England and Wales Family Court Decisions (other Judges)

IN THE EAST LONDON FAMILY COURT

 

Case No:  ZE14CO0129

 

Courtroom No. 7

6^th and 7^th Floors

11 Westferry Circus

London

E14 4HD

 

 

Friday, 5^th December 2014

 

 

Before:

HIS HONOUR JUDGE MILLION

 

 

B E T W E E N: 

 

 

LONDON BOROUGH OF BROMLEY

 

and

 

 

SJ & OTHERS

 

 

Transcript from a recording by Ubiqus

61 Southwark Street, London SE1 0HL

Tel: 020 7269 0370

 

 

MR A Berbotto (solicitor) appeared on behalf of the Applicant, the London Borough of Bromley

MS F OJUTIKU (counsel) appeared on behalf of the 1^st Respondent, ‘SJ’

MS S Lloyd-Morris (solicitor) appeared on behalf of the 2^nd Respondent,  ‘ANS’

MS J STYRING (solicitor) appeared on behalf of the 3^rd Respondent,  ‘JM’

MS ‘SS’ the 4^th Respondent appeared in person

MR D Diamond (solicitor) appeared on behalf of the 5^th, 6^th, 7^th and 8^th Respondents, the children

 

 

 

 

 

JUDGMENT

(Approved)

HIS HONOUR JUDGE MILLION:

 

1.                  This is an application by a local authority for care orders and supervision orders in respect of four children between the ages of 11 and three years old.  The two eldest have a different father from the two youngest.  The four children have the same mother.  The care plans for the older two are long-term fostering.  The plans for the younger two are placement with their father under child arrangement orders together with supervision orders

2.                  The children are LS, a boy born on 6 June 2003, now aged 11; AS, a girl born on 24 June 2004, now aged 10; PM, a girl born on 29 July 2007, now aged seven; and HM, a boy born on 16 April 2011, now aged three.

3.                  The local authority is the London Borough of Bromley.  The mother of the four children is SJ.  The father of LS and AS is ANS.  The father of PM and HM is JM.  The children’s guardian is Barbara Newton.  The paternal grandmother of LS and AS is SS.  The mother was never married to either Mr ANS or Mr JM.  I am unclear whether either of the fathers are named in the respective children’s birth certificates.  If they are named, they would each have parental responsibility automatically for their own children, except for LS who was born before December 2003 when the change in the law about parental responsibility came into effect.  Mr ANS said in his August 2014 statement that he had parental responsibility for LS but not AS.  However, I do not know the basis for that statement. 

4.                  The local authority, mother, two fathers and the children by the children’s guardian have all been parties to the proceedings.  On the first day of the final hearing, I joined Mrs SS as a party to the proceedings.  These proceedings started in respect of all four children on 2 July 2014.  What preceded that was that, on 30 June 2014 , police removed LS and AS from Mrs SS’s home and those two children were placed in foster care where they have remained.  PM and HM remained with their mother until 6 September 2014 when they were moved by agreement to the care of Mr JM, where they have remained. 

5.                  This final hearing has taken place over six days on 26, 27 and 28 November 2014 and 1 and 3 December 2014 with judgment today on 5 December 2014.  In this hearing, the local authority, Ms SJ, Mr ANS, Mr JM and the children’s guardian were all legally represented.  Mrs SS has acted in person.  She was unable to afford her own legal representation and was not entitled to public funding.  

6.                  I heard oral evidence from Dr Roger Kennedy, a consultant child and adolescent psychiatrist; Ms Janet Walker, an independent social worker; Ms Catherine O’Callaghan, the allocated social worker; Mrs SS, the paternal grandmother of LS and AS; Ms SJ, the mother; Mr JM, the father of PM and HM; and Ms Barbara Newton, the children’s guardian.  In addition, I read core documents in a trial bundle contained in two lever arch files.

7.                  I also watched two DVD’s of ABE interviews with LS and AS which took place on 9 July 2014.  Mr ANS attended the final hearing briefly for about an hour on the morning of the first day during part of the time when Dr Kennedy was giving evidence.  However, he left court and did not return.  Mr Lloyd‑Morris for Mr ANS told me that he had continued to speak with Mr ANS by phone from time to time during the days that the hearing progressed.  I do not know why Mr ANS came to the hearing only briefly and then declined to return.  In reply to a question from me, Mr Lloyd-Morris had no explanation to give.

8.                  The local authority’s case was that each of the four children has suffered significant harm to their emotional and behavioural development and, in relation to the elder three, their educational development because of the unstable, inconsistent and (at times) abusive parenting by each of the parents of the children.  It is said that that significant harm was likely to continue if it had not intervened in late June and early July 2014.

9.                  The local authority said that each of the children had been present when domestic violence and domestic abuse took place between the mother and others in her household, including Mr ANS and Mr JM.  It said that Mr ANS had used physical punishment on LS and AS.  It said that Mr ANS misuses cannabis and crack cocaine and that his behaviour can be angry and unpredictable and that it would be unsafe to return LS and AS to his care.  It said that Ms SJ would not be a safe parent to LS and AS because of her own volatility and her tendency to form unstable abusive relationships with men.  It alleged a recent and possibly still current such relationship with a young man whom I will identify only by the initials YM.  It said that the mother had personality difficulties arising from her own poor parenting as a child when she herself was taken into care.  The mother had two previous children removed from her care and placed for adoption when the mother was a teenager.

10.              The mother’s case was that she accepted she was unable to care for LS and AS.  She accepted that those children each have some behavioural and emotional difficulties.  She said that those problems had been caused or created by the care they received when with Mr ANS, although she said she was not aware of this until they came to live with her in early September 2013.  She accepted that she struggled to manage the four children together from September 2013 but said that she did her best at a time when she received little or no help from social services.  She said that, in July 2014, Mr ANS encouraged LS and AS to make up allegations against her.  She denied those allegations.  She denied that she had formed or maintained abusive relationships with other men.  She denied any relationship with YM except friendship.  She said that YM had become obsessive and had damaged her car after the local authority had demanded that she stop seeing or meeting with him.  She accepted that PM and HM should live with Mr JM for now but wanted to have a shared care arrangement with him so that she could play a large continuing part in their lives.  She denied that she had caused or was likely to cause any significant harm to any of the four children.  She said that the reason she could not care for any of the children now was because of her housing situation.  She is in rent arrears because her housing benefit is capped at a level below her actual rent.  She said she will have to give up her present house or flat and, until she is re-established in accommodation, she cannot have the children with her.

11.              Mr ANS’s case, put in his two written statements, and through his solicitor, was that he denied that LS and AS had suffered, or were likely to suffer, significant harm in his care.  He denied that he used crack cocaine but accepted that he sometimes used cannabis.  He disputed the accuracy of a hair strand test which showed his use of crack cocaine in the period from April to August 2014.  He said he had never used it.  He denied that he was generally angry and unpredictable and denied that he was an unsafe parent.  He expressed frustration and anger about the accusations made against him and about the removal of the children from his care in September 2013.  He said the children should be returned to him now. 

12.              In his case, Mr JM accepted that PM and HM had been put at risk of harm whilst in the mother’s care, principally because of her circle of men friends, whom he described as ‘criminals and undesirables’.  He accepted that he had had arguments with Ms SJ which the children would have witnessed.  He said that PM and HM were better off in his care but he wanted Ms SJ to play a significant part in their lives through regular contact. 

13.              Mrs SS disagreed with the local authority plan to place LS and AS in foster care.  She wanted them placed with her.  She disputed a negative assessment of her possible care which was conducted and arrived at by the allocated social worker.  She accepted that Mr ANS, her son, had some significant personal problems currently and may well have been misusing drugs in the last year and a half or so.  She said he was sometimes aggressive and threatening to her.  She had applied recently for a non‑molestation order against him to keep him away so that her home would be a safe place for LS and AS to live.

14.              The children’s guardian supported and agreed with most of the case put forward by the local authority.  With regret, she considered that Mrs SS would not successfully manage the full‑time care of LS and AS but she supported Mrs SS having contact with the two children.  The guardian had recommended that PM and HM be made subject to supervision orders which the local authority had initially opposed.  During the final hearing, the local authority changed its stance and accepted the need for supervision orders if the court were to so direct.

15.              Apart from that overall summary of each party’s position, there were other important questions, principally, first whether LS and AS should be placed separately or together if they were in foster care?  Second, whether Ms SJ should have a shared care arrangement with Mr JM in respect of PM and HM?  Thirdly, what the proper and practical levels of contact ought to be, both between all four children themselves and between the two pairs of children and their respective family members, in particular with Ms SJ?  Fourthly, whether any of that contact should be supervised and by whom?

16.              From that introduction, I turn to the law.  In the applications for care orders and supervision orders, I must apply section 31 and section 1 of the Children Act 1989 to each of the children individually.  First, section 31 which says this:

‘A court may 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) that the harm, or likelihood of harm, is attributable to (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him or (ii) the child’s being beyond parental control.’

 

The category of a child being beyond parental control does not apply in this case.  These provisions are commonly called the threshold criteria.  In brief, it means that the children must have suffered or be likely to suffer significant harm because of poor parenting. 

17.              If I am satisfied that the threshold criteria are made out in respect of any child, I must go on to consider section 1 and the welfare checklist and at this second stage the welfare of the child is the paramount consideration.  In making my decisions, I must act on the evidence I find reliable on the balance of probabilities.  The Human Rights Act applies to these proceedings.  In Article 8 there is a right to family life.   Each individual family member in this case has that right.  A child should normally be with its parents or one of them and if not, then with the wider family.  These rights must be balanced but in Article 3 there is a right that no one should be subjected to inhuman or degrading treatment.  The local authority may therefore have to act to protect children within its area.  In a democratic society, any intervention into family life must be necessary and proportionate.  There must be a strong reason to justify removing a child from its family or its parent but if such a reason exists, then it is the child’s welfare which must be the paramount consideration.

18.              I turn back to the evidence.   First some brief family history.  I found it difficult to piece together reliably the different parts of the family history.  There are incidents, events and descriptions scattered about in the quite numerous assessments, reports, statements and other materials in the trial bundle.  What follows is my attempt to draw an outline structure from the flotsam and jetsam of information in the bundle.

19.              The mother was born on 5 June 1984 and is now aged 30.  She had a troubled childhood and was taken into care at the age of 12.  She remained in care until she was 16 and then moved to supported accommodation.  At the age of 15 she gave birth to her first child, a daughter.  Care proceedings were issued in respect of the baby and her daughter was removed and eventually adopted because of the opinion that Ms SJ was unable to care for her daughter at that time.  Two years later, at the age of 17, she gave birth to a son whom she looked after.  I will refer to him as DE.  It transpired, sadly, that he had a serious hearing problem.  A year after the birth of DE, the mother began her relationship with Mr ANS.  In June 2003 LS was born.  The following year in June 2004 AS was born.  Ms SJ was struggling to manage the care of DE in particular, together with the other children.  That year, 2004, Ms SJ placed DE into foster care.   It was at that time that the hearing impairment was diagnosed.  Later, in 2006, DE was adopted.

20.              Ms SJ and Mr ANS separated in about 2004, according to him.  By 2006 Ms SJ had begun her relationship with Mr JM.  PM was born the following year, in July 2007.  The chronology of the relationship with Mr ANS is unclear but by early 2008 LS had gone to live with Mr ANS, who was by then living apart from Ms SJ.  AS remained living with her mother.  It seems that at some point Mr ANS took LS to live with him in Italy for some months but they then returned to the UK.  In January 2010 AS went to live with Mr ANS, who by then had moved to Swindon with LS.  At some point after that Mrs SS moved to live with her son, Mr ANS, in Swindon and took a large part in the day-to-day care of the children, that is LS and AS, whilst Mr  ANS went out to work.

21.              Turning back to the mother and Mr JM.  The following year, in April 2011, HM was born.  For the next two and a half years until August 2013, LS and AS remained with their father in Swindon and PM and HM remained with their mother in south London, in Bromley.  It seems that AS and occasionally LS, had contact with their mother during school holidays.  It seems that in about early 2013 Mrs SS moved out of Mr ANS’s home and into her own accommodation in Swindon.  She continued to help looking after LS and AS.  However, in August 2013 she moved to Milton Keynes where she still lives.  During that August 2013 school holiday LS and AS stayed with Mrs SS in Milton Keynes.  On 2 September 2013, Mr ANS went to pick them up and take them back to Swindon but that day, in disputed circumstances, there was an argument.  This arose because during that school holiday they had also spent time with Ms SJ.  An argument took place about some trainers that AS had left behind at Ms SJ’s house.  Ms SJ called the police when Mr ANS lost his temper.  The police decided that his angry presentation made it too risky for him to take care of the children and they insisted that LS and AS remain with Ms SJ.  From that time until 30 June 2014, all four children remained living with Ms SJ.  Between 2 September 2013 and 30 June 2014, Mr ANS made no contact with LS and AS but the two children did stay, it seems regularly, with Mrs SS in Milton Keynes during some weekends and school holidays.

22.              The two children, that is LS and AS, were with Mrs SS for the weekend of 28 and 29 June 2014.  It seems that Mr ANS paid an unplanned visit to his mother that weekend, saw the two children there and refused to allow Mrs SS to return them to Ms SJ.  Social services and the police became involved.  On Monday 30 June 2014, a duty social worker spoke to Mr ANS by phone and was worried by his apparently paranoid and agitated presentation.  Police told Ms O’Callaghan, the allocated social worker, that Mr ANS had recently assaulted his own brother and threatened him with a knife.  Indeed, there is a prosecution outstanding in relation to that, awaiting a trial.  That evening, with police, Ms O’Callaghan visited and spoke to the two children at Mrs SS’s home.  LS made accusations about the poor care his mother gave him, this included an allegation that the mother’s then boyfriend, as LS understood it, had hit him and threatened him.  During those conversations Mr ANS arrived at Mrs SS’s home.  He was dishevelled and unkempt.  He appeared agitated and became angry and threatening towards the social worker in the children’s presence.  The police decided to remove the two children to a place of safety and the children were placed in foster care, where they have remained.  These proceedings were issued later that week on 2 July 2014 in relation to all four children.

23.              I turn now to mention Mr ANS.  He was born on 3 August 1980 and is now aged 34.  He has a number of half siblings, both on his mother’s and his father’s side.  His father is Italian.  From the age of about 15 to 25 he spent about 10 years living in Italy with his father and Mrs SS.  However, he and his mother, that is this Mrs SS, moved back to the UK after his father’s death about 10 years ago.  Mr ANS, that is ANS the son, has apparently worked in construction, as a gardener and as a car and motorbike mechanic.  In his life story, as explained to Dr Richardson, the consultant adult psychiatrist who reported in this case, Mr ANS said that he met Ms SJ in about 2002.  Their first child LS, as I have already said, was born a year later in 2003 and AS a year later after that in 2004, as I have already described.  Mr ANS told Dr Kennedy, another expert in this case, that he and Ms SJ separated in 2004; that would have been later in the year after AS’s birth.  Mr ANS described his relationship between himself and Ms SJ as ‘stormy’ and said they did not live together much.  He said they would be together and she would kick him out and then ask him to come back.  He said that she was the one who was verbally abusive and physically aggressive to him.  In her assessments, Ms SJ also described her relationship with Mr ANS as involving abuse and violence.  However, on her account he was the one who was a bully and who was manipulative and aggressive to her. 

24.              After Mr ANS and Ms SJ separated, Mr ANS had a number of other relationships with other women, none of them longstanding it seemed.  In the course of this case, he has not mentioned to anyone that he has any other children.  Some of Mr ANS’s other relationships started and finished when LS, and later AS, were with him.  A written statement from Ms FP explained that she and Mr ANS began living together in January 2013 but that they separated on good terms after a year.  Mrs SS, in her oral evidence, said that she had been told that they were back together again.  She preferred not to say who had told her for fear of consequences from her son but believed the information was reliable. 

25.              I am unable to form my own impression of Mr ANS, except from the descriptions in the documents and a brief appearance at the back of the court for about an hour on the first morning of this hearing.  He submitted a written statement unsigned but approved by him and dated 25 November 2014.  He did not set out his current circumstances and did not disclose an address.  His statement amounted to a complete denial of all allegations against himself and a complete denial that his care of the children had caused them any harm.  He said he regretted his decision not to see LS and AS from September 2013 to June 2014.  He said it was inexcusable but he gave no explanation for it.  He wanted LS and AS returned to his care but he gave no explanation of his plans and declined, for unknown reasons, to attend and give evidence to me. 

26.              Turning to Mr JM, he was born on 25 December 1984 and is now aged 29, almost 30.  His father is Turkish.  His mother is from Belgium.  He is one of five siblings born to both his parents.  He works part-time in his father’s business, a restaurant or café.  He remains living with his parents.  Since September 2014 PM and HM have lived with him full‑time.  As I said, he began his relationship with Ms SJ in 2006.  Both he and Ms SJ agreed that they had never lived together fully but that he had stayed frequently with her at her addresses.  He said that they had rows and arguments and said she could be volatile and aggressive and shouted if she did not get her own way.  In oral evidence he accepted that he had banged loudly on the door on one occasion when Ms SJ locked him out of the house and he accepted that there was an occasion when he locked her out of the house.  He said their relationship ended in early 2014. 

27.              I turn lastly and briefly to Mrs SS.  She was born on 4 December 1952 and is now 62.  She now lives alone in Milton Keynes in a council rented two bedroom flat.  It is local authority accommodation for the over 55s.  She works three shifts a week as a receptionist for a large hotel chain.  She has five, now adult, children by three different fathers.   The eldest three of those children were by her first husband.   After her first marriage broke down, she had ANS, the father in this case, by Mr S senior.  That relationship ended temporarily and she had a daughter by another man before that relationship also ended.  Mr S (senior) then contacted her again which resulted in their reconciliation and later marriage.  They lived together both in London and then for 12 years in Italy until his death, after which she moved back to the UK. 

28.              As I have already set out, she provided significant help caring for LS and AS when they lived with Mr ANS (junior) in Swindon.  In her oral evidence and previously, Mrs SS stated that her son, ANS, had changed in about early 2013 and had become ‘edgy’ at first and later she felt threatened by him at times.  She has recently applied for a non-molestation order against him, her son, and she told me that this was to help with her application to have LS and AS live or stay with her.  She said she did not want Mr ANS to start anything if he came round.

29.              Lastly, in this overview of the family history, I should mention the man that I have referred to as YM.  He is a 22-year-old single man who was, and the local authority said still is, a friend of the mother, Ms SJ.  He lives with his parents locally to Ms SJ.  She said he was a friend who had helped her to persuade LS to get into a taxi in the mornings to get him to school at a time when LS was reluctant to go.  She said that after that he began visiting and staying at her flat and sometimes stayed overnight, sometimes in her bedroom but not in her bed.  She said there were times when he would come at night and stay for a couple of hours when they would watch a film together.  She said there had been one occasion when there was some sexual activity between them at the beginning of their friendship but not full sexual intercourse.  She said they both agreed afterwards that that was a mistake and that they did not repeat it.  She said that YM changed and started to harass her after she signed the working together agreement with the local authority which required her to stay away from him.  She said he then began to phone her persistently and turn up at her house, and that there was an occasion on 6 September 2014, for example, when he came into the house and took her car keys.  It was that and other incidents which had caused her to agree that PM and HM should go to live with Mr JM for their own safety.  Reports to the police indicate that there were other incidents involving YM and Ms SJ, both before and after September 2014.

30.              Insofar as it may be relevant, I did not believe Mrs SJ’s explanations about her relationship with YM as being simply a non-sexual friendship, apart from the one stated regretted incident.  As I find, the mother’s description of the times and circumstances when YM spent time at her flat and the reaction of YM when she attempted to end the relationship were entirely inconsistent with a non-sexual friendship.  As I find, on the probabilities, it was a full sexual relationship between them.  Counting the relationship with Mr ANS, Mr JM and YM, the mother has had at least three relationships with men which have been characterised by some similar behaviour.  They have each been unstable, ‘live‑out’ sexual relationships with volatility, loud arguments and allegations on both sides of violent and abusive behaviour, one against the other.  On the evidence before me I find it difficult to apportion accurately between the mother and each of her three partners responsibility for the volatility and abuse that passed between each of them.  I accept, on the evidence, that each of the children would have experienced all of that behaviour between the adults whilst they were together.  I was satisfied on the evidence that Ms SJ played an active and significant part in that behaviour but not that she was the only person who did so.  Of the three men, I think it likely that Mr JM was probably the least responsible for starting or prolonging the abusive behaviour.  However, I find that at times he allowed his frustrations and upset to get the better of him on at least several occasions, something which he more or less admitted in his oral evidence.

31.              I am satisfied that insofar as LS and AS describe YM’s behaviour in the house during the course of their ABE interviews, those descriptions gave a broadly accurate picture of what happened.  It is unnecessary, as I find, to attempt to decide whether each of their individual allegations is accurate in every single detail.  I viewed the ABE interviews and read the transcripts.  I consider that the children have both been truthful in what they said in describing their experiences.  I would be careful, however, not to over-interpret some of the incidents they described.  For example, AS described her mother pushing or holding her against the wall when AS stuck up a middle finger at her mother.  That is not necessarily, in my judgment, a description of abuse by the mother of AS.  The actions of many parents to such provocative behaviour by their nine-year-old child might be described in exactly the same terms.  It is necessary in family cases to remember the reality of the range of normal family behaviours and how they might appear if set down in cold print weeks or months later.

32.              I accept that in their ABE interviews, LS and AS do not describe abusive behaviours by Mr ANS towards them when they were in his care.  However, I note that for the two to three years before they returned to their mother’s care in September 2013, LS and AS were cared for by Mr ANS, with Mrs SS supplying a large amount of the day‑to‑day care.  I accept that with her in the household their care by her would have been quieter and more gentle, and Mr ANS would not have been subject to the same stresses of childcare, which he would have been without her help.  He also had other partners to assist him.  He was able, apparently, to go out to work daily leaving Mrs SS or one of his partners looking after many or most of the practical aspects for the children’s day‑to‑day care.  However, left to his own devices and based on the descriptions of him by Mrs SS, Ms Walker, Dr Kennedy and Ms O’Callaghan, Mr ANS is a man who at least for the last two years has been unable to contain his anger when stressed.  LS and AS have witnessed that behaviour.  I have no doubt, therefore, that they would be careful not to be the subject of his anger directed towards themselves. 

33.              Therefore, on the reliable evidence I am satisfied that each of the four children has experienced during their lives significant periods of volatile, inconsistent and unpredictable parenting behaviour by each of their parents.  In the early years for LS and AS, whether their parents were together or apart, the parents’ relationship was a volatile, unstable and abusive one.  Both parents make that allegation but blame each other for it.  LS and AS have had multiple changes in their carer or carers and where and with whom they each live.  LS has spent about five years from about 2008 to August 2013 residing with his father.   That period might at first glance appear to be a period of stability.  However, looking more closely, that apparent stability is less convincing.  During that period, Mr ANS apparently took LS to Italy for some months and then returned to the UK.  In the UK, Mr ANS had a number of female partners who came and went from LS’s life.  Mrs SS was a stabilising factor but in Swindon she moved out of the home to live nearby for a time and then moved away back to Milton Keynes.  Also, LS was first separated from his sister AS in about 2008 and then after two or three years, AS moved to live with him again in Swindon, rather than with the mother.  During those years LS was apparently having much less frequent contact with his mother than AS was, so the two siblings were being treated differently.

34.              By early 2013 Mr ANS’s behaviour and mood had become, according to Mrs SS’s own description, ‘edgy’ and then more unpredictable as the year went on.  Then, of course, in September 2013 Mr ANS suddenly disappeared from LS and AS’s lives without any explanation.  Then, just as suddenly, he reappeared in June 2014, again without explanation.  Both at the time that he disappeared and at the time he reappeared, the children witnessed their father behaving unpredictably and aggressively to social workers and police.  That is a life for LS and AS of considerable variation in consistency and worrying unpredictability.

35.              Turning to PM and HM, they remained in the care of Ms SJ until September 2014.  However, again she moved addresses a few times.  Mr JM came and went, sometimes there, sometimes not.  Ms SJ and Mr JM both described loud arguments and abuse between the two of them, again each attributes those behaviours to the other.  When Mr JM finally went, YM arrived.  He was in and out of the children’s lives, some days there, some days not.  His behaviour became abusive towards Ms SJ.  I accepted, as I have already recorded, the children’s general accounts of YM’s behaviour in the family home, as they described in the ABE interviews.  Bearing in mind that that was the children’s experience during their lives for each of the four children in different ways, I ask myself the question; were any or all of the children harmed by what they experienced? 

36.              Dr Kennedy, the child adolescent psychiatrist, assessed each of the children.  In his report dated 19 September 2014, he said this and I read from page E83, paragraph 2.5:

‘All four children showed, to a greater or lesser extent, various kinds of emotional disturbance.  They all have features of an attachment disorder in that they show some difficulty in regulating their emotions and behavioural disturbance at times and difficulties in expressing their emotions.’

 

37.              He then considered each child in turn, first LS.  I should record first that LS is a boy who has been excluded from school and is now attending a pupil referral unit.  Dr Kennedy said this about LS, at paragraph 2.6:

‘I found LS to be a solemn boy, unhappy about his situation.  He wanted to live with his father, although he was settled in his current foster placement.  He was also negative about his sibling relationships, including his relationship with his sister, AS.  He is a boy with a significant history of behavioural disturbance in the school environment.  In my view, he needs both consistent parenting but also ongoing therapeutic help and support.  The priority for him is a stable home, in order to help him overcome some of his attachment issues and his underlying anxieties about himself.  LS is going to find it very difficult indeed coming to terms with not returning to live with his father.  He is certainly going to need ongoing help and support for his education, wherever he ends up living long-term.’

 

38.              At paragraph 2.7 he says this:

‘AS is also a troubled girl.  There are some signs of behavioural disturbance in the school environment.  She is getting quite a lot of support within the school and I am sure she will need ongoing help and support educationally.  If she has not had a full educational psychology assessment, she certainly does need one.  Like her brother, LS, she is going to need long term stable parenting in order to try and help her undo the emotional damage that she has experienced as a result of the inconsistent and poor parenting to which she has been exposed.  I was very concerned about the fact that her enuresis persists.  An immediate alternative treatment is for her to go on Desmopressin, which is quite an effective way of managing enuresis.  An alternative is to send her for a specialised assessment, for example, with Dr Richard Trompeter, at Great Ormond Street Hospital and also in my own clinic.  AS is going to need ongoing child psychotherapeutic help and I think she would respond to this.’

 

39.              Dealing with HM, he said this at paragraph 2.8:

‘HM is showing signs of both some attachment difficulties due to the poor and inconsistent parenting he has experienced, but also specific symptoms of ADHD, which is not related to poor parenting alone.  This is a developmental disorder.  In my view, he has severe ADHD, as I shall describe in the interviews.  He can appear to be calm, both with either of his parents, but then can suddenly become very impulsive and hyperactive.  This is typical ADHD-type behaviour.  I would recommend that he starts on Methylphenidate, 5mgs twice a day initially.  This could be started by his GP.  Ideally, he should be seen by the local CAMHS clinic for a full assessment and follow-up.’

 

40.              Dealing with PM, paragraph 2.9 he said this:

‘PM is a girl who was very difficult to interview and did not want to talk much about herself.  In the contacts I observed, she tended to keep to one place in my room as if this was where she felt safe.  I suspect that she is going to need ongoing child therapeutic help and that it will be important to build up a relationship with her slowly before she would start talking more about herself and her own experiences.  She seems to be coping reasonably well at school at the moment.’ 

 

41.              Passing on from Dr Kennedy’s report, I should record about HM that in Mr JM’s care for the last two months, HM’s behaviour has apparently calmed down considerably without medication.  This is a tribute to Mr JM’s care and may indicate that medication may not be necessary but, of course, it is early days yet.

42.              There was other evidence in the trial bundle about the children’s behaviour but all of that is confirmation of the summarised opinions that I have just read from Dr Kennedy’s report.  However, particularly troubling was the view of the very experienced foster carers, that is a husband and wife who are looking after LS and AS together.  The foster carers are struggling to manage the two children together, even now a couple of months beyond the report that Dr Kennedy submitted.  The children compete with and irritate each other.  The foster carers believe that they may be better placed separately.  In answer to the question about harm to the individual four children caused by their previous parenting, I find that each of the children in their individual ways have suffered significant harm to their behavioural, emotional and educational development and were likely to continue to do so if they had remained as they were before the local authority intervened.  It is unnecessary in this case for me to say more on this issue.

43.              I turn next to consider what orders, if any, to make and what would be, therefore, in the children’s best welfare interests.  I take PM and HM first.  It was agreed that they should live with Mr JM.  So far he has proved a capable parent and he has a calmer presentation in his management of those two children.  I find that it would not be in their interests to have a shared care arrangement with Ms SJ.  She should be able to have regular time with both children but I accept that her own history has left her with difficulties of emotional control and impulsiveness.  The children must be protected from that.  Also, Mr JM has been used, until recently, to an over-acceptance of Ms SJ’s difficult swearing behaviour if her wishes are not met.  There need to be proper boundaries to protect the children from absorbing that dysfunctional behavioural example.  I consider it would be helpful for the local authority to have a supervision order for both children to provide a statutory basis for the continuing local authority monitoring of and assistance to Mr JM’s care of the two younger children.  Mr JM has, apparently, a supportive family.  I consider that a supervision order of six months will be sufficiently long.  The children may remain children in need after that time but, as it appears to me now, that need does not need to be met and dealt with under a statutory order.  I will deal with contact a little later and briefly.

44.              Next, LS and AS.   I should record that I met both LS and AS at court yesterday in the company of Natalie, that is the female foster carer, the children’s guardian and the children’s solicitor.  I found LS bright, observant and articulate.  AS was a delightful, inquisitive but shy child.   I am grateful to them for coming to see me.  I turn to consider their placements.  The mother accepts that she cannot look after LS and AS.  I am unable to place the children with Mr ANS because I know nothing of his current circumstances and he has chosen not to take part in this final hearing to allow me to form any opinion of him.  The professional assessments do not support placement with him.  I ought to record, however, that despite his non‑engagement with this hearing, he has attended contact reliably and the contact has been of good quality.  However, on the evidence I have, I accept that he has used crack cocaine recently and he has admitted that he has used cannabis.  His drugs use, combined with his reported unpredictability and his angry behaviour in the last year or 18 months at least, and his failure to explain himself in this hearing, makes it impossible for me to approve a placement of the children with him.

45.              The only realistic options before me for LS and AS are therefore long-term fostering or a placement with Mrs SS.  Other family members were mentioned by Ms SJ, her own mother for example, but none of them have so far come forward for assessment, as I understand it.  A friend, Ms KE, was assessed by Ms Walker, the independent social worker, to consider the possible care by her of PM and HM.  She appeared to have a lot to offer the younger two children but she herself decided that she would be unable to look after them.  She told Ms Walker that she could not offer to look after LS and AS herself. 

46.              Therefore, I turn to Mrs SS.  I found her to be a warm, pleasant and sensible person who has much to offer LS and AS as their grandmother.  She was understandably nervous giving evidence.  My principal doubt about her suitability to look after either or both of LS and AS is that I found her rather limited in her understanding of past difficulties and also of the future needs of the children.  I find that she was likely to be rather passive in her approach to the children’s future needs and had been so about their past needs.  As I find, the children’s needs, whether individually or separately, would be too great for her to manage as a permanent long‑term carer.  With regret, therefore, I find myself unable to direct that either of the children should live with her as a permanent placement. 

47.              I must therefore make care orders in respect of both children and approve the care plan for their long‑term fostering.  I do so whilst recognising LS’s wish to live with his father.  However, as he knows from my discussion with him yesterday, that is not a wish that I can grant and yesterday on his visit he was accepting of that decision by me.  An important issue is whether the placement of LS and AS can be together or must be separate.  From descriptions of them and my own observation, they are very different characters.  During the visit yesterday LS was careful to invite AS to express her views first.  She was too unconfident to do so at all.   I saw LS treating her with respect, but I know there is a difficulty in their relationship which I did not see.  Dr Kennedy, the guardian and the allocated social worker all now agree, reluctantly, that separate placements will probably be a more secure plan because a joint placement has a greater risk of breakdown due to the difficulties of foster carers managing both of their behaviours together in the long‑term.  I therefore accept that plan but wish, as others do, that it were not necessary. 

48.              I turn now to contact and I will attempt to deal with that more briefly.   It may be that, after I have given my general remarks and some outline decisions, I will need to invite further detailed but brief submissions about these matters.  I accept the principle for LS and AS that they should have regular inter-sibling contact.  That inter-sibling contact is very significant for their long‑term future.  It is necessary, of course, because they would be in two separate placements, assuming that the plan now in place is necessary to carry into effect.  I also accept that the two pairs of half-siblings should have inter-sibling contact but as I find, that contact is less significant than the contact between each pair of the children and their respective parents. 

49.              I accept that Mr ANS and Ms SJ should have parity of contact, that is the same level and frequency.  To do anything other would be, for the children, to draw a distinction between the children and also their parents which is undesirable and not in the children’s long-term interests.  I accept that for now, at least for the immediate future, both parents’ contact should be professionally supervised.  There are difficulties in each of their different presentations, Mr ANS and Ms SJ, and only professional supervision is likely to be able to deal with the risk.  Such supervision will, of course, be kept under review.

50.              I consider it impractical that the parents’ contact with LS and AS can be as frequent as monthly.  Inevitably, if they have parity of contact, that would mean two occasions of contact each month for LS and AS, on top of any other contact that they might have between themselves individually and between Mrs SS or between themselves and other people.  I consider that approximately six times a year each, principally in school holidays or half terms is the most that is practical to manage without disrupting the stability of their normal lives and activities in foster care.  I consider that contact with Mrs SS and the children will have to be limited to no more than three times a year unless, for example, Mrs SS and Mr ANS are able to resolve some of their differences sufficiently to have some joint contact.  Currently, that does not look likely. 

51.              As is clear from what I have already said, it is impossible in this case to look at the number of times of contact for an individual person and an individual child without also standing back and looking at the cumulative, that is the total, effect of all the contact arrangements with all the different people and all the different children with each other.   It is that restraint on the frequency of contact which is the most overwhelming feature of any plan for future contact for LS and AS.  Of course, parental contact with LS and AS, just as the other parts of the contact, should be kept under review.  However, I consider that it is unlikely that it will be practical to increase the frequency of contact for the reasons I have already briefly described.  However, the possibility is that the length of the contact might be reviewed and extended, depending on the experience of contact and the extent to which each parent makes improvements in their emotional management and management of their own lives and difficulties.

52.              Dealing with contact between Ms SJ and PM and HM, I disagree that it is necessary for Ms SJ’s contact to be professionally supervised on every occasion that takes place over the next few months.  I recognise the risk that she has previously presented, principally of meeting up with undesirable friends or of her not managing her emotions well.  However, there was a period, albeit brief, when Mr JM himself managed and supervised that contact.   I have not heard anybody say that that was not sufficiently well‑managed.  However, I do accept the local authority will need to form a view of the nature and quality of the contact that Ms SJ has with PM and HM in order to offer recommendations to Mr JM about the future of contact.  Of course, the two children have been living with their mother up until September 2014 and I know that there is an experience of reasonable and successful contact since the children have been with Mr JM. 

53.              However, at the conclusion of this case (with the child arrangements order in place that the children should live with Mr JM and not under a shared care arrangement), there will be a different dynamic to the relationship, both between Mr JM and Ms SJ and between Ms SJ and the children.   That dynamic needs to be assessed by the local authority.  However, I do not consider it is necessary for that professional supervision to carry on for six one-monthly sessions, as is currently planned by the local authority.  For the purposes of assessing contact and how it should progress I consider a better plan should be that over the next three months there should be three two‑hour sessions of professionally supervised contact with Ms SJ to assess how she and her children are managing their new relationship. 

54.              I am satisfied, just, that Ms SJ could have the intervening weekly contact in the other weeks which is supervised by Mr JM or another family member, and that that contact could be up to two hours on each occasion.  HM, in particular, appears to value the contact with his mother being regular.   For the next few months that may help his stability of placement and his continuing development and calmness.  The arrangements for contact should be subject to Mr JM’s agreement on each occasion, but the period does not need to be shortened for any reason that might occur during contact or surrounding it.  I will allow (again all of these remarks are subject to any brief correction or amendment) up to three hours’ contact for the mother on Christmas Day, supervised by Mr JM.  What I have been told about is an arrangement whereby Christmas Day would be shared in the two households in a way that has been the position in the past when the children were with Ms SJ and Mr JM was the one sharing.  I see no reason to think that, in three weeks’ time, that arrangement will carry any particular excessive risk. 

55.              I would have in my mind that in the next three months, there would be three occasions of two hours of supervised sessions for the purposes of the professional assessment by the local authority of the quality of contact.  After those three months, I would invite the local authority to review the contact arrangements that are taking place between the mother and HM and PM and make recommendations to Mr JM and Ms SJ as to how contact should progress thereafter.  By structuring the contact over the next three months in that way, there will be experience, both for Mr JM, Ms SJ and the local authority, both of professionally supervised contact and non‑professionally-supervised contact. 

56.              Therefore, I consider that at the end of three months there will be a better level of information available to the local authority to make sensible plans with Mr JM and Ms SJ about the future of contact, based on experience of whether there are any difficulties with the contact that has been taking place.  It is easier, in my judgment, to make an assessment once you have got evidence of how things have worked, even if the evidence is that it does not work well, than to guess what it might be and then experiment about it afterwards.  The supervision order does not, of course, affect the use and the exercise of Mr JM’s parental responsibility.  It will be a matter for Mr JM to decide thereafter whether to accept the recommendations from the local authority.  No doubt, he will be mindful of their views, just as it will be mindful of his duties and responsibilities with parental responsibility.

57.              I make clear that contact with Ms SJ should not include overnight contact until she has completed some further counselling or therapy.   She has to change her volatile loss of temper.   Overnight contact should not take place until she is better able to manage her emotions in circumstances where her wishes and feelings are frustrated.   Inevitably in life all of our wishes and feelings are frustrated, either occasionally or more frequently.  However, there is no excuse for the severe bad behaviour and insulting rudeness that Ms SJ has apparently become accustomed to use when dealing with other people in circumstances where she is upset or disagrees with their views.

JUDGE MILLION:  Does anybody want to raise any matters that arise from that or to seek any kind of amendment or clarification?

MR BERBOTTO:  Your Honour, it is not clear what is the suggested frequency of contact between inter-sibling groups.

MS STYRING:  The two sets of siblings.

JUDGE MILLION:  One of the difficulties I have is trying to get a clear picture of how the frequency of contact arrangements would add up.   In my remarks, I have given priority to the parents’ contact, rather in line with the submissions that I heard on Wednesday.   I agree that the inter-sibling contact between the two pairs of children (that is the pair of LS and AS and the pair of PM and HM) seems to me to be of a different order of significance.   I had in mind that contact would be perhaps two or three times a year or thereabouts, maybe four but not more.   I do not wish the contact between the two pairs should be restricted if it is practical to make more.   But it seems to me that in practice for the two pairs of children, the contact arrangements will be much more like that in other family situations where, for example, cousins meet or something of that kind.   For LS and AS, if they cannot get on as full siblings having spent large amounts of their time together, it seems to me that to impose on them contact with PM and HM who are relative strangers (even if they are half siblings) is probably a demand too much for LS and AS when they have other major difficulties to deal with. 

            I am happy to be guided by further matters.   But I stand back and look at all the contact arrangements that would take place if you add up all the proposals, and I become seriously worried by the frequency of arrangements which is why I have left that to one side.  It seems to me, frankly, that because Mr JM is in a position to decide what the frequency should be for PM and HM, he cannot be directed - well technically he could be - but it would be difficult to put in place a direction about what the level of contact should be.   And because LS and AS’s situation and their reaction to separate placements is going to be unknown, it seems to me that any inter‑sibling contact arrangement between the pairs falls a long way second or third behind the other two primary goals for placement and contact with parents.    So I do not wish my remarks to be thought to be prescriptive.

 

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