England and Wales Family Court Decisions (other Judges)

IN THE MEDWAY COUNTY COURT  
No. ME12C00790

                                                                                              

                                                                                               Anchorage House,

                                                                                               47-67 High Street, Chatham.

 

                  

                                                                                               27^th February 2013

 

B e f o r e:-

 

 

HIS HONOUR JUDGE POLDEN

 

 

MEDWAY COUNCIL

                                                                                                                            Applicant

v

 

 

(1) EL

(2) JC

                                                                                                                            Respondents

 

 

________________________________________

 

JUDGMENT

(As approved)

________________________________________

 

 

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MISS BARRY  appeared on behalf of the Local Authority.

MR McWATTERS appeared on behalf of EL.

MR McCORMACK appeared on behalf of the Child.

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HHJ POLDEN

 

This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

 

 

HIS HONOUR JUDGE POLDEN:

1.                  This is my reserved oral Judgment in the matter of care proceedings concerning the one child, JC.

The Application

2.                  This comes before me for the final hearing of care proceedings issued by Medway Council on the 26^th July 2012. Miss Barry, of Counsel, appears for the Local Authority.

The Child and the Parents

3.                  I am concerned with one child, JC, a boy, born in 2002, who is therefore ten years old. He is represented by Mr. McCormack, of Counsel, instructed on behalf of the Guardian. JC is of dual heritage.  His mother is from Thailand, and his father is from the Ukraine, but has Dutch nationality.  JC speaks English as his first language but also speaks Russian. He came to the United Kingdom with his father in 2006.  He attends a private fee paying school. The fees are paid for by the father with help from his family. The school fees are currently in arrears but father has agreed a plan with the school to pay those arrears off. JC’s father is EL, represented by Mr. McWatters of Counsel. He has had the assistance of a Russian interpreter during the course of the hearing, but he does understand and speak good English, although the odd word does cause him difficulties. He was born in 1957 and is therefore 55 years old.  He has worked as a self-employed concert pianist and also has rental income from a number of properties that he owns.  He has parental responsibility for JC.

4.                  JC’s mother is SC. Her whereabouts are unknown. She is a Thai national and is believed to be living in the United States of America.  At this stage she is not a party to the proceedings. She has not been served with notice of the proceedings because the Local Authority, despite their best efforts, do not know her current whereabouts. I have been shown a letter dated 9^th February 2013 from the Bangkok Government who confirm that they have passed notice of the proceedings on to her, but they have not disclosed her address.

The Background and the Chronology

5.                  The first referral to Social Services in respect of JC was made on the 20^th May 2006 by a nurse at Accident and Emergency Department of the hospital after JC had been taken into Accident and Emergency with a pain in his hand by his father. The hospital were concerned that the father was not able to communicate with his son because the father at that stage did not speak English and there was concern that there appeared to be little attachment between father and son. Also there was a concern that the father became aggressive with nursing staff.  The case was closed on 23^rd May 2006.  There was another referral in 2008.

6.                  An initial assessment was completed but the case was then closed in September 2008.    There was a further referral to the Local Authority in April 2010 when the Local Authority made an application for an emergency protection order after the police placed JC in police protection following a referral from neighbours that JC was being left alone at home. The Court declined to make an emergency protection order, so JC was returned home. The Local Authority chose not to issue proceedings at that time, but offered EL, the father, to work with professionals around their welfare concerns. JC became the subject of a child protection plan and the Local Authority commenced a pre-proceedings process. The Local Authority say that the father did not fully engage.

7.                  The next referral to the Local Authority was by the police after they took JC into police protection on the 25^th July 2012 after the Fire Brigade were called to the father’s home, following reports of a fire at the rear of the property. JC was found there un-hurt but alone. The police reported that the property was in poor condition and there was a lack of food in the property.  JC informed the social worker at the time that his father had gone to work in London and that he was left alone playing with a friend. JC stated that he and his friend started the fire.

8.                  It is clear from the police photographs that I have seen in the bundle that the fire was a serious fire in the rear of the property, and could have spread to the house, and also there were some barbeque gas canisters in the garden, but fortunately the fire did not reach them.

9.                  As a result of that incident the father was arrested on suspicion of child neglect and has been on police bail until last Friday. Those bail conditions prevented him from having unsupervised contact with JC.

10.              As a result of the police involvement in July 2012 JC was placed with foster parents where he has remained to date and the father has been having twice weekly contact to JC.

11.              The father answered his bail on the 22^nd February and has now been charged with child neglect. Since the hearing before me last week I have been sent a copy of the charge sheet and the bail notice.  He is due to appear at Chatham Magistrates’ Court on the 3^rd June. It is a condition of bail that he is not to have any unsupervised contact with JC and that contact is to be at the discretion of the Local Authority. It is noted on the charge sheet that in reply to charge the father stated:

“I don’t consider myself guilty. I am innocent.”

12.              Initially, in July 2012, JC was accommodated pursuant to an agreement under section 20 of the Children Act, and a case management conference, and contested interim hearing, was set down on the 23^rd August 2012. Prior to that hearing the father filed his first statement on the 8^th August 2012 setting out the circumstances as to how he says JC came to be living with him in this country.  He said that he had reached a Contract of Compromise with the mother, but that he did not have a copy of the contract because the Dutch Ministry of Affairs had it.  Some DNA tests were carried out in Thailand and father filed the results of those.  He confirmed that he did not know where JC’s mother is, although he believed that she was in the United States of America.

13.              The Local Authority wanted DNA testing to be carried out in this country and that was eventually done and has confirmed that EL is the father of JC.

14.              The father indicated to the previous social worker that JC does not have contact with his mother, but JC told the Guardian during a visit on the 20^th August 2012 that he had received an e-mail from his mother some time after Christmas 2011.

15.              The Local Authority say that bearing in mind that one of the major concerns is father’s ability to provide consistent child-care arrangements, they have asked him on numerous occasions to provide details of his work commitments, but to date this has not been provided and so they cannot have any confidence that father will, either be at home to look after JC, or, in the alternative, have adequate child-care arrangements in place.

16.              Following the initial hearing, and the making of the interim care order, the Local Authority also received information from the United Kingdom Border Agency, and the UK Border Agency confirmed to the Local Authority that father is married to YB from Turkmenistan. The Border Agency confirmed that she entered the United Kingdom as a student and was granted permission to stay until 2013. However, the college that she attended had its licence revoked making her permission to stay invalid.  Additionally the Border Agency confirmed that she has applied for permission to stay as a spouse. The Border Agency gave information that YB, and EL, had a child on the 10^th February 2011. The father’s case is that that child is not in fact his, but is a child that his wife had as a result of a previous relationship. The father accepts that he did not reveal the information about the fact that he was married, and had got married to the lady from Turkmenistan, to Social Services when they completed the core assessment.

17.              The Local Authority spoke to YB on the 23^rd August 2012. She initially confirmed to the Local Authority that she was in a relationship with EL, that they had been married since the 20^th November 2011, and that they had a son together. Thereafter she ended the call and attempts by the Local Authority to get in touch with her subsequently have not proved successful, other than the fact that she did subsequently telephone the social worker to say that EL was not in fact the father of her son. She would not give the name of the father and said he was not on the birth certificate.  She then indicated that she and the son were currently living together in Turkmenistan.

18.              The matter was transferred from the FPC to the County Court after an interim care order was made for the first time in August 2012 which has been renewed subsequently ever since under the postal procedure.

19.              JC returned to school on the 4^th September 2012 and the Local Authority say, and father accepts, that there was an incident in the school car park where the teachers would not let the father into the school grounds.

20.              The matter came back before the Court for directions on the 11^th September 2012. On that occasion father appeared in person with the assistance of a McKenzie Friend. The court made a non-molestation order preventing the father from attending JC’s school. The Court also made orders to prevent the father speaking to JC about the proceedings and/or the fire during contact.

21.              The Court transferred the matter then to the High Court because of the complex issues in the case and the international elements. An initial hearing took place in the High Court on the 21^st September 2012.  Various directions were given, including for the filing of evidence from father, and a family assessment to be undertaken by Dr. Van Rooyen, a psychologist. Directions were also made for the Dutch Embassy to file and serve a copy of the Contract of Compromise and for the Thai Embassy to disclose the last known address of the mother.

22.              The Dutch Embassy have provided the Local Authority with a Contract of Compromise and there is a copy of that in my bundle at G 30 to G 33. That contract, however, quite clearly relates to contact, and maintenance, and not residence. The Local Authority are concerned that there is nothing to confirm that JC is in the United Kingdom with his mother’s consent.  The father’s position is that there was a second Contract of Compromise, which dealt with the issue of residence, but he has not been able to produce that at any stage during these proceedings.

23.              Dr. Van Rooyen filed her initial report, dated 5^th November 2012. She concluded that father does not have the capacity on his own to meet JC’s emotional and psychological needs due to his cognitive inflexibility, his limited emotional capacity, and lack of empathy. She concluded that father would need to make himself available for individual therapeutic work as well as specialist parenting training.

24.              Prior to the hearing on the 9^th November 2012 the Local Authority were of the view that if therapeutic work was within JC’s timescales, and if the father agreed to work with such therapy, then the case should be referred to the NSPCC reunification programme.  Under that programme the NSPCC work jointly with the Local Authority to assess risk and the possibility of reunification. The Local Authority were clear that if the work that father needed to have done in therapy was not in JC’s timescales then they would review their proposal for the reunification programme.

25.              Dr. Van Rooyen provided an addendum to her report, dated 29^th November 2012, and she has opined that father requires medium term cognitive and behavioural therapies which would require at least six to nine months. Then he needs to be referred to specialist parental guidance to understand, recognise and respond to JC’s needs. She concluded that the prognosis for therapeutic intervention being successful is at best uncertain.

26.              The NSPCC then provided an e-mail to the Local Authority, dated 11^th December 2012, stating that they do not believe that the reunification model is appropriate at this time in light of father’s therapeutic needs and the timescales linked to that.

27.              On the 11^th December 2012 the social worker received an e-mail from EL and that attached the report from a Dr. Lowenstein.  The father indicated that he was referred to Dr. Lowenstein by his G.P.

28.              At the hearing on the 21^st September 2012 father had initially requested that Dr. Lowenstein undertake the family assessment but Her Honour Judges Coates (sitting as a Deputy High Court Judge) directed that it was Dr. Van Rooyen who was to undertake the assessment.  Dr. Lowenstein was instructed without the prior sanction of the Court, and/or the agreement of the other parties, and it is clear that father had disclosed some of the case documents to him.  The matter was transferred back to the County Court.

29.              In the light of the NSPCC concluding that the case is unsuitable for their reunification programme, and in the light of Dr. Van Rooyen’s addendum report, the Local Authority now take the view that JC should be placed in long term foster care; that he needs to be placed there until father has made progress on his therapy, and parenting work, and at some stage in the future it may be appropriate to consider the issue of rehabilitation.

30.              The fact that Dr. Lowenstein had been instructed was discussed at the case management conference on the 12^th December 2012 and father made an application for further assessment of him by Dr. Lowenstein because he did not accept the contents of Dr. Van Rooyen’s report.  That application was dealt with by Her Honour Judge Cameron. Having heard submissions from all parties she ruled against the Court reading the report of Dr. Lowenstein and ruled against the father’s application for a further assessment.

31.              The matter then came back before the Court on the 12^th December when directions were made for the filing of final evidence and the case was set down for final hearing on the 18^th February with a time estimate of four days.

32.              There was an issue on contact during New Year’s Eve. The foster carer had informed the social worker prior to contact that JC had a small mark next to his left eye which was a carpet burn from him doing a hand-stand in the placement.  It did not require medical treatment but left a scab of a couple of centimetres long.  The father saw this at contact, and became very angry, and demanded that the Local Authority return JC to him, alleging that JC was being abused in foster care. The social worker says that father was extremely difficult on the phone and the social worker had no alternative other than to end the telephone call. The father was given one chance to behave at the instigation of the social worker, and father did then behave, but the Local Authority case is that that was a demonstration of father not being able to put JC’s needs before his own emotional needs. 

33.              There have also been difficulties in interpreters attending contact because of father’s behaviour and attitude towards them and two interpreters refusing to work with father.  The Local Authority proposed that contact should take place on the 7^th January.  Unfortunately there was not a Russian interpreter available for that date and father agreed to speak only in English to JC. The Local Authority case is that at the contact father failed to adhere to that request and insisted in speaking in Russian close to JC which made the foster carer very uncomfortable.

34.              On the 11^th January 2013 the case came before me for the first time for the Issues Resolution Hearing and the final hearing was confirmed as effective. Directions were given.

35.              On the 17^th January 2013 I made a further injunction order against the father because there was evidence that he had been disclosing papers in the case to the school. I gave father the right to apply to vary or discharge that order, but no such application was made.

36.              On the 16^th February 2013 an e-mail was received from the Local Authority, and father’s solicitor, from the Principal at JC’s school, with an extract from JC’s diary.  On the 17^th February 2013 father accepts that he posted an entry on an Internet website stating that “Medway Children’s Services are useless and causing harm”.

The Evidence Considered

37.              I have carefully read the documents in the two trial bundles, and various other documents that have been produced during the hearing, including an album of photographs of JC produced by father. I have also watched a DVD of JC, showing JC in various school activities, and other activities, with his father.

38.              In addition I have heard oral evidence from the previous social worker; the current allocated social worker; Dr. Peter Slater, father’s treating therapist; Dr. Celeste Van Rooyen; evidence from the father; and evidence from the Guardian. I have had helpful submissions in writing from all Counsel involved in the case. I heard this case over four days last week, Monday 18^th February, to Thursday 21^st February, and I adjourned the case until today, Wednesday 27^th February, for an oral reserved Judgment to be given.

The Burden and Standard of Proof

39.              I remind myself that throughout the burden of proof is on the applicant Local Authority, and the standard of proof is the civil standard, namely the balance of probability.

The Issues that Arise in this Case

40.              I have identified the following issues that I need to deal with. (1) Is the threshold made out? (2) If so, should the Court approve the Local Authority care plan for JC to remain in foster care, with a substantial reduction in father’s contact;  (3) or is a care order a disproportionate response?  (4) Should the Court adjourn the case until April, as requested by the father, to look again at that stage at a plan of rehabilitation of JC to his care, given the improvement that he maintains that he has made in the therapy that he has had with Dr. Peter Slater?  (5) Should the Court adjourn in any event as the father renews his application for the Court to hear live evidence from the school Principal, and/or for his father to be assessed as an alternative carer for JC? (6) Should the Court adjourn the proceedings on the basis that father asserts that the current final care plan is inchoate?

41.              I know that all parties are anxious to know as soon as possible the decision I have come to. For the reasons that I will explain, in what will inevitably be a lengthy Judgment, I have come to the following conclusions.

42.              Firstly, I find that threshold is made out. Secondly, I have concluded that I should not accede to the request by father for an adjournment.  Thirdly,  I have come to the firm Judgment that I should approve the Local Authority care plan, and make a full care order in respect of JC, subject only to two amendments being made to the care plan, which I consider meet the justice of the case, and to which I will refer to in more detail shortly.

The Local Authority Case.

43.              The Local Authority case is that the threshold has been made out on the basis of matters set out in their final threshold document, dated 17^th January  2013, to be found at pages A 68 to 78 of my bundle. It is their case that JC has suffered neglect and is at a risk of future neglect, he is at risk of physical harm.  He has suffered emotional harm and is at risk of future emotional harm.  It is their case that the father is unable to work co-operatively with the Local Authority to safeguard, or protect JC, and that father has insufficient propensity to change and is unable to effect the necessary changes in JC’s timescale.

44.              The Local Authority case is that father has a lack of empathy; that he fails to understand the Local Authority concerns, and he cannot meet JC’s emotional needs. It is their case that father has demonstrated, through his actions throughout the proceedings, that he cannot work in an open and honest way with professionals. The Local Authority say that JC’s welfare needs can only be met by the making of a full care order, and that JC needs to remain with his current foster carers, who have now agreed to care for him on a long term basis.  The Local Authority case is that rehabilitation of JC to the father will be considered in the future once father has addressed his therapeutic needs. The Local Authority final care plan is dated 3^rd January 2013 and was amended during the course of the hearing. An amended care plan has now been filed.

45.              In that care plan the Local Authority say that the aim of the plan is to fully protect JC from suffering from further emotional abuse and neglect. They say that they recognise JC’s dual heritage and that they will support and develop that.  In relation to his Jewish heritage JC has attended Jewish religious festivals with his father, but does not attend the synagogue on a regular basis. The allocated social worker says that he has explored that with JC and JC has said that he would like to attend the High Holy Days and Festivals only. The social worker recently took JC to the synagogue for Hanukkah with the father. The Local Authority say that both they and the foster carer are committed to JC attending future High Holy days.

46.              As I have said, JC is fluent in English but can also speak Russian. JC was attending a Russian school in London on Saturdays and father is keen that that should continue, but the care plan states that JC has said that he does not want to attend that school at the moment. The Local Authority case is that his wishes should be respected.

47.              The care plan states that JC misses his father but is extremely settled in foster care at this time. He enjoyed a good Christmas as part of the foster family Christmas experience. JC is now beginning to settle and develop a relationship with the foster carers.

48.              The father has been very keen that JC should continue with his piano education and the Local Authority say that they will continue to facilitate that during contact.

49.              The Local Authority care plan sets out that it is the Local Authority plan that father’s contact should be reduced significantly and the care plan is for supervised contact to take place once every six weeks and to run parallel to the school holidays. There will be an interpreter present at the contact and the intention is that JC will choose an activity for the contact rather than this being led by father. Contact will be monitored, and assessed, in line with father’s ability to make significant progress through his therapy and parenting.

50.              The Local Authority say that the placement will continue, either until JC reaches adulthood, or until father is able to show effective change, and meaningful progression through his therapy, and parenting course, such that would satisfy the Local Authority that it is safe enough for consideration of JC being able to return to live with the father.

51.              The Local Authority in the care plan state that they could not commit to long term funding of JC’s private education.

52.              In relation to arrangements for reunification the care plan states that the Local Authority have no immediate plan for reunification, but should father engage in therapeutic services, show meaningful growth, and progression, alongside effective change in his parenting ability, the Local Authority would review possible reunification discussions through the Looked After Children review meetings. The Local Authority say that this plan will enable JC to settle in the placement where he currently is and to develop.  It may be that once he feels more secure further support, such as counselling, or therapy, will be needed for JC, and the Local Authority are committed to providing that.

53.              The Local Authority say that they are committed to working together with the father in the future. The contingency plan, if the placement breaks down, is that the Local Authority would liaise with the home finding team, who would be responsible for finding a suitable alternative placement for JC.

The Father’s Case

54.              The father’s case on threshold is that he has made some concessions in the response that he has filed to the threshold document.  I was told on the first day of the hearing, and before I started hearing evidence, that the father conceded that the threshold was made out, but it is clear, from the final submissions that have been filed on father’s behalf, and from the clarification that Mr. McWatters has given to me before I started delivering this Judgment today, that father’s case is that in the light of the way in which the evidence developed he has now reneged on his concession as to threshold. It is his case that threshold has not been made out and that, therefore, the Court should not make any public law order.

55.              In relation to welfare issues father’s case is that he does not accept the assessment by Mr. Van Rooyen either of him or of JC. It is his case that JC should be rehabilitated to his care.

56.              In the position statement filed on behalf of father for the final hearing it does state, at paragraph five, that father’s long term aim is to be reunited with his son.  I emphasise “long term aim”, but that is not the position, as set out in the oral evidence the father has given me.  Clearly, if the threshold is not made out, the Court could not make a public law order, but if the Court finds that the threshold is made out then it is father’s case that because of the progress that he has made in his therapy, and the parenting course that he has undertaken, then attempts to start rehabilitation of JC to him should take place in April. It is also his position, as I have said, when identifying the issues, that the Court should not make a the final order if it feels that the threshold has been made out, but should adjourn it, for the reasons that I have already given.

The Position of the Guardian.

57.              The Guardian supports the Local Authority in seeking a full care order, and their view on rehabilitation, and she agrees with their plan for contact by father.

My Review of the Evidence

58.               I turn now to my review of the evidence in this case. I have heard evidence from the previous Social Worker.   She was the allocated social worker from the 25^th July 2012, until the 3^rd September 2012, when she handed the case over to the current Social Worker. She has filed a statement dated 26^th July. In that statement she confirms that she undertook a home visit to father’s home on the 26^th July after the incident with the fire and father’s arrest for child neglect.

59.              She says the conditions of the home were of concern. That was evidentially not as a result of the fire.  All of the floors had clothes, toys, books and crockery on them. The kitchen, she said, had engrained dirt in the sink, on the floor, on all of the surfaces and the appliances. The cooker was extremely dirty with remnants of dried food.  The surfaces and sink had left-over food that was infested with insects. The bathroom was in need of a clean as the bath, toilet and sink had engrained dirt and hair in them. There was also a kitchen knife, with a sharp blade, measuring approximately five inches, on the back of the toilet.  On the landing area, she said, there were a number of books, Lego pieces, and dirty crockery, obstructing the entrance to the bedrooms and the stairwell.

60.              In relation to the bedroom she said that JC shares a bedroom with his father because the father reports that JC does not like sleeping alone. She said there was a double bed, and a single bed, with clean bedding on them, but there was clutter on the floor, and a pile of books, and within the pile of books was also a large kitchen knife with a sharp blade measuring approximately ten inches.  The family living room, she said, was extremely cluttered and disorganised with limited furniture, except for a large piano. Her evidence was that the floors were dirty with crumbs and food.

61.              In her second statement, dated 23^rd August 2012, she reported that JC had had no problems sleeping at the foster placement and would go to sleep with the door shut and the light off.

62.              She said that she asked JC why he slept in his father’s bedroom when he was at home and he replied he could not remember. She said that when she visited JC he also explained that when he was home alone he would go on to the Internet.  He said that his father gets messages from China Love where women tell his father what they like and what they are into. She said:

“I asked JC if his father knows he has seen these messages and JC said that his father reads them to him and that they laugh at the women. He said that one woman had sent his father nine messages saying that she wanted to visit him in this country.”

She was concerned, as a result of this, that father was exposing JC to inappropriate adult content.

63.              She also expressed concern about contact that took place on the 31^st July 2012 when in the notes of the contact visit she showed concern because father was saying to JC:

“Do they talk a lot about me? You need to be a little bit careful. I can’t sleep or eat without you. Its very sad at home without you.”  JC replied: “Don’t worry.”

64.              The social worker said she tried to discuss these concerns with father at a pre-contact meeting on the 1^st August 2012 but he became very angry, and aggressive, and said that he wanted to have a tape recorder as he wanted to record everything that was being said. Father, she said, repeated that it was his human right to say whatever he wanted to his son. She said that father continued to shout and on two occasions was told that if he continued to behave in that manner then he would have to leave the building.

65.              Also she was concerned that the father had arrived at contact on the 21^st August 2012 in an angry state and was aggressive to the interpreter in front of JC.  She was concerned, from the notes of the interpreter at the contact session, that father had said to JC:

“We need to learn a third language and if you testify in Court you will get a reward.”

66.              She also deals with an incident that occurred on the 20^th August 2012 at   JC’s Looked After Child review meeting. She said that father said that he had a few complaints he needed to make. He then turned to JC and spoke in Russian. He was asked not to because the interpreter had not yet arrived, so he was asked to speak in English. She says that he said that he would not because that was against his rights as stated in Article 8.

67.              She said that father behaved inappropriately on that occasion, asking the interpreter about the Local Authority policies in employing her. The evidence of the previous Social Worker is that father was completely unaware that JC had become upset and was crying. Father was asked to stop as JC was so upset. The social worker says that the Guardian was present during this contact. She was so concerned about JC’s distress that she spoke up and said that she could not allow this to continue any longer.  JC, at that stage, left the room with the foster carer.

68.              In her oral evidence to me the previous Social Worker confirmed that what she had said in her written statement about the state of the home in July 2012 was correct. She was asked further questions about father’s reaction at the Looked After review meeting on the 20^th August. She described it as an “explosion of anger” by father.  She said it was quite distressing for JC and she was concerned because he could not prioritise JC over what he wanted to say.

69.              I have also heard evidence from the current allocated social worker.  He has made three statements, dated 10^th December 2012, the 7^th January 2013, and the 18^th February 2013. He said that his initial meeting with father, on the 5^th September 2012, at the family home, was a difficult meeting. He said:

“Father began the meeting by questioning my qualifications, experience, my family life, and how many care proceedings I have been involved in, and how many care proceedings I have won on behalf of the Local Authority.”

He said:

“I had come to the meeting with the aim of attempting to discuss with father what the Local Authority felt had gone wrong and that it was a difficult meeting and I felt there was little progress despite the meeting lasting over two-and-a-half hours.”

70.              He also deals in his first statement with difficulties that occurred in trying to get the DNA testing of father done on the 27^th September 2012 as a result of father’s difficult behaviour.

71.              He said that father was very irate and raised his voice whilst waiting for the appointment and that twice father stated that he did not think that this was Nazi Germany and that he could do as he wished. He said that this was in front of JC and the other patients in the waiting area.

72.              He also insisted on speaking to the G.P who was to do the DNA test before JC and the social worker entered the room.   The result was that when they went to see the G.P, the G.P said that he did not feel that he could do the DNA test. The social worker says that he ascertained that the father had shown the G.P. an article from the Daily Telegraph, which he had printed off, stating that some DNA test results were wrong.  It was as a result of that being given to the G.P that the G.P was not prepared to take the test because of father’s attitude. The current Social Worker’s evidence is that JC’s reaction to his father’s behaviour appeared to be a resigned resignation of his father displaying this difficult behaviour.

73.              The current Social Worker had observed some of the contact in September 2013. He was concerned that father appeared very forceful and that there was a lack of physical affection and interaction between him and JC. He said:

“My observation from three contacts was that contact appeared very formal with a lack of affection and that father would be very focussed on JC’s education and how he was doing at school.”

74.              He also dealt with concerns that had been raised by the foster carer who provided transport in October 2012. She said:

“I have now collected JC for contact for three weeks. I feel very uncomfortable with JC’s father.  He would insist on speaking to JC in Russian and I did not know what he was saying.  His voice seemed very abrupt and he kept whispering in JC’s ear. In my opinion, after contact had finished, JC appeared to be frightened.”

75.              She described how one particular day the journey home from contact was awful, with JC’s eyes being full of water. When she asked him if he was all right he said that he was upset, but would not tell her why.

76.              The current Social Worker gave evidence in his written statement about difficulties continuing in contact in November. He said that when he had tried to discuss the difficulties with the father, the father accused him of persecuting him and said that he was just like a Nazi guard in a concentration camp.

77.              The current Social Worker said that father says repeatedly that he wants to work with the Local Authority, but he did not feel that that was the case.  His assessment is that it was more about father trying to create his own conditions for the Local Authority to work with, which made working together very difficult. 

78.              He said that father views himself as the rescuer of JC, while the Local Authority would feel that father had behaved inappropriately towards JC through leaving him at home alone.

79.              In his second statement the current Social Worker deals further with the contact difficulties, although he did accept that a contact note in December showed that there was more fun in contact than had previously been the case and that father did appear to be showing a better commitment.

80.              He deals with the contact that I have already referred to on New Year’s Eve when he says that father became quite aggressive and it was he who had spoken to father on the telephone. The father was demanding that JC be returned to his care, alleging that JC was being neglected by the foster carer. He said:

“I had to end the call after attempting to calm and reassure father without success.”

He said that it was clear from the contact notes that JC had become upset by his father’s actions.

81.              In his third statement he deals with the Local Authority’s response to the evidence that is filed by the Principal at the school. He makes it clear that the Local Authority challenge that evidence. I made it clear during the course of the hearing that in the absence of hearing from the Principal I cannot make findings on the disputed area of father’s relationship with the school, but, in my judgment, it is not necessary for me to do so in order to decide the central main disputes in this case and nor is it necessary to achieve a fair trial.

82.              So far as the current Social Worker’s oral evidence is concerned he gave evidence to me that   the Local Authority do rely quite heavily on the views of Dr. Van Rooyen in concluding that they cannot seek to rehabilitate JC with his father at the present time.

83.              It was put to the current Social Worker in cross-examination on behalf of father that when the matter came before Mr. Justice Mostyn, on 9^th November 2012, it appeared that the plan of the Local Authority at that time was rehabilitation.  He explained that they had become aware of the NSPCC pilot scheme, and were considering that, but needed to form a view on that in the light of the response from the NSPCC and also in light of the assessment from Dr. Van Rooyen.

84.              It was put to the current Social Worker in cross-examination that JC’s identity as a Russian Jew would suffer if he continues in foster care. He accepted that it is important that JC maintains his identity, but the current Social Worker gave evidence that he had made enquiries of the synagogue and they have told him that it is only the holy and special days that father and JC used to visit them.  He says that the Local Authority are committed to maintain that.  It was his evidence that he had discussed with JC the possibility of attending the normal Friday services at the synagogue, but he said that JC was clear that he did not want to do that.

85.              He accepted in cross-examination that the recent contact notes showed that there had been more elements of play between father and JC, but he described it as still lacking in emotion. He said that father goes to give him a cuddle and JC pulls away very quickly. He said in his opinion the father was still focussed on academic achievements on contact.

86.              The current Social Worker, in his oral evidence, said that he was pleased with the progress that father had made in assessing the therapy, and undertaking the parenting course, but his evidence was that we need to be careful to assess that there has been meaningful change and that the father has the capacity to maintain it.  He pointed out that:

“We have been here before in 2010, and JC was returned home then, and it did not work, so we need to make sure that work is put in place before JC is returned home this time to ensure that JC’s welfare needs are met.”

87.              He said that he had not noticed any real change in father’s presentation in his dealings with him.  He said that father is still very formal. He said:

“He screams down the phone at me. He has been difficult to manage and he is rigid. Some weeks I spend five hours on the phone talking to father.”

88.              The current Social Worker gave evidence that the risk is that if he goes back to father, father will continue to see JC as an extension of himself, rather than see JC as his own person. He said the risk is that JC will then end up being left alone again.

89.              I turn now to the evidence of Dr. Celeste Van Rooyen. She is a Chartered Clinical Psychologist. She was jointly instructed by the parties to undertake an assessment of the family, by letter dated 25^th October 2012, from DSD Solicitors, pursuant to the permission by Her Honour Judge Coates (sitting as a Deputy High Court Judge) on 21^st September 2012. 

90.              Her qualifications and experience are that she is registered with the British Psychological Society and with the Health Professional Council.  She qualified as a Clinical Psychologist in 1985 and has been actively involved in clinical practice since 1985. She obtained a Master of Arts Degree in Clinical Psychology in 1985, and a Doctor of Philosophy Degree in 1993, in South Africa. She worked for four years in the NHS where she was Associated with the University of Kent. She has since worked independently as a Chartered Clinical Psychologist, incorporating adult and child mental health, as well as medico-legal assessments of families and individuals. In 2004 she obtained the Certificate of Expert Witness Accreditation from Cardiff University. In March 2007 she achieved Chartered Scientist Status. In 2012 she became an Independent Member of the Expert Witness Institute.

91.              She has, as I have said, prepared a written report, dated 5^th November 2012.  She assessed in that report that father has limited ability to meet JC’s emotional and psychological needs. She said:

“He is certainly able to provide structure and give JC meaningful opportunities in his life. However, due to father’s cognitive inflexibility, limited emotional capacity, and lack of empathy, it would be essential that JC’s emotional and psychological needs are addressed in other ways and in other settings.  Thus, it is my assessment that father would not have the capacity on his own to meet JC’s emotional and psychological needs. He needs to have the opportunity to have his life experiences broadened and have the benefit of the influences of persons who are more emotionally and psychologically in tune with him. Without this JC will be left with an increasing sense of un-met needs being un-heard and not being able to meet his emotional and psychological potential. All the while father is open to consider receiving support, and willing to bring about meaningful growth, and change, and adjustments in his current approach,” she says, “the remaining inflexibilities as part of his core cognitive functioning could be balanced against JC having broader influences in his day-to-day life experiences. This would involve there being some level of co-parenting arrangements, such as a permanent consistent live-in housekeeper, or nanny, taking on a paternal role, or there being some level of shared care, such as regular permanent respite care. Without change by father, alternatives would then be in father’s best interests.”

92.              She said that during her discussions with the father the interpreter assisted, but she assessed that his command of English was more than adequate.  She said that father had difficulty in grasping what was being asked due to an inflexibility of thought process and maintaining his own agenda of what needed to be discussed.  She said:

“It was also clear throughout my assessment that father had great difficulty making any real acknowledgement of concern in the emotional impacts of events on JC. This appeared to be in part due to not accepting there were difficulties, but also not willing to make any acknowledgements for fear of repercussions based on his overwhelming pessimistic and distrustful approach to anything which could be used against him. It was therefore extremely difficult exploring issues in any meaningful way with father because he could not focus enough to listen and hear what was being said. Father’s defended and rigid cognitive approach is such that further time would not take the assessment any further or give me any new information. There was a general sense that one was hitting against a brick wall. With regard to an understanding of the concerns of the Local Authority, father did understand it was due to him having left JC alone. With further exploration he does accept this could have been a dangerous situation irrespective of which child had set the fire alight.  In relation to his understanding of emotional harm father could not be encouraged to consider what this meant for JC and would continually revert to his insistence that he cared for his son since he was aged three and that whilst he accepts that he has made mistakes he believes he has been a good father to him.”

She said:

“I explored with father whether he felt he needed any help or assistance in the parenting of his son and he said that the only thing that would help JC in their relationship would be for JC to be returned home. I spent a significant amount of time trying to explore father’s understanding of JC’s emotional needs, but father was so entirely focussed on trying to convince that he is a good father, and does not have psychological problems, that he could not focus upon JC and his needs.”

93.              So far as her assessment of the psychological profile of father was concerned she said:

“There are no features of psychological or personality disorder.  There are, however, features of paranoid ideation and traits which have related to his fundamental lack of basic trust and suspiciousness. The father also presents with strong egocentric thought processes where he views the world and how things relate to him with a concerning lack of empathy. His lack of empathy is evident in his tendency to lose sight of the needs, and emotional well-being of his son, and he has difficulty separating the needs and feelings of the child from his own needs, and thus views JC as an extension of himself, rather than a person in his own right, with his own experiences, and needs. As a result of that father has difficulty in acknowledging concerns.”

94.              She assessed father as being somewhat socially isolated and having limited face-to-face inter-personal relationships.  She said:

“Father presents with some level of maladaptive defence structures in the form of minimising concerns, avoidance and denial. With regard to father’s cognitive function it would be clinically assessed to be at least within the average if not above or higher intellectual ability range.”

95.              In relation to the psychological profile of JC she said:

“JC presents as a reserved, quiet, and somewhat emotionally isolated child who tends to lack spontaneity. This appears to be associated with internalised anxiety, although not at a level which would suggest anxiety state.”

She said:

“There is no psychological difficulty in the clinical range.”

She said:

“Father would need to make himself available for individual therapeutic work as well as specialist parenting training.  He has been resistant in the past, but currently maintains that he would be open to advice and support, but this is entirely un-tested.”

 

96.              In her addendum report, dated 29^th November 2012, Dr. Van Rooyen expressed the view that father requires medium term cognitive behavioural therapies, lasting at least six to nine months.  In addition he needs specialist parenting guidance to understand, recognise, and respond to JC’s needs.  He needs to have completed that parenting work before rehabilitation can be considered. She said that rehabilitation should only commence once the parenting work is completed and where progress, change, and improved emotional connection between JC and his father has been demonstrated. She said:

“It was not realistic to evidence such change in growth between three to four months from the start of therapy and the extent of change would determine at what point it would be appropriate for JC to be returned to the care of his father.”

She said:

“The prognosis for such therapeutic intervention is uncertain.”

97.              In her oral evidence to me she confirmed that she had seen the up-dating evidence, and in particular the report from Dr. Slater, filed on behalf of father. She had read the report on the parenting programme that father had undertaken.  She said that she had had discussions with Dr. Slater at Court before she gave evidence.  She said:

“It remains my view that JC needs to have a balance of emotional and educational and life experience needs. Father still has difficulty in engaging with him and focussing on JC’s needs above his own needs.”

98.              It was her evidence that in her view, at this stage, JC should remain in his current placement. She said:

“It is positive that father has sought out the therapy and that he has undergone some parenting.”

99.              She agreed that the type of therapy that he is having is appropriate.  In her oral evidence she said that he needs ongoing therapy for at least a year.  She said:

 “Father had made a huge step in engaging in the therapeutic process but you cannot expect after one-and-a-half months into therapy to internalise what you have learnt, and put in practice, and to be able to test it.  The father has not got to that point yet and I would not expect him to do so.”

100.          She said that it was difficult to say when father would be able to demonstrate the level of change needed. She said that after about three to four months of therapy you may begin to see some change, but only then could we see if father is able to transfer it.  She described it as being part of a “deep seated psychological process” and said that bringing about clear demonstrable change will take up to twelve months.  She said:

“Once father has greater capacity for empathy then further parenting work is necessary.”

101.          She said that the twelve week individual parenting programme would probably suffice in the future, but not at this stage, because the father does not have the necessary foundation stage. She said:

“The uncertainty of father continuing to engage in therapy, and the question mark about how long it would take, means that JC needs to know now that he will be settled in the current foster placement.”

102.          In relation to the suggestion that Dr. Slater had made that there should be family therapy she agreed that that may be important in the future, but she said that first of all the father needs to be able to explain to JC why there are problems and not blame Social Services for everything that he perceives to be the cause of the problems.  She said:

“Father cannot engage in family therapy until he recognises himself and he needs to be less defensive and to gain insight.”

103.          I turn now to the father’s evidence. He has filed three statements, together with a long letter, and exhibits. The father explained that JC had been residing with him since he was three-and-a-half years old.   He said:

“I removed JC from his mother due to him being neglected.  His mother was not interested in caring for him and used to pass him off to her sister.”

He said:

“JC left Thailand on a Dutch national passport and JC’s mother and I reached a Contract of Compromise with the Ministry of Foreign Affairs in the Netherlands, but unfortunately I cannot find a copy of that.”

He said:

“Since we arrived in the United Kingdom I have cared for JC single handedly.  I have no idea of the whereabouts of the mother.  I believe that she is in the USA but do not know where.”

104.          His father, and his father’s partner, live in Israel.  He said that there are no concerns about JC’s health or education.  JC is doing extremely well at school. He said that he knows that he should not have left JC alone in July 2012.

105.          His father and partner were going to be arriving in August and they would be able to assist him to care for JC, but normally, he explained, he has somebody who lives in, who looks after JC when he is not at home. He said that he is in the process of trying to find a further nanny.

106.          In relation to his work he said:

“I work very ad hoc hours as a self employed pianist and cannot therefore confirm to the Court my exact working hours or commitments.”

107.          He denied that his house was ever in disrepair. He said there were no concerns about JC’s experience or general health.

108.          In his second statement he said that his son does not remember the mother at all because she never cared for him.  He said that:

“He remembers his mother only vaguely and vaguely remembers anything in relation to Thailand. Legally and emotionally there are no links between him and Thailand.”

109.          In relation to his wife he said that he was informed that she went to Turkmenistan to take care of her son. He repeated that that child is not his child and is no relation to him.

110.          So far as the Local Authority’s concerns are concerned, in response to those, he said:

“In my opinion the main issue was my leaving my child alone and I am regretful for what happened.”

He said:

“I have single handedly cared for JC for more than six years and the results are obvious. He is well educated, well fit, clever, a well behaved boy. That is the best proof of my parenting skills and my love that I have got for him. I strongly disagree with the accusations made by the Local Authority and with their analysis of the case.”

111.          He explained in his next statement:

“It is important for me to provide some further information concerning my background. I was born in the Ukraine, which has a large community of Russians. I am Jewish. My father is a Holocaust survivor and has lived in Israel for 20 years. I have a number of relatives from my father’s side of the family who live there.  On my mother’s side there are relatives in the USA. I hold a Dutch passport and I am a concert pianist.”

112.          He said that he only had a brief relationship with JC’s mother which lasted for about three weeks. After JC was born he went to Thailand and had a DNA test which confirmed his paternity.

113.          Because of his concerns about the way JC’s mother was looking after him, he made choices and decided that JC would be better with him in the UK than in Thailand.  He said:

“I had a number of bureaucratic obstacles and  was sending money to JC’s carers but found it was not being spent for him. I had a real battle to get him placed in my care.”

114.          He said after he came to live in the United Kingdom he learnt both English and Russian.  He said that JC has a complex cultural heritage. He said:

“It is important that JC goes to the Russian school and the main festivals at the synagogue.”

115.          He said that JC is thriving at school. He attached a series of reports from the school which I have carefully considered.

116.          In relation to his use of nannies, or au pairs, he said that their role has not been simply to look after JC, but they have lived in the home and cleaned and cooked for him. He said:

“I wanted to have people around him other than me who could give him a cultural sense of being Russian and they have spoken to him in Russian and read books to him.”

117.          It was in this context that he was introduced to YB, the lady that he married.  He said that although the UK Border Agency had said that she lived with him at his home address this was not the case and they never actually lived together.  He said:

“I hoped that by marrying her she would not simply care for JC but would take on the role of being a mother to him. It was a foolish decision.”

118.          He said that he knew that she had a son, born on the 28^th February, which was before he had ever met her.  He said:

“I am no longer in a relationship with my wife although we are still married.”

119.          He said that there is nobody else involved in parenting JC. He said:

“I may again seek the support of a nanny in the future.”

He said:

“I accept I have made a number of mistakes and bad decisions but it is in the best interests of JC that he comes back to live with me. I am his father.  He loves me and I love him. He had a very difficult start in life but has made enormous progress since he came to live with me.”

120.          In his final statement, filed this month, he says that he wishes to apologise to the Court for his behaviour during the course of the proceedings and understands that it has been unacceptable. He says that he identified Dr. Slater as a psychotherapist that he could work with, and he relies on Dr. Slater’s evidence, and also explains that he has completed a parent practise course for skills and relies on a report from Michael Hays as to his participation in that.  It is his case that the Local Authority did not assist him in finding appropriate therapy or parenting work.  He had to do that himself.

121.          He says that he accepts that JC could have suffered physical harm as a result of the fire which occurred when he was left unsupervised.

122.          He said that he is concerned that if JC remains in foster care he may lose his cultural and religious background. He said that whilst he does not accept the conclusions of Dr. Van Rooyen’s report that did not prevent him from accepting that he needed to work with a psychotherapist and that is why he sought the assistance of Dr. Slater. He said:

“I am trying to implement what I have been taught but I do not have JC living with me to enable me to practice the techniques that I have been taught.”

123.          He said that he will continue with his therapy.  He would like the opportunity to have JC returned to him because JC has the right to be brought up in his family.

124.          He makes it clear that he is seeking rehabilitation of JC to his care as soon as possible. He said that his father has expressed a wish to come to the United Kingdom to assist him in the care of JC. His father’s visa will allow him to stay for three months, which would cover for the remaining period of work with Dr.  Slater.

125.          Father also gave extensive oral evidence to me.  He said that he has shown remorse for leaving JC alone and that he agrees and accepts that he needs to be a different kind of father to JC in the future. 

126.          He said that he does want to work with the Local Authority. He accepts that he made the recent Internet posting complaining about the Local Authority.  He said:

“That was because I have lived in constant fear that my son will be taken away from me forever. My emotional outburst was caused by that fear because I felt totally lost.”

127.          He reiterated that JC’s culture is very important to him.   He made it quite clear in his oral evidence that he disagrees with the Local Authority care plan which he said would be detrimental to JC’s welfare.  He said it would cause JC to be stressed and that it would be cruel for JC to have to remain in long term foster care.

128.          He was asked questions in cross-examination by the Local Authority about the contact that he had had with JC’s mother.  He maintained that although he had an e-mail address for her, he had deleted it. He could not remember when it was that he had done that.

129.          In relation to his work he explained that he earns about £2,500 to £3,000 per month rental income from his properties, including properties that he owns abroad. In relation to his work as a concert pianist he said he did one concert in Chichester in 2012, and possibly one other concert, but he has not got any concerts arranged for this year.

130.          When asked about the circumstances when he had left JC alone he said that he did play cards.  He said:

“I went to play Black Jack or Poker. I went to the Napoleon, and to the Empire, in London, but it was not gambling, although you put money on cards.  You put bets on.”

He said:

“Sometimes I earned £500 to £800 per month from these cards.”

131.          He has a mortgage of £300 and he has to pay agent’s commission on the rental that he receives, but other than that his only outgoings are the school fees of £700 per month.

132.          He was asked about the diary entry that he produced from JC. This was produced during the course of the hearing.  He said:

“JC gave that to me in contact. He said that he wanted to give it to me and he passed his diary to me.”

Initially he said:

“I will bring the diary, the rest of the diary, to Court.”

He did not do so. He then said:

“I made copies of the diary and gave it back to JC.”

He thought that he had done that the following day.

133.          He accepted that he had made a Freedom of Information request about the role of the Guardian, and Dr. Van Rooyen, and that he had made that request using a false name.

134.          He also accepted that when he had been asked about that before he gave evidence he had lied and denied that it was him who made the request.  He said that the reason why he had lied was because he was afraid of being punished for it.  He said:

“I totally disagree that I do not understand JC’s needs. I do not agree that I do not meet JC’s emotional needs although I accept that I need to be more attentive to JC in the future and to be more in tune with him.”

135.          I have considered the evidence filed on father’s behalf about the parenting programme that he has undertaken.  That is in the form of the statement from Ann Megalhaes, dated 7^th February 2013. She makes it clear that she commenced working with the father on the 16^th January 2003 and that the course was run over a number of evenings until the 6^th February.  The course comprised five different modules, covering five core parenting skills. Session one dealt with encouraging confidence and co-operation and motivation in children. Session two showed parents how to teach their children to recognise, manage and appropriately express their emotions. Session three covered setting up for success using chat-throughs, and role plays, and a variety of other planning measures.  Session four covered family values and session five addressed negative behaviour and causes thereof. 

She said:

“Father was committed to learning new skills, and was deeply attentive, and participated in both classes, and the private consultation, and based on the discussions I had with him I believe he can move forward with applying these new skills. He needs the opportunity to be able to practise these skills with his son. He demonstrated a keen understanding of the skills taught through the completion of home work assignments. I believe he has fully participated, and has gained new insights into how he has parented his son, and it demonstrates the steps he has taken to learn new skills which will enable him to parent his son in a more effective way.”

136.          I have also considered the evidence from father’s treating therapist, Dr. Peter Slater. He is a qualified Adult Integrative Psychologist recognised by the British Association of Counselling and Psychotherapy.  He has undertaken a full Post Graduate Diploma in Integrative Psychotherapy which involves the utilisation of cognitive behaviour and psychogenic therapies.  He has 12 years experience of working with adults in private practice.  He also works therapeutically with children and young people, with parents, and with families.  He often works alongside Social Care and other agencies. He has a professional doctorate in the field. He has undertaken that qualification at the Tavistock and Portland Clinics in London. He lectures at the University College London and is currently in private practice as an Associate Member of Kent Psychotherapy Service, based in Marsham Street, Maidstone. He started therapeutic work with the father on the 7^th January 2013. The father has completed nine sessions. He has been attending twice weekly at times.  The plan is that he will do twelve sessions of therapy with the father which will conclude around the 8^th April 2013.  He has produced a report dated 3^rd February 2013. He had seen Dr. Van Rooyen’s report before commencing his work with father. In his report he says:

“The father has made good progress and I feel very positive that within twelve weeks he will emotionally be in a position to be reunited with his son and to begin the next stages of further enhancing and strengthening their relationship together.”

He continues:

“With support from Social Services, and the continuation of father’s own individual therapeutic work, along with joint sessions for the father, and the son, I believe that there are grounds for an optimistic outcome.”

And adds:

“Father has been keen to engage in the therapeutic process and has been keen to take on board the suggestions that I have given to him.”

He opines:

“I felt it crucial to point out to the father that although I understood his motivation for engaging in the process might be fuelled by legal recommendation, in order to resume the care of his son I felt it important there was genuine recognition on his part that he needed to be undertaking this therapeutic work. I felt that father’s admission that he recognised that he had things within his personality that needed to be explored and modified was genuine and gave me the assurance to continue to work with the client.”

He said:

“At times, when challenging the client’s current sets of beliefs and perspectives, I have been met with some powerful resistance. However, it has been useful to be able to observe this, and experience therapeutically, as it allows for insight into what lies beneath such emotional reactions.”

He said:

“As father has begun to trust the therapeutic process he has been able to demonstrate a more open, imaginative and reflective aspect of his thinking.”

137.          He did say it is important to emphasise that this is an early part of the process that Dr. Van Rooyen estimates will take between six to nine months. He said:

“That is an opinion that I would concur with at this stage.”

He said:

“Importantly father has been able to demonstrate remorse for his actions in leaving his young son unsupervised and has acknowledged he needs to be a different kind of father to his son.”

He said:

“One of the most poignant moments was when I asked father to put himself in his son’s shoes when he had left JC alone at home.”

And:

“At that moment there was a painful description of what JC may have been feeling.”

He added:

“Thus far the work with father has been challenging but equally I have found it rewarding to observe the beginnings of some progress in the areas that I have described and I remain hopeful and optimistic that he is a client who over time can make some considerable modifications to existing cognitive, emotional and behavioural states.”

138.          In his oral evidence to me Dr. Slater confirmed that he had had discussions with Dr. Van Rooyen before giving his evidence. He said:

“I think with a lot of continuing support it may be a possibility to start rehabilitation work in April.”

139.          He said that it was essential that there was a support package put in place. He said that that should comprise of further parenting groups and support in the home.

140.          It was put to him in cross-examination that it was possible that father’s engagement with therapy is not genuine, but that he is doing it because he knows that is what he is required to do. In response he said:

“Well, six weeks into therapy is still at an early stage of the process.”

141.          It was put to him in cross-examination on behalf of the guardian that there is really no indication so far of father being able to put into practice what he has learnt. He said:

“Well, apart from some improvement in the contact I do have to agree with that.”

He said:

“It would be difficult for JC to go home today.  There is work to be done before it happens.”

In re-examination he did say:

“It is possible emotionally that father will be in a position in April to be reunited with his son.”

142.          I have considered very carefully the written evidence that has been produced from JC’s school. That is in the form of a statement from the joint Principal of the school.  She has been the joint Principal of that school for the last 24 years and has known JC and the father since June 2006. She said:

“When JC came to the school at age three he spoke very little English, but despite this quickly began to enjoy aspects of his time at school.”

143.          She confirmed that he is doing well academically and describes him as a “delightful boy” with a group of friends who has formed very good relationships with peers and teachers. She said that he has worked hard and is well behaved, well motivated, and industrious. She added:

“He is not just academically strong but is also a gifted pianist. He enjoys playing football with his friends. His attendance at school is excellent.”

144.          She said that father had shown the upmost respect to staff and herself over the years, although she knows that he is emotionally rather highly strung. As I have said, that is an aspect that is challenged by the Local Authority in respect of which I am not able to make findings.  She said:

“Since JC has been in foster care he has spoken to the school on two occasions about his wish to return to live with his father.  Both of the occasions he was very upset.  JC presents as a well rounded young man.”

145.          She also wrote on the 16^th February 2013 an e-mail to the allocated social worker, and father’s solicitors, with extracts from JC’s diary. She said:

“I showed JC an extract of his diary which his father sent me. It refers to JC wanting to go home, missing his father, and his feelings towards Social Services, which are distressing.”

She wrote:

“We asked why he has not told anyone his true feelings and he just did not reply.”

She added:

“My staff and I have been placed in the middle of this situation and only have JC’s welfare as our main prerogative.”

146.          The extract from the diary is dated 16^th January 2013 and states:

“I have been in this place for six months. I miss my dad and I want to go home but there’s nothing I can do.”

He continues:

(in reference to the allocated social worker) “my prime enemy has got me here and he keeps saying that my dad doesn’t care about me. Help. [The social worker] is the one keeping me here and soon I won’t see my dad. I love dad so much, with all my heart, and every day I pray I will go back. The worst, I might have to stay here for six to nine months or more.”

147.          I have also considered a bundle of letters, and statements, from neighbours, friends, and extended family, that was produced by father during the course of the hearing.  I have read those carefully. They attest to the good job that they say the father has done in bringing up JC. They support father’s case about the various cultural and other activities that he has arranged for JC.  This has not been disputed by the Local Authority. I find I cannot attach too much weight to this part of the evidence as the authors are not aware of the detailed concerns of the Local Authority, and they have not been given evidence to me on oath, and neither have they been tested under cross-examination.

148.          Finally, so far as the evidence is concerned, I turn to the evidence of the Guardian. She prepared an initial analysis and recommendation dated 22^nd August 2012. She was concerned about the lack of information regarding JC’s immigration status, and background, and supported the Local Authority in wanting to make the further enquiries about that. Her interim analysis is supportive of the Local Authority wishing to undertake an holistic assessment of JC’s appearance and experiences from his father.

149.          She said that because there has been the repeat of such a serious incident, namely the second occasion when JC had been left alone, in her assessment the Local Authority needed to take a more robust approach to address the underlying issues regarding father’s parenting capacity. She assessed father’s level of engagement in the process at that stage as being “superficial”.

150.          She said that she had decided to engage JC in indirect work to elicit his wishes and feelings.   She said that JC drew computer games first; then he drew his father, but offered no emotional description of him.  He then drew a football and lastly some pet fish. She asked him to write down three important wishes that he would like. They were: (1) go camping; (2) get a laptop; and (3) get a Curios pad. She said at no time during that work did JC express that he wanted to return home, or missed his father, despite the subject of home life being discussed.

151.          She, in her first report, deals with the behaviour of the father at the Looked After Children review on the 20^th August.  In her evidence she confirmed what the social worker had said about father’s antagonistic attitude during that meeting and confirmed that she was very concerned about JC being exposed to that emotionally abusive behaviour. That is why she did not feel it appropriate for JC to remain at the meeting.

152.          Her final report is dated 15^th February.   In that report she considers the up-dating evidence, the report from Dr.  Van Rooyen. She said:

“Key issues in these proceedings relate to father’s empathy, understanding and ability to consistently meet JC’s emotional needs. The Local Authority does not consider it realistic that father would be able to work in an open and constructive way with professionals that would be integral to any future planning towards safe rehabilitation. I support this view and therefore the subsequent final plan for JC.”

153.          She said that it was positive that father had engaged in therapy but she felt that in terms of JC’s timescales and need for stability, and because of the uncertainty of the success of the therapy, it was not compatible, or consistent, with JC’s welfare needs to delay any final decision until the therapy work has been completed.

154.          In her observations of contact she noted that JC was uncomfortable with his father touching him. 

155.          She was concerned that father had required the foster carer to change her home routine. She said that, in her assessment, was an important example of father’s insensitivity and need to place his own views over that of JC’s emotional stability.  It was her assessment that father continues to minimise the Local Authority concerns. In particular he disputed the fact that there was a gas canister in the garden, despite this being in the police photographs. She said:

“I am concerned that father has still not been able to sincerely reflect on the significant concerns that have triggered these proceeding and instead has learnt to offer a level of surface compliance to professionals.”

She added:

“I have observed father to offer superficial engagements with statements such as ‘ I want to co-operate’ but his behaviour then, as observed by professionals, would suggest the opposite.”

156.          She said a dismissive and undermining approach to professionals was in her view highlighted by father’s insistence of seeking out his own expert, Dr. Lowenstein.  She said:

“This leads me to the firm conclusion that any plan for rehabilitation would not be safe for JC as notwithstanding the emotional harm that JC would be exposed to father does not appear to be able to work constructively with professionals who may challenge his views.”

157.          Her assessment of JC, at paragraph 22 of her final report, is that he still presents as a very contained child and she observed that he offers little emotion in talking about father or his home life.

158.          She visited JC on the 30^th January. JC wrote a letter for the Judge with her support.   She said:

“It is important to remember that JC is a ten year old child.”

159.          She has been concerned that he has had pressure placed on him by the father to write letters or to feel responsible for the Court’s decision. The letter that he has written makes it clear that he was looking forward to going back home He said:

“I want to go back home to my dad for no particular reason.”

160.          The Guardian, in her oral evidence, said that having heard the oral evidence of Dr Van Rooyen, and the evidence of the father, she still supports the Local Authority care plan and she agrees the amendment made to the final care plan to provide that father should have six weekly contact to JC.

161.          It is her view that JC needs a permanent decision to be made as to his future as soon as possible.  He needs time to settle down so that he can continue his emotional development in his placement with the foster carers.

162.          That completes my review of the extensive evidence that I have heard in this case.

The Relevant Law

163.          I turn now to the relevant law. First of all, so far as threshold is concerned, the central provision in public law applications is section 31 of the Children Act 1989.  A Court can only make a care order, or supervision order, if it is satisfied, (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b), the harm, or likelihood of harm, which is attributable to the care given to the child, or likely to be given to him, if the order were not being made, not being what it would be reasonable to expect a parent to give to him.

164.          If the threshold is crossed the child’s welfare then becomes paramount and the Welfare Check List under section 1(3) and (4) applies. I am required to have regard to the right to respect for private and family life under Article 8 of the European Convention on Human Rights.

165.          I remind myself that the principle of proportionality must always be analysed alongside the Welfare Check List.  A Judge should not sanction the removal of the child from his family under a care order unless satisfied it is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of the child. The exercise of my discretion must be placed on facts which are properly established to the requisite standard of proof

166.          I remind myself that whatever order the Local Authority have actually applied for, there are a full range of orders that the Court can make, including no order; the possibility of making a section 8 order, but not alongside a care order; and the possibility of a supervision order being made. I remind myself that I have a responsibility to consider the proposed arrangements for contact before making a care order.

My Findings

167.          I turn now to my findings that I make in this case having heard the evidence. I will deal with the issue of threshold first.  I remind myself that the relevant date for consideration of the threshold is the 25^th July 2012 when the protective measures were taken.

168.          Father submits that the threshold has not been made out in this case.  He says that whilst there may have been some harm, there has not been significant harm caused to JC.  He relies on the judgment of Mr. Justice Hedley in Re L (Care: Threshold Criteria) [2007] 1 FLR at 2050. That is in fact an authority that I myself raised with the parties during the course of the hearing when I said that I wanted the Local Authority to address me on the issue particularly of proportionality. At paragraph 50 of the Judgment in Re L Mr. Justice Hedley started off by referring to the well known dicta of Lord Templeman of Re K D (A Minor) (Ward, termination of access) [1988] 1 AC 806 when he held that:

“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.”

Mr. Justice Hedley said:

“It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.  It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of love, and security, and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event it simply could not be done.”

169.          I turn now to the Scott Schedule and the findings that the Local Authority seek and father’s responses. The first finding that the Local Authority seek is that JC has suffered neglect and is at risk of future neglect. The father accepts that on the 17^th April 2010 JC was home alone without his father to provide supervision. He also accepts that as a result in April 2010 he accepted a caution from the police for child neglect, although he says he did not have an interpreter present, or legal advice, and may not have accepted the caution had that been the case.

170.          In relation to the home conditions he accept that the house was a bit untidy in April 2010 but does not accept that it was in a state of disrepair, extremely untidy, and dirty.  In relation to the home conditions in July 2012 he does not accept that there was a lack of food in the home, and that the home conditions were poor, or that there should be any concerns about the knives found in the property. He says that the home was untidy but not poor. Food was bought daily so that it was fresh. He said that there are knives like this in most houses and JC was not likely to suffer significant harm as a result of a knife being behind the toilet.

171.          The father accepts that on the 24^th July 2012 he went out and JC was left alone without supervision or monitoring. This is accepted by father, but he repeats that the fire was started, not by JC, but by his friend.

172.          The Local Authority seek a further finding that father has gone out leaving JC alone on a regular basis, certainly more than the two occasions, in 2010, and 2012.  They rely on the fact that neighbours have reported this to the Local Authority.

173.          The father’s response is that he accepts this partially, although he said he did not leave JC alone on a regular basis.

174.          So far as the evidence about the state of the family home in 2010 is concerned, I find that the conditions were not acceptable and I find that I accept the evidence from the police records. This is the note from the police records as per the attending officers’ statements in 2010. They describe the home as:

“A complete mess, untidy, and dirty. The house was completely chaotic. There was a large piano in the lounge. Not much room for anything else other than stacks of books and sheet music. The kitchen was disgusting and there was evidence of left over old food and extremely dirty kitchen appliances. There was rubbish on the floor everywhere in the house and piles of clothes strewn all over the place, albeit some of the piles did look as if they had been washed.  The bathroom was equally as disgusting as the kitchen. The were faeces around the toilet and it was generally filthy.”

It was noted that there was no food in the house. 

175.          When JC was spoken to at the time, JC said that the house was untidy. He said that he and his dad tried to tidy it up, but it got messy again.  JC said that there used to be a lady called Melanie that looked after him, but she had not done so for ages.

176.          Father was interviewed about that.  He admitted that he had left JC on his own to go gambling in London, stating that he would go out at about  6 p.m, and return by 1 a.m, although he said it was not a frequent thing.

177.          As far as the home conditions in 2012 are concerned, I find that where there is a conflict of evidence between the previous allocated social worker and the father, I much prefer the evidence of the social worker about the conditions of the property. I do find that in July 2012 there was a lack of food in the home; that the home conditions were poor; and that it was inappropriate for the sharp kitchen knives to be left around in the way that they were.

178.          So far as father going out and leaving JC without supervision is concerned, the Local Authority seek a finding that that happened on more than two occasions. The father does accept that he left JC alone. In my judgment that did place JC at risk of physical harm.

179.          The father continues to emphasise that it was JC’s friend who started the fire.  In my judgment that completely misses the point. The police evidence shows that JC and his friend were playing with a magnifying glass and paper. The reality is that that would not have happened if father had arranged for somebody to look after JC rather than leave him alone. The police photographs do show the extent of the damage caused by the fire. I am satisfied that there were gas canisters in the garden. I find that the lack of supervision placed JC at risk of significant physical harm.  In my judgment the July 2012 incident has to be looked at in context, namely that father had left JC alone in July 2010, had received a police caution for it, and had entered into a written agreement with the Local Authority not to leave JC alone again.  Despite that he breached the terms of that.

180.          I also find that I am satisfied that father left JC alone more frequently than he has admitted. In his oral evidence to the Court father said to me:

“I do accept that I have left JC alone for more than two occasions.”

He said:

“There were occasions when it was more than just popping out to the shops and may be once or twice I went to London, but I didn’t leave him alone for lots of evenings.”

181.          On behalf of father it is submitted that father only left JC alone on two occasions for a period of about four hours, on other occasions for about half an hour to an hour.  It is submitted that this does not constitute neglect to the extent that JC suffered, or was at risk of suffering, significant harm, although he does accept he was wrong to have left JC alone and is remorseful now for his behaviour.

182.          I find that I did not find father’s account about the few occasions that he says he left JC alone to be convincing.   In my judgment the other evidence leads me to the firm conclusion that JC was left alone far more than the father would ask the Court to accept. The reasons why I have come to that judgment are that I accept the submissions made on behalf of the Local Authority that in relation to the April 2010 police intervention that was as a direct result of a referral received from neighbours who were concerned that JC was being left alone.  At that time, when JC was questioned, JC explained that father worked in London. Children were not allowed to go there. JC said:

“Dad left me alone when he went to work and has been doing this for about three months.”

183.          JC said that dad would cook for him before he went out at about six and then would come home at about 1 a.m. I find that this is supported by the fact that JC reported to the Social Worker that he waits up until father telephones him, or comes home, and that this can be up until 9 o’clock the following day.

184.          Also father, when interviewed by the police, admitted to leaving JC on his own, whilst he went gambling in London.  He stated he would go out at about 6 p.m. and return by 1 a.m.  So that is far longer than the four hours that the father asks the Court to accept.

185.          I also find that father’s evidence about the gambling was quite frankly bizarre because he could not even accept that it was gambling. Clearly from what he demonstrated to me it was gambling and I find that the Court is very concerned that on occasions the reason why he was leaving JC on his own was not just to go to work, which would be bad enough without someone to look after him, but also to go gambling.

186.          I also find I was not convinced about father’s explanation that for the 2012 incident the reason why he was not there was because he was collecting his father from the airport.  In his oral evidence he changed his evidence about that because he said:

“Well, I was due to collect my father from the airport, but the arrival was cancelled, so I then went to a tax office in Stratford.”

So I find that the father has not been consistent in his account about that.

187.          I find that JC has painted a very worrying picture of evenings spent home alone on the Internet, with no proper safety controls, and then putting himself to bed. It is quite clear that when JC was spoken to about this he was not able to recollect what he would do in relation to baths and feeding himself for dinner.

188.          In the light of those findings I have no hesitation in finding that JC was placed at significant risk of harm and it is concerning, in my judgment, that father does not fully recognise this.

189.          I turn now to the findings that the Local Authority seek in relation to emotional harm. Based upon the report of Dr. Van Rooyen the Local Authority seek a finding that JC has suffered significant emotional harm and is at risk of future emotional harm.  They seek a finding that father lacks empathy and that as a result he does not understand JC’s internal life experiences; is unable to provide sensible parenting; has difficulty separating the needs and feelings of the children from his own needs, and fails to understand the impact that his actions and mistakes have on JC.

190.          They seek a finding that father is rigid of thought, inflexible, and egocentric, and that this impacts upon his ability to consider the views of others to provide for JC’s emotional needs, and the finding that, as at the relevant date, father did not have the capacity to provide emotional warmth, unconditional acceptance, and nurture for JC.

191.          The Local Authority again rely on Dr. Van Rooyen’s report, particularly at EL 53 and EL 71 of the bundle. They seek a finding that as a result of the parenting that he has received from his father JC is an emotionally inhibited and isolated child, with un-met emotional needs, which adds to emotional self reliance.

192.          The Local Authority submit and seek a finding that the fact that these issues existed at the relevant date is evidenced by the fact that there continued to be concerns about father’s lack of emotional connection with JC during the course of the proceedings. In particular, the Local Authority rely on the fact that at the contact visit on the 12^th November 2012, the father refused to speak to JC, and only communicate with him in writing.  They seek a finding that father continues to discuss the proceedings with JC, despite Court orders not to do so.

193.          Father submits that there has not been any emotional harm suffered by JC. If there has, then it is asserted on his behalf that it cannot properly be described as “significant”. I find that I was impressed with the evidence of Dr. Van Rooyen about the emotional harm that she said that JC has suffered.  In her oral evidence to me she said and I accept:

“JC is an intelligent boy and his life interests are good and that is down to dad, but without emotional input it will hold JC back and in future affect his ability to form relationships.”

194.          The fact that father has made some progress since commencing therapy with Dr Slater does not, in my judgment, mean that emotional harm has not been caused to JC. Neither does it mean that he is not at risk of future emotional harm.

195.          I find that I accept the submissions made on behalf of the Local Authority that there is clear evidence, which gives cause for concern, about the circumstances under which father assumed JC’s care.  I find that the evidence from the father completely under estimates the significant emotional impact of JC not having a continuing relationship with his mother. Father has not taken any necessary steps to enable meaningful contact to take place between them.

196.          I am also concerned about the emotional impact on JC of coming to the United Kingdom with his father at a stage when the father was not able to communicate with him.  I do not accept father’s evidence that JC was able to cope well and was very happy from the outset. I accept the evidence of Dr. Van Rooyen when she says that:

“It is my assessment that father lacks empathy and certainly had difficulty identifying the emotional experiences and responses of a child.”

197.          I also find that I was not impressed with the evidence father gave about the contact he has had with the mother and the information he has as to her present whereabouts.  I did find him to be extremely vague in his evidence  about that, at one stage saying he did have an e-mail he might be able to find, and then saying he had mislaid it. The tenure of father’s evidence gave me the firm impression, and I find, that he has not done what he could to assist the Local Authority in trying to trace the mother, but, on the contrary, has taken the stance that there is no need to involve the mother at all because in his view there is nothing positive that the mother can provide for JC. I consider it is appropriate, as the Local Authority have indicated that they propose to do, that they should continue to make further attempts to trace the mother after the completion of these proceedings.

198.          I find that I am concerned about father’s willingness to compromise JC’s relationship with his mother, and his extended maternal family, which ignores an important part of JC’s identity and is likely to cause significant emotional harm in the future.

199.          In considering whether the harm is significant, again, I accept the submissions on behalf of the Local Authority, that when considering the dividing line between harm, and significant harm, in accordance with the decision of the Court of Appeal in Re M A (Care: Threshold) [2009] EWCA, the harm must be significant enough to justify the intervention of the State and to disturb the autonomy of the parents to bring up the children by themselves in the way that they choose.  It must be significant enough to enable the Court to make a care or supervision order if the welfare of the child so demands.

200.          I find that it is the cumulative evidence from the social workers, from Dr. Van Rooyen, and from the Guardian – all of which I accept – that leads me to the conclusion that JC has suffered significant emotional harm and is likely to do so in the future.

201.          I accept the evidence of both Dr. Van Rooyen and the Guardian that the shortcomings in relation to JC’s emotional development cannot be described as “minor”. On the contrary, they are likely to have a significant impact on JC’s future welfare.

202.          I also find in relation to the emotional harm that I was impressed with the evidence of the Guardian when she was asked in cross-examination:

“Well, how do you deal with the different picture of JC painted by the father, and by the school, and the assessment of Dr. Van Rooyen?” She said: “My impression is that he is a very contained little boy; that he struggles with his emotions, and in talking about his father.”

That is evidence from the Guardian that I accept.

203.          I also accept the evidence of the social worker and the Guardian about father’s particularly aggressive behaviour at the LAC review on the 20^th August.  In my judgment, it was significant that the Guardian was so concerned about the impact upon JC that she insisted that he immediately be removed from the room. In my judgment, that was a clear example of father putting his own needs first without any consideration of JC’s welfare needs. I find as a result that JC has suffered significant emotional harm and is at risk of doing so in the future.

204.          I find that my findings on neglect, the risk of physical harm, and emotional harm, are more than sufficient to meet the threshold in this case. As a result I do not consider that I need to go on to consider father’s ability to work with the Local Authority, or his propensity to change, under the issue of threshold. In my judgment, it is more appropriate to deal with those matters under my consideration of welfare issues.

205.          I turn now to issues of welfare and my specific findings by reference to the Welfare Check List.  I deal firstly, with the wishes and feelings of JC. In my judgment the Court has got plenty of evidence about this. The previous Social Worker accepted in her statement of 26^th July 2012 that JC stated that he wished to return to father’s care.  The current Social Worker, in his oral evidence, accepted that JC does want to return to father.  His evidence is that most children in care do want that.   Dr. Van Rooyen in her oral evidence said:

“It never occurred to me that JC does not want to go home to dad.”

206.          I accept that JC has told the school that he wants to go home, and also the Guardian accepts that JC has told her that he wants to go home, although she has got concerns about the extent to which he may have been under the influence of the father.

207.          I find that I accept the submissions made on behalf of the Guardian that in considering JC’s expressed wishes it is inconsistent with JC’s response, when he was asked on different occasions, by both the Guardian, and Dr. Celeste Van Rooyen, about his wishes, JC did not mention his father and wanting to return home.  In any event, in my judgment, the recent entry by JC in his diary does show that he is under huge pressure at the current time. I accept the analysis of the Guardian that it is important that JC should get the message that his views have been listened to. I have taken into account the letter that he gave to the Guardian that he wanted to be produced to me.  But in my judgment it is extremely important that the responsibility for the final outcome of this case is not to be placed on JC’s shoulders.  That is not appropriate for a child of his age and level of maturity. In my judgment, that is a decision that must be made for him by the Court, with the benefit of consideration of the whole of the evidence. I have no hesitation in concluding that the expressed wishes of JC, in so far as he has said that he wants to go back home to the father, cannot be determinative of the outcome of this case when I consider his welfare needs.

208.          I turn now to JC’s physical, emotional and educational needs.  I find that JC has the same physical needs for security and stability that any other child of his age has.   It is clear from the finding that I have already made that I find that father has not met all of JC’s physical emotional needs to date.

209.          I also find that I accept the evidence of the Guardian that JC’s foster carers have done a good job of meeting JC’s emotional needs during the time that JC has been in their care, and the fact that he has recently been able to respond to the young child that they have got, and exhibit more emotions, demonstrates that he is beginning to feel safe and secure in that environment, so that he can enable his true emotional feelings to be explored.

210.          Still dealing with his emotional needs, I find that I accept the evidence of the allocated social worker, the current Social Worker, when he was asked about his assessment of the Guardian’s view that JC is a mostly contained child.  He gave evidence, which I accept, that if you try to discuss feelings with JC, he shuts down. He said that it means it would be difficult for him to enter into meaningful relationships in the future. Again, that is supported by the evidence of Dr. Van Rooyen, which I accept. The current Social Worker also said that JC has never had any emotional input in his life and he said:

“I would describe him as being very rigid.”

He continued and I accept this:

“JC has had to learn how to read his father and respond accordingly.  He knows what to say to try to keep the situation calm.”

211.          Looking at JC’s educational needs, I find that these are clearly being met by the current school placement. The father has confirmed in his oral evidence that he will continue to pay the school fees even if a care order is made. That is to his credit. I find that I am satisfied that JC’s educational needs are met.  I find, however, that I do not accept the submission on behalf of father that JC is more likely to pass his Eleven Plus in September if he is in father’s care, rather than remaining in foster care. In my judgment, there is no evidence at all before me that there has been a decline in JC’s attendance at school, or in his achievements at school, since he has been placed with the foster parents.

212.          Father clearly attaches a great deal of importance to education.  I understand and respect that, but, in my judgment, whilst education is important, it is only one aspect of JC’s welfare needs and must not be regarded by the Court in priority to his other welfare needs.

213.          Turning now to consider the effect on JC of the likely effect of any change of circumstances.  I find that I accept the evidence of Dr. Van Rooyen that it would be disastrous for JC if he were to be returned to his father and for an attempt at rehabilitation at this stage to fail. She said:

“If rehabilitation is tried now and fails it will have a huge impact for JC. He will feel hugely let down and he will just shut down again.”

That is evidence that I accept.

214.          I also accept the submissions made on behalf of the Guardian that with the finality of the Court proceedings JC will be able to attach more fully to his carers and continue the progress that has been undertaken to date.  I am satisfied that in due course that will be supplemented by the counselling as recommended by Dr. Van Rooyen for the future and, as it is made clear in the final care plan, that is something that the Local Authority are committed to supplying when JC is ready for that.

215.          I have had regard to JC’s age, sex and background.    In relation to his background I have already referred to the fact that I find that the circumstances of JC’s departure from Thailand, and the role played by JC’s mother, are cloaked in confusion.  I do find that there is an irony in father’s attempts to down-play the significance of JC’s Thai roots based on JC showing no interest in them whilst at the same time, criticising the Local Authority for failing to deal with JC’s attendance at Russian School and promoting his Russian reading. I am satisfied from the evidence of the current Social Worker that JC has shown limited interest in that.

216.          In relation to JC’s Jewish faith generally, and his attendance at the synagogue, I am satisfied on the evidence that JC and his father were not regular attendees. I am satisfied that the Local Authority have set out in the care plan, and will have regard to, JC’s cultural needs and that, in my judgment, has been highlighted by the fact that the social worker went beyond the call of duty going on a Sunday to take him to the synagogue.  I find that the Local Authority is conscious of all of the aspects of JC’s rich cultural heritage and I have confidence that each part will be addressed by the Local Authority, and made available to JC, as he grows up.

217.          I consider the harm that JC has suffered or is at risk of suffering. I have already dealt with that on my findings on the threshold. I reiterate that the fact that father does not accept that the threshold is made out in this case is a matter which is of great concern to the Court. In my judgment it demonstrates graphically that father is, as Dr. Van Rooyen said, at a very early stage in his therapy, and at the moment there is little sign that there has been any significant change in his presentation.

218.          I accept the submissions on behalf of the Local Authority that the reality is that father still does not really understand the heart of the concerns of the Local Authority, and the view of the Guardian, that his real view is that this has all been an overreaction by the authorities and that really he does not understand what all the fuss is about. I find it is not simply a question of different standards of parenting and that unless and until father is in a position to change his whole mind-set towards the level of care that he provides to JC, to meet all of JC’s welfare needs, then JC will continue to remain at risk.

219.          I now consider the capability of the parents and others to meet JC’s needs. In my judgment this goes to the heart of the welfare issue. JC’s mother has not been traced and is clearly not in a position to meet JC’s needs. I do find that there are some positives so far as the role that the father has played is concerned.  I find that the father loves JC dearly. He is very proud of his achievements.  JC reciprocates that love.  I also find that I acknowledge the evidence of Dr. Van Rooyen when she said that there is sufficient security and emotional focus for JC to experience a sense of belonging and attachment to his father. I also accept Dr. Van Rooyen’s oral evidence that JC is in many respects a well rounded boy, with good interests, and that that is down to his father. I find that JC would not have achieved what he has at school if there were not positive aspects to the parenting that father has provided.  I do find that it is to the father’s credit that he has engaged in therapy with Dr. Slater and has undergone the parenting course.   I find, however, that father has not made the progress in the therapy with Dr. Slater that he seeks to maintain.  I did not find father to be a particularly credible or convincing witness. I appreciate that these proceedings have been extremely stressful for him and I take fully into account his culture and his background.  I find that he was not entirely truthful with the Court on a number of matters during the course of his evidence, particularly on the issue of what he was doing when he left JC alone; what information he has about the mother; about the circumstances of his marriage. In oral evidence he said at first he could not even remember where the marriage took place.  He could not remember who the witnesses were.  He was extremely vague in giving evidence about that.   I do not accept, as I have said, the evidence that he has made as much progress on the therapy to date as he maintains.

220.          In my judgment, in answer to many questions in cross-examination, he did give answers that he felt that the Court wanted to hear to assist him to regain the care of JC, not what he genuinely feels. I assess that the reality is that he still does not fully understand the Local Authority concerns or accept that there were important deficits in his parenting.

221.          When I consider the capacity of the father to meet JC’s needs there is clearly a conflict of evidence between Dr. Slater and Dr. Van Rooyen as to the stage at which rehabilitation between father and JC could safely be commenced. Dr. Slater, as I have already referred to, says that in his judgment it would be appropriate to start rehabilitation at the end of April, after father has completed twelve sessions of therapy. Dr. Van Rooyen did not share that view.  In her written reports she was not very precise as to the timescale involved, but in her oral evidence she was clear that it would take up to 12 months for father to show demonstrable changes and that would need to be followed by further parenting classes.

222.          On behalf of father reliance is placed on the authority Re D (A Child) (Care) (Oral Evidence) [2010] EWCA Civil 1000, when, at the root of the appeal in that case, the question was whether the Judge was entitled to prefer empirical or factual evidence, compared to the diagnoses derived from a psychological profile. Lord Justice Hughes said the answer to that was yes.

223.          In respect of the weight that I should attach to the evidence of Dr. Slater the father also relies on Re B (Care Proceedings) (Expert Witness) [2007].

224.          In my judgment, so far as Re B is concerned that position has changed significantly since that decision in the light of the recent amendments that are made to the Expert Rules under Part 25 of the Family Procedure Rules.

225.          Reliance is also placed by the father on the case of Re OM, GM (and KM) v The Local Authority, LO and EM [2009] EWCA Civil 1405 which it is submitted is authority for the principle that clinical involvement does not of itself preclude a doctor from acting as an expert.  Reliance is placed particularly on paragraph 44 of that Judgment.

226.          The father submits that the school Principal knows JC better than the professionals involved in this case and that her evidence, and that of Dr. Slater, should be preferred by the Court to that of the Local Authority, Dr Van Rooyen, and the Guardian.

227.          The Local Authority submit that the case of the London Borough of Islington v Al-Alas and Wray [2012] EWHC page 85 is authority for the proposition that more weight should be attached to an expert than a treating therapist. The Local Authority rely in their submissions on the case of Re B (Sexual Abuse) (Expert Report) [2000] EWCA Civil 156, a Judgment of the Court of Appeal, and Lord Justice Thorpe, when he said:

“It ought to be elementary for any professional working in the family justice system that the role of the expert to treat is not to be muddled with the role of the expert.”

228.          I do not take issue with the correctness of any of the principles established by those authorities, but, in my judgment, each case is fact specific. I find that if the school Principal knows JC as well as the father asserts then she, or somebody else in the school, would have picked up on the fact that JC was being left alone by the father on regular occasions. They did not do so.

229.          I also accept the evidence of Dr. Van Rooyen, which supports the assessment of the current Social Worker, that JC is a very contained child.  She said in her oral evidence to me, when considering the weight that I should attach to how he performs at school, that:

“He is a contained child. He does not need to deal with emotional issues in school.”

That is evidence I accept. In my judgment that is actually supported by the recent diary entry from JC, and the e-mail from the teacher, when she said:

“I raised with JC ‘why have you not been able to discuss these issues with me?’ ”

That, in my judgment, is a clear demonstration that Dr. Van Rooyen’s assessment is spot-on so far as that is concerned.

230.          On the issue of whose evidence and analysis I should prefer, Dr. Slater, or Dr. Van Rooyen, I find that I have no hesitation in placing far more weight on the evidence of Dr Van Rooyen, than the evidence of Dr.  Slater, in the particular circumstances of this case.  My reasons for coming to that judgment are as follows.

231.          Firstly, Dr. Slater had not read all the case papers, unlike Dr. Van Rooyen. Secondly, Dr. Slater did not meet JC whereas Dr. Van Rooyen did. Thirdly, Dr. Slater conceded in cross-examination by the Local Authority that as father’s treating therapist much of what he said in his evidence was looking at it from father’s perspective rather than from JC’s. Indeed, in my judgment, as the treating therapist Dr. Slater found it very difficult and uncomfortable in giving evidence to the Court. He said in cross-examination:

“I am the father’s treating therapist.  Much of what I say is from father’s perspective rather than JC. It is feasible that what is right for father is not right for JC. I am in a very difficult position and I can see Dr. Van Rooyen’s point of view and there is substance to it.”

He then also conceded in cross-examination:

“I agree an extension of a year’s worth of therapy is needed to ensure the improvement and learning by father is maintained.”

He continued in cross-examination saying to Counsel for the Local Authority:

“I am finding it difficult to answer your questions partly because I do not want to damage my therapeutic relationship with the father.”

It was put to him that he had been put in an invidious position and was struggling to come up with a clear plan because it is what his patient wanted rather than what JC needs. Dr. Slater in answer to that said:

“I agree it is a difficult position that I find myself in.”

He accepted that he was focussing on father’s needs, rather than JC’s, saying specifically in answer to that:

“Yes, I am here on behalf of my client.”

I myself put to Dr. Slater:

“Have you considered the impact of the pending criminal proceedings?”

I was bearing in mind that the father was still on bail at that stage and that there were the restriction that he was not to have unsupervised contact. I asked Dr. Slater:

“Well, how does that impact on your recommendation for rehabilitation in April?”

Dr. Slater candidly admitted that he was not aware of the position in relation to the criminal proceedings, and father’s bail, when he wrote his report. In answer to my question he said:

“It does complicate things clearly, given the restrictions imposed on bail, and not knowing the outcome of the proceedings.”

232.          In my judgment, now that father has actually been charged, and has to appear at Court in June, that makes the situation for rehabilitation in April even more uncertain and impossible to achieve.  I do not accept the submission on behalf of father that his bail conditions could be easily varied to enable rehabilitation to take place. There has been no evidence called to support this and in my judgment it is unlikely to be appropriate to attempt rehabilitation until the criminal proceedings have been concluded because I judge that there is a real risk that father will try to put pressure on JC to retract what he has told the police.

233.          It is also extremely possible if father maintains a not guilty plea, and the response to the charge indicates that that is his current intention, that JC will have to give evidence in the criminal proceedings. That would put JC in an impossible position if he had to give evidence against his father whilst at the same time living under the same roof as the father.

234.          I find that I much prefer the analysis of Dr Van Rooyen to the evidence of Dr. Slater, when Dr. Van Rooyen said in her oral evidence to me, evidence which I accept, when she said:

“I certainly do not agree rehabilitation in April due to a multitude of factors.”

She went on to list them. She said:

“Firstly, it is not possible for father to reach the level of growth needed by that stage and to expect father to do so would be setting him up to fail.”

Secondly, she said:

“There is no guarantee that by April father can transfer the learning that he has achieved to JC.”

Thirdly, she said:

“The Court process presents a challenge for father and means that he cannot concentrate on his therapy and that is a negative factor.”

Fourthly, she said:

“JC needs time to emotionally gain.”

She said:

“You need to get all the ducks in the row before you can work towards rehabilitation.”

That, as I have said, is evidence that I accept.

235.          I also find that father’s historic inability to work openly and honestly with the professionals is well documented in the evidence that I have considered, and in particular in the evidence of the social workers, and the Guardian, which I accept. In my judgment I need only highlight some examples to demonstrate why the Court is very concerned about father’s ability to work with the Local Authority in the future, at least until such time as he has made much more progress in his therapy.

236.          Firstly, I highlight the difficulties that father caused when the DNA testing was done.  I accept the evidence of the current Social Worker about that.  Secondly, I accept the evidence that father insisted on speaking in Russian to JC at contact, insisting that it was his human right to do so, and insisted on communicating with notes with JC on some contacts. I accept the evidence of the social worker about the difficulties on the recent New Year contact.

237.          Thirdly, I find that I accept the evidence of the social worker and the Guardian about father’s inappropriate behaviour at the LAC review.  Fourthly, I find that father has breached a number of terms of the written agreement. Fifthly, I find that he did not tell the Local Authority about the existence of his wife and her child.  That was only information that came forward as a result of enquiries made to the UK Border Agency. Sixthly, I find that I am concerned about his posting of the Web entry recently. As I say, I do appreciate that that was done in the context of the stress of these proceedings, but it does demonstrate to me the limited progress that the father has made in his counselling so far. 

238.          He says in this posting, and I quote from it, a copy of it having produced to me:

“My son is being dragged to foster care by cruel and useless Children’s Services.  I left him alone for a couple of hours. He invited a friend and they started to play. A fire started. They immediately left and now I am losing him. Children played. Why to punish father and a child? A psychologist wrote a report which no one agrees who knows him, except Children’s Services. They spend tens of thousands really on litigation for what? That’s how useless and harmful they are, Children Services of Medway.”

That is clear evidence of father still on occasions not being able to contain himself so far as his emotional outbursts are concerned. I accept the evidence of Dr. Van Rooyen that it demonstrates that he is not able at the moment to show consistent changes in his parenting skills.

239.          The seventh matter I rely on is the Freedom of Information request that father made and denying that it was he who made the request in the first place. Of course, there is nothing wrong in anybody making a request for information, but I have to ask myself what was the purpose of the request.  It is quite clear, when I look at the request dated 14^th December, that what father was asking for was how many times has Dr. Celeste Van Rooyen been appointed by Medway Council in care proceedings? How many times was she appointed during 2012? How many times her appointment corresponded with participation in those proceedings with the Guardian in these proceedings? How many times were care orders made when Dr. Van Rooyen submitted her report assessment?  What fees are being paid to her?

240.          In my judgment that is father not accepting the concerns expressed by Dr. Van Rooyen, or the Guardian, but him seeking to try to find ammunition to discredit their evidence.  In my judgment, he has not succeeded in that.

241.          The eighth matter that concerns me, was the instruction of Dr. Lowenstein, in breach of the Court Rules. The ninth matter is his disclosure of case papers to JC’s school, with the sole aim of trying to advance his own case.

242.          I find that I accept the submissions made on behalf of the Local Authority, and the Guardian, that JC’s emotional growth, and development, require him to be in a nurturing environment that will enable him to make up the emotional developments, and the deficits that he has experienced in the care of his father. Father is not in a position at the moment, and will not be in April, where he can provide that environment. In my judgment, his treatment, as I have said, is still at the very earliest of stages and the timeframes within which a successful outcome will evolve are far outside, in my judgment, the timescales of JC to be expected to sit, and wait, particularly when the outcome of father’s work, and whether it will be successful or not, is still uncertain.

243.          I also find that I accept the submissions made on behalf of the Guardian that when balancing the assertions made by father that he has changed, that in conjunction with looking at what he says in conjunction with his actions – which I have already addressed – I need to look at it in connection with the three pillars of the therapeutic intervention referred to by Dr. Van Rooyen, namely the ability, firstly, to commit to the process; secondly, the ability to engage in the process; thirdly, the ability to transfer what is learnt to real life. Both Dr. Van Rooyen, and Dr. Slater, agreed that at the moment only one and two have been complied with and much more work is required. I accept the evidence of Dr. Van Rooyen that nobody could have complied with number three, the ability to transfer what is learnt to real life, at this stage after such a short space of time of therapy.  Importantly, I accept Dr. Van Rooyen’s assessment that it is this third pillar that is the most difficult aspect of the therapy.

244.          I consider, should the Court adjourn, as requested by father, rather than make a final order today? In my judgment, after careful consideration, the answer to that question must be a resounding “no”.  My reasons for coming to that conclusion are as follows.

245.          I reject the submission made on behalf of the father that the Court will be in a position to consider a plan for rehabilitation in April and I have already explained my reasons for this.

246.          I also reject the submission that this Court cannot deal with this case justly, or fairly, without hearing oral evidence from the joint school Principal. The reasons that I gave in the short Judgment at the beginning of this hearing remain valid. I refused the father’s request for an adjournment at that stage. The Judgment that I gave them should be treated as incorporated within this Judgment.

247.          In my judgment, there is ample evidence before me to enable me to assess JC’s emotional needs. I have made the necessary findings on that.

248.          The father submits that on the authority of Re W that the care plan is not choate at the moment and should not therefore be approved by the Local Authority.  He relies on the authority of Re W & B (Care Plan) [2001] EWCA Civil 757 where it was held that:

“First the judge at trial should have a wider discretion to make an interim care order where the care plan seems inchoate or where the passage of a relatively brief period seems bound to see the fulfilment of some event or process vital to planning and deciding the future.  The authority of Re L (Sexual Abuse: Standard of Proof) [1996] 1 FLR 116 and Re CH [1998] 1 FLR 402, endorsing the judgment of Wall JC in Re JC (Minors: Care Plan) [1994] 1 FLR 253, must be revisited.   In an appropriate case, and I lay great emphasis on that phrase, a judge must be free to defer making a care order until he is satisfied that the way ahead is no longer obscured by an uncertainty that is neither inevitable nor chronic.”

That comes from the Judgment of Lord Justice Thorpe at paragraph 29.

249.          On behalf of the Guardian my attention is drawn to the subsequent well known authority of the House of Lords (as they then were) in Re S EL C and Re S & Ors and in Re W & Ors [2002] UKHL 10 where the Court rejected an appeal by the mother that the Judge had been right to regard the work of therapy recommended to be outside the timescales of the child concerned. The second appeal rejected the notion that it was appropriate for “starred care plans” to be introduced by judicial means.  Re W remains good authority that in some circumstances it is appropriate for the Court to defer the matter, and not make a final care order, but I am satisfied that that does not apply in this case. Firstly, because I do not accept father’s case as to the speed at which rehabilitation can be properly concluded. Secondly, because I consider that the final care plan (as amended) is a well thought out, and well considered, document on behalf of the Local Authority and reflects the evidence of the professionals in this case.

250.          I find that I also reject the further submission on behalf of the father that the Court should adjourn for his father to come from Israel in order to be assessed as an alternative carer. I reject that submission because, in my judgment, it has never been part of father’s case that his father can be a permanent alternative carer. I refer, in particular, to his statement at D 13, paragraphs 13 and 14, where he set out quite clearly that any assistance from his father would be short term assistance and that the plan was to employ a further nanny in the future to provide the care when he was not able to do so.

251.          In any event, if father wanted to put his father forward as an alternative carer then father could, and should, have raised that at a much earlier stage if he was serious about it. To adjourn now for an assessment of the paternal grandfather would not be something that meets JC’s timescales.

252.          In considering whether or not I should adjourn the case I also find that I accept various parts of the evidence which I am satisfied shows that an adjournment is not in JC’s best interests.

253.          Firstly, I accept the oral evidence of the current Social Worker when he said JC knows that this is the final hearing. Not to have a final resolution will cause drift and will be no good for JC. He is adjusting to life in care but having to cope with the difficulties in contact with his father.

254.          I also accept the evidence of Dr. Van Rooyen when she said that JC needs stability and a clear sense of what is happening to him now.  He needs to come out of the state of limbo.  It is uncertainty that causes JC anxiety.  Without certainty JC cannot grow emotionally.

255.          I also accept the oral evidence of the Guardian when she was asked about the desirability of delaying making a decision for JC.  She gave evidence, which I accept.  She said:

“JC needs a permanent decision as soon as possible.”

256.          Her assessment was that he has not been protected as much as he could and should have been during the course of the proceedings and that he needs time to settle to have emotional development with the foster carers.

257.          I also accept the submission on behalf of the Local Authority that to allow any further uncertainty upon JC, given that it would appear that he feels some responsibility for the decision that the Court has to make, would be contrary to JC’s best interests and would serve only the father’s best interests.

258.          I have considered the range of powers that are available to me. In the light of my findings this is in my judgment clearly not a case where no order should be made.  I am of the firm judgment that a supervision order will not meet JC’s welfare needs because of the further work that father needs to under-go before rehabilitation can be considered and because of my findings about his inability to work with the Local Authority. There are no other family members able to provide for JC. In these circumstances only a continuation of the foster placement will meet JC’s welfare needs. To achieve that the Local Authority needs to share parental responsibility for JC and only a care order is appropriate.

259.          I have considered the Local Authority proposals for contact six times a year under the amended final care plan.  Father submits that even if a care order is made the reduction in contact of once every six weeks is wholly disproportionate, given the progress that father has made in therapy, and parenting classes, and when contact is now perceived to be improving.

260.          The father submits that if rehabilitation is likely then contact should reflect this and father requests that it remains as it is, namely twice a week, and that there should soon be consideration given as to flexibility as to whether it needs to be supervised.  I note that even Dr. Slater did not agree with this and he felt that four weekly contact was appropriate if JC is to remain in foster care.

261.          I find that I accept the submissions made on behalf of the Guardian that the professionals largely agree on the way forward in respect of contact and that the high level of contact that father submits as being appropriate, meets father’s needs, rather than JC’s needs. In circumstances where the care plan is long term foster care the purpose of contact is to maintain a link between JC, and the father, and to address identity issues as time passes. The proposal of six times a year meets these requirements and allows JC to effectively attach to the foster carers.

262.          It is also important – and this is reflected in the care plan – that contact will be regularly reviewed at the Looked After Children Reviews. So the level of contact can be adjusted according to JC’s wishes, the ability of JC to settle in the foster placement, and the progress that father continues to make.

263.          For all of the above reasons I approve the Local Authority care plan, subject to two small amendments that I require them to agree to before I finally can sign off the care plan as approved. 

264.          Firstly, in relation to 4.5, “Education”, I require that to be amended to provide that the Local Authority agree that JC should remain at his present private school all the time that father is willing and able to continue to pay the school fees. I anticipate from the current Social Worker that that amendment will not cause any difficulty.  This is not a case where there is a disagreement in principle by the Local Authority as to the school he should attend.

265.          The other amendment that I consider to be appropriate to the care plan is paragraph 4.6(1) and the issue of reunification. I am prepared to hear further submissions on any amendment, but, in my judgment, where it says, “Medway Council has no immediate plans for reunification.  However, should [EL] be able to engage in therapeutic services, show meaningful growth, and progression, alongside effect change in his parenting ability, the Local Authority would review possible reunification discussions through his Looked After Children’s review meeting”. The first part of that paragraph, in my judgment, is perfectly appropriate, but there should be a slight amendment to add “actively review possible reunification”. This is important, in my judgment because it will emphasise that if father does make the necessary changes then reunification is still the desired aim for JC. In seeking that amendment I attach weight to the oral evidence of Dr. Van Rooyen when she said, and I accept:

“I think that father can get there in the end.”

That small amendment to the care plan, in my judgment, is appropriate.

266.          I think I have covered all the necessary points in this Judgment. I apologise for the length of it.  It has been far longer than I intended, but, on the other hand, there has been a lot of ground to cover. If any legal representative considers that I have missed any point of importance, or I have made any important factual errors, I would invite them to bring it to my attention at this stage.

N.B. The Local Authority then indicated that they agree to these two amendments  to the care plan

 

 

 

This is to certify that pages 1 to 49  have been produced according to the procedure set out in the AVTS Quality System.

 

Signed:                              (Christine Kriehn)

 

5516/H4179

 

 

                                                                          

                

  FM60036