England and Wales Family Court Decisions (other Judges)

In the Reading County Court

		1st December 2014 To 4th December 2014

Introduction

I am dealing with an application for a care order in respect of M aged 8 years.

I have read all of the evidence contained in the Court Bundles and handed in through the course of this hearing, and heard from various witnesses.

Background

This application was issued on 30^th May 2014 and all parties agree that the relevant date for the purposes of threshold is 29^th May 2014 when the Local Authority commenced child protection measures.

There is a history of involvement with Social Services and this mother in relation to M which goes back to her pregnancy in 2006. Much of that earlier history is complicated by the fact that mother successfully complained to the Ombudsman about Social Services actions taken in 2008, resulting in their own records acknowledging that the information in relation to these events is deeply flawed in terms of fairness and accuracy and must not be used in historical evidence of poor parenting and the information itself has been deleted from their records. At the very least, this appears to have left mother with a sense of grievance against the local authority.

What is not disputed by the mother is that in December 2008 she reported that her brother had sexually abused her when she was a child. As M was residing with her grandmother at the time, this caused concern but assurances offered by the grandmother to safeguard M appear to have been acceptable to the local authority and no further action was taken.

In 2010 concern was raised as mother's GP reported that mother was refusing to register M with a GP and mother did not want M to receive her immunisations. No further action was taken at this time. I should point out here that M was immunised later on.

In 2012 a housing officer reported concerns regarding mother's capacity to parent M given than mother had told her that she had memory problems, limited physical mobility and regularly "zoned out". An assessment was undertaken but no further action was taken.

On 2^nd January 2014 WBC received a referral from Reading fostering team in relation to M as the maternal grandmother had put herself forward as a backup foster carer. The 2008 allegations of sexual abuse by mother against her brother came to light and, as the social worker from Reading was under the impression that M lived with her grandmother full-time, this caused concern. WBC decided to undertake a child and family assessment as the previous involvement with the department in relation to M came to light and M was still not registered with a GP. The assessment was conducted and the Social Worker's statement at C4 to C5 details the concerns that they identified as a result, including various medical complaints claimed by the mother which affected her ability to perform routine tasks (and these are aside from her Asperger's) and hence care for M, a perception that that M was socially isolated and concerns about the adequacy of the home education being provided to her. Mother does not accept as accurate what the Social Worker has recorded her as saying about her health issues in relation to the impact they may have upon her day to day activities. It is clear that mother did not at the time accept that there was any basis for the concerns with regard to her capacity to parent M. She contends that her health has improved since 2013 when the reports of her being unable to leave the house etc were made. She also contends that M now has a range of activities through the week involving contact with other children and adults and that these also address M's educational needs. Mother accepts that M now has a pattern of spending Monday to Friday with her, and then Friday evening to Sunday afternoon with her grandmother.

Threshold

The Local Authority alleges that the criteria are met on the basis of likelihood of emotional harm. The final schedule of findings in relation to this sought by the Local Authority are at A1-2. Threshold is not accepted by the Mother or Guardian in any form, but is accepted by the Maternal Grandmother.

Parties Positions

WBC seek a Special Guardianship Order to the maternal grandmother with a Supervision Order for 12 months, and contact between M and her mother is proposed to be twice per week for 3 hours each session for the first 3 months, supervised by the maternal grandmother. It is anticipated that contact will increase to overnight contact on a weekend basis every other week if mother is able to accept the living arrangements for M.

The maternal grandmother supports the Local Authority case and agrees with the making of a Special Guardianship Order to her with a Supervision Order for 12 months.

The Mother does not agree with a Special Guardianship Order to her mother or with a Supervision Order but she would accept the Child Arrangements Order proposed by the Guardian.

The Guardian is proposing a Child Arrangements Order with a Family Assistance Order; in essence since she contends that threshold is not met in this case, a Child Arrangements Order is required to regularise the arrangements with regard to the amount of time that M spends with her mother and grandmother and the Family Assistance Order is required to ensure that all parties receive support to enable them to move forward after this case.

Expert evidence

As part of the pre-proceedings work, Ms S, Chartered Clinical Psychologist, was instructed to prepare an assessment aiming to assess Mother's potential to adjust to M's developmental needs. Her report is at E6-70 and concludes that M had quite clear developmental gaps of a social and educational nature, and her mother's desire for social isolation and resistance towards service/professional support had been to M's detriment. In a follow-up email at E71 she gave an opinion that M did not suffer from Asperger's Syndrome.

Dr M was instructed to prepare a psychiatric assessment of Mother and his report is at E83-105, dated 8^th July 2014. He confirmed the diagnosis of Asperger's Syndrome in relation to her but did not find that she was suffering from a mental illness such as depression when he interviewed her. He concluded that Asperger's is not treatable per se, supported the recommendation of Ms S that a professional from the Autistic Society might be able to work with Mother but was thought that this would be a longstanding task and that Mother was not going to change for the foreseeable future. In evidence to me, he actually concluded that there was no capacity to change on the part of Mother. He also concluded that, "from a clinical perspective Mother is not able to provide good enough parenting to a child" (E104) – I will look at this in more detail later in this judgement.

HD, a Chartered & Educational Psychologist, was instructed to prepare a full educational psychometric assessment of M, and her report is at E 114-154 dated 15^th August 2014. She concluded that M had special educational needs but only at a minor to moderate level and would not therefore meet the criteria for an Education Health and Care Plan, but some Special Educational Need support at a low level would be beneficial. She also recommended assessment of M by an Occupational Therapist and specialist optometrist due to concerns about M's fine motor skills and slow reading. She considered three possible options for M's education, namely full-time mainstream schooling, flexi-schooling or home education and concluded that the flexi-schooling option could best suit M's needs. In evidence to me, she felt that it was important that any form of schooling provided to M outside of the mainstream sector should be monitored and recorded. She felt that, with some support, home education for M could be effective but the fine motor skills concern about M would need input from a specialist teacher to address. She was also concerned that the Local Authority had misunderstood some of her findings and that the initial paragraphs to the plan to reintegrate M into mainstream school at F71 -75 conveyed M as having more special needs than she has. However, she generally thought that the plan had some positives, albeit it could be a week longer and she suggested some changes to involve the proposed Class Teacher and SENCO from an earlier stage and use a Teaching Assistant of level 2 or 3 as a key worker for the personal side of things for M.

The Guardian has prepared two reports in the course of these proceedings and they are at E73-82 and E155-164. She also gave me evidence that nothing she had heard in the course of this final hearing changed her recommendations in the final report, namely that threshold was not met in her opinion and that there should be a Child Arrangements Order with a Family Assistance Order.

Other professional evidence

A parenting assessment of Mother was completed by SW, Children's Services Social Worker, dated 4^th August 2014 (C41-61. That assessment identified a lot of positives about Mother, alongside concerns, and concluded that there needed to be more assessments before there were grounds to remove M from her mother's care.

The allocated Social Worker in the case has given statements at C1-22 and C109-157. She was also the author of the Special Guardianship Report at C62-93 and the Special Guardianship Support Plan at C94-101. She gave evidence to the effect that she had not seen evidence of M having friends and that she was concerned that Mother was not able to put M's emotional needs first. She considered that Mother was resistant to support from the Local Authority and concluded that M was at risk of suffering emotional harm in the care of her mother and should therefore be placed with her grandmother.

Mother's and Grandmother's evidence

Mother has filed three statements in the course of these proceedings and they are at C23-40, C162-186 and C189-193 (and I have replaced the last two statements in the original Bundle with the slightly amended copies provided at court as her final approved statements). She does not accept threshold as I have already noted but does say that she has changed what is happening for M in relation to home education. M is now registered with a GP (which is accepted by the Local Authority), is participating in a variety of activities through the week and Mother has registered with the Local Education Authority in terms of home education.

The maternal grandmother's evidence is at C158-161 and she accepts the Local Authority case but her primary concern for M is actually not social isolation.

Relevant legal considerations

In addition to considering section 31 (2) of the Children Act 1989 with regard to threshold, and the welfare checklist contained in section1 of the Children Act 1989, I have also had regard to sections 14A and 14B of the Children Act 1989 with regard to Special Guardianship. As the key question in this case is whether or not threshold is met, I have also had regard to the cases of Re L (Children) (Care Proceedings: Significant Harm) [2006] EWCA Civ 1282, Re L (Care: Threshold Criteria) [2007] 1 FLR, Re B (Care Proceedings: Appeal) [2013] UKSC 33 and In Re G (children) (FC) [2006] UKHL 43.

Threshold Findings

In this case the threshold as drafted at A1 to A2 reads as follows:

"The Local Authority submit that on the relevant date, namely 29^th May 2014 the child M is likely to suffer significant harm, and that the likelihood of harm is attributable to the care given to her, or likely to be given to her, if an Order were not made, not being what it would be reasonable to expect a parent to give their child.

a) the mother suffers from numerous physical and mental health ailments. She was diagnosed with Asperger's syndrome in 2012 which results in the mother being socially isolated. She also presents with schizotypal and schizoid personality features. These personality traits indicate that the mother tends to be resistant to authority intervention.

b) Due to the mother's desire for social isolation, M has been similarly isolated. M has never attended main stream school. The mother states that M made the decision not to attend school at the age of 4 years old. Prior to this M did not attend nursery as the mother states that M was too busy. M does not appear to have any parental guidance in making these decisions.

c) Until recently the mother refused to register M with a GP as she advised that there was no ethical benefit to M.

d) A child and adolescent assessment of the mother and M states that the mother has fundamentally overlooked structures of care and protection for M medically and educationally. The mother was assessed to be resistant to intervention or anyone introducing structure into her day, leaving M to develop her own structure without guidance. As a result, M's emotional security needs may be being neglected. The assessment concludes that M's home environment could progressively choke her progress and will probably cause her emotional ill-health in the long term.

So this is a case which hinges on the likelihood of significant harm, not actual significant harm, and is solely related to emotional harm rather than physical harm. As has been submitted by the Local Authority, and which I accept, the likelihood of significant emotional harm is no less serious than other forms of significant harm. I am asked by them to consider a series of questions in analysing whether or not threshold is met in this case. It is common ground between all of the parties that M was not suffering significant harm prior to the commencement of proceedings and after and that there appear to be some changes to the way that Mother operates in relation to M's daily activities since the commencement of these proceedings. As I have been reminded by the advocates, I do have to carry out an assessment of the evidence as a whole in this case and not simply prefer one part to another. I have looked at all the evidence in this case. The mother is clearly not the easiest person to work with, an issue which may well be feature of her Asperger's, but which obviously complicates her relationship with the professionals involved in the case. She is also someone who, by her own admission, has at the very least exaggerated her apparent medical problems in reporting these to various professionals for other purposes. This does not help in terms of trying to analyse what has actually happened in relation to her parenting of M and does appear to have caused a lot of focus to have shifted to her medical issues in the early stages of these proceedings, something which the Local Authority should not perhaps have allowed to happen since their threshold does not rely upon these concerns.

I should also clarify at this stage that, although the Local Authority threshold document does refer to Mother's Asperger's and schizotypal and schizoid personality features, this is not relied upon by the Local Authority save for the Asperger's making Mother incapable of change on their case. It does now appear to be accepted that Mother does not have schizotypal or schizoid personality features and the expert opinion of Dr M confirms this.

There is much that is positive about her relationship with M and that is acknowledged by all parties to varying degrees. Even the maternal grandmother accepts that M clearly loves her mother and that she should continue to have a relationship with her mother. There are also negatives in the evidence about the mother in relation to her parenting prior to the commencement of proceedings, for example her social isolation and the impact this would have had upon M and the extent to which M has adequately addressed her educational needs in the past.

There is a very crucial issue of fact about how socially isolated M has been and I will deal with this first as this is the main plank of the Local Authority case against Mother. Looking first at what is the evidence apart from that of the Mother herself, I have the Maternal grandmother clearly worried about the extent to which M is able to mix with children her own age and who clearly believes that M should be in mainstream schooling. Her statement at C158-161 is very brief and actually her evidence to me on the question of M's social isolation was also rather limited. She accepted that Mother was rather secretive and, whilst she had seen no evidence of other people visiting the Mother's house, she equally accepted that this did not mean that there had not been others visiting the house and that M had mentioned other friends.

Ms S identified some deficits in Mother's parenting of M in this regard – "the element that is missing involves the comprehensive socialisation of her little girl" (E16). However, whilst acknowledging that Mother did not necessarily understand M's needs in this regard, she concluded that "she may be able to stretch herself to accessing the help to support M's needs". She also highlighted that Mother "does have a strong will and her need to parent M may push her in the direction of accessing the support that M needs". I am asked by the Local Authority to conclude that it is only because of these proceedings that Mother has made change. However, the parenting assessment report is only dated 28^th May 2014 so it coincides with the issue of these proceedings.

What other professional evidence do I therefore have about M's social isolation and Mother's failure to make any necessary changes to address this before the commencement of these proceedings? The Local Authority sent a pre-proceedings letter to Mother on 18^th March 2014 (H1-5) setting out their concerns. Social isolation is listed as one of their concerns but only after concerns about difficulty working with her, Mother's extensive health issues, her admissions about her bizarre, obsessive and offensive behaviour, and the quality of education that M may be receiving. The concern about social isolation is also linked in the same paragraph with concerns about the acrimonious relationship between Mother and the maternal grandmother. What this letter significantly does not do is to tell her in simple language that M needs socialisation just as any child does and nor does it highlight how important an issue that will be for her emotional development. Given the limitations which her Asperger's places upon her ability to have insight into the minds of others, it is a striking omission. I do appreciate that this sort of letter is to some extent a standard letter and that the intention was clearly to seek a face to face meeting to explore ways of addressing the concerns. However, given that the Local Authority knew of Mother's Asperger's diagnosis at this point, and her stated difficulties with meeting with people as a result, it is unfortunate that they did not try to tailor the list of concerns more precisely and did not try to approach this more creatively and with input from someone with knowledge of the condition.

The evidence of SW is also after the commencement of proceedings and is overall recommending further assessment but did also note that "after lengthy and tiring challenging Mother did concede she could be flexible in her thinking and that there might be an opportunity for M to receive an education outside of the home schooled environment. What is noteworthy, however, is that professionals involved in protecting and assessing M do not have the opportunity to spend hours debating and negotiating with Mother over every concern" (C58). She goes on to note that "M is now 7 years old and comfortable in her existence with her mother and as far as she is concerned, she has friends, activities, a loving grandmother and a doting mother". HD also noted that M talked about her friends and a range of activities undertaken. The Guardian also told me in evidence that M's friends were very real to her. The picture of social isolation is therefore not as stark as the Local Authority perhaps believed it to be at the point that they commenced proceedings, in fairness perhaps misled by the Mother's own exaggerated claims in relation to her medical conditions and the potential limiting impact of these.

Since proceedings have been issued, it appears to now be common ground that to some extent Mother has increased the range of activities and hence the range of children and adults with whom M interacts during the week.

The next question I have therefore asked myself is whether these are real and sustained changes. The Local Authority relies heavily upon Dr M whose expert opinion was that Mother had no capacity to change because of her Asperger's. I will also consider here his opinion that Mother is not capable of adequately parenting a child. What is not clear to me is the dividing line between capacity to make innate changes to one's inherent belief system and changes to the way one operates despite maintaining that inherent belief system. What Dr M seemed to be saying is that Mother's Asperger's renders her liable to rigidity of thought and therefore she cannot think flexibly, ergo she cannot adapt to change her parenting to that which M requires. I have been cautious about the weight to ascribe to Dr M in this regard because he is an adult psychiatrist and therefore not qualified to comment about what a child needs from its parent. I find that his evidence about Mother's ability to change is not actually at odds with the other evidence in the case. We have a Mother in this case who has limitations in her ability to change her thought processes as a result of her condition.

This is also supported by the evidence which HD, whom I note is also a Chartered Psychologist as well as an Educational Psychologist, who explained the rigidity of thinking and approaches to life associated with the condition and who pointed out that whilst it was not possible to change this about someone with the condition, it was her experience that it was possible for them to shift a little by enabling them and through smaller, incremental steps to change. She gave the example that someone with Asperger's can learn rules about interacting with people to redress their natural inability to read social cues. She told me that she felt Mother was willing to take on board suggestions and the Guardian concludes the same.

It therefore seems to me that Mother in this case has taken on board the advice which she has been given about increasing M's socialisation, by taking M to HFS and participating in SHEG and activities such as Cubs and skiing with other children. That Mother needed the prompt of these proceedings is noted, but nonetheless she has therefore changed what she does in relation to M. It was pointed out to me on behalf of the maternal grandmother that Mother has moved M from involvement in Kumon, to highlight that this was not sustained change. However, the evidence of HD to me was quite clear that many children struggle with the Kumon system and that therefore if M was not happy with this system it would be an appropriate response on the part of her parent to look for something else to address her maths and English educational needs.

On the current evidence in this case, it appears to me that the changes which Mother has made in relation to M's socialisation opportunities are very real and have positive benefits for M which Mother herself acknowledges. Whilst Mother might prefer to live a more isolated life, it does seem to me that she can effect change when she understands how important that this for M. Her registration with the Local Education Authority is evidence of this together with the registration with a GP (even though neither are legal requirements). The Local Authority submit that she can simply de-register at the conclusion of these proceedings, and on behalf of the maternal grandmother it is submitted that she has already cancelled two appointments for assessment of the home education. Those appointments were cancelled but reasons have been supplied for the cancellations, albeit probably not very good reasons by the Mother but sufficient for her. This to some extent is work in progress and only time will tell whether she is really committed to this aspect of engagement with the Local Authority. However, she appeared genuine to me when she outlined what benefits she thought registration could bring to her education of M and that does seem to be a powerful motivation for her. Coupled with the evidence from the Guardian and HD of her ability to accept and act upon suggestions for improvement, I am not satisfied on balance of probability that there is sufficient evidence to say that she will immediately cease co-operation with the Local Authority once these proceedings end.

It does appear to be common ground in this case that Mother alone cannot supply the necessary socialisation to M. Even on Mother's own case, she is accessing other people to help with this and includes the time that M spends with the maternal grandmother. Mother in evidence did accept that M had more emotional connection to the maternal grandmother, although she almost immediately denied that she had said this and felt that her words were being twisted. However, it was clear that she acknowledges the strong emotional connection M has to her grandmother, that this is important and is a positive for M. The Local Authority and the maternal grandmother have inextricably linked this to the question of M's schooling and I will consider this aspect of the case next.

The educational adequacy or otherwise of the home education that M receives is something that can and probably should be addressed under the provisions of the Education Act in entirely separate proceedings. In any event, HD was quite clear that in her assessment M really only requires additional input with regard to her maths and literacy and some occupational therapy assessment to identify what else can be done to address the issue with regard to her fine motor skills. The occupational therapy assessment is now planned and Mother has now registered with the Local Education Authority. Registration will facilitate assessment of the provision but again is really an issue in relation to the adequacy or otherwise of the education being provided. In any event, HD concluded that M would not have been likely to have made improvements in her ability over the space of two or three months and that therefore means that Mother must have been doing something that was "okay" for M in her words. Had M not been assessed as positively as she was by HD in terms of her educational achievement, I might have been persuaded that Mother had not been a good enough parent in ensuring adequate schooling for her daughter

The only real relevance of M being home educated to these care proceedings is whether it reduces M's opportunities for socialisation. Dr M seems to have seen this as part of Mother's efforts to avoid contact with others but again he is not placed to give expert evidence about how this might affect M. HD was very clear that with some support, home education might be appropriate for M but was probably not ideal as mainstream schooling would inevitably provide so much more for M as part of a broad and balanced curriculum. However, as the cases which I have been referred to emphasise, the test I must apply is not what would be ideal for M but has her Mother's parenting of her been good enough. The allocated social worker in this case did tell me in evidence that what the Local Authority wanted for M was a chance for her to fulfil her full potential. I do find that this is an important emphasis to their approach in the case, namely that they want not just good enough parenting for M but want parenting that is perhaps best described as excellent. The maternal grandmother is also, I find, approaching the issue of schooling from this perspective. She clearly believes in mainstream schooling rather than home schooling, as evidenced by her attempts to register M in nursery school when M was very young and her own comments in evidence to me.

In this case, it seems very clear that Mother's parenting falls within the "eccentric, the barely adequate and the inconsistent" envisaged by Hedley J in Re L. Her own evidence about the 5 watt light bulbs throughout the house is perhaps illustrative of this. If things continue as they are, I do not find that there is the likelihood of significant emotional harm which the Local Authority alleges. I do accept that this is not the same as saying that there is no risk of harm to M in the future, nor that she has not been harmed by her earlier parenting. Much like Hedley J, I have concluded that this harm is simply not significant harm for the purposes of section 31. I can understand how difficult that is to hear, least of all if you are the concerned, loving grandparent of a child as maternal grandmother is in this case. However, my analysis of all of the evidence, even at its highest, is that this likelihood of harm is simply not capable of amounting to significant harm. I also find that the changes made by Mother despite her innate difficulty to change are good evidence that she will maintain these changes in the future since she so clearly wants to do things for M even if she does not herself accept the rationale fully, and does seem to understand now that M needs this change. She is also willing to accept a Family Assistance Order as suggested by the Guardian. Again this is good evidence that she is at least able to recognise the need for change and accept the involvement of the Local Authority in providing support to her parenting of M in the future. Given how Mother is, I do not expect that this will be easy for either her or the Local Authority but it does seem a proportionate way of addressing the concerns about potential harm to M's welfare in the future, particularly while things settle down in the aftermath of contested care proceedings when Mother and grandmother have both been placed in a difficult and adversarial position in fighting their respective cases.

Options in this case

Given that I have not found the threshold criteria met, I must dismiss the application by the Local Authority under Part IV and I am left with essentially two options, no order or some form of private law order if the best interests of M demand an order.

Analysis of these options – advantages and disadvantages of each

No order is the presumption under the Children Act. It would not substantially alter M's current position. However, M spends time with both of her mother and grandmother and there is a difficult relationship between these two important adults in her life. No order would leave them to resolve how much time M spends with each of them.

The Guardian recommends a Child Arrangements Order to regulate the contact that M has with her grandmother and preserve the status quo for M, and a Family Assistance Order, and that there should be support from a Child in Need Plan for M. The advantage of a Child Arrangements Order is that it would specify the minimum periods of time that M spends with her mother and grandmother. The disadvantage is that it could become too restrictive, particularly as M gets older. A Family Assistance Order also requires Mother, maternal grandmother and the Local Authority to work together.

Conclusions

Given that I have not found the threshold criteria met in this case as I have said, am I persuaded to go against the no order principle to consider a private law order for M? My answer to this is yes. The relationship between Mother and maternal grandmother is at times acrimonious and there is still, on their own admission, work to be done to try to enable them to work more effectively together. The maternal grandmother was actually very open to continuing to work with her daughter to seek to resolve their issues and Mother has agreed to participate in mediation. It is perhaps unfortunate that mediation was suspended as a result of these proceedings but both of them do actually see each other frequently (which was not disputed), and do seem to be able to work together in M's best interests apart from the fundamental disagreement about schooling. There is currently no order which regulates the time which M spends with either her mother or grandmother and I do find that it would be in M's best interests for there to be some definition of minimum expectations under a Child Arrangements Order. I do not find that it would be in M's best interests for her primary carer to change from her Mother to her grandmother in any form so the terms of that Order shall be that M will live with her mother but that she will spend time with her grandmother each Friday afternoon to midday on Saturday and from late afternoon on Saturday until Sunday lunchtime. This mirrors the existing arrangements which work well for M. I do agree that there should be the caveat that there shall be no unsupervised contact between PH and M will not stay overnight if PH is also present overnight. There may be such other arrangements as the Mother and grandmother agree. I will also make a Family Assistance Order for 12 months as drafted by the Guardian. It will give Mother access to advice and assistance in relation to some of the concerns about M and, as I've already noted, help with establishing, improving and maintaining contact between M and her grandmother in the aftermath of these proceedings.

Finally, I have been asked to say something in this judgement about the accepted attempt by the Social Work Team Manager to coach the Social Worker while she was giving her evidence. I am going to deal with this separately with the Team Manager in the presence of the advocates in this case after this Judgement but I do agree that this was unfortunate and simply should not have happened. It must be bound to feed into the fears of the Mother about the way the Local Authority treat her, even though as things have turned out it actually did not affect the evidence before me.