England and Wales Family Court Decisions (other Judges)

 

 

Case No:

IN THE LEEDS COUNTY COURT

IN THE MATTER OF [THE CHILDREN ACT 1989]

AND IN THE MATTER OF J, a child

 

Date: 25 March 2014

 

Before :

 

HHJ Hillier

 

 

- - - - - - - - - - - - - - - - - - - - -

Between :

 

- - - - - - - - - - - - - - - - - - - - -

 

- - - - - - - - - - - - - - - - - - - - -

 

Hearing dates: 13,14,17 March 2014

- - - - - - - - - - - - - - - - - - - - -

 

JUDGMENT

 

 

 

1.    On 7 March 2014 Wakefield MDC (the LA) applied for a care order in respect of a child who I shall refer to as J. J is 15 years old. The LA indicated in its application that it sought an interim care order with a plan of ongoing removal of J from his grandparents, A and B. No time estimate was given for the hearing, despite local directions which require this. The allocation and gatekeeping team therefore sought to ascertain whether the matter was contested and if so how much court time was required. No clear information was given, therefore the case was listed for 5 hours before me on Thursday 13^th March 2014. The hearing was actually spread over 3 days for reasons which I expand upon below. The lack of accurate time estimate was a principal cause for the shortage of court time available and I would remind all West Yorkshire LAs of the need to assist the court with this information at the earliest stage.

 

Representation

 

2.    The LA were represented by Mr Taylor. A was represented by Ms Anning, B was represented by Ms Steele, and J was represented by Ms Sowden, who took instructions from the Children’s Guardian, Jennifer Higgins.

3.    I heard the oral evidence of A, B and the social worker.

 

Background

 

4.    The background to this matter is quite unusual, and any specific detail would lead to identification of the parties. J’s mother C, who was a vulnerable adult, died in early March 2014. The circumstances surrounding her death are the subject of scrutiny. The potential allegations are primarily concerned with neglect of her health needs prior to her death.

5.    Prior to February 2014 A and B cared for both J and his mother. They did not live together but managed this difficult task spread over three households. They had a residence order in respect of J and had shared care of him over a number of years. J is 15 years old. He has significant developmental delay and is reported to function at the level of a child aged 4 or 5. In February A was ill and spent time in hospital and recuperating away from her home. She was not therefore involved in the care of C or J at the relevant time.

6.    On the evening of C’s death B was interviewed by the police but was not arrested. He returned home to care for J. Two days later the social worker, (SW), rang A to ask her to come to B’s home to care for J because the police were going to arrest B. A was in a funeral parlour making arrangements for C’s funeral at the time. She was also due to have medical treatment that afternoon. A rushed to B’s home. He had been arrested before she arrived and she was present when he was removed by the police.

7.    A short conversation took place between SW and A. A suggested that she care for J in B’s home in order to provide consistency at a traumatic time. It is clear that SW was in favour of this because a recording (F16) shows that she stated that the family had been traumatised and J had been distressed when B was arrested. B remained in police custody until late the following day. When he was bailed he made it clear that he did not accept the bail conditions which the police had imposed, in particular not to return to his home and not to have contact with J.

8.    A police officer rang A and informed her of the bail conditions that evening.

9.    B went to his home after A and J had gone to bed. He was there the following morning when J got up. A did not ask him to leave or phone the police. The police liaison officer arrived at the home at about 11.45am. A, B and J were in the home.

10. At about 5.15 that afternoon the police and two social workers attended at B’s home. A, B and J were still there. The police removed J from the home under police powers. B was not arrested for breach of bail.  J was placed in a 6 bed short stay residential unit which takes children for up to 17 days. He was very unhappy. The following day the LA applied for an emergency protection order which remained in force until Friday 14^th March.

 

Parties’ positions

 

11. The LA sought an interim care order with a plan for J to remain in care in a residential unit. That position was maintained throughout, despite my request for them to revise the care plan to enable J to return to family care. A sought the return of J to her care. B did not accept that interim threshold was met and sought the return of J to the family and retention of the parental responsibility he held in respect of J under a residence order. The Guardian initially supported the LA but changed her mind following the evidence. Her final position was to support the making of a residence order in favour of A together with an interim supervision order.

 

Law

 

12. The scope of an interim care order hearing is limited. It must of necessity be limited to issues that cannot await the final hearing.

13. The Children Act 1989 s38(2) provides that at an interim stage I must be satisfied on the balance of probabilities that there are reasonable grounds to believe that the s31(2) criteria are met. The LA bring the case and they must of course provide the evidence to demonstrate that interim threshold is met That is not the end of the matter though. Even if I am satisfied that the threshold for making an interim care order is made, it is important that I do not translate that into an automatic satisfaction that J should remain separated from his family.

14. There are several Court of Appeal authorities setting out the test for continued separation under an interim order. All stress that such a continuation is very serious, and that the options available for the child should be analysed carefully.

15.  I have reminded myself of the very helpful and clear exposition of the test set out by the President in Re G (Interim Care Order)[2011] 2 FLR 955.  I must ask myself whether J’s safety, including his physical and psychological safety, requires ongoing removal, and then go on to consider whether ongoing separation is proportionate in the light of risks posed by returning him. The object of the order should therefore be to hold the balance so as to cause the least harm to him.

 

Evidence written and oral

 

16.  I heard the oral evidence of SW, A and B. I also considered the contents of the bundle of documentation supplied by the LA and the submissions of the lawyers. The evidence had to be heard over three days due to my other court commitments and the inaccurate time estimate. I decided that it was necessary to hear the SW’s oral evidence to hear the analysis of risk and the communication which had taken place between the SW, police and A and B prior to J’s removal from his home. I gave a clear indication that the grounds for ongoing separation were not likely to be made out at the start of the case and granted unsupervised contact to A over the intervening weekend until the case could be concluded once I had the opportunity to assess the evidence of A and B.

 

Assessment of the evidence

 

17. The SW described the conversations she had had with A and B She said that the discussion with A on the day of B’s arrest was “difficult”. It had been quite a short conversation because A was late for a medical appointment of her own. “She was late and was keen to get there”.

18. The SW told me that she had sought guidance as to what action to take if A had refused to care for J “away from B”. Police powers were invoked in respect of J on the day of B’s arrest “as an additional safeguard” but no other action was taken by the LA. The police powers were in fact not used until 2 days later when J was removed by police who chose to remove him rather than arrest B who was on the premises in breach of bail and had been there to their knowledge for over 5 hours

19. It seems to me that there was a lack of thought given to and analysis of the options available. The LA did not prepare to apply for a care order or even an emergency protection order. Whilst the SW states that the police powers were an additional safeguard I cannot see what they were in addition to. There was no documented consideration of sitting down with A to assess her cooperation and set out expectations in a written agreement as one would normally expect in a case where the SW position was very clearly that J should be cared for in the family.

20. There also appears to have been a lack of compassion to the family’s, and particularly A’s and J’s circumstances. A was grieving the loss of her daughter. She was recovering from hospitalisation and in receipt of ongoing medical treatment. She was trying to make funeral arrangements and cope with the questioning and subsequent arrest of family members. The SW said that in a telephone conversation with A on the evening of B’s arrest A was “angry and emotional”. She was critical of A for saying that she thought the police actions were “disgusting” She knew B was being uncooperative about police bail, yet still no face to face meeting was arranged to assess the situation, discuss a written agreement or consider what support might be needed.

21. In my view this was a significant failure which could have achieved a workable agreement to protect J and I ask that the LA review why those vital steps of a discussion with A of LA intentions with a clear explanation of what would be required and the consequences of failure to adhere to a written agreement were not taken.

22. On 5 March The SW was in a strategy meeting from 9am. The liaison PC was not part of the meeting. He had gone to B’s home at about 11.30am and had returned at 1pm, when the information that A, B and J were at B’s home was shared. The decision was taken at that time to attend and remove J under police powers.  I am very surprised that no consideration was given to removing B from the situation by arresting him either at that time or subsequently. It was obvious that J would not be able to understand what was happening. He had lost his mother and had witnessed his grandfather’s arrest by police. His autism and cognitive abilities mean that routine and care by trusted adults is very important to him and had been recognised. The risk from B was not of imminent significant physical harm. In my view the police should have arrested B rather than remove J. I ask that they review their use of police powers in this case. If J needed protection from B why not arrest B?

23. When the police and SW attended B’s home A and B were challenged about the breach of bail.  The SW’s evidence was that “When we said we were going to remove J they acknowledged they were in the wrong. They said can we talk about it. The decision had been made. I didn’t feel that any agreements would be adhered to…..The advice given was to offer A and B a s.20 voluntary accommodation agreement and if they wouldn’t take it to remove J under police powers and then apply for an EPO”.

24. Ms Anning asked the SW why B hadn’t been arrested so that J could remain in his home. The SW said “That was a matter for the police”. Ms Anning asked “Why not suggest it to them?” to which the reply was “I didn’t”. Ms Anning said “That would have been more child focussed?” The SW response was “That’s what we did.”

25. I found this aspect of the evidence very troubling. The social work team manager had authorised a search for a foster placement for J before B was arrested and despite the fact that the SW had seen J in his home and had cautioned against his removal a train of events seems to have been put in motion which centred around B rather than putting J and his needs as the central focus of the decision making process.

26. The SW conceded that she had not told A that there should be no unsupervised contact between J and B at their first meeting when B had been arrested. She believed that she had made it clear to A what the consequences would be.  Ms Anning asked her about when that had occurred. She replied on the afternoon of B’s arrest, in the very fraught telephone exchange they had had. Ms Anning asked “Did you explain what the consequences of [unsupervised] contact would be?” to which she replied “I said if we couldn’t get agreement to B living away from home we would take legal advice”.

27. In my view this was insufficient. How could A be expected to know what this would mean? The SW team knew that B was strong willed and unaccepting of bail conditions. The police explained the bail conditions to A by telephone but did not explain that they would remove J if she didn’t report a breach of those conditions. The PC who visited the home did not require B to leave when he went round the following morning, nor did he arrest him that morning. When A told the SW that she thought the bail conditions were disgusting, rather than explain why they were necessary the SW told her they were imposed by the police. The messages which this sent to A and B were therefore very unclear. By the time they realised the consequences for J it was too late.

28. There was an obvious opportunity on the afternoon when J was removed to remove B from the home instead and to safeguard J with a written agreement, bearing in mind the grandparent’s acceptance of the situation and their request to sort the matter out. That opportunity was lost to J’s detriment. When J was removed there were 2 social workers and 2 plain clothes police officers in his home. There were a further four police officers outside, two of who were in uniform. A got his belongings and helped to settle him in the car, but the experience must have been very traumatic for him.

29. The LA position was that A and B’s future cooperation needed to be assessed. No assessment had been commenced nor would it be commenced until the transfer to a new social worker. Ms Thorpe accepted that she had met with A after a contact and had said that A needed to work with the LA. A was apparently cooperative. Ms Anning asked “What did you do then to work with her?” The answer was “I didn’t”.

30. A explained that she and B had cared for C and J. B had lived away for a time and she had cared for them both. In November 2013 C had been allocated a suitable home and B had returned. She was caring for J in B’s home and C in her new home, going home to her address at night. She had had three medical procedures which had meant that she had been unable to care for C and J but otherwise had worked “24/7”. On 16 February she had seen C for the last time. She had been an inpatient for 7 days and had been recuperating for only 4 days when C died. She said that C’s death was a total shock to her.

31. A accepted that on the evening before J was removed a police officer had explained that B must not return to his home and that she thought the police were going to arrest B when the PC came to the home on the morning J was removed. When J was removed that afternoon she accepted that she had “ranted and raved” because they were taking J. She had seen J and he was not himself at the residential unit.

32. A said that she didn’t want to work with social services but she would in order to put J first.  She said “I will do it because J has been taken. B has accepted it’s his fault and has said he won’t come. I don’t think he will. I think he can be trusted.”

33. My assessment of A is that she is an emotionally very strong woman. She was frank with me about her attitude towards social services but it was clear that she bears no personal animosity to the SW or any other individual. She did not try to hide the fact that she does not believe the allegations about B. I am satisfied that she was aware of the bail conditions and the likely consequences for B if he breached them but that she did not understand that J would be taken from her care if B did not cooperate with the police. Nobody told her and I don’t think it crossed her mind that he could be removed without a court hearing.

34. A is very clear about the consequences now and clear about her adherence to a written agreement. She puts J’s needs before her own. She agreed to care for him at B’s if that was thought better for him and was worried about him at the residential unit. She tried to make the experience of his removal better by ensuring he had some belongings and settling him. She adhered to the contact arrangements over the weekend between days 2 and 3 of this hearing.

35. B’s evidence was that the initial bail conditions which had been proposed were rather more flexible than the ones imposed after he had refused to comply. He rather regretted his actions in that respect. He said that he had told A that there were no bail conditions, because he did not accept there should be. When the liaison PC came to his home and found him there with A and J the PC had left without arresting him, and had said that he would be the person who would arrest B if needed. B had made it clear “that there would be no trouble” and was very surprised when the events of the afternoon had unfolded. He said that he had seen J in the residential unit and was very concerned for him. He said “I will do whatever the court says” even though he does not agree that he poses a risk. He was clearly of the view that he should have been removed rather than J. He offered to move elsewhere in the country and to assist with the provision of internet access for J to help him return to A’s care.

36. In my assessment B can be a difficult man to deal with. He has strong opinions and clearly thinks he is in the right sometimes even when he is not. I do not think he foresaw the consequences of his belligerent actions in going home in breach of his police bail. I do think that if he had realised the consequences for J he would have stayed away. In my assessment he respects the court and it is very likely that he will respect the orders I make. He is contrite and offered to move away to another part of the country to allow J to come home. He offered his own home for A to care for J if she wished. He did not breach the contact provisions on 15 and 16 March despite knowing where J was. He has signed the written agreement without demur.  

 

Assessment of risk

 

37. The LA position was that the risk to J from B is very high. Mr Taylor explained that the main factors to be assessed were the circumstances of C’s death in the care of B, the fact that B had been arrested in connection with neglect of her needs and the fact that A did not accept that B could have harmed C. He submitted that the risk was heightened by J’s vulnerability and that the family had historically not cooperated with social services. The fact that A had not acted to remove B from her home on the morning of March had been a precipitating event which meant that she could not be trusted to protect J and would need to be assessed before she could resume care of him.

38. B denies any culpability in respect of C’s death and states that he poses no risk of harm to J. He has not been charged with any criminal offence. He may well be right but I am satisfied that there are reasonable grounds to believe that C’s needs were neglected shortly before her death.  There are therefore reasonable grounds to believe that there is a risk of neglect and physical harm to J. The interim threshold is met.

39. Taken at its highest however the risk to J would be of relatively minor physical violence and/or neglect of his needs. Whilst there have been “concerns” about J’s care in the past there is no recent evidence of him being physically harmed or neglected by A or B.  Since J is a very vulnerable 15 year old who cannot communicate very well it is very clear that he needs to be protected in the interim. I therefore have had to assess A’s ability to protect him during this crucial interim period whilst investigations take place.

40. A does not believe that B poses a risk to J, which is a contra indicative factor to her caring for him. It is not however determinative. I have been able to assess her oral evidence and her determination to comply with any order which will ensure that J can be placed in her care. I am satisfied that she is now willing to cooperate with the SW and the court to maintain a safe holding position for J. I assess the risk of further non compliance with the need to supervise contact as very low because she is absolutely committed to caring for J and has seen the consequences to him of removal from his family, a matter which she finds very distressing. She has willingly entered into a clear written agreement which sets out the expectations of her to protect J and I am satisfied that she will do her utmost to comply. I am also satisfied that B will abide by the terms of the court order. He has no particular regard for the police or social services but he has a strongly held respect of this court. He knew where J was over the weekend of 15 and 16 March and did not attempt to contact him. He even offered to move out of the area if required to do so.

41. Balanced against this low risk of harm and failure to protect is the harm likely to be suffered by J if he remains separated from family members who he knows, loves and trusts. I am satisfied that the risk of significant emotional harm to him is high and that the consequences of such harm could have long term consequences. The evidence for this is demonstrated by his behaviour on removal and his response to those who have previously cared for him when he has contact.

 

Welfare checklist

 

42. J is 15 but is highly vulnerable. He suffers from severe autism and developmental delay. His world is not that of an average 15 year old boy. He is able to access education through a statement of  special educational needs and has been cared for by A and B for the last 10 years. He cannot verbalise his wishes and feelings but I am sure his reaction to residential care demonstrates that he has a clear attachment to his family. J uses a potty and wears nappies. His communication is limited to single words. He enjoys playing on his computer. J becomes distressed by changes to his routine and finds it difficult meeting new people.

43. J has recently suffered traumatic and confusing situations. His mother has died. He has seen his grandfather arrested. His grandmother was missing from his life because she was in hospital and he was removed from his home by 8 professionals into a place he had not been to before where his carers were strangers to him. The effect on him of these events is not yet known but could be very significant. There will be a further change for J if he is moved to be cared for by A in her home.

44. A is clearly able to meet most of his physical and all of his emotional needs over the interim period. She is physically and mentally drained at the moment and may need support but I am sure she will access that from her family and professionals if needed.

45. The balance of harm in this case is one of a low risk of neglect and failure to protect against a high risk of emotional damage to J by separation from his family. The balance clearly tips in favour of his return to A’s care and the return to his routines and normality as soon as possible.

46. A’s family life has been severely disrupted and it is proportionate to restore it to him as far as is possible consistent with his safety.

 

 

Range of orders.

 

47. I have carefully considered the range of orders open to me. I initially believed that an interim care order was necessary to monitor J’s safety and I indicated that in clear terms to the LA in order for them to consider a change of interim plan. They have steadfastly refused to do so.

48.  I could have made an interim care order but required an assessment of J’s care by A under s38(6) of the Children Act 1989, thereby thwarting the LA view that J should remain in corporate care. I have now had the opportunity to weigh the evidence and assess A and B giving their oral evidence. I, like J’s Guardian, am now satisfied that such intense monitoring and sharing of parental responsibility is not required at this stage to protect J, indeed it would be completely disproportionate.

49. Whilst I am aware that to discharge B’s residence order in respect of J is to remove the Parental Responsibility which is thereby conferred on him it is necessary at this stage to ensure that only A holds Parental responsibility for J. B clearly thought that his residence order would override the police bail and the LA plans. It did not, and I am concerned that if B retained parental responsibility he may seek to use it against J’s best interests by insisting on real or imagined “rights”. Instead I am sending him a clear message that he is not the resident parent, he can only have limited, supervised, contact with J and that it is A with whom J is to reside.

 

Order

 

50. Having carefully assessed all the written and oral evidence, applied the relevant law and considered the submissions made on behalf of the parties, I am satisfied that the following are in J’s welfare interests and are sufficient to protect him and a proportionate response to his situation. I make a residence order in respect of J in favour of A and he will return to her care immediately, living in her home. I make a contact order in favour of B, requiring contact to be supervised by the LA and to occur twice per week. I make an interim supervision order in favour of the LA to provide support for A and to assist with supervised contact between J and B. I transfer the case to the High Court because it involves consideration of the potentially complex matters surrounding the death of a vulnerable adult..

 

Her Honour Judge Nancy Hillier