England and Wales Family Court Decisions (other Judges)

IN THE BARNET COUNTY COURT

		St Marys Court, Regents Park Road, N3 1BQ
		23rd May 2014

JUDGE VENABLES:

1. Today I am concerned with care proceedings relating to two children: MM who was born on 27^th September 2001 and PM born on 27^th March 2005. M is thus almost 13 and P is 9 years old. The children's mother is SM and their father is EM. The children's guardian in these proceedings has been Claudia Gross.
2. The LA seek a full care order in respect of both children with a plan for long-term foster care. That plan is strongly opposed by both Mr. and Mrs. M. It is however supported by the children's guardian, although she makes a different recommendation as to the amount of contact the children should have with their mother and father.
3. The children are currently in interim care: placed with a foster carer known as V; the children having been removed to her care under an interim order made on 22^nd January of this year. That order was made with the support of the guardian and was opposed by both mother and father.
4. Today, the local authority seek to establish that the threshold is made out on a number of bases, that of actual neglect, emotional harm, and risk of future neglect and emotional harm. The threshold has been disputed by Mr. and Mrs. M and a composite document has been drawn setting out their objections in a document contained at A34 of my bundle.
5. I was in fact the judge who dealt with the interim hearing in January and gave a short extempore judgment on that date setting out some of the background to these proceedings. I said then, and I will say again now, that this is an extremely sad case. Mr. and Mrs. M both love their children very much and their children love them.
6. Both parents have their own vulnerabilities. Mrs. M has an I.Q. of 51. Dr. Locke assessed mother and reported on 20^th December of last year confirming that Mrs. M has capacity to engage in these proceedings. She has been assisted throughout these last two days by Ms. Floyd of Mencap who also assisted her at the time of the earlier interim hearing. Dr. Von Brandt also assessed mother and found her to meet the cognitive diagnostic criteria for a learning disability which should enable her to obtain support from the adult services with the authority.
7. Dr. Peter Maggs has assessed father. He conducted a psychological assessment on 8^th January of this year. He reported that Mr. M has an I.Q. of 71. He has learning difficulties but does not meet the diagnostic criteria of disability. In Dr. Maggs' assessment of father, he concluded that Mr. M would be unable to meet the children's needs even if significant levels of support were provided. Dr. Maggs recognised that Mr. M had managed the care of the children for a number of years as well as the care of his wife. In his oral evidence before me today Dr Maggs acknowledged that father had cared for the children for a long period of time. However that did not in any way deter him from reaching the conclusion that, looking forward, Mr. M could not meet the children's needs.
8. He accepted that Mr. M's presentation during the assessment may have been effected by stress, and that his functioning may be rather better than the report suggests. However, he makes clear that having applied the confidence intervals, Mr. M's intellectual functioning is limited and this has an impact on his parenting ability.
9. The family have been known to social services since at least 2006 and there have been a multiplicity of assessments since that time. There were a number of pre-proceedings assessments undertaken at the end of last year and there have been a series of assessments within these proceedings. The report of the Family Support Service conducted in December, and the community based parenting assessment from the social worker, make clear that although both Mr. and Mrs. M love their children very, very much and have tried to address the deficits in their parenting, they are unable to offer the level of parenting the children require.
10. The plethora of assessments also make clear that neither Mr. nor Mrs. M have the capacity to meet the children's needs even with intensive support. Both M and P have complex needs, M particularly as she has microcephaly and is, or certainly was in January, functioning at the level of a 5 year old. P was showing a delay of two years in his intellectual functioning.
11. The local authority issued these proceedings in November 2013 having reached the conclusion that the long-term chronic difficulties could not be resolved satisfactorily. They considered that the situation had reached tipping point whereby the children needed to be removed under interim orders.
12. The local authority's concerns focused on a number of areas. There was the first issue of the children's diet and weight loss. At the time of the inception of these proceedings, both children were presenting as underweight and had been referred to the community paediatrician. They presented as tired and lethargic and this was impacting upon their social and emotional development. Since they were removed in January M has put on 4.6kg in weight. Her daily dietary supplements have been reduced from two to one. Her food intake has increased as has the range of foods that she is now eating. She is described by the social worker as presenting as alert and engaged. P has similarly gained in weight and is eating a wider range of healthy foods. It is hoped that he will soon be signed off by the community dietician.
13. The second area of concern was in relation to hygiene. The children had repeatedly been reported by the schools as presenting as dirty, unkempt, tired and smelly. Attempts to engage Mr. and Mrs. M at home to help them manage the children's hygiene had not been successful. M's school was concerned about the repeated lice infestations and said that M's head lice was the worst case she had ever seen. The difficulty in engaging Mr. and Mrs. M led to the school taking over responsibility for the children's hygiene with the washing of their clothes, the provision of clean clothes and checking of their hair. Bathing facilities were also made available to M at school.
14. Since being in foster care the children's physical presentation and hygiene has improved dramatically. The school is no longer engaged in managing M's hygiene or the provision of clothes, and M is able to bathe in the foster carer's home. The children report enjoying their clean clothes and are very proud of their cleanliness and physical presentation.
15. Historically there has been concern that M was presenting an almost phobic resistance to bathing and showering, and she was steadfastly refusing to swim at school. P exhibited similar resistance to bathing and showering on a regular basis. Since moving to V's care both children are now able to understand the need to bathe and shower, and routines have been established around physical care. There are no reported issues around their presentation and no reports of the children smelling or appearing unkempt. Three weeks ago M is reported to have elected to go swimming.
16. Another area of concern has been the children's social and educational development. In the period since their removal M and P are reported to have shown improved concentration at school and to have exhibited greater confidence and easier social relationships. In just four months P has gone up two whole levels in maths and one level in English and science. M has also gone up one level in both English, maths and science.
17. The fourth area of concern has been around the conditions within the home. The children's guardian gave compelling evidence at the last hearing about the state of the living conditions at that time. The guardian described the property as having about 85% of the floor space covered with rubbish. She was also generally very concerned as to the very poor level of hygiene around the kitchen and bathroom areas. She was particularly concerned about the emotionally constricting effects of this accommodation on the children's social and emotional development.
18. She last visited the parents at their home on 25^th April and she commended Mr. and Mrs. M for the efforts they have made since her last visit to try to address their difficulties. Nonetheless, she observed that there were still piles of bags in every room which were uncategorised and unsorted. She said there was not one clear and clean room in the flat and it created a sense of pervading disorganisation. Whilst Mr. M asserts that significant progress has been made even in the last month, the guardian is concerned that the parents would be unable to sustain the same significant improvement. She also spoke of the past cycles of intervention which were unsuccessful and the parents' continuing difficulty in sustaining, for themselves, a clean and managed environment.
19. Mr. and Mrs. M strongly oppose the suggestion that they have been neglectful of the children. They have asked the court to find that it has been the local authority's failure to provide the necessary services that has led to their inability to manage the children's care. They are particularly critical of the local authority for failing to assist them in the provision of alternative accommodation. The local authority has assessed the accommodation as being suitable for the needs of the family in terms of its size and domestic provision. The guardian today recalls that this accommodation has been identified as being appropriate for the needs of the family. It is the family's use of that accommodation and what goes on within it that has created the difficulties.
20. Section 31(2) of the Children Act provides that:

"A court may only go on to make a care order or a supervision order if it is satisfied –

(a) that the child or children 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."

Subsection s.31(9) sets out a series of definitions:

"'Harm' means not just ill-treatment or the impairment of health or development;

'Development' means physical, intellectual, emotional, social or behavioural development;

'Health' means physical or mental health."

21. I have no doubt that Mr. and Mrs. M have worked to the very best of their ability to manage the needs of both M and P, but their deficits as individuals and as a couple have left them unable to meet the children's needs with any consistency. Even with the intensive support of the local authority, as made available over Christmas of 2013, Mr. and Mrs. M were still unable to sustain a reasonable level of care for the children. The children's progress in foster care since January demonstrates very powerfully the effect of good enough parenting in restoring weight, establishing routines and boundaries, facilitating their educational development and highlighting the historic levels of significant physical and emotional neglect.
22. Mr. and Mrs. M want to do what is best for their children and they have done everything that they possibly can to meet the needs of the children within the limits of their abilities. However, the task of meeting the children's care, even with extensive support, has been too great for them. I am mindful of the assessments of the social worker, the guardian, Dr. Locke, Dr. Maggs and Dr. Von Brandt and I accept those assessments. They all highlight the gap between the parents' efforts to parent and their ability to parent.
23. Today the guardian was asked about her view of M's behaviour when first removed from her parents' care and whether she had been surprised by how M reacted. It is clear that M struggled greatly when she was first removed; challenging the foster carer, kicking, spitting and scratching and demonstrating behaviour that was very, very difficult even for a skilled and supportive carer. The guardian said she was not surprised because M not only had to manage a change in her environment with the removal from her parents, she was also having to deal with a change in every feature of her life. She had moved to a new environment where she was required to work to boundaries, where she was required to wash, to eat healthily, where she was not permitted to watch television in a dark room and where she had to engage in a normal routine. All of that was an enormous challenge for M at the same time as having to deal with a sense of loss of being removed from her parents' care.
24. I have considered the evidence in this case very carefully and I am satisfied that the threshold is made out on the basis set out by the local authority. The children's extraordinary progress since being received into care graphically demonstrates the harm they had suffered in the care of their parents.
25. I have to go on to conduct a welfare evaluation to determine what the appropriate course is now for the children. Mr. and Mrs. M's Article 8 and Article 6 Convention rights are engaged. I must consider the plan of the local authority and whether it is a proportionate response to the court's assessment of risk. It is clear that the children must remain in foster care and that they cannot safely return to the care of their parents. There is no safe mechanism of support that can be implemented to enable a safe return to the family.
26. Ms. Coppen, the social worker, suggested that the only way that the children could be supported at home would be effectively if carers were doing the parenting which would be wholly inappropriate and confusing for the children. The children's move to V in January was set up on the basis that if the court was minded to make a care order at a final hearing there was the potential for that placement to be a long-term placement. Very sadly, V feels herself unable to offer long-term care for the two children, but she has confirmed that she will continue to care for the children until a suitable long-term placement is found for them.
27. The local authority invite the court to reduce the children's contact with Mr. and Mrs. M from the current level of twice a week plus two telephone calls a week to one face to face contact a fortnight and one telephone call a week, with such contact to continue until a review in three months' time. The local authority urge the court to adopt that course because they are concerned that the children should understand that they are not going to return to the care of their parents. They feel that the children will be able to understand the concept of fortnightly contact and it will enable the anxieties of the children to be managed.
28. The children's guardian feels that that is too little contact. She is very firmly of the view that the children should see their parents each week, and that they should have telephone contact twice a week until there is a review in three months' time. The guardian has discussed the matter with the Independent Reviewing Officer who shares her view that the level should be reduced to weekly not fortnightly. The guardian's view is that in this particular case this high level of contact post care order is appropriate for the children's needs. It enables the children to have contact within a timeframe that they understand. It will enable P's anxieties to be better managed and it is a level of contact that can be better managed by the parents.
29. The guardian is mindful of the fact that the parents have gone along with the local authority's advice as to how to manage their own contact, and have tried to apply the advice issued as to setting boundaries around the children's behaviour within contact. They have been supportive of the foster carer and have not sought to undermine the placement. The guardian feels she has seen nothing in the parents conduct which would suggest to her that they would seek to undermine any future arrangements.
30. With V and Ms. Coppen speaking to the children about the outcome of this hearing, and helping them to understand that contact will be reduced to weekly, the guardian feels the children will be better able to manage the change in the arrangements for their care. There is a process of adjustment that needs to be undertaken which must be case and child sensitive. The local authority's proposed contact review will look to future, more normalised, contact once the arrangements for the children's placement have been reviewed. It is noteworthy that the guardian considers the extended family may have a role in ensuring that the children's cultural identity is underpinned and promoted into the future. Indeed, recently P's birthday took place at the maternal grandparents' home. The guardian would hope that in the future such family-based and activity-based arrangements will form part of longer term contact.
31. Whilst I understand the basis on which the local authority asks the court to reduce contact from twice a week to once a fortnight on an interim basis, I find myself persuaded by the arguments of the guardian that for these particular children in this particular case weekly contact is more consistent with their needs. I can see no bases for the telephone contact to be reduced. It is clear that the children enjoy that contact. There is no suggestion that it is disruptive or undermining of their placement. In the short term it seems to me to be part of a package of contact with the parents that will better enable the children to accept the planned change for the arrangements for their future.
32. I thus make a care order in respect of both children and ask the local authority to record my view as to the level of contact that would be appropriate, both as direct contact and telephone contact, in the recital to my order. I would like to say a special thank you to both the social worker and to the guardian for the enormous amount of very sensitive work they have put into this case, and to Ms. Floyd who has been here to support Mrs. M during what have been extremely difficult hearings. With regard to my earlier comments about the adult team, these will need to be recorded in the recital together with my order for the service manager to provide a letter of explanation for the failure of the team to provide the services the parents required and were entitled to.
33. I think the quality of the social work from the children's team has been very, very good. I would hope that in due course this quality of service will be echoed by the adult team.