed in July, the parents' evidence in September and the Guardian's report soon after.

(3) The parents have co-operated with the assessment process and accept that the court's decision will be made on the basis of its findings. However, they continue to deny causing C's injuries and have offered no information about how he came by them. They still contend that the fractures were caused by normal handling of abnormal bones.

(4) A date in December has been fixed for the parents' criminal trial.

3. The parents seek C's gradual return to their care after the criminal trial. If the court considers it necessary they would accept continuous supervision by family or others, including the maternal grandfather moving in with them. The local authority and the Children's Guardian propose that a care order is made, with C remaining with his aunt and having regular supervised contact to his parents. They do not consider that an unsupervised return would be safe or continuous supervision viable. In due course a special guardianship order in favour of the aunt may well be appropriate.
4. In overview, it would naturally be desirable for C to return to the care of his parents without supervision if this would be safe. If that cannot happen, consideration must be given to whether a supervised return would be in his interests. It is common ground that, but for the injuries, all considerations favour C's return to his parents. However, there is a stark division of opinion between Dr Dale and the other professional witnesses as to the weight that should be given to the history of injury and the parents' response.

The written evidence

5. Dr Dale is a very experienced social worker, counsellor, researcher, author and expert witness. Over the course of a week, he spent 17 hours with the parents, interviewing them and observing them with C. He also interviewed the aunt and both grandfathers. In his report, he concludes that current risk factors are not sufficient to contraindicate the reunification of C to his parents. The indications are that the injuries took place in the context of significant and unexpected psychosocial stressors. Such stressors are no longer applicable, and in their absence it is not likely that either parent would succumb to their coping mechanisms again being overwhelmed. There is an absence of adverse social circumstances and significant protective factors in relation to both parents. There is an exceptionally strong extended family support network. C should remain with his aunt until after the criminal trial and then return in a phased way to his parents.
6. The social worker, Ms Kelly, has worked with the family since July 2014. She has a good relationship with all family members. In her final statement, she notes the abundant evidence that the parents can meet C's practical needs. They are knowledgeable, involved and committed. However, she disagrees with Dr Dale's recommendation. She does not consider that the stress factors that previously existed have resolved. She was concerned that inadequate consideration has been given by Dr Dale to the actions of the parents, who in her view continue to be unable to describe their feelings or difficulties when C was at home. Ms Kelly is concerned that there is no understanding of how such an extreme change in behaviour came about and that it is therefore impossible to know how the situation can be ameliorated in future. Without such knowledge, C remains at risk of harm. The parents have shown no insight into their difficulties. Little has changed to allow the conclusion that the protective factors have increased from the time when C was injured.
7. In their final statements, the parents explain the delight that they take in their son and describe the many activities that the family enjoys. They speak of the huge effect of the family and criminal proceedings upon them. They give assurances that C would be safe in their care and confirm their willingness to accept any form of supervision. If C does not return home, they resist any significant reduction in the amount of contact, arguing that there is no reason to change an arrangement that is working so well. The parents' evidence is supported in statements from both grandfathers and from C's maternal great aunt.
8. In his final analysis the Guardian, Mr Dore refers to the strengths in the family system. Both parents love C very much and have shown their commitment to him. As a result of the high level of contact, his primary attachment is to his mother. The large extended family has remained involved and is important to C. There are no other concerns about the family, home conditions are good, and the parents are mutually supportive and willing to seek help. These extensive positive factors have remained constant throughout. However, the Guardian sees significant risks with a plan for reunification. His view is that no level of intervention can safely protect against such unpredictable and short-lived events as occurred here. Given the magnitude of the injuries, the fact that the loss of control occurred more than once, and the parents' inability to identify the circumstances in which it occurred, the risk of future harm remains unacceptably high. Nor should C be returned to his parents under supervision. This would not meet his need for stability and consistency of care. Contact should be reduced to the level recommended by the local authority to allow C to maintain an appropriate connection with his parents, not so that they can continue to parent him at arm's length.

Evidence given during the hearing

9. Dr Dale:

(1) He began his evidence by taking issue with the validity of the assessments made by the local authority and the Guardian. He expressed his strong concern that the views of the social worker and Guardian were based on a premise of "no confession/no return". He was personally interested in whether such a policy existed within the local authority or CAFCASS. This stance was unexpected, given that neither Ms Kelly nor the Guardian had written anything that could reasonably be interpreted in this way; indeed Ms Kelly had explicitly made it clear that denial does not preclude progress. Pressed to explain, Dr Dale accepted that he had never known such a policy in any organisation and that his reason for raising the issue was "natural curiosity about the operation of systems".

(2) Dr Dale drew attention to his own long experience and queried that of the social worker. He further contrasted the length of time that he had spent with the parents in comparison to other professionals. He was concerned that they have not spent much time "learning how the parents tick". Asked what he had learned about that, he said that they were willing to reflect, discuss and cooperate with professionals.

(3) Dr Dale initially identified the most significant risk factor in this case as being the process of managing C's transition back to his parents, and referred to the risk of over-protectiveness. He said that the risk of physical harm is at a very low level. As the parents do not have personality difficulties and the injuries were not the result of cruelty he did not see a risk in C's return with this level of family support. An explosive reaction is highly unlikely. There is no need for supervision but the presence of the grandfather in the home would reduce the risk of harm to a negligible level.

(4) He said that the level of support from responsible individual family members in this case was as great as in any case he could recall and described it as a very significant protective factor.

(5) He referred to the absence of a finding that one parent had failed to protect C from the other as a positive feature.

(6) Dr Dale at one point said that he was unclear about exactly what sort of harm the local authority and Guardian were alleging. He further said that he could see no reasoning in their reports as to why problems should recur. He referred to changes, saying that C was no longer "a very sick baby".

(7) Dr Dale asserted that serious re-injury rates after reunification in cases of this kind were very low. Asked about this in more detail, he was referred to one of his own publications in which it is said that systematically gathered follow-up information after reunification in cases of serious injury is virtually non-existent.

(8) He stated that the reduction in contact from daily to twice a week would be a traumatic loss for C. He could not fathom how substituting the aunt for the mother could possibly be best for the child, describing it as "relationship engineering". Until reminded of the contents of the other reports, he contended that no rationale had been given for this.

(9) Asked by Mr Baker about the assessment of risk, Dr Dale at one point referred to the unlikelihood that the parents would "react in a way for C to result in receiving injuries". When I asked him whether he meant "assault C", he said that this was not his choice of words. He accepted ultimately that momentary loss of control was a possibility, but some parents develop an absolute determination not to repeat what they had done and that these parents were probably in that category. Dr Dale said that insight was really important but was not able to say whether the parents had developed it. Further quesioned, he said that one can never exclude all risk. Asked whether there was no real possibility of further injury to C, he said that he could not say that it was not a possibility but he did not think it was likely. The lack of high-level stress factors in the context of informed family support and C not presenting the same parenting challenges led him to this conclusion.

10. Ms Kelly:

(1) She confirmed that her views were based on her own professional judgement and that there is no policy of the kind suggested by Dr Dale. She had spoken to the parents for at least three hours in July. She had not required an admission, but was looking for greater understanding of what had happened to C. Although he had been a small baby, his presentation had not been excessively difficult when he was at home. At the moment we have no understanding of what led to the injuries. She did not have confidence that C would be safe if returned.

(2) She felt that long-term supervision would be intense and unrealistic. It would not be a normal environment for C and would not provide him with stability. Over time she was concerned that the risk would not remain clear in people's minds. She had deliberated a lot about the reduction in contact, seeking to balance the strength of C's relationship with his parents with the need for routine and stability. If C lives with his aunt, her position as his primary carer must not be undermined.

11. The mother:

(1) She described how C has grown and developed and how difficult the current situation is. She showed two lovely albums of photographs of C with all family members in a wide variety of settings. She said that there have been changes: she and the father have been together for a lot longer, C is now a toddler, and she is different in that she now finds it hard to trust anyone. If C cannot come home, contact should not be reduced because it is working. In that situation, she worries about C's future and whether he will be bullied at school for being different and not living with his parents.

(2) The mother said that she knew that C would be safe with her and the father. She accepted that the court would act on the basis of its findings, though she did not agree with them. At the time C was at home, she did not feel overly stressed and after what has happened since, she now sees it as a basically happy time. She did not believe that C's injuries could have been caused by someone losing control of themselves. Asked how she could be so certain, she said that she would have known. Since the fact-finding hearing, she and the father had on advice each asked the other whether they had injured C and each had answered "No".

(3) The mother was willing to agree to safeguards and supervision because they were necessary in the court's eyes. The wider family is very invested in C – as the father later put it: "everybody thinks they have shares in C".

12. The maternal grandfather has been approved as a contact supervisor. He confirmed that he took this role very seriously and explained how important C has become to him. He would be willing to move in with the parents and thought that it could be made to work. Having sat through both hearings, he continues to hold the view that the fractures were due to an underlying medical condition. He does not think that either parent has assaulted C or that there is a risk of physical harm. He explained that he had found it very difficult to ask himself whether one of the parents might have caused the injuries. Since the April hearing, he had not raised the issue with either parent because he did not want his daughter to feel that her father was doubting her. He did not think that the parents could cope with being asked.
13. The father explained how difficult things are. He said that there is no risk of harm to C if he returns. He would never harm him "and God help anyone who did". He understands and respects the court's decision but it remains his view that this was a medical issue. If C came back, he would welcome his father-in-law in the home as a protection from false allegations in the future. He confirmed the mother's account of the conversations in which they have asked each other whether they have caused the injuries and said that this shows that the subject is not unapproachable.
14. The Guardian:

(1) Mr Dore disagreed with Dr Dale's view that the risk to C was low or non-existent. He said that he had hoped that C could be returned to his parents and that he did not equate injury and denial with non-return. However, he felt uncomfortable with Dr Dale's recommendations for the reasons given in his report. He considered that too much emphasis was placed on factors relating to C and things that were said to have changed. He did not consider that Dr Dale has addressed the magnitude of the risk. Despite the length of time that Dr Dale had devoted to the case, the Guardian did not find anything in his report that was not already known.

(2) He is concerned that we do not know what overwhelmed the parents. He described this as "a massive hole". He said that "a lot of circumstances are unexpected, we can't predict, we can hope that they don't happen, but they can."

(3) I asked Mr Dore for his view of the parents' inability to give any insight into what had gone wrong. He said that they do not seem to be able to think the unthinkable, but rigidly hold on to the belief that there is a medical reason. He can shed no light on how their qualities or the nature of their relationship might offer some explanation. For him, it reduces their ability to act in a protective way and in consequence the risk remains unacceptably high. Nor could he understand why the grandfather could not raise the issue with the parents, but said that it suggested that he was putting his daughter's needs above C's.

(4) Mr Dore did not favour a return to the parents under continuous supervision, saying that C needs to be safe and also needs stability and consistency of care with a clear understanding of why he is in that situation. The proposal for the parents to be supervised as main carers would be unrealistic and unnatural.

(5) The Guardian said that if C remains with his aunt, he needs an established family routine. He was concerned that boundaries should not be blurred and that the placement should not be burdened by too much contact. However, he had been persuaded by Ms Kelly that contact as frequently as twice a week was appropriate.

Analysis

15. C's welfare is my paramount consideration. I have regard to the matters in the welfare checklist, taking account of all available information, and not just the issue of C's injuries. Respect is due to the right to family life that exists between C and his parents.
16. In consequence of these core principles, the local authority's plan can only be approved if it is found to be in C's interests and if the interference with family life is necessary and proportionate.
17. The decision in this case is a heavy one. It is of profound importance for C's future and for the future of his parents and wider family, involving as it does an assessment of whether a child is safe in the care of these parents.
18. By way of clearing the ground:

(1) Denial is not an absolute bar to rehabilitation. There is no principle that prevents the return of a child, even one who has been seriously injured, to the care of parents where one or both of them has caused the injuries and both of them deny doing so. Any rule of that kind would conflict with the welfare principle. The most that can be said is that the return home of a seriously injured child to a carer who denies responsibility for proven harm is unlikely to take place without the most careful assessment having occurred. Accordingly, each case must be considered on its own facts on the basis of an assessment of the level of risk.

(2) These family proceedings are focused solely on C's welfare. They are not a judgment on the parents, still less a punishment. Their behaviour is relevant only for the bearing it has on what is right for C.

(3) In this case, I attach no significance to the fact that the parents are facing a criminal trial. The decision that has to be taken in these proceedings concerns C's long-term future and it does not turn upon the uncertain outcome of that trial. Even if the parents were convicted, this would not prevent C's later return to their care if it was otherwise safe.

(4) Although C's aunt has looked after him so well that the parents themselves describe her as a third parent to him, this does not speak against his return to them if that can safely happen.

(5) The issues arising from C's injuries inevitably attract lengthier consideration than the matters that are uncontroversial. I emphasise that the positive factors in the overall welfare assessment do not carry less weight because they can be more briefly expressed.

19. Approaching the balancing exercise, there are very clear advantages for C in reunification:

(1) It is the natural place for him to be. It meets his needs in allowing him to grow up in the care of his parents, who are his most important attachments.

(2) The parents have shown a high level of parenting capacity in relation to practical care and emotional warmth. No one looking at the photograph albums could fail to be impressed by the amount of love that there is for C and by the pride that his parents take in him.

(3) Any arrangement short of reunification carries notable disadvantages and uncertainties. If C cannot live with his parents, he will at some point in the future need to understand why that is. Even if he continued to thrive in the care of his aunt, as I expect he would, he would be living under an arrangement where he had regulated contact with his parents under a care order, with all that a care order entails. This is a quite different regime to that experienced by most children.

(4) If C does not return to his parents, and their contact is reduced, it will be a huge blow to them. They have borne up so far and have managed to keep their grief from him, but a continuation of their nightmare will be hard for them to bear and the effects may be felt by C as time goes on.

20. Despite all these powerful considerations, no one is suggesting that C should return home if it is not safe. In assessing risk, the nature of the harm and the likelihood of it occurring must be considered.
21. The nature of the harm relates to the extent of past injuries and what is known about how they came about. C suffered 26 fractures, the extent of the injuries suggesting that the situation could have been life-threatening. The injuries were inflicted on at least two occasions, the likelihood being that one parent was responsible. There is no indication that the injuries were caused deliberately. Doing the best that I could, I found it likely that the assaults were carried out by an exasperated carer who repeatedly lost control.
22. In assessing the likelihood of further serious injury, it is important to have some understanding of what led to the original events. The assessor will look for some indication of who may have been responsible and seek to understand what the trigger may have been. It will also be important to seek to understand whether there was vigilance on the part of others in the past and whether there is likely to be vigilance in future.
23. There is no formula for deciding what is and what is not safe. It is a question of overall evaluation, with each case depending on its facts. It is ultimately a question for the court, assisted by professional advice.
24. Because of the length and intensity of these proceedings, I have extensive knowledge of this family and have anxiously considered the issue of risk alongside the many strengths. Having done so, I have reached these conclusions:

(1) The parents have had every opportunity to cast some light on what happened to C. At the end of my previous judgment, I said that I hoped that they would seriously reflect on their positions and face up to their responsibilities for his sake. I made clear that their unquestioning loyalty to each other had deprived C of a level of protection and the court of their best assistance in finding out what happened to him. I commented that questioning each other might represent too great a risk to their relationship.

(2) At this hearing I have considered whether there has been any change. Unfortunately, there has not. Apart from a perfunctory formal exchange of questions on legal advice, there has been no real effort by either parent or by any other family member to provide any clue to what happened to C. The parents are suffering, but have shown themselves unable to address the cause of their suffering. They have played a dead bat to all efforts to shed the smallest light on how C was injured. Despite the extensive, sympathetic family network and the many sympathetic social workers and lawyers who have been available to the parents, there is no hint of which parent injured C, so that he or she can be helped to avoid a repetition. There is no hint of how much the parent who did not cause the injury knew about what was happening, so that he or she might be helped to act protectively in future. The court is in the dark.

(3) Having considered the competing professional advice, I prefer the evidence of Ms Kelly and Mr Dore to that of Dr Dale. They gave appropriate weight to the many positives and faced up squarely to the risks as they saw them. They paid careful attention to Dr Dale's opinions, to a degree that was unfortunately not always reciprocated. Their evidence was careful, lucid and child-focused and I accept it.

(4) For all his length of experience and time spent with family, I found the evidence of Dr Dale unconvincing. I do not accept a number of the important planks upon which his opinion depends:

(i) His assertion that the level of risk in this case is low or minimal was largely unsubstantiated. I do not accept his assertion that there has been significant change in the overall circumstances since C was last at home so that the stresses have significantly reduced. Those circumstances were not abnormally stressful in themselves and the demands of looking after a toddler would not be very different. Nor do I accept that either parent has shown or given any insight into the nature of the situation that proved so dangerous to C. In fact, Dr Dale's enquiries did not elicit any new information at all, yet he gives no weight to this marked feature of the case.

(ii) I do not accept that the greatest risk to C arises from arrangements for his transition to his parents' care. The greatest risk is self-evidently one of repeated injury, but Dr Dale was notably avoidant in relation to this question and even affected not to know what harm the local authority apprehended. I do not consider that he directly addressed the serious risks that are inherent in this case, his circumlocution being symptomatic. He repeatedly shifted his ground when his initial formulations were tested. His use of statistics, when explored, was found to be lacking in content. His reliance on the fact that no failure to protect was found was puzzling when the reason for the court's inability to consider the issue is properly understood.

(iii) Dr Dale's attempt to discredit the competing professional opinions was disappointing. There was not the slightest pretext for him to have suggested that his colleagues approached their task on the basis of a policy or an inadmissible premise. Nor was there any justification for querying their experience or the length of time that they have spent on the case. In fact, Ms Kelly has known the parents through thick and thin for well over a year and in my assessment she knows this family better than any other professional, without letting her judgement of C's welfare become unbalanced.

25. Having considered all the evidence, and most particularly that of the parents themselves, I have reached the conclusion that C would be at real risk of serious physical harm if he was now returned home. The alarming extent of the previous injuries and the almost complete absence of any explanation makes it impossible to reach any other conclusion. The lack of information is so striking that, as Mr Loveridge puts it, it is almost impossible to make a more closely reasoned assessment of risk.
26. I am very concerned by the apparently intractable position of the parents. Information is offered to them in abundance but, for whatever reason, nothing is offered by them. Instead, the situation has been reached the point where meaningful discussion of the possibility that one or other of them has injured C has become impossible. The topic is so emotionally charged for the parents that it has effectively become a no-go area for them and other family members. Neither parent is even able to accept that there is a real possibility that C was injured by the other. The psychological roots for this state of affairs are hidden from view. The situation is profoundly worrying and I have no confidence that either parent would be consistently and reliably protective in relation to a risk that might arise in any way and at any time.
27. My conclusion in relation to the likelihood of harm means that it sadly cannot be in C's best interests to return to the unsupervised care of his parents.
28. The court's powers are sufficiently flexible to allow for a return under supervision. However, for the reasons more fully given by Ms Kelly and the Guardian I do not consider that this would be right for C. I accept that the continuous presence of a family member would go some way towards reducing the likelihood of serious physical harm, but it would be wholly artificial to expect C to grow up under such conditions. There is a great difference between a multigenerational family household and an arrangement where neither parent can be allowed to be alone with a child.
29. I will therefore make a care order on the basis of the local authority's plan for C to remain in the long-term care of his aunt. I will also approve the proposal for a phased reduction of supervised contact to twice-weekly. The local authority will consider contact levels on an ongoing basis. There is every reason for flexibility in planning in this unusual situation and if it is concluded that the proposed level is too little or too much, different arrangements will no doubt be made in discussion with the family.
30. The outcome in this case is tragic, particularly as a different outcome might have been achieved with the genuine co-operation of the parents. As it is, the proceedings, which have unavoidably been in existence for 65 weeks, are now concluded.