England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT LEICESTER                  CASE No: LK14CO0220

 

 

 

 

Before His Honour Judge Clifford Bellamy

(Judgment handed down on 14^th August 2014)

 

 

 

 

 

Re K and D (Children: Care Proceedings: Separation of Siblings)

 

 

 

 

Miss Gillian Temple-Bone appeared on behalf of the Local Authority

Miss Vickie Hodges appeared on behalf of the First Respondent mother

Miss Jacqueline Matthews-Stroud appeared on behalf of the Second Respondent, CP

Miss Gemma Cole appeared on behalf the Third Respondent, EF

Miss Susan Reed appeared on behalf of the children

 

 

 

 

 

This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

 

JUDGE BELLAMY

 

1.         Leicestershire County Council (‘the local authority’) applies to the court for care orders in respect of two children, K, aged 7, and D, aged 18 months. The mother of both children is AB (‘the mother’). The father of K is EF. EF has played no active part in this hearing. D’s father is CP.

2.         The local authority’s final care plan for K is that she should remain with her current foster carers. That plan is opposed by the mother but not opposed by EF. The final care plan for D is that he should be placed for adoption. That plan is opposed by both of his parents. The Children’s Guardian supports the care plans for both children.

Background history

The mother

3.         The mother is 25 years old. EF is 24 years old. Their relationship began in 2004. On 7^th July 2006 EF was convicted of an offence of common assault. His victim was maternal grandmother, MB. The mother, too, was a victim of abuse by EF. On 6^th March 2007 EF punched her on the leg. He subsequently pleaded guilty to a charge of assault

4.         The next day there was an incident involving K. K was then 6 weeks old. EF was holding her. There was an argument. EF says that he became so engrossed in the argument that he didn’t realise he was blocking K’s mouth and nose with his hand. She couldn’t breathe. She turned blue. Once he removed his hand she quickly recovered. EF accepts full responsibility. The mother and EF separated after this incident.

5.         The mother called the police. The police made a referral to the local authority. K’s name was placed on the child protection register under the category ‘risk of physical abuse’.

6.         The next month the mother and EF resumed their relationship. K was placed with maternal grandmother.

7.         A parenting assessment of the mother was completed in December 2007. For reasons which will become apparent later in this judgment, it is appropriate to refer to that assessment in some detail. The author of the report explained the reasons for the report. She said,

‘I was asked to do a Parenting Assessment on AB who had been involved in a relationship with Domestic Violence issues, AB was a young mum with limited parenting skills and there was concern over whether or not she would be able to protect K adequately whilst she remained in a relationship with K’s father.’

 

8.         In her conclusions the author of this assessment said,

‘I noticed that AB appeared much more relaxed in the home environment and in her handling of K. She was more talkative with me than before and we discussed a lot of childcare issues in the sessions. She supervised K very well and I observed excellent interaction between them. AB said she was feeling more confident in herself and with her handling of K, but added that she was happier now not being with EF and in a new relationship…I feel that the Assessment went well and that AB has shown that she can care for K on a daily basis with the support she is receiving. She shows a willingness to ask for advice from professionals which is a positive point for AB as a young mum caring for a young child.’

 

9.         In the light of that assessment the local authority’s case file was closed.

10.     The mother’s new relationship was with LM. Her relationship with him began on Facebook. The relationship developed very quickly. LM soon moved in to live with the mother and K. Their relationship lasted until 2011.

11.     In 2009 EF made an application to the Family Proceedings Court for a contact order. Within those proceedings Cafcass was ordered to prepare a report pursuant to s.7 of the Children Act 1989. So far as concerns the mother’s parenting, the report contains a number of positives. The Cafcass officer said that,

‘Mother is meeting all of K’s physical needs well with the support of her mother and partner…Mother is capable with support, of meeting all of K’s needs…’

 

The proceedings concluded in September 2010 with an order for indirect contact only.

12.     In 2011 the mother’s relationship with LM ended. She then had a relationship with TR. TR had very recently been released from prison. She allowed him to meet K. She allowed K to call him Dad. She had his initials tattooed on her hand. This relationship was brief.

D’s father, CP

13.     CP is 29 years old. Between 2005 and 2012 CP appeared before the criminal courts. Some of his offending history is relevant so far as these present proceedings are concerned.

14.     In 2008 CP was convicted of sexual activity with a child under the age of 16. The victim was aged 14. He says that he was under the influence of drugs and alcohol at the time and has no recollection of the circumstances. He was sentenced to a term of 8 months imprisonment and was placed on the Sex Offenders Register.

15.     In 2010 CP was in a relationship with GH. There was domestic violence in their relationship. On 1^st August 2010 there was an incident which led to CP being charged with battery. Later that same month there was another incident. He was charged with common assault. On 27^th September there was an incident in which he damaged GH’s mobile phone. He was charged with criminal damage. He pleaded guilty to each of these offences. CP subsequently undertook the Integrated Domestic Abuse Programme (‘IDAP’).

The mother and CP

16.     The mother’s relationship with CP began on 14^th March 2012. As with her earlier relationships, this relationship progressed very rapidly. On the day they met she allowed him to accompany her when she went to collect K from school. She also allowed him to stay overnight notwithstanding the fact that, according to her, he had told her about his conviction for a sexual assault on a 14 year old girl.

17.     There was an incident at the mother’s home on 27^th April. The mother disclosed to CP that she had previously been raped. One might have expected that that would lead to an outpouring of concern and sympathy on his part. It didn’t. He became angry. He punched a hole in a door. The mother reported the matter to the police. CP was charged with an offence of causing criminal damage. On 21^st November he was convicted and conditionally discharged for 12 months.

18.     The commencement of the mother’s relationship with CP was the trigger for renewed local authority concern. On 24^th May 2012 the local authority convened an Initial Child Protection Conference. It was the unanimous decision of the conference that K be made the subject of a Child Protection Plan under the categories of risk of emotional, physical and sexual abuse. The Child Protection Plan stipulated that the mother and CP should not live together. That stipulation was removed at a review conference on 30^th July 2012

19.     A parenting assessment was undertaken. The report of the assessment was positive though issues were raised about the ability of the mother and CP to reinforce boundaries and structure for K.

20.     A Child Protection Review Conference was held on 27^th November 2012. By then the mother was pregnant. The conference decided that K should remain the subject of a Child Protection Plan and that the mother’s unborn child should also be included.

21.     D was born on 1^st March 2013.

22.     The parents became concerned that D did not appear to be moving his left leg. He was seen in the neonatal clinic on 8^th April. Arrangements were made for an ultrasound scan of his hips. The scan was undertaken on 25^th April. The results were normal.

23.     D’s Health Visitor was Mr C. On 20^th May. Mr C prepared a report in readiness for a Review Child Protection Conference due to be held the next day. His report was balanced and realistic. He identified strengths:

‘I feel that both CP and AB a loving and nurturing bond with D…Both parents have always engaged with me in a constructive manner and both have appeared keen to access advice and support and do the best for their children and meet their needs. They also present as individuals who will be honest and open in raising any concerns they may have…CP and AB always sought to work with professionals in carrying [out] the child protection plan. They have engaged with local support services and groups and have appeared to be open and honest about their feelings and concerns. They have shown a strong commitment to be together both as a couple and as a family. K is known to have good school attendance and to be thriving in the school environment. D is being cared for to a good standard and is meeting his developmental milestones and having his health needs addressed.’

 

He also identified weaknesses:

‘There have been some issues over the last year in regards to the relationship between CP’s mum and CP…There is no local support…and CP has poor relationships with his own family. This makes CP and AB and I feel that AB is a vulnerable young woman who needs the support of her family…The family home is unsuitable and there are concerns over conflicts with a neighbour…The couple are both unemployed and struggle to manage the household finances. CP has a history of perpetrating domestic violence against a previous partner and has served a custodial sentence for a sexual offence against a child. AB is a vulnerable young woman with low self-esteem, both CP and AB limited reading and writing skills.’

 

24.     At that time the children’s social worker was MC. The Team Manager then, as now, was EM. On 20^th May MC prepared a report for the Review Child Protection Conference. This, too, was largely positive. The report’s conclusions bear repetition:

‘AB and CP are committed to each other and have demonstrated a willingness to engage with Leicestershire CYPS and the child protection plan. They have been able to acknowledge the potential risks that CP may pose [to] the children and have completed all assessments, with insight to ensure that risks are further reduced. It is positive that a parenting assessment has been completed, both parents have fully engaged with all agencies, they have sought advice on the care of D from Health Visiting Services and acted positively on advice given. I feel that AB is a protective factor and will implement the agreed ‘safety plan’ if she has any concerns in the future. I also feel that CP has an understanding of the implications of his previous offences and is pro-active in making sure he protects himself from any future risk taking behaviours. Both parents are committed to their children and have demonstrated they prioritise their needs above any other matters.’

 

25.     The minutes of the Review Child Protection Conference on 21^st May reflect that positivity. The minutes record that,

‘The Chair summarised that lots of positive (sic) have been heard in that CP has worked hard to address the concerns and is considered a low risk by the Police. K also has a safety plan in place and is aware of who she would talk to should she have any concerns…D is 11 weeks old. AB engaged well with the Midwife and the Health Visitor, she actively seeks advice and acts on advice given. D is meeting his developmental milestones and is having his health needs addressed. A loving bond has been observed between him and his parents. Parents are attending resources at the local Sure Start Centre.’

 

26.     The outcome of the meeting was very clear:

‘It was unanimously agreed by conference to end the Child Protection Plans for K and D as they are no longer felt to be at significant risk. However, following discussion it was agreed that the case will remain open to CYPS and the children be subject to Child in Needs Plans for a further three months.’

 

27.     On 11^th June the parents sought an urgent appointment with their GP. They were concerned about D’s left leg. After examination, the GP referred D to the Leicester Royal Infirmary. D was found to have sustained a fracture to his left tibia with associated angulation of his left fibula. He was also found to have a small cluster of diffuse bruising to his lower left leg. The parents were unable to give an explanation. Referrals were made to the local authority and to the police. Both parents were interviewed by the police the next day. They were placed on police bail. They have now been informed that they are not going to be charged.

The litigation history

28.     Following D’s admission to hospital the mother agreed that K should move to live with her maternal grandmother. D joined her upon his discharge from hospital. It was to be almost another nine months before the local authority finally issued proceedings.

29.     The local authority held a legal planning meeting on 20^th June. This led to a pre-proceedings letter being sent to the parents on 11^th July. The letter invited the parents to a pre-proceedings meeting on 19^th July. A note of that meeting was made by the local authority’s solicitor. Having set out a brief history of the local authority’s involvement the note goes on to state that,

‘Notwithstanding the above the CPP was ended in May 2013 and EM indicated that in the absence of the precipitating event set out below the LA would not be in pre-proceedings regarding these children.’

 

30.     The note goes on to give the impression that the local authority intended to begin proceedings promptly, stating that if medical evidence confirms non-accidental injury ‘it is likely proceedings will follow’ and that ‘the timescale for the completion of medical enquiries is 28 days from the pre-proceedings meeting’. I find that last comment surprising given that the local authority already had a report prepared jointly by the treating clinicians, Dr Ghosh, a specialist registrar in paediatrics, and Dr Hoskyns, a consultant paediatrician, which stated that,

‘The only abnormal finding was the fracture of the tibia which is unexplained and would be very unusual in a non mobile child. Considerable force would be needed to cause the break and there is no evidence of D having fragile bones. The fracture was recent given the swelling and bruising which would be expected to settle over 48 hours. The fracture would be very painful on movement and suggests that the timing was in the afternoon of the admission day as no problem had been noticed earlier in the day.’

 

31.     A LAC review was held on 15^th July. The minutes have not been produced. That same day, the grandmother indicated that she was not able to continue caring for the children. On 19^th July the children were accommodated under s.20 of the Children Act 1989 and were placed with local authority foster carers.

32.     A second legal planning meeting was held on 26^th September. The meeting concluded that a number of steps needed to be taken including, ‘Put family on notice of intention to issue proceedings seeking ICO with an interim plan for the children staying in foster care’ and ‘need a parenting assessment’.

33.     The next LAC review meeting was held on 3^rd October 2013. The minutes of that meeting do not give the impression that there was any sense of urgency so far as concerned the commencement of proceedings. The overall care plan was ‘For D to remain accommodated under Section 20 of the Children Act 1989, whilst assessments are completed on parents.’ The next LAC review was fixed to take place on 13^th March 2014.

34.     On 15^th November a local authority solicitor prepared a draft letter of instruction to Dr Karl Johnson, a consultant paediatric radiologist at Birmingham Children’s Hospital. That letter was not sent until after these proceedings had been issued, a delay of some four months.

35.     The local authority finally issued these proceedings on 28^th February 2014.

The injuries to D

36.     In the course of these proceedings permission was given to the parties to obtain expert evidence from Dr Karl Johnson and from Dr Patricia Brennan, a consultant paediatrician at Sheffield Children’s Hospital. Both experts have provided a written report. Neither was required to attend court to give oral evidence.

37.     Dr Johnson reports that from a radiological perspective there is normal bone density, no evidence of metabolic bone disease and no evidence to suggest that D is at any greater risk of suffering fractures compared with any other child of his age.

38.     X-rays taken on the day of D’s admission to hospital show that there is an angulated, oblique, incomplete fracture of the mid shaft of the left tibia with some associated angulation of the fibula. The associated angulation of the fibula is a consequence of the same mechanism and injury that caused the tibial fracture. The fibula and tibia can be regarded as a single unit. In Dr Johnson’s opinion there has been a single injury to D’s left lower leg.

39.     The x-rays do not disclose any evidence of bone healing. X-ray evidence of bone healing begins to appear after about 5 to 11 days from the date of the trauma. The absence of any healing response indicates that the fracture was no more than 11 days old at the date of D’s admission to hospital. Radiology does not assist in narrowing the window.

40.     As for the cause of the fracture, Dr Johnson says that,

‘This fracture is the result of a significant blow, impact or bending/snapping action applied to the bone. The amount of force required to cause this fracture is unknown but it is significant and greater than that used in the normal care and handling of a child. This fracture does not occur from normal domestic handling, over exuberant play or rough inexperienced parenting…

In the absence of any suitable history, a fracture of this nature in a child of D’s age raises suspicions of an inflicted non-accidental injury. It is the absence of any suitable history rather than the appearances of the fracture that raises this suspicion. The appearances of the fracture are non-specific as to the exact mechanism of causation.’

 

41.     Dr Brennan has reviewed the medical records. There is nothing there to suggest that D is suffering from any condition likely to predispose him to easy fractures.

42.     With respect to D’s likely pain response to his injury, Dr Brennan says that,

‘D would have been in pain and crying or screaming at the time the injuries occurred and for some time afterwards. At first, the fracture would be painful even at rest or if the infant moved his leg or if his leg was moved by a carer. Gradually the pain at rest would settle but the limb would remain painful on movement for several days until callus formed and immobilised the fracture by healing…A carer present at the time the injury occurred would be aware that D was suddenly in pain and screaming. A carer not present would become aware that D was in pain from his leg as he was handled during the normal daily care, picking up, holding, nappy changing and bathing.’

 

43.     On D’s admission to hospital he was also found to have a cluster of diffuse bruising to his left lower leg. Although the bruising is marked on a body map, the bruises are not described in any detail in the medical notes. There is no description of their colour or their shape. The bruising was not photographed either by the hospital or by the police. Dr Brennan is of the opinion that ‘The bruising to the lateral calf would be consistent with a forceful grip’. In the absence of good quality photographs and/or a detailed description in the medical notes I am doubtful that the evidence justifies that conclusion.

Mother’s evidence

44.     Both parents were interviewed by the police on 12^th June, the day after D’s admission to hospital. The interview of the mother began at 11.39am. A solicitor was present. The solicitor quickly became concerned about the level of the mother’s understanding. She asked the police to stop the interview. The interview ended at 12.20pm. It resumed at 14.15pm, this time the mother being supported by a representative from the Appropriate Adults Service in addition to the solicitor.

45.     During the first interview it was clear that the mother was muddled over dates. She described events which happened during the early hours of Monday 10^th June though it became clear that she was in fact talking about the early hours of Tuesday 11^th June. She said that,

‘It was the early hours, and he just wouldn’t settle…It was like 3 o’clock, yeah, on Monday morning…And he just wouldn’t settle, he wouldn’t stop crying…I tried to wind him, feeding him. Everything…And he just wouldn’t settle…He was screaming and wanted a cuddle, that was it. That’s the only thing that would calm him down…he went to sleep for literally about five minutes and then woke up again crying and screaming, and I thought…there was something wrong.’

 

46.     In the second interview the interviewing officers took the mother step by step through the events of 10^th and 11^th June. The mother said that on 10^th June D had gone to bed sometime between 9.00pm and 10.00pm. She and CP had not gone up to bed until around 1.00am. By then D was stirring. The mother asked CP to look after him whilst she went to make him a bottle. She then tried to feed him but he wasn’t interested. She thought D had colic.

47.     She describes they way in which CP used to try to help D when he had colic:

Q: …What I’d like you to do is just put yourself back at that point where you’ve come out the kitchen, you’ve got his water, you’ve got his milk, and describe in more detail what CP was doing, you said he was on the bed, D was on the bed…What was he actually doing?

A: Just bringing his knees up to his chest…And just kept repeating it…But, obviously, D was in a little bit of pain became of, obviously, his constipation or whatever he was crying for, we don’t know…

Q: So D’s on the bed…Where was CP?

A: Pushing his knees up. Well, well he’s stood over him doing it.

Q: Okay. So could you see where CP’ hands were?...

A: Around this bit of the leg…[the calf]…Yeah. He was, like, grabbing them and pushing it up so his knees…so far up…Until he’d like, trumped and then…and that was it that day.

 

48.     She was asked whether she had seen CP do this before. She said she had seen him do it once or twice, ‘but I think that’s because the health visitors told us if nothing works on him, just try that’. She said she had not done it herself, ‘because I don’t wanna hurt him…And he’s too tiny. And I, like, get a bit nervous about dressing him and changing his bum cos he’s tiny’.

49.     CP went back to bed. The mother eventually settled D back to sleep and put him down at around 2.00am. At 3.00am D began screaming. She and D were still awake when K got up at 6.00am.

50.     She went on to describe the events of the day. There was nothing remarkable until bath time. She was in the bathroom running the bath when CP shouted her. He was getting D undressed ready for his bath. She went straight in to them. CP said ‘D’s ankle’s just, like, made a noise…Like a clicky noise’. CP wanted her to ring the doctor. D was screaming so loudly that she had to go into another room to make the call. They took him to the doctor’s at around 4.30pm.

51.     In her written evidence the mother describes an incident on 9^th June when the family dog had ‘jumped up from the sofa and landed on D’s legs’. D was not distressed. The medical evidence is that this does not account for the fracture to D’s leg. The mother accepts that evidence and no longer advances this incident as a possible cause of D’s injury.

52.     The mother’s account of the early hours of the morning of 11^th June is not materially different from her account to the police, though she gives more detail. She says that,

‘At around 3am D awoke and at this point did seem to be in some pain. He was screaming and it was not the normal sort of screaming that I have heard before. I tried to comfort him by putting him in his bouncy chair. I thought he was poorly or maybe that his colic was playing up. I telephoned my Mother who said it was likely that it was his colic. Looking back I perhaps should have called an ambulance at the time I thought I was probably just over-reacting. This continued until around 7am…when I had put him in his push chair, for some reason when I started pushing him his crying stopped.’

 

53.     She then goes on to describe bath time later that day. She says,

‘Whilst I was in the bathroom, I could not see [CP] or D. I then heard D start to scream, it was a similar scream to the one that I heard [in] the night during the early hours of that morning. At that time K was standing in the corridor and she said “Mum did you hear that noise”. I replied yes and at that point [CP] said “you need to call the Doctor now”.

 

54.     In her written evidence the mother raises concerns about the father’s handling of D. She talks about him sometime becoming frustrated with D. She says that,

‘The problems were when CP would want to feed D…D would not take a bottle from anyone other than me. When this happened I accept that CP would get frustrated as he felt that D did not love him. There was one occasion when D would have been around one month old when he did get angry and said “I’m going to throw him across the room in a minute”…This only happened once and I did not think about it again until after D suffered his injury.’

 

CP admits that there was an occasion when he held D above his head but denies threatening to throw him across the room. He says he was just playing.

55.     The mother’s final account came in her oral evidence. She said that she had tried to feed D at 1.00am on 11^th June. Although he was crying for his bottle he didn’t feed properly. She managed to get him down to sleep but he woke again at around 3.00am. Between 3.00am and 7.00am he was ‘screaming non-stop…like he was in pain’. She thought he had colic. She telephoned her mother. Her mother agreed that colic was the most likely problem. The thought that he had sustained an injury never crossed her mind.

56.     In the morning she and CP took K to school. D was in his pushchair. He was fine. They were out for much of the day. During that time she changed his nappy three or four times. Each time she changed his nappy she took his trousers off, held him by his ankles whilst removing the nappy and replacing it with a clean one. There was no sign of discomfort or pain. He had a problem moving his left leg but that was normal for him.

57.     After collecting K from school, they went home and prepared to bath D. CP laid D on the bed to undress him. The mother went into the bathroom to run a bath. K was in the hallway. She heard D scream. She had never heard him scream like that before. She also heard a click. She thought it was CP clicking his fingers. She immediately went into the lounge to see what was wrong. CP told her to ring the doctor. He said this ‘in a worried kind of way’.

Father’s evidence

58.     The father was also interviewed by the police on 12^th June. He was given the opportunity to have a solicitor present but declined, saying, ‘Well, I’ve got nothing to hide so don’t need one.’

59.     The interview began with the father describing the events of 11^th June. He says,

‘after we’d picked K up… then was just about to put D into the bath, AB was running the bath as I was just getting D undressed, I took his trousers off and I took his sock off and all I heard was his ankle go…but it, they have been doing that since he was born, they both click but that one was quite a loud click. Then I said to AB that she should phone the doctor…’

 

That is the core of the father’s account.

60.     Throughout the remainder of his interview more detail was elicited. He went on to say that he, D and K were in the living room whilst the mother was filling the bath. He had laid D on the bed whilst undressing him. He said,

‘I literally got his trousers off and one of his socks and then I shouted her…He, he started crying as soon as I tried to take his sock off. Well, it started with his trousers, but it was even worse when I took his sock off.’

 

61.     He was asked which sock he had taken off and confirmed it was the left sock. The interview then continued:

Q: Okay. Did his foot move at all as you were pulling it off?

A: Not that I can remember. Probably did but only a slight little bit.

Q: Mmm. Do you think you were, er, heavy handed, taking the sock off?

A: No. Not that I know of. I know I have been heavy handed with him in the past, that’s why I don’t tend to like doing anything with him.

Q: So, the minute you’ve took that sock off, you’ve heard a, a click?

A: Yes.

Q: How loud was that click?

A: It was quite loud…

Q: …What did you think had actually happened at that point?

A: I thought his ankle had snapped.

Q: Why did you think that?

A: Cos of how it clicked.

Q: And what was your son’s reaction to that?

A: He started screaming.

Q: And that scream, what was that like?

A: Quite loud…When he’s hungry I know his cry…When he needs his bum changing, I know his cry…But that was one I’d never heard before.

Q: Right.

A: And he just screamed his head off.

 

62.     As I noted earlier, the father uses a particular technique to wind D. He described it to the police:

A: And someone’s taught me to grab their legs and then do it like they’re riding a bike...And then lift the legs up and it’ll bring the wind up and that’s what I was, I did just, that was just before I got him undressed in the bath.

Q: At what point did he start to cry when you were doing that?

A: Erm, when I grabbed his, er, right leg he was all right, and then I went, it was when it was moving his left one…He started crying…So I left him, and let him go.

 

63.     The father describes an incident which he thinks may have caused the fracture. He says that when they saw the doctor on 11^th June, the mother

‘told them about his leg, and that he hadn’t moved his leg since Sunday. I don’t know whether it was Sunday because on Sunday when we was down her mum’s…the dog had jumped…And the dog ain’t a small dog, neither…It’s quite a big one. And then AB remembered, reminded me when I was at home earlier and just before the police knocked on my door…that the dog had jumped on him on Sunday…And the dog come over, just jumped on him…So I grabbed the dog by its collar and dragged him off.’

 

The conversation continued:

Q: …How did D respond to that?

A: Well, he drinking his bottle so he didn’t really bother…But I reckon if he hadn’t have had his bottle in his mouth he would have squealed.

Q: Okay. Did he show any signs of distress at all, cry?

A: Not that I know, cos he was with his mum anyway. When he’s with his mum he don’t really cry that much…

Q: Right. Have you noticed your son’s leg not moving since Sunday?

A: No, but then again I don’t spend that much time in the living room.

 

64.     Finally, the father was asked about his temper. He was asked whether he is an angry person. He replied,

‘I used to be...Cos when, I used to drink all the time…I was alcoholic…So I used to be a nasty person…And then when I went, when I got done for the domestic violence I went on an IDAP course, Integrated Domestic something, can’t remember…and ever since then, and I stopped drinking, I’ve changed a lot…I don’t get angry. If someone winds me up, I just walk out, do my own thing and come back later and talk about it.’

 

65.     In his written evidence the father says that he slept through D’s screaming during the night. Later that morning they had been to the chemist. The chemist had agreed that it sounded as if D had colic. They purchased some medicine for him.

66.     The father then goes on to describe bath time. He says,

‘I was undressing D for his bath and he was lying on his back on our bed. I pulled D’s trousers down in the normal way and I then went to take his socks off. When I pulled one of his socks off, I heard a loud click in his ankle and he started crying loudly so I called AB as I was worried I had hurt him. I undressed him as I normally would and did not use force. AB rang the doctors and we arranged an appointment for that evening. When the doctor checked D over he was screaming when she touched his leg…’

 

67.     The father confirmed that he had completed the IDAP programme. He says that he

‘found some of the program useful. It taught me how to use ‘time out’ in situations that were heated and helped me to recognise triggers and when I was having a trigger. I have been able to use these tools since and I do not get as heated as I used to when I am in a situation that I am finding difficult.’

 

68.     The account given by the father in his oral evidence was broadly the same as that given to the police and in his written evidence. On the morning of 11^th June he awoke at around 6.30am. He discovered that the mother had been up with D since 3.00am. D was still crying. He took D off her and managed to get him to sleep.

69.     He gave a description of their day in similar terms to the description given by the mother. When they got home after collecting K from school, they prepared to bath D. The mother was running the bath whilst he was undressing Don their bed. Just as he was taking D’s sock off his ankle clicked loudly and he began to cry. He cried very loudly. The loudness of the click and D’s immediate reaction had made him think that something was seriously wrong. He told the mother to ring the surgery.

70.     The father accepted that he can sometimes be heavy-handed, though he has never been heavy-handed with D. He confirmed that he has never seen the mother handle D roughly. She has never lost her temper with him. Even when he cried a lot because he had colic she had never become frustrated with him. He said that the mother is not an aggressive person. He described her as shy and timid. He said she would never hurt her children. He was sure she had not caused the fracture. Despite this he stoutly maintained that he had not caused the injury. He seemed to find the illogicality of his position difficult to understand.

The law

Standard of proof

71.     Before the court may make any order at all with respect to these children, it must first be satisfied that the threshold set by s.31(2) of the Children Act 1989 is met. The burden of proving that the threshold is met rests upon the local authority. The standard of proof is the civil standard; that is the balance of probability. In Re B (Children)(Fc) [2008] UKHL 35, Baroness Hale said that she would

‘70. …announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies…’

 

72.     That same standard of proof must be applied in endeavouring to identify the perpetrator of an injury sustained by a child. In Re S-B Children [2009] UKSC 17, in giving the judgment of the court, Baroness Hale said

‘34. The first question listed in the statement of facts and issues is whether it is now settled law that the test to be applied to the identification of perpetrators is the balance of probabilities. The parties are agreed that it is and they are right…the same approach is to be applied to the identification of perpetrators as to any other factual issue in the case…’

 

Identifying the perpetrator

73.     If I should find that the injuries suffered by D are non-accidental injuries it is accepted that the perpetrator must either be the mother or CP. The law is clear that whilst the court should not hesitate to make a finding identifying the perpetrator if the evidence is sufficient to support such a finding, the court is not obliged to make a finding identifying the perpetrator at all costs. As Lord Justice Wall put it in Re D (Care Proceedings: Preliminary Hearings) [2009] EWCA Civ 472, [2009] 2 FLR 668, at para 12, judges should not strain to identify the perpetrator:

“If an individual perpetrator can be properly identified on the balance of probabilities, then . . . it is the judge's duty to identify him or her. But the judge should not start from the premise that it will only be in an exceptional case that it will not be possible to make such an identification.”

 

Evaluating the evidence

74.     In arriving at its conclusion the court is under a duty to evaluate the totality of the evidence. In Re T (Abuse: Standard of Proof) [2004] 2 FLR 838, at para [33] Butler-Sloss P made the point that evidence

‘cannot be evaluated in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.’

 

75.      A similar point was made by Bracewell J in Re B (Threshold Criteria: Fabricated Illness) [2004] 2 FLR 200:

‘[24] …Although the medical evidence is of very great importance, it is not the only evidence in the case. Explanations given by carers and the credibility of those involved with the child concerned are of great significance. All the evidence, both medical and non-medical, has to be considered in assessing whether the pieces of the jigsaw form into a clear convincing picture of what happened.’

 

Truth and lies

76.     Finally, I remind myself of a point made in R v Lucas [1981] QB 720. It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons. The fact that a witness has lied about some matters does not mean that he or she has lied about everything.

Discussion

77.     The medical evidence is clear. The fracture to D’s left leg was not caused by the family dog jumping on him. The parents have not offered any other explanation suggestive of an accidental cause. I am satisfied that the injury is a non-accidental injury. In arriving at that conclusion, I bear in mind, of course, the cautionary words of Ryder LJ in Re S (A Child) [2014] EWCA Civ 25 at para 19, so far as concerns the use of that term. He said,

‘The term ‘non-accidental’ injury is a catch-all for everything that is not an accident…the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction.’

 

78.     The radiological evidence is that the injury must have been sustained between 1^st and 11^th June. The evidence of the parents enables the court to narrow that window significantly. The mother’s description of D’s screaming during the night is consistent with the medical evidence as to his likely immediate pain response at the time of injury. The mother had been so concerned about his screaming that she telephoned her mother at around 6.00am that morning. She says that with hindsight she should perhaps have called for an ambulance. She believed at the time that he had colic. Later that day they had gone to the chemist’s for advice about what to give him for colic. It is clear from the medical records that even before 11^th June D had a history of suffering from colic. The evidence of D’s screaming during the night is not inconsistent with a severe bout of colic.

79.     The parents’ accounts of events later that day are not consistent with the fracture having occurred during the early hours of the morning. From taking K to school on the morning of 11^th June to collecting her from school that afternoon, the parents give a broadly consistent description of how they spent the day. Most of the day was spent out of their home. On at least two occasions (and the mother says it was three or four occasions) D had a nappy change. If he had already sustained an injury one would have expected him to scream during the process of process of having his nappy changed. The parents do not describe that happening.

80.     In their report of 20^th June, Dr Ghosh and Dr Hoskyns say that ‘The fracture would be very painful on movement and suggests that the timing was in the afternoon of the admission day as no problem had been noticed earlier in the day.’ The parents’ description of the events late that afternoon, when D screamed loudly as they were about to bath him, is consistent with the medical evidence as to his likely immediate pain response at the time of injury.

81.     In my judgment the window can be narrowed to a time between the parents arriving home having collected K from school and the mother telephoning the doctor’s surgery.

82.     The injury must have been caused by one or other of the parents. Both deny being the perpetrator. Neither believes the other to be the perpetrator. In his police interview the father was very clear that the mother is a good mother. He said, ‘She’s a brilliant mum, couldn’t ask for a better mum…She loves her kids to bits…she wouldn’t let no one hurt them or anything’. The mother is less fulsome in her comments about the father’s parenting.

83.     There are factors which suggest the mother as the possible perpetrator. These include D screaming during the night when she was caring for him and the father was asleep, the fact that she was so concerned about his screaming that she telephoned her mother very early that morning and the fact that, with hindsight, she wonders whether she should have called for an ambulance.

84.     The factors which suggest the father as the possible perpetrator are more numerous and more compelling. From time to time he would use a method of relieving wind which involved pushing D’s legs up into his chest in a cycling kind of action. Until this hearing both parents had said that the father had done that in the early hours of the morning of 11^th June. In his oral evidence the father denied having done so that morning. It was when the father was undressing D later that day that he heard a click. He thought it was D’s ankle. He told the police that he thought he may have broken D’s ankle. The father is a man with a temper. He assaulted a former partner twice. He also damaged her phone. He punched a hole in a door at the mother’s home. He describes himself as being ‘heavy-handed’ and as not knowing his own strength. He told the police he had been heavy-handed with D though in his oral evidence he said the opposite.

85.     Whilst I do not regard either of these parents as being wholly reliable historians, I am satisfied that the mother is the more reliable. The mother described the father as being ‘frustrated’ that D would not let him feed him. She also volunteered information about an occasion when the father was holding D above his head and threatened to throw him across the floor. The father denies that he made that threat. I am satisfied that he did.

86.     I am satisfied on the balance of probability that the father is the perpetrator of the fracture to D’s left leg. I am satisfied that the injury was sustained in a moment of recklessness by the father and was not deliberately inflicted. I am satisfied that it is more likely that the causative event occurred shortly before D was seen by a doctor and not during the early hours of the morning.

87.     In addition to the fracture the hospital also noted a cluster of what are described as bruises to his lower left leg. As I noted earlier, there are no photographs of these marks and no description of them in the hospital notes – either as to their colour or shape. Dr Brennan goes further than the evidence permits when opining that ‘The bruising to the lateral calf would be consistent with a forceful grip’. Whilst I accept that bruising to a non-mobile child is invariably non-accidental in origin, in this case what is described as bruising is so minor and the description of it so lacking that I conclude that it is not appropriate to make a finding on that issue.

Threshold

88.     My finding that the fracture to D’s left leg is a non-accidental injury is, of itself, sufficient to satisfy the threshold set by s.31(2) of the Children Act 1989. The local authority seeks additional findings. It is unnecessary to recite those that are fully agreed. The local authority seeks five findings that are not fully agreed. So far as those findings are concerned it is appropriate to have in mind that the parties are agreed that the relevant date for threshold purposes is 12^th June 2013, the date when the local authority took protective measures.

89.     Firstly, the local authority seeks a finding that CP has a history of perpetrating domestic violence against previous partners. That is agreed. However, the local authority goes on to seek a finding that ‘Mother has alleged domestic violence and harassment from him’. Whilst it is true that the mother has made such allegations they related to incidents which occurred after the relevant date.

90.     Secondly, the local authority seeks a finding that the mother is unable to meet all of K’s emotional needs. This is a welfare issue and will be dealt with as part of my welfare evaluation.

91.     Thirdly, the local authority seeks a finding that the mother is unable to protect either child from harm in relation to the risks posed by CP. The mother says that at the very beginning of their relationship CP informed her of his conviction for a sexual assault on a child. Within a very short time of them beginning to live together she had experienced his temper at first hand when he punched a hole in a door at her home. The mother herself has disclosed an occasion when CP threatened to throw D across the room when he was just a month old. I find this allegation proved.

92.     Fourthly, the local authority seeks a finding that the mother has a history of unstable and impulsive relationships with dangerous and unsuitable partners. This adds little to, and is less significant than, the last allegation. Prior to the relevant date, since 2004 the mother has had three long-term relationships (with EF, LM and CP). At the relevant date only one of those relationships (with EF) had been unstable. Two (with LM and CP) were impulsive. Only one (with CP) was with someone whom she ought to have appreciated was a risky adult and therefore an unsuitable partner.

93.     Fifthly, the local authority seeks a finding that CP stated that he loves to scare babies (a finding which I have made) and that during a contact session he has spoken of having suicidal thoughts (an allegation which CP admits).

Welfare issues

The first parenting assessment

94.     Two parenting assessments have been undertaken in the last twelve months. The first was undertaken by Mrs W. Mrs W has been a support worker within the Child Protection Team since September 2010. Before then she had been employed by the local authority as a Nursery Officer at a Family Centre and prior to that had worked as a learning support assistant in a primary school, supporting children with special educational needs.

95.     Mrs W’s report is dated 27^th February 2014. At the time she began her assessment in October 2013 the parents were living separately. They had reconciled before she completed her assessment and she had therefore been asked to undertake an additional three sessions with the parents jointly. This parenting assessment was only the fifth she has ever undertaken.

96.     Mrs W says in her assessment report that ‘The focus of my assessment was domestic violence and the impact it has on children’. In her oral evidence she said that her training in that area consisted of attendance at a one day course arranged by the local authority.

97.     Mrs W’s report is largely narrative, setting out the history taken from the parents. Some of the narrative is disturbing. She says that during a one to one session with the father on 16^th October,

‘CP spoke of having bumped into AB and her new partner in town. CP said that her partner had threatened him. When I asked how he felt about this he commented that he wasn’t going to react as this could impact on him seeing D. He went on to say that he prefers to get his revenge in his own time. When I explored this further CP said that his ideal form of revenge would be to take a person out into an open field and cut the tendons at the back of the ankle then sit back and enjoy watching them try to get out of the field. When I said I thought this was a disturbing thought to have, CP laughed.’

 

The father admits saying that he wanted revenge but denies Mrs W’s account of that part of their conversation. He said, ‘I ain’t going to let someone come up to me about my kids in the way he did. That ain’t right.’

98.     Mrs W has observed some of the father’s contact with D. She agrees that the quality of the contact has been good. As she put it, D is his father’s world. However, she describes an occasion during contact when he told her,

‘how he loves to “scare” babies; he said this in a light hearted manner describing how he “loves to see their bottom lips quiver”. When I suggested it might be seen as cruel, he said he had done it to all the babies he’s known, again he was light hearted as he shared this with me and did not appear to understand my concern.’

 

The father denies having made those comments.

99.     Mrs W concludes that although both parents love their children and have been committed to contact since the children have been in foster care, she is concerned ‘that both can present as emotionally immature’. She questions their ability to provide safe and adequate care for the children. The mother’s understanding of K’s emotional needs ‘is often lacking’. The stability the parents are able to offer to the children ‘is questionable’ She notes that the mother ‘presents as emotionally vulnerable and her two longstanding relationships have resulted in serious concerns for the safety of her children’.

100. The mother’s involvement with the local authority is long-standing. Between 2007 and 2013 three assessments were undertaken by social workers and a section 7 report prepared by Cafcass. All of them were broadly positive. Although Mrs W had read some of the case papers before completing her assessment it was unclear which papers she had read. The impression I gained was that her reading of the case papers had been limited. She said that she tries to begin assessments with a clear open mind.

101. In so far as Mrs W’s evidence reports conversations she has had with the parents, I accept her account to be accurate. However, I have serious reservations about her opinion evidence. I am not satisfied that she took enough care to ensure that she was well-informed about this family’s background history. More importantly, I am not satisfied that she has either the skills or the experience required to undertake this piece of work. Given the critical importance of the decisions I have to make it would not be appropriate for me to place significant weight on Mrs W’s opinion evidence.

The second parenting assessment

102. The second parenting assessment was undertaken by Ms L. Ms L is a senior social worker. It had been intended that she would undertake the assessment jointly with the allocated social worker, Miss H. The relationship between the father and Miss H is poor. During the first two assessment sessions the father was argumentative and aggressive towards Miss H. It was decided that the remaining four sessions should be conducted by Ms L alone.

103. Ms L expresses concern about the stability of the relationship between the parents. She describes their relationship as ‘characterised by periods of separation followed by reconciliation’.

104. Ms L also expresses concern about what she describes as the mother’s ‘need to be in a relationship’ which she says ‘seems to supersede her ability to acknowledge risk’. She says that it is her conclusion ‘that AB is dependent upon being in a relationship and for CP, a bad relationship is better than no relationship’.

105. She goes on to express concern that the couple are socially isolated and that neither of them have someone whom they could confide in and seek advice from. She says that, ‘CP listed D as his best friend and CP’s relationship with K has been likened to that of sisters or friends’. She goes on to say that,

‘Prior to becoming an allocated Social Worker to this case I supervised contact as a duty task. I had limited knowledge of the case or the history however it was apparent that AB does not respond to K as a child but more as an adult. During the assessment I have observed contact and have witnessed AB asking K for support in providing D’s basic care needs. K is asked to pass her Mother the changing mat, to entertain her brother whilst being changed, to supervise him whilst playing etc. When AB panics or struggles she immediately shouts for her daughter to help her.’

 

106. In Ms L’s opinion, K is a confused child who has experienced many changes. She is not confident that the mother recognises this or is able to prioritise K’s feelings above her own.

107. Ms L’s assessment of the parents has been of them as a couple. However, in her report she says that,

‘in the interests of the children, consideration has been given to AB and CP parenting as individuals. I have no confidence that either AB or CP would be agreeable or able to parent alone. AB has demonstrated that she does not function well as an individual and is reliant upon being in a relationship. AB has placed her children at risk and has not been able to demonstrate any positive change. AB makes relationships with others without appropriate risk assessments and this is likely to continue. AB is likely to rely upon K for support and this is inappropriate and unfair to K.’

 

108. Ms L concludes that,

‘…AB and CP have prioritised this assessment and ensured that they are available. Some sessions have been difficult and there have been some concerns about CP’s behaviour. It is my view that AB and CP have demonstrated that they do not have any capacity to change and that they are unable to meet the emotional needs of their children. AB and CP’s relationship is unstable and there are concerns regarding their ability to provide a stable environment for their children.’

 

109. Ms L appeared to have undertaken limited background reading before preparing her report. She agreed that she had not read much about the parents’ history. She said that this was partly to do with pressure of work. She had not read the positive Cafcass report prepared in 2010. When told by Miss Hodges, on behalf of the mother, that the Review Child Protection Conference on 21^st May 2013 had noted that K was thriving in the case of the mother and CP her response was that she had not been working the case at that time. She went on to say that previous assessments had not been made available to her. She acknowledged that there were reports and assessments in the twelve months prior to the children’s removal into foster care ‘which may have been helpful to me’. Her reading appears to have been limited to the most recent assessment, the current case notes, the police disclosure and the social work chronology. She said that if she were doing the assessment again she would do further reading relating to the background history.

The social worker’s evidence

110. The case holding social worker is Miss H. Miss H has prepared one written report. She is also the author of the final care plans.

111. Miss H began working for this local authority as a Child Protection Social Work Assistant in August 2013. It was that same month that this case was allocated to her. This is her first case. She was at pains to emphasise that because of her limited experience she has at all times co-worked the case with senior colleagues – latterly with Ms L and Mr Y. The case has also been closely supervised by her line manager, EM.

112. Miss H accepts that K clearly misses her mother. She says that ‘they appear to have a strong attachment although there is evidence that [it] is not a positive attachment for K’.

113. Miss H acknowledges that the parents are committed to contact. She says that the mother ‘is very attentive of D and ensures all his needs are met during the contact time’. She is slightly less positive about the father’s contact with D. She says that both CP and D ‘become restless by the end of contact and are happy that the session has come to an end’. CP does not agree with that assessment.

114. There are concerns around CP’s ability to control his temper. In a case note written by Miss H after a visit to the parents’ home in August 2013, whilst talking about his past he ‘stormed out of the room and kicked the door’. As a result, she had been advised not to undertake any further home visits. Although the father denies storming out of the room and kicking the door, I accept Miss H’s account. In her statement, she says that the father’s behaviour ‘can be irrational, flippant and is very easily angered’. She says that she has not known the father to be other than confrontational. That was normal. In view of this, she concludes that he is unable to provide a stable, safe and consistent environment for the children. Miss H rules out the father as a carer for either of these two children.

115. Miss H also rules out placement of the children in the sole care of the mother. She says that the assessments,

‘give no indication that this would be a safe option as the couple have evidenced that they cannot stay apart. Further when AB has tried to end the relationship with CP, she has quickly moved on to form a relationship with a man she hardly knew and was already keen to introduce him to K.’

 

116. Miss H acknowledged that in May 2013 the local authority’s position was that it was not necessary for the children to be the subjects of child protection plans. She accepted that the parents have always engaged well, particularly with the previous social worker and with health professionals. She made the point that the local authority’s concern about the mother is not about her care of her children, her home or herself but is about her capacity to assess potential new relationships.

117. Miss H undertakes an analysis of what she considers to be the realistic alternative options for the future care of the children, considering both the arguments in favour and the arguments against each option. She says that the local authority concludes that the children’s welfare interests will be best served by the making of final care orders. In K’s case the local authority proposes that she should remain in long-term foster care with her present carers. They will need to be re-registered as long-term foster carers. So far as D is concerned, the local authority’s proposal is that he should be placed for adoption.

118. Miss H acknowledged the strength of the attachment between K and her mother. She described their relationship as ‘intense’; K is pre-occupied with her mother’s welfare. It was for that reason that in its final care plan the local authority had proposed that direct contact should be reduced to three times a year. The guardian disagrees. In his opinion contact should take place at least six times a year. The local authority has agreed to amend its final care plan.

119. The outcome proposed would mean the separation of these siblings. In her written evidence, Miss H addresses that issue only briefly, saying that

‘the potential advantages of adoption outweigh this…potential disadvantage and it is hoped some direct contact can still take place…the Local Authority has very thoroughly assessed the needs of each child and has taken the decision to separate them very seriously. Taking all relevant factors into account the judgement by the Local Authority is that it is in the interests of each on (sic) the children’s needs to have different care plans and not to propose K is adopted but it would be the most favourite option for D.’

 

120. An alternative option for D would be that he is placed in long term foster care together with his sister. Miss H said that the foster carers have recently indicated that they may be willing to care for both children. However, she went on to say that the foster carers are concerned that K may be jealous of D and that it may therefore be more emotionally sensitive for K to be placed on her own.

121. Miss H accepts that the children are attached to each other. She agreed with Miss Hodges that they have a strong sibling bond. She conceded that separation will be difficult for K. She hoped that therapeutic life story work would help. That work has not yet started. She acknowledged that D, too, can be expected to experience a sense of loss.

122. The final care plan for D does not propose that there should be a time-limited search for a placement that will accommodate direct inter-sibling contact. Although efforts will be made to find an adoptive placement for D in which ongoing direct inter-sibling contact can take place, the alternative would be for indirect inter-sibling contact to include the exchange of video messages.

The parents’ relationship

123. The parent’s relationship has been less stable since D’s injury. They separated in September 2013, the mother moving to live with her mother. She sought help from Women’s Aid for alleged domestic abuse within their relationship. Whilst they were apart the mother reported CP to the police for harassment. She said that ‘he wouldn’t leave me alone’.

124. In November 2013 the parents reconciled. They separated again on 19^th January 2014. The mother alleges that on that date she was anally raped by CP. She reported this to the police. The full records of the police investigation of this incident have not been disclosed. The limited papers available contain an entry dated 19^th January in these terms:

‘AB is alleging that she was raped by CP at their home address today. The children are not present as they are currently in care following the GBH on D (investigation ongoing). AB alleges that they were having consensual sex and then CP requested anal sex to which she agreed. She then told him three tiems (sic) to stop which he eventually did. Our Signal Team are dealing with the offence currently and CP has been arrested. Six years ago CP was imprisoned for statutory rape on his then 14 year old girlfriend…AB has fully cooperated with the investigation including medical exam and full statement.’

 

In her written evidence the mother says that she stands by her account. She insists that she told CP to stop but says that she ‘cannot be sure whether [he] heard me’. He later apologised.

125. CP denies raping the mother. He accepts that they had anal intercourse. He agreed that the mother had then left the flat. He acknowledged that not only had she contacted the police she had also submitted to a medical examination. However, he denied that he had done anything against her will. She was not telling the truth. She has lied to the police. He could not think why she had lied.

126. It was notable that as she described this incident, this was the only point during her oral evidence at which the mother became distressed. It was clear that what happened on 19^th January brought back memories of a previous sexual assault. As she put it, it was happening all over again. She herself accepts that when father requested anal sex she initially agreed. She also accepts that although she subsequently told him to stop she is not sure whether he heard her. Even on the simple balance of probabilities the evidence does not justify a finding of rape. However, I am satisfied that on this occasion the father was being sexually overbearing, insensitive and utterly selfish.

127. After this incident the parents separated. They were still living separately at the time these proceedings were issued. They reconciled in March. In her oral evidence the mother said, ‘I didn’t want to lose the love of my life’. She said that CP is the only person who really supports her and who understands what she is going through.

128. Although the father says that he is able to control his temper and is able to recognise the triggers, it is relevant to note that as he was being cross-examined by Miss Reed on behalf of the children’s guardian he lost his temper, left the witness box and walked out of the court room. Although he came back into court a few minutes later and apologised for his conduct, this appeared to me to be illustrative of the fact that the father has a short fuse.

The parents’ position on outcome

129. In her written evidence the mother said that if the court finds that CP has caused D’s injury ‘then I will separate from him, but until it has been proven I believe him when he tells me he did not do it’. She took the same position in her oral evidence appearing either unable or unwilling to acknowledge, as a simple matter of deduction, that if she is not the perpetrator then he must be.

130. The mother opposes the local authority’s final care plan. Her primary position is that she seeks the return of the children to her care. If the court is not minded to return the children to her then she is very anxious that the children should not be separated. She says,

‘I believe I was and am an excellent Mother and whilst there were previous Social Services involvement with my children, these never related to their basic care needs. The children were never neglected and were always well fed and presented.’

 

The Children’s Guardian

131. The Children’s Guardian in this case (‘the guardian’) is Mr Steve Upton. Mr Upton is a very experienced Cafcass officer. He has prepared two reports. His first report, written just two weeks after these proceedings began, anticipated the problem with which the court is now faced. He made the point that,

‘21. If D is not able to be cared for by a family member, there will be a strong argument for him to be placed for adoption. An important question will be whether the same applies to K. The Adoption team will clearly need to make an assessment of this issue which I would suggest should be filed with the court. K’s age, attachment difficulties and behaviour difficulties may mean that it is less likely that K can be placed for adoption.’

 

There is no evidence before the court from the local authority’s adoption team.

132. In his final report the guardian refers to many of the issues already set out in this judgment. He has observed contact. He noted that both children were happy in the mother’s company and spent an enjoyable time with her. He noted that CP was well prepared for contact and responsive to D. However, he also notes that the assessments undertaken by the local authority ‘portray a clear picture of the deficits of both parents’. He is satisfied that those assessments present a full and fair picture of the capacity of these parents to care for their children.

133. Plainly, at the time of his report the guardian did not know what judgment the court would come to with respect to the causation of D’s injury. He does, though, address the possibility of the mother resuming care of the children in the event that the court were to find CP to be the perpetrator. He says that,

‘35. …It is difficult to have confidence in this position given that AB has already reconciled with CP part way through these proceedings, and even if the separation proved to be genuine, AB has struggled throughout the children’s lives to exercise parental responsibility safely, consistently, and confidently. AB’s own needs for relationships and support are likely to over-ride any concerns for the children’s welfare.’

 

134. The guardian supports the local authority’s final care plans for both children. He notes in his report that K is aware of the plan for her to remain with her present carers and says that she ‘gave the impression that she would be happy with such an outcome’. K is not aware of the plans for D. Given that the plan is to separate these siblings I am concerned that the guardian does not go on to evaluate that plan in terms of the impact it is likely to have on each of these children. The closest he comes is to acknowledge that the separation of the children ‘may well impact on K emotionally and behaviourally and her carers may need the support that a Care Order brings’.

135. It was clear from the guardian’s oral evidence that his decision to support the separation of these children is in order to enable D to achieve the greater degree of security that is normally associated with adoption. Indeed, he said in terms that the risk of placement disruption is his only reason for supporting the separation of these siblings over and above their placement in long term foster care.

136. There is evidence to suggest that the mother may have a learning difficulty. She finds reading difficult. When interviewed by the police the interview had to be halted until an Appropriate Adult could attend. Miss Hodges raised with the guardian the issue of whether there ought to have been a cognitive assessment of the mother and, if an assessment demonstrates that she does have a learning difficulty, whether it may have been more appropriate for the local authority’s assessment of the mother to have been a PAMS assessment. The guardian said that in his opinion the mother’s difficulties are emotional rather than cognitive. This is not a case in which he considers a cognitive assessment to be essential.

137. The guardian made it very clear that direct contact between K and her mother is essential. The local authority agrees to amend its final care plan for K in light of the guardian’s view that contact between K and her mother should take place six times a year rather than three times per year as originally proposed. The guardian also underlined the importance of inter-sibling contact. He supports the proposal for direct sibling contact three times per year ‘and would hope that both sets of carers are able to work together to enable the children to maintain a relationship that does not compromise the safety and security of D’s placement’.

138. Finally, the guardian expressed concern about the local authority’s delay in issuing these proceedings. He makes the point that that delay ‘will not have helped the adoption team to find a suitable placement for D’.

Foster carers

139. At the time I heard evidence it was obvious that there were some uncertainties surrounding the position of the foster carers in relation to D. Since I began writing this judgment the local authority has clarified the position. In an e-mail from the local authority solicitor, copied to all parties, he says,

‘In response to questions asked by HHJ Bellamy during the final hearing last week, the children’s Social Worker, Miss H, has made enquiries of the children’s current foster carers about their current status as foster carers and their position in relation to caring for both children in  the long-term.

I am told as far as their fostering status is concerned, they were approved as just general foster carers with no limitation set as to whether they should foster long or short-term.  Were they to foster one or both the children on a full-time basis, then there would simply need to be a change in the terms of their Fostering Agreement.  

Both foster carers stated that they would not consider adopting D.  This is mainly because their own birth child…would not want this.

Both foster carers would consider long-term foster care for both D and K but they have expressed a view that such an arrangement may not meet D’s emotional needs – they are a little concerned that D could be influenced by K’s emotional needs and this could possibly lead to a placement breakdown in the future.  They also feel that K might feel overly responsible for D.’

Both foster carers have not absolutely ruled out wanting to apply for Special Guardianship Orders on both children should both children remain in their long-term care.  However, they want to have a discussion with Joshua to gain his views on this issue.  Presumably their reservations about the potential effect on D of remaining in a long-term placement with K would be the same whether the children were subject to ongoing care status or Special Guardianship Orders to the foster carers.  I am told the foster carers have expressed a view that a Special Guardianship Order would mean that both children could benefit from the removal of the ongoing stigma of LAC status. 

Finally, I am told that discussions have taken place with the County Council’s Family Finding Team with a view to seeking suitable adopters that would consider direct sibling contact post-adoption between K and D.  I am told the Team will approach three couples that have previously been identified to confirm their views around direct contact.  Discussions have also taken place around a time-limited search for adopters that would accept direct sibling contact.

 

The law – welfare issues

The approach to the application for a care order

140. The finding that the threshold set by s.31(2) Children Act 1989 is satisfied is the gateway to the making of orders in respect of these children. Within the care proceedings, in determining the appropriate order the court must follow the approach set out in s.1 of the 1989 Act. Section 1(1) provides that when the court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration. In determining what is in a child’s best welfare interests the court must have regard to each of the factors set out in the welfare checklist in s.1(3). Section 1(5) provides that when a court is considering whether or not to make an order under the Act with respect to a child, it shall not make an order unless it considers that doing so would be better for the child than making no order at all. In public law cases this means that the level of state intervention should be no greater than is necessary in order to secure the child’s welfare. Section 1(2) sets out the general principle that any delay in concluding proceedings such as these is likely to prejudice the welfare of the child.

141. In addition to those statutory provisions, the court must also have regard to the Article 8 rights of these children and of their parents and must endeavour to arrive at an outcome that is both proportionate and in their best welfare interests.

The approach to the application for a placement order

142. So far as D is concerned, in addition to a final care order the local authority also seeks a placement order pursuant to s.21 Adoption and Children Act 2002. The court may only make a placement order if either the child’s parents consent to the order being made or if the court dispenses with the parents’ consent. Section 52 provides that the court cannot dispense with a parent’s consent unless it is satisfied either that the parent cannot be found or is incapable of giving consent or that the welfare of the child requires that the parent’s consent be dispensed with.

143. In determining whether to make a placement order and whether to dispense with parental consent the court’s approach must be as set out in s.1 of the 2002 Act. The court’s paramount consideration must be the child’s welfare throughout his life (s.1(2)). In determining the child’s welfare interests the court must have regard to each of the factors in the welfare checklist set out in s.1(4). Once again the court must have regard to the issue of delay (s.1(3)) and to the injunction not to make a placement order unless it considers that making the order would be better for the child than not doing so (s.1(6)). The court must also have regard to the D’s Article 8 rights and to those of his parents.E+WThis sectionnoteType=Explanatory Notes has no associated

Re B-S (Children)

144. When dealing with an application for a placement order or adoption order, the court must bear in mind the guidance given by the Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146. The approach to determining whether a placement order is appropriate is stringent. Such an order should only be made (para 22).

‘where “nothing else will do”, where “no other course [is] possible in [the child's] interests”, they are “the most extreme option”, a “last resort – when all else fails”, to be made “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do”’

 

145. In order for the court to be able to determine whether nothing else but adoption will do (para 34),

‘…there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option…

 

146. ‘Proper evidence’ must include evidence of the support and assistance the local authority can provide (para 28),

‘the court's assessment of the parents' ability to discharge their responsibilities towards the child must take into account the assistance and support which the authorities would offer. So…before making an adoption order … the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support...’

 

147. The judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare. It follows, therefore, that (para 84),

‘What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.’

 

Post adoption inter-sibling contact

148. Before the court may make final care orders for these two children, the court is required to consider the arrangements for contact. Section 34(11) of the Children Act 1989 makes that clear.

149. The Adoption and Children Act 2002 also contains important provisions requiring the court to consider, and if in the child’s welfare interests to make, orders for contact (see sections 1(4)(f), 26, 27 and 46(6)) in respect of a child when placing a child for adoption and before making an adoption order.

150. These provisions raise an important issue in this case and that is whether, if K is placed in long-term foster care and D is placed for adoption, the negotiations and arrangements for direct inter-sibling contact should be entrusted to the willingness of the adopters and the foster carers or whether it should be underpinned by an order of the court.

151. This issue was considered by the Court of Appeal in Re P (A Child) [2008] EWCA Civ 535. Wall LJ said that,

‘151. On the facts of this case, there is a universal recognition that the relationship between D and S needs to be preserved. It is on this basis that the local authority/adoption agency is seeking the placement of the children. In our judgment, this means that the question of contact between the two children is not a matter for agreement between the local authority/adoption agency and the adopters: it is a matter which, ultimately, is for the court. It is the court which will have to make adoption orders or orders revoking the placement orders, and in our judgment it is the court which has the responsibility to make orders for contact if they are required in the interests of the two children…

153.    …the judge's judgment is predicated on the proposition that the relationship between the two children is of fundamental importance, and that the relationship must be maintained, even if the children are placed in separate adoptive placements, or if one is adopted and the other fostered. In these circumstances it is not, in our judgment, a proper exercise of the judicial powers given to the court under the 2002 Act to leave contact between the children themselves, or between the children and their natural parents to the discretion of the local authority and/or the prospective carers of D and S, be they adoptive parents or foster carers. It is the court which must make the necessary decisions if contact between the siblings is in dispute, or if it is argued that it should cease for any reason.

154.    We do not know if our views on contact on the facts of this particular case presage a more general sea change in post adoption contact overall. It seems to us, however, that the stakes in the present case are sufficiently high to make it appropriate for the court to retain control over the question of the children's welfare throughout their respective lives under sections 1, 26, 27 and 46(6) of the 2002 Act; and, if necessary, to make orders for contact post adoption in accordance with section 26 of the 2002 Act, under section 8 of the 1989 Act. This is what Parliament has enacted. In section 46(6) of the 2002 Act Parliament has specifically directed the court to consider post adoption contact, and in section 26(5) Parliament has specifically envisaged an application for contact being heard at the same time as an adoption order is applied for. All this leads us to the view that the 2002 Act envisages the court exercising its powers to make contact orders post adoption, where such orders are in the interests of the child concerned.’

 

Discussion

152. I propose to begin my evaluation of the evidence by undertaking a welfare checklist analysis in accordance with the provisions of s.1(3) of the Children Act 1989.

153. Section 1(3)(a) requires the court to consider the ascertainable wishes and feelings of the children concerned (considered in the light of their age and understanding).

154. Although K is settled and happy in her foster home and would like to remain there if it is not possible for her to return to the care of her mother, I am satisfied that her primary position is that she would wish to return to the care of her mother. She is attached to her mother. If she remains in foster care I am satisfied that she wishes to continue to have contact with her mother and would be very distressed if that did not happen. Although K is of an age at which the court should take note of her wishes and feelings she is not old enough to have the level of insight required to understand what is in her best welfare interests.

155. D is not old enough to express a view. On his behalf I make the assumption that if he were able to express a view he would say that he wished to remain in the care of his parents and that if that were not possible he would nonetheless like to continue to have contact with them.

156. K and D have spent the last fourteen months together in foster care. They have a strong sibling attachment. K is currently unaware of the local authority’s intention to place D for adoption. The evidence strongly suggests that if they were able to express a view on this issue it is likely that both children would say that they do not want to be separated from each other.

157. Section 1(3)(b) requires the court to consider the children’s physical, emotional and educational needs.

158. The physical and educational needs of these children are the same as those of any other children of their ages. So far as D is concerned, the same can be said about his emotional needs. That is not so for K. As I have noted, there are concerns about K’s emotional welfare. There is evidence that at times her relationship with her mother is more like that of sisters than of mother and daughter. There is concern that at times K appears anxious about her mother’s welfare. There is also a concern about the emotional impact upon K of separating her from her brother.

159. Section 1(3)(c) requires the court to consider the likely effect on K and D of any change in their circumstances.

160. The most profound change contemplated by the local authority’s final care plans is that K and D will be separated and D moved to an adoptive placement with or without ongoing direct contact with each other. Whilst I do not doubt the risk that this may cause emotional distress for D, I accept that at his age there is a realistic expectation that with sensitive parenting he will overcome that distress. I am not yet persuaded that that will necessarily be so for K. The overwhelming thrust of the evidence is that they have a strong sibling bond. The local authority has done little to assess the likely impact of separation upon K and has given even less thought to the support she is likely to need to get through what I am confident would be a very difficult and distressing experience for her. In her closing submissions for the local authority, Miss Temple-Bone described the final care plans for these children as being ‘the least bad option’. That is not a ringing endorsement.

161. Section 1(3)(d) requires the court to consider the children’s ages, sex, background and any characteristics of theirs which the court considers relevant.

162. Although in this case there is no particular significance in the gender, background and characteristics of these two children, their ages are relevant. K is now aged 7. D is aged 18 months. There is a consensus of opinion that at K’s age it is unlikely that an adoptive placement could be found for her. In contrast, the local authority and the guardian are of the opinion that D’s age is a strong indicator that adoption would be the best option for him.

163. Section 1(3)(e) requires the court to consider any harm which the children have suffered or are at risk of suffering.

164. The most serious harm suffered by either of these two children is the fracture to D’s left leg. I am satisfied that if the children were to return to the care of CP there would be an unacceptable risk of further physical harm.

165. The evidence suggests that K may have suffered some emotional harm whilst in the care of her mother and CP. There has been no formal assessment to establish that point. What is clear is that if the mother were to prioritise her own need to be in a relationship over and above the children’s need for a stable, loving, secure home there would be a real risk that the children would, over time, suffer emotional harm.

166. Section 1(3)(f) requires the court to consider how capable each of these children’s parents are of meeting their needs.

167. The parenting assessments undertaken by Mrs W and Ms L suggest that the mother does not have the capacity to meet her children’s needs. Their assessments are open to criticism. So far as Mrs W is concerned, her inexperience alone calls into question the appropriateness of making her judgment the foundation upon which to make the kind of profound and life-changing decisions the court is being called upon to make. Both of these assessments are open to criticism for the failure of these two assessors to undertake adequate pre-reading of the background papers. Ms L acknowledged that criticism and said that if she were doing the assessment again she would do further reading into the background history.

168. Whilst those two assessments are the most recent assessments of the mother’s parenting abilities, it is nonetheless the case that in their conclusions they are notably out of sync with earlier assessments. There is a consistent thread of positivity in assessment reports completed between December 2007 and May 2013. Has there been such a profound change in the mother’s parenting over the last twelve months that what was acceptable for six years is no longer acceptable? It is clear from the local authority solicitor’s note of the pre-proceedings meeting that but for the injury to D in June 2013, the local authority would not have been considering issuing proceedings.

169. There is a further point that is of concern. There is clear evidence that this mother struggles with reading and with numeracy. The transcript of her first police interview makes it clear that she was confused and struggling to follow the very simple timeline that she was being questioned about. In 2007 an assessor said that she ‘lacked confidence in herself and was quite shy’. Over the years since then others have made similar comments. If the mother does have a learning difficulty it may be that the use of the PAMS assessment model would have led to a fairer and more reliable assessment of her parenting abilities.

170. The guardian did not consider a cognitive assessment to be necessary. He regards the mother’s difficulties as being emotional not cognitive. The impression I had was that whether or not he is right on that issue, his position is that the outcome in terms of the assessment of this mother’s capacity to meet her children’s needs would be exactly the same.

171. The position concerning the father is more straightforward. He has two convictions for assault. He has two convictions for criminal damage, one relating to an incident which occurred shortly after he had begun living with the mother. I have found that when D was only around a month old, CP picked him up and threatened to throw him across the room. I have found that CP was responsible for causing the fracture to D’s left leg. Notwithstanding his attendance at an IDAP course and his claim to have learned the importance of taking time out and his claim to have developed insight into his triggers, I am satisfied that at this point in time it would be unsafe to place a child in his care. He does not have the capacity to meet D’s needs. For this reason alone I am satisfied that CP should be ruled out as a possible carer for his son.

172. As for K’s father, EF, I discount him from this analysis. He does not seek placement of K in his care and does not seek direct contact with her.

173. If persuaded that a care order should be made in respect of D, in evaluating the local authority’s plan for adoption it is necessary to go on to consider the somewhat different welfare checklist which appears at s.1(4) of the Adoption and Children Act 2002. It is unnecessary for me to consider each of the factors set out in that list though it is appropriate to consider s.1(4)(f). This requires the court to take into consideration

‘the relationship which the child has with relatives…including

(i)        the likelihood of any such relationship continuing and the value to the child of its doing so…’

 

174. The relationship between siblings is the longest lasting relationship most people have. It is longer than that of the parent/carer/child or husband/wife/partner relationship. The decision to separate siblings is not a decision that should be taken lightly. In a case such as this, that decision is excruciatingly difficult. Should D be placed for adoption if to do so would cause until emotional harm to his sister? Or to put that the other way around, should D be denied the opportunity to be planted into a new family in which he can put down deep roots in order to avoid the risk that separation from his sister may cause her harm? Before answering those questions I must turn to the decision of the Court of Appeal in Re B-S (Children).

175. Both Miss Hodges and Miss Matthews-Stroud say that neither the local authority’s assessment of the options nor the guardian’s assessment is compliant with the requirements of Re B-S (Children). I agree. Whilst the social worker has made a valiant attempt to undertake a compliant evaluation of the alternatives, her analysis falls at the first hurdle since she rules out the parents before she even considers the placement options. Not only does she rule them out, she does not even attempt to identify and balance the positive factors in favour of these parents. She also fails to consider the possibility of special guardianship (because she is not sure she knows the foster carer’s position on special guardianship). That could be an important option in this case.

176. As for the guardian, in a section of his final report headed ‘placement analysis’ he begins by ruling out the possibility of rehabilitation to the care of one or other of the parents, identifying the negatives yet making no reference to the positives. That alone is sufficient to undermine his conclusions.

177. What are the realistic options for these children? There are in my judgment four possibilities: the return of the children to the care of their mother, special guardianship, long-term foster care and adoption.

178. The main advantage of returning the children to the care of their mother is that she is their mother. As Lord Templeman memorably put it in Re KD (A Minor: Ward) (Termination of Access) [1988] 1 AC 806, at 812,

‘The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature.’

 

There is no doubt that this mother loves her children very much indeed and that they enjoy a good relationship with her. Over a six year period from 2007 to 2013 there were at least four positive reports relating to her care of K and latterly of both children. Those reports describe her as being co-operative with professionals and actively seeking out guidance and support.

179. The disadvantages of return to the mother’s care relate to concerns about her ability to meet the children’s emotional needs, her ability to separate and remain separated from CP, whom she has described as ‘the love of my life’, and the risk that if she does separate from him she may quickly form a relationship with another man and that she will do so without first establishing whether or not that person is a risky adult.

180. Although the assessments undertaken by Mrs W and Ms L are both negative, I have expressed concerns about the reliability of both assessments. As for the mother’s ability to remain separated from CP, this is as yet untested. I have no doubt that in order to separate and remain separate she would need support. The local authority has not begun to consider what support might be required and whether the provision of that support is feasible. The evidence suggests that before addressing that question it would be necessary for the mother to undergo a cognitive assessment.

181. The benefits of special guardianship are that it provides a level of security for carers and child that is significantly greater than that available under a child arrangement order. It also has the advantage that, from the child’s perspective, it lacks the stigma and intrusiveness of being subject to a care order. Special guardianship would enable ongoing direct contact between the children and the mother (and in D’s case, perhaps also CP). It also has the benefit of keeping the children together. For D, special guardianship has the advantage that if K’s placement broke down the special guardians may be more willing to continue caring for him than if they were looking after him as foster carers.

182. The downside of special guardianship is that it lacks the permanency of adoption and is more susceptible to placement breakdown. Unlike adoption, it is a relationship which ceases to exist when a child reaches the age of 18. It does not necessarily provide a child with a ‘for ever family’.

183. A care order and placement in long-term foster care would enable ongoing contact between the children and their mother. It would have the advantage over special guardianship that the local authority would continue to share parental responsibility and would therefore be able to act as a buffer between the carers and the birth parents. It would also enable the children to remain together.

184. The downside of long-term foster care includes, for both of these children, the risk of placement breakdown. No matter how committed the foster carers (and K and D are fortunate to have foster carers who are very committed) it is open to the foster carers at any time to withdraw. If the placement broke down with respect to one child they may wish to cease caring for both – and even if they wished to continue caring for the other child the ultimate decision would be the local authority’s and not theirs. Another downside is the stigma that comes with being a looked after child

185. The final alternative, for D, is that he should be placed for adoption. Adoption would provide him with a ‘for ever family’. It would create relationships that would endure beyond his eighteenth birthday. Although the older he gets the more difficult it is likely to become to find a suitable adoptive placement, the local authority and the guardian are confident it will be possible to find a placement for him. Research evidence suggests that the risk of placement disruption for a child of D’s age is low.

186. The downside of adoption is that it will mean that direct contact between D and his parents would end. All that will be left is annual letter-box contact. That would be distressing for the parents though perhaps less so for D if placed with capable, sensitive adopters. The greater problem is the consequences of separation from his sister. Whilst the local authority appears to accept the need to try to find an adoptive placement that would be open to ongoing direct inter-sibling contact the care plan does not commit to searching for such a placement. The recently received e-mail from the local authority indicates that the local authority is now exploring this issue. The best that can be said is that it is a work in progress. The court cannot take for granted that it will be possible to find an adoptive placement with carers who are open to ongoing contact. In this case, the lack of evidence from the local authority’s adoption team is highly regrettable.

187. There is, though, a more profound concern about the plan for adoption. Even if ongoing direct contact can take place, that is not the same as being brought up alongside one’s sibling. Direct contact may not fill the void left by separating these siblings. On this issue there is at present no professional evidence to assist the court.

188. That analysis drives me to the conclusion that before I can make a holistic evaluation of what is in these children’s best welfare interests I need further evidence. But that will cause delay, delay which s.1(2) of the 1989 Act and s.1(3) of the 2002 Act suggest is in principle likely to prejudice the children’s welfare.

26 weeks and the problem of delay

189. As a result of amendments to s.32 of the Children Act 1989 which came into effect on 22^nd April 2014, it is now a statutory requirement that applications for care and supervision orders be heard ‘without delay’ and ‘in any event within twenty-six weeks beginning with the day on which the application was issued’ (s.32(1)(a)). These care proceedings were issued on 28^th February. Twenty-six weeks expires on 29^th August.

190. There is a residual power to extend the twenty-six week period, though the court ‘may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.’ (s.32(5)). Such extensions ‘are not to be granted routinely and are to be seen as requiring specific justification’ (s.32(7)).

191. In making a decision which may give rise to the need to revise the timetable (for example, a decision relating to expert evidence) and/or in deciding whether to grant an extension to the timetable the court must have regard to the impact which any ensuing timetable revision would have on the welfare of the child and on the duration and conduct of the proceedings (s.32(4) and (6)).

192. It is clear that some cases will require more than 26 weeks in order to achieve an outcome that is both just and fair. In Re S (A Child) [2014] EWCC B44 (Fam) Sir James Munby P. has given guidance on this issue:

‘33. There will, as it seems to me, be three different forensic contexts in which an extension of the 26 week time limit in accordance with section 32(5) may be "necessary":

i) The first is where the case can be identified from the outset, or at least very early on, as one which it may not be possible to resolve justly within 26 weeks…

ii) The second is where, despite appropriately robust and vigorous judicial case management, something unexpectedly emerges to change the nature of the proceedings too late in the day to enable the case to be concluded justly within 26 weeks…

iii) The third is where litigation failure on the part of one or more of the parties makes it impossible to complete the case justly within 26 weeks...’

 

193. It is deeply regrettable that this local authority delayed by almost nine months before issuing these proceedings. That delay when coupled with the failures of preparation – no cognitive assessment of the mother, no holistic assessment of the mother taking into account the positives from previous assessments, no consideration of whether the mother could care for her children with appropriate support, no assessment of what support might be needed and whether it can reasonably be provided, no clear evidence of what the current foster carers are willing to offer, no evidence from the local authority’s adoption team – all of this compounds the unnecessary delay which followed D’s admission to hospital in June 2013.

194. In my judgment all of this amounts to what the President describes as litigation failure. I am not in a position to make final orders today. Further evidence is needed. Some of that evidence will require an application to be made under Part 25 Family Procedure Rules 2010. Some will need to be provided by the local authority and the local authority will need time to consider what is needed and the timescales within which it can be provided. I shall therefore list the case for a further case management hearing on 21^st August.