England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT MILTON KEYNES
(FORMERLY IN THE MILTON KEYNES COUNTY COURT)

		351 Silbury Boulevard (Rear), Witan Gate East, Central Milton Keynes MK9 2DT
		14/05/2014

District Judge Hickman:

Introduction

1. I heard this case over six days ending on 25th April 2014. I wished to put my decision in writing for two reasons. Firstly, an important issue appeared to arise concerning special guardianship and I wished to have the opportunity to consult with the Designated Family Judge for this area, His Honour Judge Antony Hughes before making the observations on this subject which appear starting at paragraph 102. Those observations, which have Judge Hughes' approval, may be of relevance beyond this case, and I propose to put an anonymised version of the judgment in the public domain.
2. Secondly, A has been assessed as having an IQ of 59. I wanted to try to set out my decision and the reasons for it in appropriate language. I have tried to do this by way of short summary passages which do not attempt to set down everything but which I hope sketch out my reasons.
3. I heard four days of live evidence, from which I have 57 pages of notes, and I have had a lever arch file of documents. I have been able to watch DVDs of two contact sessions. The fact that something is not mentioned in terms in this (quite lengthy) judgment does not mean that I have not taken it into account.
4. In this case I am concerned with X and Y, boys whose parents are A and B. The welfare of X and Y is my paramount consideration.
5. Let me say one thing right at the beginning. This case is not about children who have been abused or injured. It is not about children who have been neglected by not being fed or clothed, or not being sent to school. And it is certainly not about children who are unloved. At the end of giving her evidence to me, Mother told me tearfully and at some length of her love for her boys. I told her then, and I repeat, that everyone in the case, the social workers, the expert witness, the Guardian and the lawyers, and certainly myself as the judge, accepts that she does love them deeply.
6. This case, sadly, is about whether the parents, and in particular Mother, can meet the needs which these boys now have.
7. X was born on the 29th November 2008 and so is aged 5½; Y was born on the 18th August 2011 and so is aged 2½. They were represented before me, through their Guardian, by Mr Sheridan; the local authority Milton Keynes Council was represented by Ms Clark.
8. A was represented by Ms Shah; B was represented by Mr Curran.
9. A and B are not married to one another. At the start of the proceedings, B did not have parental responsibility for X and Y and without opposition I made a parental responsibility order in his favour at the start of the hearing before me. I propose to refer to the parents as Mother and Father respectively and intend no disrespect by this.
10. A is of Pakistani Muslim descent. B is black African.
11. Briefly the procedural history of the matter is that the care proceedings commenced on 25th November and accordingly the 26 week timetable runs to 27th May. Concern was expressed that A had indicated to the local authority that if there were a possibility of the boys being removed from her care she would simply take them out of the country, and accordingly an order was sought under the wardship jurisdiction which was granted by His Honour Judge Corrie on 27th November 2013. That order was, of course, automatically discharged on the making of an interim care order in December 2013. The boys have been in foster care since December and it is right to say that they appear to have struck very lucky indeed, the foster family appearing to meet their needs admirably.

Summary.

This case is about X who was born on 29th November 2008, and his brother Y who was born on 18th August 2011. Their welfare is my first concern.

They are the children of A ("Mother"), who is a Muslim of Pakistani descent, and B ("Father"), who is black African.

Everyone in the case accepts that Mother loves her sons very deeply. The question is whether Mother and Father, and particularly Mother, can meet their needs.

The background to the case.

12. The case arises in this way.
13. X, as I have mentioned, was born in November 2008. Mother and Father were not married to one another and given Mother's background this appears to have caused serious friction with her family.
14. In May 2009, Mother was housed in a refuge with X, stating that she was fleeing domestic violence. Her case before me was that that was a lie, simply told to secure housing, which she obtained in September 2009.
15. I should note that the Council conducted an initial assessment in July 2010 when advice was given but it was not felt that any further intervention was needed.
16. In the autumn of 2010, Mother went with X to Father's country of origin, where they lived with Father's family. Mother then returned to the United Kingdom.
17. It is clear that X formed a very close relationship with his paternal grandmother which was disrupted when he was brought to the United Kingdom following the birth of Y, and reunited with Mother. The accounts I was given of precisely how long X spent in Africa differ. It is clear, however, that he spent a considerable time there, apart from Mother.
18. He was placed in a nursery about two days after his return. This was difficult for him In Africa, he had learned to communicate in his grandmother's native tongue; his mother speaks English and Punjabi and the nursery workers of course spoke English.
19. Mother, to her considerable credit, recognised that she was having difficulties in her parenting and approached the local authority. She worked with the Parenting+ programme and I received written evidence from Alison Redman who provided that programme.
20. Much has been made of the fact that at that time Mother had not been assessed as having a significant learning disability, as she is now known to have. But the Parenting+ programme is an intervention which would have been regarded as appropriate even had that been known.
21. Ultimately, the local authority's assessment of Mother's parenting was that it was

"controlling withdrawing… classified as high risk"

22. At times, Mother appeared to accept the local authority's concerns; at other times she appeared (and still appears) not to understand them at all. Thus her comment on 25th July 2013 to Ms Redman:

"We are fine, we don't need help…"

23. And most worryingly of all what happened on 20th March this year when a meeting took place between the parents, Louise Neate, who by that time had taken over as social worker from Michelle Rant, and the Independent Reviewing Officer Julia Roberts.
24. Mother accepts that she hit Ms Neate, and I say no more about that because it remains the subject of Police involvement. But Mother is reported as declaring:

"Do you expect me to sit here and listen to your bullshit?"

25. Mother accepts that she has told lies, and Miss Shah and Mr Sheridan invited me to consider Lucas, a case which emphasises that people may lie for many reasons and that the fact that someone has lied on one matter does not mean that the whole of their evidence should be rejected. In this case, what troubles me more than Mother telling lies from time to time is that I see no basis at all for supposing that she would be able to work constructively, honestly and consistently with the Local Authority.

Summary

X was taken to Father's country of origin for some time when he was very young and stayed there away from Mother. When he returned to England it was difficult for him because he had become very close to his grandmother and hardly knew his mother, and he spoke his grandmother's native language, not English.

Mother sought help with her parenting. While she managed to make some improvements, the Council regarded her parenting as damaging to the children.

Mother accepts that she has told a number of lies at various times, but what matters more to me is that she does not really seem to understand the Council's concerns.

What I have to decide

26. At the start of the hearing, the threshold for local authority intervention was conceded and I have to consider disposal. The threshold document at A1 sets out three matters:

i) Mother's lack of emotional availability to the children;

ii) Mother's failure to meet the children's emotional needs;

iii) Mother's inability to prioritise the children's needs;

iv) Mother leaving the children at home alone or with inappropriate carers.

27. The last of those is challenged but the first three matters are accepted.

Summary

The parents accept that the children have suffered harm and that the Council can ask the court to make care orders. The question is whether I should.

What the parties ask me to do

28. The local authority ask me to make care orders in respect of the boys on the basis of care plans which envisage that if possible they will be placed for adoption. Should this not prove possible, the Council look to the children remaining with their current carers to prevent them experiencing any further moves. The existing foster placement is described as nurturing and supportive.
29. Until late in the proceedings, the local authority were considering the viability of placing the boys with their paternal grandparents in Africa. Following the receipt of a viability assessment, the local authority no longer pursues this as an option.
30. The Guardian, after a hesitation which I shall describe, supports the local authority's care plan.
31. Mother's primary position is that the boys should be returned to her care with appropriate support, backed either by a care order or by a supervision order. Failing that, she seeks an adjournment to enable a residential assessment under section 38(6) of the Children Act 1989.
32. Father's primary position is that the boys should be returned to their mother; he sees no problems with their mother's care of them. Failing this, the boys should live with him as their father. His third option would be that they live with his parents.

Summary

The Council are asking me to make care orders providing for the boys to be placed for adoption. If that is not possible, the Council will try to see that they stay with their existing foster carers. The Guardian supports the Council's proposals.

Mother asks me to return the boys to her; or to order a residential assessment of the boys with her.

Father supports Mother's case. If the boys cannot live with Mother he believes they should live with him, or failing that with his parents.

What my decision will be

33. I shall not keep the parents in suspense. I think this is a case where care orders must be made on the basis of permanent placement away from the birth family, though there are aspects of the care plans which I again invite the local authority to reconsider very carefully. I am not going to grant Mother's application for a further assessment.

Summary

I am refusing Mother's application for a residential assessment.

I am going to make care orders, which will mean that X and Y will be living permanently away from Mother and Father.

Witnesses.

34. I heard from six witnesses, in addition to which I had a lengthy written statement from Alison Redman, a Parenting Plus practitioner, which is at page C21 of the bundle.
35. Michelle Rant is a social worker who has recently left Milton Keynes Council and is now employed by another local authority. She was allocated to the case in August 2013. I have two statements from her which are at pages C1 and C58 of the bundle.
36. I found her a conspicuously fair and professional witness. She accepted unreservedly the improvements which had been observed in Mother's emotional warmth towards the boys. She was asked to comment on an incident at the first hearing where Mother apparently had to be physically restrained by her counsel, and said very compassionately:

"That was a very difficult situation for A".

37. Her conclusion, informed by the evidence of Dr Schnack to which I shall come in a moment, was that while she accepted that there had been significant changes on Mother's part, they were very recent, she was concerned about how sustainable the changes actually were, and at times of stress she believed Mother would once again be likely to withdraw from the children.
38. Dr Kirren Schnack gave evidence to me. I should mention that she is herself of Pakistani origin and very sensitive to the need for testing and assessment to be culturally appropriate. She said:

Within the Western population norms, there are minority ethnic groups. The Wechsler tests have not been referenced to communities born in Africa or Asia.

Some tests are more culturally biased; so you may do an additional test, and take the better score.

One of the tests relies on the subject having a fund of knowledge. So one test might ask "Name a Prime Minister from World War II"; another might ask instead "What should you do if you find a wallet in the street?"

There is no better test available.

39. She produced a psychological report dated 7th March, which assessed Mother as having an IQ of 59, representing a significant learning disability. That report is at page E20 of the bundle. It assesses Mother as suffering from an anxiety disorder of mild-moderate severity, as having difficulties with emotional regulation and distress tolerance, and as being influenced by her background, cultural beliefs and personality traits.
40. She described the boys as presenting with varying degrees of disturbed attachment symptoms and impaired emotional relating.
41. At page E45 she says:

"…the intensity of parenting required for the children is very high…"

and at E47 she describes at length and in detail the vulnerabilities from which the boys suffered.

42. Following the Guardian's observation of recent contact, Dr Schnack was invited to look at the matter again and she produced a second report which was dated 16th April and appears at page E104. That report was done at speed, but I do not accept that the situation is in any way comparable to that which was understandably criticised by Pauffley J in Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam) where the expert was

asked, and was prepared, to provide a report during the course of a single working day, a terrifyingly tight timeframe, and on the basis of papers supplemented by a telephone conversation with a local authority professional who had never met the mother.

43. Dr Schnack acknowledged that

There were some areas of improvement…;

A appeared to be happier and warmer towards the children, and she smiled more. A's ability and willingness to engage in play sequences with the children was observed. … Overall, A engaged in lots of play with the children, which is positive to see.

44. Amplifying that in her oral evidence, she said:

The key is a safe and secure and warm relationship with an adult.

I don't doubt that Mother is willing to work towards it. I do seriously doubt her ability to provide the intensity of what is required.

Q - Could Mother not work towards improving the relationship? A - I don't think the possibility of that exists. Taking out the learning difficulty, someone with her psychological profile would need therapeutic intervention two or three times a week over two years or more. An intellectual deficit on top of that makes it more difficult.

Improving requires the ability to self-reflect. Her ability is severely limited. Usually in the NHS someone with A's IQ would not be offered psychotherapy because she would not be considered able to benefit…

X is emotionally damaged… It was hard for him when he returned from Africa.

It would be preferable for X to stay at home with Mother to do the necessary work if that were possible. I do not think it is possible. There is violent play, and anxious behaviour. You can't repair the behaviour in absence of repairing the attachment.

Interaction is developing, but you can't say the attachment is improving. An attachment does not develop in such a short space of time.

45. She expressed concern at the notion of the boys being placed with their grandparents:

I was deeply concerned by the suggestion that A might wish for the children to relocate to Africa.

… Ruling out the grandparents was not a knee jerk reaction. I am considering the psychological impact of migration to another country. If you are going to live in an amazing family, the effect of migration is still dramatic.

I am supporting that the children go to someone who can provide an attachment which will repair the damage already done. The impact of transition is huge.

46. What Dr Schnack said about the boys' needs was important:

Q - Are you not overemphasising the fact that two little boys have aggressive behaviours? A - No. Children who have not had the experiences these children have had can cope with good enough parenting. These children need optimum parenting.

47. There are a couple of respects in which I am not sure I accept Dr Schnack's analysis. [The first of these is omitted in the interest of anonymisation]. …
48. Secondly, Dr Schnack referred in somewhat black and white terms to violence being threatened against a child, including in that a threat to smack a child. I do not necessarily think that she allows sufficiently for the fact that English society has proved remarkably attached to the idea of physical punishment (see, for a particularly extreme illustration, the unsuccessful argument in R (Williamson & Others) v. Secretary of State for Education and Employment [2005] UKHL 15).
49. That said, I think it is highly probable, as I shall explain when I consider the Guardian's evidence, that X has been exposed to violence, and specifically from Father.
50. Having considered a long, and superficially encouraging, DVD of contact during April, Dr Schnack adhered to her clear opinion that Mother could not meet the boys' needs. She was asked in terms:

Going forward, with appropriate support, she could be a safe and effective parent?

51. She replied:

I cannot agree. The children have become less challenging. [Mother] has not had the demands of full time parenting. The demands will increase if the children are returned to her.

Q - If she maintained level of parenting 24 hours a day over a long period, would you review your opinion? A – It is difficult to answer that question. But the impact of moving from a foster placement to that placement, if it didn't work, would be damaging.

52. In his closing submission to me, Mr Curran declared that

It is not the professionals who decide cases. Courts will not permit shoddy evidence to prevail over the needs of the children

citing as authority for that statement the judgment of Ryder LJ in re W [2013] EWCA Civ 1227. There were two difficulties with this submission. The first is that Ryder LJ was dealing with an entirely different point, the problem of the local authority that sought to say to the court "We note your decision, but we don't accept it and we are not prepared to implement it". The second is that the expert evidence in this case is far from shoddy. It is considered and remained unshaken in cross examination.

53. It is of course open to the court to decline to accept the evidence of an expert, but the judge must have solid material allowing him to do this. The dangers of the judge substituting his own view are made clear in Re B (A Child) (Split Hearings: Jurisdiction) [2000] 1 FLR 334, a case where there was clear expert testimony pointing to non-accidental injury but the judge rejected it on the basis that he did not accept that the potential perpetrators could have inflicted the injury.
54. Dame Elizabeth Butler-Sloss P stated (at 339):

"…This is a very experienced judge for whom everyone would have the greatest possible respect. But the judge does have an obligation to give reasons why he should set aside the medical evidence, which was strong, in favour of his view that, because the grandmother and the other witnesses were clearly not lying, the medical evidence could not stand. He did not, for instance, deal at all with the explanation given by Dr Hall as to why, on the evidence of early healing, the injury had to be at least 7 days old.

Mr Ames, in a valiant attempt to support the judge, has suggested that, because dating of injuries is an imprecise science, and that, in effect, is what both the radiologists have said, that the judge was entitled to prefer the impression of Dr Newson. I fear that will not do. In a case such as this where the expert evidence, and here the expert evidence of the radiologist was all one way, the judge is certainly entitled, if he has evidence that he can rely upon to the contrary, not to accept that evidence. In my view he did not have that evidence in this case. He did not, in particular, have evidence that made the uncontroverted medical evidence logically unsupportable. The judge failed to analyse the evidence and give any reasons. The credibility or otherwise of the lay witnesses on the facts of this case, in my view, cannot stand so high as to make the evidence of the two consultant radiologists of no effect." (Emphasis added)

Otton LJ stated (at 340H):

"The circumstances when judges… can reject the evidence of a body of medical opinion are rare. This situation was considered by the House of Lords in Bolitho (Deceased) v City & Hackney Health Authority [1998] AC 232 … per Lord Browne-Wilkinson at 243:

"In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion … But if in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of medical opinion is not reasonable or responsible".

I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable …"

I cannot reach that conclusion about Dr Schnack's evidence.

55. I heard from Louise Neate, who has taken over from Michelle Rant as social worker in the case. Her statement is at page C83.
56. She described the care plans which were being put forward, explained the Council's view of the parents as potential carers and in particular the Council's desire for permanency for the boys. I accept her evidence.
57. Belatedly, due entirely to the delay on Father's part in providing their details, the Council had secured a viability assessment of the paternal grandparents. This was carried out by a social worker and a Senior Practitioner and is dated 12th April 2014. It appears at pages C129 to C159 of the court bundle and is a thorough and professional piece of work. It is right to say that from that assessment the grandparents appear to be two admirable people. However, as Ms Neate explained, given among other things their ages (he is 75 and she is 65 in a country where according to the World Health Organisation the life expectancy is in the 50s for men, a bit more for women), the language issues, the fact that Y has never been to the grandparents' country of residence, the effect of a move to another country, and the probable need of the boys for intensive input from child mental health services, the Local Authority determined not to proceed with the idea of placing X and Y with their grandparents.
58. As I have mentioned, there was an altercation involving Ms Neate and Mother on 20th March, and I am not sure that either she or Mother have been left in a comfortable position as a result. Ms Neate was left having to work, after a fashion, with someone who had assaulted her, having to get colleagues to make calls to Mother and having to arrange to be accompanied if she met her. It might have been easier for all concerned if she could have been replaced as social worker in the case. However, I do not believe that this has materially affected any of the evidence given to me.
59. Mother gave evidence to me over two days. Her first statement is at page C20B of the bundle and her second statement at page C94.
60. On the first day she was patently terrified, barely able to speak audibly. On the second day, her presentation was very different, almost aggressive and angry, until the last few minutes she spent in the witness box when she cast the lawyers aside, turned to me and explained, very emotionally, how much she loved her sons, finally pleading, with tears in her eyes:

"But, My Lord, if my sons can't come back to me, please don't let them be split up. Please don't let them be split up".

As I have already said, her love for the boys is absolutely clear.

61. I am not sure how much of Mother's evidence about the history of the case I can accept. About several matters, her moving to a refuge, her discussions with the social workers in early 2013 and so on, she accepted that she had lied. Her explanation was along the lines of:

"I lied because I thought I would get more support…"

"I just lied with the feeling it was going to help me out"

62. I did not find this convincing.
63. Her account of the time that X spent in Africa was not clear and I am not sure of the precise period that X spent there. I am also not clear about what communication took place between X and his mother during that period. Did she ring him? Was Father in Africa with him and telephoning Mother? Was there any communication which X would have understood as being with his mother?
64. She assured me that Father had had a lot of contact with the boys and that there had been no violence in the relationship. I am afraid I found it difficult to accept this.
65. And one passage from towards the end of her evidence sums up the difficulty. She was asked about an incident at the contact centre when X reacted violently to discussion of his father:

Q - Is that behaviour by X worrying? A - He's a child, he's going to play up.

Q - He kicks a rabbit, he pokes it with a stick, he smashes his computer, he spits at people… A - I didn't see him spit.

Q - Do you agree that behaviour's worrying? A - That's what you've got the local authority for.

66. Overall, I concluded that Mother is genuine in her love for her sons, and that she has some insight into their difficulties but does not really understand how great they are.
67. I heard from Father. He wrote a preliminary letter to the court on 29th November last which is at page C20A and his substantive statement in the proceedings is at page C123.
68. I regret to say that I found him a wholly unsatisfactory witness. He was directed to file his statement by December 2013. It in fact appeared in April 2014. He put himself forward to be assessed as a possible carer on 19th December and retracted that the following day. He then changed his mind again in March.
69. He was asked to provide information about how he became a British Citizen, and refused. He mentioned that he had other children but refused to give details about them.
70. He had no remotely convincing explanation for any of this.
71. He claimed to have been in Africa the whole time X was there, but also to have been present (in the UK) when Y was born. As Mr Sheridan dryly inquired,

How were you in two places at once?

72. He could not remember the month in which either boy was born. He could not remember, even approximately, the dates when the family was in a refuge.
73. He was asked

Describe your relationship with the boys.

74. His vague reply was

Just as a good father to them.

Q - Can you explain why X seems to be frightened of you? A - He's not.

Q – In Dr Schnack's report at E75, we read "[Father] naughty, he hit me…" Why did he say that? A - I can't answer that question 'cos I wasn't there.

Q - During contact on 12th April, at page 48 of the contact notes, X scribbled over your face and kicked the rabbit. A - To my knowledge, when he was shown the picture at first he didn't behave like that. It wasn't connected.

Q - When the guardian asked X if he wanted to see you he wouldn't talk to her and ran into another room. Why? A – I can't answer that question.

75. And on the central issue of the boys' difficulties and their needs, I can do no better than to sum his position up in his own words:

It's just Social Services saying these words.

Dr Schnack, she doesn't know me.

There is no reason why the kids can't go back to their mother. When I was there I didn't see anything that caused me concern.

The concern I am just hearing from Social Services.

No worries, it's easier if they return to live with her.

76. Quite simply, I do not believe that Father has any insight whatsoever into the boys' needs, I do not think he has been honest with the Local Authority or with me, and I do not accept any of his evidence on any material issue unless it is reliably corroborated.
77. I heard from the Guardian [whose name I omit in view of certain evidence she gave concerning her own family – see paragraph 83]. She supported the Local Authority's care plans providing for the boys to remain in their current foster placement while an adoptive placement was sought. Cognitive assessments are being undertaken and her view was that when those were completed, any necessary therapeutic work could be undertaken in conjunction with planning for adoption.
78. X is of course over five years of age; the intention is to place the two boys together (it may reassure Mother to note that the relationship between the two brothers is something that all the professionals regard as especially important); and the boys have a distinctive ethnic background. None of that will make it easy for them to be placed for adoption. Accordingly the Guardian was particularly concerned about any delay in seeking a permanent placement.
79. She retained an open mind. She regarded the April contact as very positive – as did I when I viewed the DVD – and asked Dr Schnack to review her evidence. She arrived at her final analysis in the light of that.
80. There are a number of passages from her oral evidence which I think it is appropriate to note.
81. There was one extremely concerning exchange with X concerning Father:

I casually said "What about Dad?" I was completely ignored. I told X I had seen Father. He said "No, you saw Mummy" and immersed himself in activities. I let this go for a bit. Then I said "Do you want to see daddy?" He completely ignored me.

The third time he got up and left the room. It was a fight or flight response. My impression was very much – I can't deal with this.

82. As she concludes,

"The children present indicators they have been exposed to domestic violence. They have been exposed to something…"

83. Dealing with the children's difficulties and how the foster carers met them, she said:

I am the mother of two adopted children. One of them reminds me of X in terms of attachment difficulties. He has been with us for two years. There are days when I struggle, and I am a trained professional. I am concerned about [Mother].

I think there is less than a 1% chance of the placement breaking down. The relationship is good and the children have been extremely lucky….

This [foster-] mother displays a higher level of commitment that most foster mothers. She gave up her part time job to care for these children. Even with two of them, they have had to involve their elder son. One day Y had to be brought out of nursery and met. They could not get him into the taxi and she had to call her elder son to get Y home safely.

Summary.

I heard from the social workers Michelle Rant and Louise Neate and accept their evidence.

I heard evidence from Dr Kirren Schnack. While I disagree with her on one or two points of detail, I have no basis on which I could reject her expert assessment. She found that Mother had an IQ of 59. She found that Mother had some significant psychological issues of her own. She found that the boys had seriously disturbed attachments which were the reason for difficulties with their behaviour. She considered that they needed "optimum parenting".

I heard from Mother. She was very nervous on the first day, less so on the second. I entirely accept that she really loves her sons. But I am not sure how much of her evidence I can accept. She admits that she has told a lot of lies in the past but I am not sure whether she was lying then or is occasionally lying now. I do not think she really understands how great her sons' needs are.

I found Father's evidence unsatisfactory and I do not think that he understands his sons' needs or the Council's concerns. I do not think he could meet his sons' needs.

I heard from the Guardian. She supports the Council's position, but had kept an open mind. She asked Dr Schnack to look at the case again after watching a recent contact DVD. Her evidence to me about X's attitude to Father was very worrying.

Mother's application.

84. As I have mentioned, Miss Shah on behalf of Mother applied for me to adjourn the case and order a residential assessment of Mother under section 38(6) of the Children Act 1989. What was proposed was an initial viability assessment to take ten days starting on 19th May, followed if appropriate by a period of assessment and a detailed report.
85. The most recent guidance on this section is of course that of the President in re S. I have borne in mind that case, and the other guidance from the Court of Appeal.
86. As re S reminds us, the matter is now governed by, among other things, s 38(7B) which provides:

(7B) When deciding whether to give a direction under subsection (6) to that effect the court is to have regard in particular to –

(a)

any impact which any examination or other assessment would be likely to have on the welfare of the child, and any other impact which giving the direction would be likely to have on the welfare of the child…

87. One clear and certain detriment which would be experienced by the boys would be another move, essentially on an experimental basis, in a case where attachment problems are at the heart of the matter.
88. Even the viability assessment would take the matter outside the 6-month timetable.
89. Can it be said that the assessment is "necessary" to enable to case to be dealt with justly? At paragraph 38 of his judgment, the President indicates (specifically with reference to the approach of the Family Drug and Alcohol Court, but the approach is applicable here also) that what was needed was

a robust and realistic appraisal at the outset of what is possible within the child's timescale and an equally robust and realistic ongoing appraisal throughout of whether what is needed is indeed being achieved (or not) within the child's timescale. These appraisals must be evidence based, with a solid foundation, not driven by sentiment or a hope that 'something may turn up'. Typically three questions will have to be addressed. First, is there some solid, evidence based, reason to believe that the parent is committed to making the necessary changes? If so, secondly, is there some solid, evidence based, reason to believe that the parent will be able to maintain that commitment? If so, thirdly, is there some solid, evidence based, reason to believe that the parent will be able to make the necessary changes within the child's timescale?

90. There is clear evidence that Mother wants to meet the boys' needs, but there is also clear evidence that she is not going to be able to meet them within the boys' timescale. There is no gap in the evidence to be filled, and really, the basis for the application seems to be set out at paragraph 58 of Mother's second statement, at page C112, where she says:

I am aware that Dudley Lodge are able to support parents like myself by offering an initial residential assessment which spans 10 days, free of charge. If this is positive, then a case can be made for the Local Authority to take on the expense of a full residential assessment. I accept that I am bringing up this matter very late in the day but until now I did not feel I had done enough work to justify such an application. After all, the care order was made only three months ago and I have not had the benefit of much time. (Emphasis added).

91. Sadly, were I to order an assessment here it would be the clearest case of hoping that 'something might turn up'.

Summary.

This is not a case where I can say that a residential assessment is necessary. There is clear evidence that Mother is not going to be able to meet the boys' needs.

Conclusion.

92. This is a case where the outcomes proposed by the parents, and by the local authority, are at the two extremes – permanency away from the family, or return to Mother's care. I shall consider the alternatives in turn.
93. The advantages of return to Mother's care would be that the boys would be brought up within their birth family, by a woman who undoubtedly loves them very much indeed. Mother has shown that she is well able to meet the boys' material needs to be fed and clothed, and educated. The disadvantages would be that their needs (as assessed by Dr Schnack) are for more than good enough parenting. Their behaviour is frequently challenging, and with her own issues and her accepted learning disabilities Mother would not be able to meet their need for more than good enough (or "optimum") parenting and would struggle to deal with their behaviour at times.
94. Father proposed as an alternative that they should live with him. I do not regard this as a realistic possibility. X's presentation strongly suggests that he is indeed frightened of Father. Father has shown no insight whatever into the children's needs, and no capacity whatever for working constructively and honestly with the local authority to meet those needs. I do not doubt that in his own way Father loves the boys, and that is a positive; but it does not begin to meet the negatives.
95. The possibility of placement with the paternal grandparents is no longer pursued by the local authority, and I am not clear that it is being seriously proposed by anyone else although Father said

"..after the mother it should be me, after me, the grandparents"

96. The positives of placement with the grandparents would be that they are undoubtedly two admirable and thoroughly decent people with a genuine love for the boys, even though they have never actually met Y. The negatives, sadly, are many. A move to their country would entail another disturbance for boys who have already experienced too many. A move to a non-English-speaking family would be highly undesirable for a boy who speaks English and Punjabi and is suffering, as X is, from speech and developmental delay. We are told that these boys will need considerable support and professional intervention, possibly during the rest of their childhood; it is not clear how this would be provided in the grandparents' country where health spending is much lower than in the UK. And how would the Local Authority monitor delivery of a care plan to two boys who had become ordinarily resident in Africa?
97. The local authority's care plan is, broadly, for permanent placement away from the birth family. I express it in that way because although the local authority propose to seek the boys' adoption, it is recognised that this may prove difficult. There are two of them; X is over five years of age; they are male; they are Muslim and of a rather unusual dual heritage; they have behavioural difficulties and may well have cognitive difficulties as well. As the Guardian put it,

"The adoptive parents would have to be pretty incredible people".

98. So if the local authority do not succeed in placing the boys for adoption within about twelve months, the plan is to seek their long term accommodation with the existing foster placement. Two matters are made clear: the local authority will not be proposing that the boys be separated from one another (which will be of some small comfort to Mother); it is very clearly recognised that a succession of short term placements would be highly damaging.
99. The advantage of a settled long term placement is above all that this offers the best prospect of repairing the boys' damaged attachments and addressing the underlying causes of the disturbed behaviour of X in particular.
100. The disadvantages are of course the removal of the boys from their birth family and the possibility, which Ms Clark in closing submissions frankly described as potentially disastrous, of a breakdown of the placement. The Guardian, though, went so far in her evidence as to estimate the chances of the existing foster placement breaking down as being less than 1%.
101. I am clear that placement with Father or the grandparents is simply a non-starter, that rehabilitation with Mother would not meet the boys' needs, and that nothing other than long term settled placement away from the birth family will do.
102. But I am concerned that one form of long term placement that has not been realistically explored by the Local Authority, or by the Guardian, appears to be Special Guardianship, which the Guardian considers only in the context of a family member being appointed as special guardian and the Local Authority considers not at all. This case, I recall, concerns two boys who are Muslim; and X in particular is taking a serious interest in his Muslim heritage.
103. The author "Huda" writing on the website Islam.about.com expresses the matter in this way:

The Prophet Muhammad (peace be upon him) once said that a person who cares for an orphaned child will be in Paradise with him, and motioned to show that they would be as close as two fingers of a single hand. An orphan himself, Muhammad paid special attention to the care of children. He himself adopted a former slave and raised him with the same care as if he were his own son.

However, the Qur'an gives specific rules about the legal relationship between a child and his/her adoptive family. The child's biological family is never hidden; their ties to the child are never severed. The Qur'an specifically reminds adoptive parents that they are not the child's biological parents:

"...Nor has He made your adopted sons your (biological) sons. Such is (only) your (manner of) speech by your mouths. But Allah tells (you) the Truth, and He shows the (right) Way. Call them by (the names of) their fathers; that is juster in the sight of Allah. ."

(Qur'an 33)

104. Of course, in English law, an adoption order has the effect of making the adopted child, for all purposes the child of the adopters. There undoubtedly are observant Muslims who are prepared to accept the idea of adoption, in the same way that there are undoubtedly Roman Catholics who accept the laws of divorce. But it must plainly be right to respect the view of any devout Muslim, who says in the face of that teaching contained in the Qur'an that adoption as understood in English law is unacceptable.
105. One of the purposes for which the concept of special guardianship was introduced was to deal with children who, because of cultural or religious factors, could not be adopted.
106. The Court of Appeal discussed the matter in a case called S (A Child) [2007] EWCA Civ 54, and I quote from paragraph 11 of their judgment:

"…the White Paper recognised that adoption was not always appropriate for children who cannot return to their birth parents. The concept of special guardianship was introduced and discussed in paragraphs 5.8 to 5.11 of the White Paper in the following terms: -

'Special guardianship'

5.8 Adoption is not always appropriate for children who cannot return to their birth parents. Some older children do not wish to be legally separated from their birth families. Adoption may not be best for some children being cared for on a permanent basis by members of their wider birth family. Some minority ethnic communities have religious and cultural difficulties with adoption as it is set out in law. Unaccompanied asylum-seeking children may also need secure, permanent homes, but have strong attachments to their families abroad. All these children deserve the same chance as any other to enjoy the benefits of a legally secure, stable permanent placement that promotes a supportive, lifelong relationship with their carers, where the court decides that is in their best interests.

5.9 In order to meet the needs of these children where adoption is not appropriate, and to modernise the law so as to reflect the religious and cultural diversity of our country today, the Government believes there is a case to develop a new legislative option to provide permanence short of the legal separation involved in adoption. This view was strongly supported by respondents to the consultation on the PFU report.

5.10 The Government will legislate to create this new option, which could be called 'special guardianship'. It will only be used to provide permanence for those children for whom adoption is not appropriate, and where the court decides it is in the best interests of the child or young person. It will: -

give the carer clear responsibility for all aspects of caring for the child or young person, and for making the decisions to do with their upbringing. The child or young person will no longer be looked after by the council;

provide a firm foundation on which to build a lifelong permanent relationship between the carer and the child or young person;

preserve the legal link between the child or young person and their birth family;

be accompanied by proper access to a full range of support services including, where appropriate, financial support.

107. It troubled me, and it still troubles me, that in a case where permanence is sought and where placement with a Muslim family is sought, the idea of special guardianship as an alternative does not appear to have featured on the radar of Cafcass or of the local authority in any meaningful way at all. I invited the local authority to consider it as part of its care planning; in her closing submissions Ms Clark for the local authority dismissed it with a wave of the hand:

Fostering gives significant financial benefits over special guardianship or adoption. The local authority cannot seek to place the children with special guardians because no lists or networks are available

108. As noted by the Court of Appeal, the support made available to special guardians can in an appropriate case include financial support. Government guidance states in terms that:

Financial support cannot normally include the payment of remuneration to the special guardian or prospective special guardian for care of the child. Regulation 7 provides, however, that where the special guardian or prospective special guardian previously fostered the child and they received an element of remuneration in the financial support paid to them as the child's foster parent, that the local authority may continue to pay that element of remuneration for two years from the date of the special guardianship order. These payments can continue for longer than two years if the local authority considers this appropriate.

109. And even if Miss Clark's assertion be right (and a Google search against "Muslim adoption uk", which will include forms of adoption acceptable to devout Muslims, returns rather more than three million hits), it appears to me to be entirely unacceptable, and to put the cart before the horse, for a public authority to say "We haven't got in place mechanisms to implement a measure provided by Parliament, and therefore we do not even propose to try".
110. That said, it is clear from the evidence that the existing placement is stable, loving, and admirably meeting the boys' needs. I will not dissent from the description of successful adoption as "the Holy Grail" but it would be very much against the boys' interests for the existing placement to be disrupted save in favour of an adoptive placement which met those needs better than the existing placement is doing. A move to a prospective adoptive placement, after all, would entail a move from a successful loving and nurturing placement which is meeting the boys' needs and would accordingly represent a definite disadvantage. Before undertaking such a move, the local authority will need to be confident that the advantages outweigh that known disadvantage.
111. I would invite the Local Authority to give careful consideration to the matter, and to whether it would not be more appropriate to regard long term placement with the existing foster parents as the outcome which would best meet the boys' needs if permanency in it can be achieved.
112. I would ask the Local Authority specifically to amend their care plans to clarify timescales and the criteria on which they would seek to move the boys from their existing placement, and to make it explicit that the boys will not be separated from one another and will not be accommodated in short term placements.
113. One matter which is of great importance to the parents but which it is not appropriate for the court to be regulating in detail for the future is the question of contact. If contact with Father is to be re-established he will have to display a commitment which has not been forthcoming up to now, and he will have to accept that any contact will need to be indirect in the first instance. Where Mother is concerned, she may well face a drastic reduction in her contact which will be dreadfully painful for her; but the big issue in this case is the need for the boys to develop secure attachments, and I recall the Guardian's evidence. She told me that of her two adoptive children, the one who had contact with his birth family two weeks before placement found it much more difficult than the one who had contact a year before.

Summary

While I know that Mother loves the boys dearly, I do not believe that she can meet their particular needs.

I do not believe that placement with Father or with the grandparents is realistic.

I believe that nothing other than permanent placement away from their birth family will meet the boys' needs. That should if possible be by way of adoption (or special guardianship which may be more acceptable in a Muslim context), failing which, by long term fostering. They should not be separated from each other. They should not have a succession of short placements.

It will almost certainly be necessary in the boys' interests to reduce contact with Mother.