England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT SITTING AT STOKE-ON-TRENT

AND IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002

		26 June 2015

1. The Children in this case are MJ ("Mk") a boy born on 13 January 2009 who is six, VJ ("V") a girl born on 6 November 2010 who is four and IJ ("I") a boy born on 3 April 2012 who is three. Their Guardian ("G") is Michele Gerard represented by Ms Moseley of Counsel.
2. The Applications before the court are applications for care orders in respect of all three children and an application for a placement order in respect of I. The Applicant is Staffordshire County Council ("LA") represented by Ms Gregg of Counsel.
3. The Mother ("M") is EK aged 27 and represented by Ms Lakin of Counsel. The Father ("F") is AJ also 27 represented by Ms Lattimer of Counsel.
4. MK the maternal grandmother ("MGM") aged 46 is also a party; she is unrepresented and took part in the proceedings to express the views of both herself and the maternal grandfather, VK (together the "MGP").

BACKGROUND

5. M came to stay in UK from Latvia in about 2008. She was joined by F a few weeks later and Mk was born early the following year.
6. From an early stage their relationship was volatile and characterised by domestic violence. F was said to have drunk alcohol heavily and was alleged to have had a number of affairs. M was said to be erratic in her behaviour, pre-occupied with relationship issues and emotionally unstable. Police logs show regular reports and calls out in 2009 relating to complaints of domestic violence by M against F.
7. Mk was made the subject of a Child Protection Plan in 2009 under the category of emotional harm although matters appeared to improve in 2010 such that LA involvement stepped down to a Child in Need plan.
8. Towards the end of the year domestic violence re-emerged as an issue, and F was convicted of an assault on M following an incident in April 2011 and sentenced to 18 weeks imprisonment. In 2012 a Health Visitor recorded M as being extensively bruised to the body.
9. In early 2013 F received a short prison sentence for driving with excess alcohol and driving whilst disqualified, and in May 2013 M was recorded in the social work chronology as threatening to commit suicide. It was also recorded that the home environment was such that it was not possible for both parents to remain within the household due to the likely emotional impact of their behaviour on their children.
10. It was also reported again that M had been assaulted on several occasions by F, a Multi-Agency Risk Assessment Conference was held, and Mk was again made the subject of Child Protection Plan as were V and I.
11. A Core Group meeting in January 2014 identified a number of concerns including poor home conditions, domestic violence, and poor school attendance by Mk. Amongst other concerns it was said that the children were being left unsupervised or in the care of Latvian lodgers of whom little was known. The parents were refusing to engage with LA and M was reported as aggressive and hostile.
12. The police log records a further incidence of violence between M and F in February 2014, with M complaining that F had punched her to the face, and F complaining that M had scratched him to the face; M was recorded by police as unwilling to make a statement.
13. Matters came to a head in June 2014 when Mk alleged that M had hit him with a broom handle and that she often hit him and his siblings. The children were made the subject of an emergency protection order on 30 June 2014.
14. A Child Protection Medical carried out that day by Dr Jan recorded a significant number of bruises to the bodies of all three children which gave rise to concerns as to whether there was evidence of non-accidental injuries to the children, and care proceedings were commenced and interim care orders made in July 2014.
15. All three children were placed together in foster care; that placement broke down and they were then moved to a further placement last August where all three have remained since and progressed well.
16. There were difficulties initially in respect of contact. The LA had reason to believe that the parents (M in particular) were undermining the placement and contact was suspended for a short time and then continued at a reduced frequency.
17. However, since a written agreement was entered into contact has proceeded well and all agree that it has been of benefit to the children. It currently takes place twice a week for both parents for two hours with all the children together.
18. It is recognised that the parents now behave appropriately and engage well with the children. The children are Russian and Latvian speaking, and it has not been possible to place them with foster carers with a similar background, so contact is also of benefit to them in maintaining their language and culture.
19. A parenting assessment was carried out by the family's then social worker Mya Higgins dated 6 October 2014. It reported that M and F could provide for their children's basic needs, but significant on-going concerns remained about the number of injuries all the children had suffered, domestic violence, M's mental health and the parents' lack of understanding of the LA's concerns.
20. Alison Salt, a chartered educational psychologist prepared an independent psychological assessment of the two children Mk and V dated 8 December 2014. Her conclusion was that if they were to return to the care of their parents they would need an extremely high level of LA support from a wide range of social care services to ensure that the children's basic needs were met, in addition to proactive strategies such as intensive parenting and domestic abuse prevention classes.
21. She reported that the children did not have basic play skills and social interaction skills, and that their interaction was predicated on arguing, shouting and fighting. She said that Mk and V had a very negative response to each other but an underlying strong attachment which given the right adult nurturing would develop in a more positive way.
22. Ms Salt described their attachment to M as fragile, with M having her own strong need for an attachment with Mk often to the neglect of the other two children. The children's attachment with F was more secure, although he did not feature as an important adult in the family relations test.
23. Dr Stephen Rose, consultant paediatrician, prepared an expert's report dated 1 April 2015. After examining the evidence put before him (then including only black and white photocopies of colour photographs) he concluded that there was evidence that all three children had suffered both accidental and non-accidental injuries.
24. The MGP put themselves forward to care for the children if M and F could not. The LA assessed them negatively. An independent social worker Sue Bach prepared a report on them which encompassed a special guardian assessment. It is dated 3 April 2015. She was unable to recommend MGP as suitable carers. She acknowledged that they offered a good level of care to their own young daughter Polly-Elizabeth (4 at the time of writing her report). However, she reported that the maternal grandparents did not acknowledge or accept the risk issues in this case, and would not accept the opinions of the experts in this case or the high level of need that the children had.
25. MGP did not accept this conclusion and MGM was joined as a party to allow her to challenge Sue Bach's conclusion. In the event at this hearing she decided that she did not wish to do so, albeit she remained a party and gave short evidence.

POSITIONS OF THE PARTIES

Local Authority

26. The LA say that the threshold criteria under S.31 Children Act 1989 ("CA 1989") are satisfied on the basis of the matters set out in the document found in the bundle at [A97]. Those which were pursued in this hearing are

domestic violence

the parent's aggression towards and lack of honesty with professionals

the injuries to the children which were either inflicted or evidence of a lack of supervision

27. Their final care plan proposes that Mk and V be placed together in long term foster care and have contact with M and F which will progress to six times a year for two hours on each occasion once the parents have shown that they can support the placement. I will remain with Mk and V in foster care but only until an adoptive placement is found when he will have a goodbye contact with M and F. Contact for him with his siblings and parents thereafter will be letter-box contact once a year.
28. The LA do not countenance placing the children with the MGP. They draw attention to the negative assessment of Sue Bach and her opinion that the MGP did not accept professionals' valid concerns nor did they have the ability to challenge M and F.

Mother

29. She sets out her position in her final witness statement of 13 May 2015.
30. She accepts that the relationship between her and F was volatile, that there were times when he would go off with other women and that there were incidents of violence, particularly when F had been drinking. She agrees that the children witnessed violence between their parents and that they may have been caused emotional harm and damaged; there were times when Mk had to comfort her.
31. She accepts also that there has been a lack of supervision and that the children have suffered injuries, but denies ever physically harming the children in any way; specifically she did not hit them with a broom. She attributes the children's injuries to them fighting between themselves and falling from play equipment in the park.
32. She says that she now understands that the circumstances at home were not good for the children, and that things needed to change. She also say that this has been a wake up call for her and F, that he has stopped drinking and womanising and that they have made changes and resolved to put the children first.
33. She is willing to take on board advice and engage in any necessary courses and seeks the return of the children to her and F's care. She strongly opposes the plan for adoption of I and wants the children to remain together.
34. If the children cannot return to their care, then she would support them being placed with the MGP.

Father

35. He sets out his position in his final witness statement of 12 May 2015.
36. He accepts that the children have seen him and M arguing, and would have been scared by that.
37. He accepts the medical evidence that the children have been caused injuries but denies that he caused them and does not believe that M did. He says that there was no-one else living in the home with them, but suggests that the children may have caused the injuries fighting or by injuring themselves when playing. He says that Mk is not telling the truth when he says he was hit by M with a broom. F further says that he had never grabbed or injured the children, and he has never seen M do so.
38. He promises that things in the household have improved and seeks a further chance for him and M to parent the children. He opposes separation of the children and the adoption of I, and assures the court that he and M will now work fully with the LA.
39. If the children cannot be returned to their care, he supports the children being placed with MGM, and would also seek more contact than that proposed by the LA.

MGP

40. Their position is set out in a document that was helpfully typed up and handed in on at the start of this hearing.
41. They disagree with some aspects of the report of Alison Salt as to the children's presentation, and they do not agree with the views of the LA as to the concerns about placing the children with them.
42. They acknowledge the professional approach of Sue Bach to her assessment of them, and they do not seek directly to challenge her opinion; nevertheless they ask the court to draw a different conclusion as to their ability to care for the children.

Guardian

43. The G found herself in some difficulty preparing an informed Final Analysis because of what she fairly described as the state of flux in the LA's final care plans, in particular in relation to the separation of the siblings and the placement of I. The court did have the advantage of a summary prepared by the G as the case progressed, and no party was disadvantaged by her final observations being provided by way of her oral evidence.
44. Whilst accepting the matter as finely balanced, the G cannot endorse the LA plan for I to be placed separately from Mk and V. She acknowledges the uncertainties, but comes down in favour of long term foster care for all three children.

ISSUES

45. The parents' admissions of the deficits in their parenting amount to an acceptance that the threshold under S.31 CA 1989 is crossed.
46. However, they do not accept the allegation made against them that they deliberately inflicted injury on the children, nor do they accept that an evaluation of the children's welfare throughout their lives leads to the conclusion that they should be cared for by others.
47. The issues therefore are these:

(1) Were all or any of the injuries to the children deliberately inflicted or were they accidental?

(2) If they were deliberately inflicted, who inflicted them?

(3) Can the parents provide good enough parenting for these children, and if not, how is their welfare throughout their lives to be catered for?

48. It is not necessary to make findings on all the matters in dispute between the parties, only on those which will enable the court to decide fairly the applications before it. Where a fact is relevant and in issue, I bear in mind that it must be proved on a simple balance of probabilities if the court is to find it proved. The burden of proof on those matters in issue lies on the LA.

EVIDENCE

49. Over the course of 10 days I heard from the following witnesses (the parents with the assistance of interpreters):

Dr Stephen Rose (Consultant Paediatrician)
Martina Rowley (Social Worker)
Diane Wallis (Family Support Worker)
Mya Higgins (former Social Worker)
Alison Salt (Psychologist )
Sandra Andersen (Adoption Social Worker)
Louise Dunne (Social Work Team Manager)
Rebecca Routh (current Social Worker)
The Mother
The Father
The Maternal Grandmother
The Guardian

Dr Stephen Rose

50. The injuries observed were initially recorded by Dr Jan, who conducted the child protection medical at the hospital, and they are enumerated in respect of each child in a document headed "Schedule of Injuries" at [A105]. Dr Rose gave oral evidence having belatedly seen colour photographs of some of these injuries. Photographs were not available of all the injuries recorded by Dr Jan, although Dr Rose was also able to refer to body maps showing the location of the recorded injuries together with Dr Jan's written descriptions of the location and nature of the injuries. Dr Rose did query Dr Jan's written description of the location of one of the injuries but this was not an injury relied on by the LA in support of their case.
51. As one would expect from an independent expert, Dr Rose confirmed that when considering an unexplained injury he approached it with an open mind and did not consider it suspicious merely because it was unexplained. He based his opinion on the history he was given, observation, clinical expertise and knowledge of the published literature, and he looked at the whole picture.

Mk

52. In the light of the evidence of Dr Rose the LA now seek to prove that the following injuries listed in the Schedule were inflicted, by which they mean inflicted by an adult and not a child –

Injury 4) Bruise 0.5 x 0.5cm on medial inner aspect of right elbow

It was Dr Rose's view that a bruise in this location was likely to be the result of an inflicted injury because the inner aspect of the elbow was a protected area which would not normally come in to contact with an object in play. When considered with injury 9) the description of injury 4) was consistent with fingertip bruising in Dr Rose's opinion.

Injury 9) Circular bruise measuring 0.5 x 0.5cm in diameter just below right elbow on the outer aspect

(a) Dr Rose was referred to a number of instances of violent behaviour by the children on each other but remained of the view that younger siblings could not have applied sufficient force to cause these injuries.

(b) He saw no significance in Dr Jan's recording of one bruise as circular and the other simply as a bruise. He accepted that it could not be said definitely that both injury 4) and injury 9) had occurred at the same time.

(c)There were no photographs of injuries 4) and 9) and he could not say that he was sure that these injuries were finger tip bruising inflicted by an adult, but they were consistent with that conclusion and in his opinion, particularly from the shape and the position, it was more likely than not that they were inflicted in that way.

(d) A lot of force was needed to cause finger-tip bruising which was not consistent with them being caused by one of Mk's siblings.

Injury 12) Bruise in the shape of a loop with total length measuring about 6cm on outer aspect of right upper arm

(a) Dr Rose was able to consider photographs of this injury, prints 9 and 10 in the police bundle of photographs. His view was that this was an inflicted injury.

(b) There was a suggestion by M that a handbag strap wielded by one of the children could have been the cause of this injury. The strap was not made available to Dr Rose, nor was it available to the court during the course of the hearing, but a reasonable quality photograph of the handbag strap set against a measuring ruler was made available some days after the doctor had given his evidence.

(c) A written question was put to Dr Rose asking whether this strap could account for this injury. In responding to the written question Dr Rose said that it was "highly unlikely" that the handbag strap was the implement that caused the loop-shaped mark on Mk's arm. He explained that the handbag loop was of a thickness such that when making contact it would not leave marks showing the "tails" of the loop as the photographs did.

(d) In his oral evidence, before he saw the photograph of the handbag strap, he did not dismiss lightly the suggestion that a younger sibling could have caused the injury, but said he found it very difficult to envisage a three year old child causing this bruise. He confirmed that view in answer to the written question. He said that "considerable force" would have to have been used to cause the mark, greater than could have been achieved by Mk's then three year old sister V.

(e) His view in his oral evidence was that this injury was more likely to have been caused by a loop of a thin material being applied with considerable force, beyond the force capable of being applied by a younger sibling. The likely mechanism was he said a flexible, looped, thin object; he provided the example in his written response of an implement such as a shoe lace.

Injury 15) Semi-circular shaped bruise on outer aspect of left upper thigh

(a) Again there was a photograph available, print 2 in the police bundle. This Dr Rose said was more likely to be a non-accidental injury; there was a clearly delineated area caused by infliction with an object. Considerable force was required to inflict such a delineated mark, beyond the force available to young children even with the use of an implement.

(b) It was possible that the bruise could have been caused by being pushed in to something, but it was over a very fleshy part of the leg where one would expect the muscle to absorb a lot of the force.

(c) He came down on the side of an inflicted injury because of the shape and the fleshy area. If, for example, a child fell on to a toy you might get the outline of that toy, but normally the bruise would be without a shape. In his opinion the bruise was inflicted by an object rather than caused by falling on to an object.

53. Whilst the LA do not say now that they were inflicted, it does have to be noted that in the context of accidental injuries and a lack of supervision, Dr Jan's child protection medical examination also recorded the following injuries to Mk (excluding those that were non-traumatic and adopting his numbering) -

1) 2.5cm linear scar just beneath the right collar bone

2) 1.5cm lineal scar just below right nipple

6) Horizontal scar measuring 1.5cm on the ventral aspect of the left elbow and

7) Linear mark measuring 5cm on the ventral aspect of left arm just below the left elbow

8) Linear mark measuring 3cm on the ventral aspect of the left arm just below the left elbow

10) Very small abrasions lower aspect of the back centrally

13) Laceration measuring 1.5cm in length to the top of the right shoulder

14) Bruise laceration measuring 4cm on outer aspect of right thigh

16) Two separate bruises measuring 3cm and 4.5 x 1 cm each on the outer aspect of left thigh

17) Laceration measuring 3 x 0.5cm on inner aspect of left knee

18) Linear bruise 2cm on left knee on front/inner aspect

19) Vertical bruise 2.5cm just above the left front/inner aspect

20) Small circular bruise to outer aspect of right calf muscle.

V

54. In respect of V, the Schedule prepared by the LA identifies 13 injuries to her. With the exception of a fractured right tibia two years ago they are similar in nature to those suffered by Mk, that is to say bruising. The LA now seek to show that one injury was inflicted on her by an adult, namely -

Injury 12) Three circular bruises next to each other (cumulative length of about 2.5cm) on outer (lateral) aspect of left mid-thigh

(a) Dr Rose had regard to the photograph print 5 in the police bundle, and remained of the view that this was more likely to have been non-accidental.

(b) He said it was consistent with a blow from a linear object or fingertip bruising, and more consistent with a blow from a linear object.

(c) In his opinion it would have needed considerable force to inflict this injury, and beyond that available to either sibling. He accepted that he could not say that Mk could not have done it, but taking the whole picture in to account, and the totality of the injuries on the children, it remained his view that it was more likely to have been inflicted by an adult.

I

55. In respect of I the Schedule prepared by the LA identifies 8 injuries by way of bruising to him.

In the light of Dr Rose's oral evidence, the LA now seek to prove that one injury was inflicted, namely -

Injury 8) Square shaped bruise measuring 2 x 1.5cm on outer aspect of left upper arm (above left elbow)

(a) There were no photographs of this bruise but in Dr Rose's view it was non-accidental having regard to its shape and the fact that it was observed in a relatively protected fleshy area.

(b) As with V, he could not say that Mk could not have done it, and it was consistent with the shape of, say, a toy brick. Nevertheless, his view remained that it was more likely to have been inflicted by an adult.

Martina Rowley

56. She was the social worker on duty when school reported that Mk had alleged that M had hurt him.
57. She attended at the school with Dianne Wallis, Family Support Worker, and an interpreter Shukar Djalion. She also attended at the child protection medical later that day and at M's home when accommodation for the children pursuant to s.20 CA 1989 was being arranged.
58. It was Ms Rowley's practice to take hand-written notes of the day's events which she would take down in a note book, trying as best she could to make a verbatim note of disclosures as she knew it was important to be accurate.
59. 30 June was a long day with Ms Rowley not completing her duties until about 10.30 p.m. and understandably her typed case notes were not written up until the next day, using her hand-written notes as the source material. The hand-written notes are no longer available as they were then shredded.
60. Ms Rowley said that she was told by Mk through the interpreter that M had hit him with a big brush. He said that M had hit him in the bathroom with a brush as she was really angry with him. He showed her injuries on his left leg and his right arm. He also said that M hits everyday and hits everybody.
61. When F arrived to collect Mk at about 3 – 3.30 p.m. he was agitated and keen to go to work rather than accompany Mk to the child protection medical. He was also busy texting M. F said that Mk had injured himself falling between two beds. He gave consent for Mk to undergo a child protection medical but he did not accompany Mk to hospital.
62. Ms Rowley also attended at the parent's home with two police officers to speak to M, who was with her friend Lovetta and V and I.
63. M told her that Mk had fallen at the park. V also said in English that Mk had fallen off a swing at the park. This was surprising as V was not otherwise understood to be able to speak English and indeed spoke no other English in Ms Rowley's presence. Lovetta also said that Mk had fallen off a swing in the park.
64. Ms Rowley accepted that in terms of recording what was said by M, F and the children (other than the isolated comment by V) she was very reliant on the interpreter, and that it was possible that the interpreter had not relayed exactly what had been said. Some conversation took place in Latvian which the interpreter could not speak, being a Russian speaker. M was understandably distressed, tearful and upset.
65. However, there were two noticeable matters that Ms Rowley was able to tell the court -

(I) M spoke to Ms Rowley directly in English that afternoon when they were talking in the garden and said that she hit them with a bag because they did not want to go to bed but it was just a slap; she had never beaten any of them she said.

(2) The interpreter told Ms Rowley that when he was walking to the car with V that afternoon as she and I were being taken to their child protection medical, V said to him that M had hit Mk with a brush.

Diane Wallis

66. She has been engaged with the family as their Family Support Worker since 2009, and (as M acknowledges) has built up a good relationship with M, such that M would confide in her about her relationship and other difficulties.
67. Ms Wallis was also involved in the events of 30 June and was present when F attended at the school. She recorded in case notes that his agitation extended to a threat to kill her if the children were removed. It may be that there was no real intent behind that threat but it was clearly made. Her recollection otherwise was largely consistent with that of Martina Rowley although they were not together throughout, so, for example, she was not party to the conversation Ms Rowley recalled with M in the garden.
68. Ms Wallis did recollect being shocked when she heard V say something about the park in English, because she had never otherwise heard her utter a word of English, and indeed did not hear her do so further on that day –her understanding was that only Russian or Latvian were spoken at home, and M and F had not allowed V to attend nursery to provide an opportunity to develop her English.
69. Ms Wallis had previously sought to carry out a number of parenting sessions with the parents, and I will turn to them in more detail when considering the welfare of the children.
70. In one session on 13 May 2014 Ms Wallis recorded seeing M grab V roughly pulling her by the arm and making her cry, and also saw her shout angrily at Mk making him cry. She recorded M shouting and throwing things and using abusive language when shouting at the children. Ms Wallis also recorded M describing Mk as making her angry when he did not obey her in a parenting assessment session on 26 June.
71. What do the parents say about this bruising?

The Mother

72. M denies ever having hit her children beyond a playful smack or ever having caused harm to them. She said she had done no more than tap them on the bottom in a way which would not leave a mark.
73. She denies being responsible for the injuries seen on any of the children. She attributes the injuries seen on Mk on Monday 30 June (at least in part) to a fall he had at the park on the previous Saturday, where she had taken him in the afternoon with her friend. She claimed not to have seen the actual fall, but to have been so concerned that she contemplated calling an ambulance, but did not do so as Mk did not want one.
74. It seems a surprising approach to parenting to allow a five year old thought to need hospital treatment to determine whether or not he will go to hospital, but that was her evidence.
75. She denied that she lost control with her children and lashed out at them, and suggested that the injuries recorded on them may have been the result of them playing and fighting. When asked whether F could have inflicted them she said she could not possibly know but she never saw him hitting the children.
76. M denied that she told Ms Rowley that she had hit the children with a bag, describing this evidence forcefully as "pure lie". It is not apparent what Ms Rowley's motivation would be for lying. If she had been seeking to put M in a poor light she would hardly be likely to have moderated her fabrication by adding that it was "just a slap".
77. M accepts that she had been caring for the children alone the week-end before Monday 30 June because she and F had had an argument on the Friday, and he had left the home. She also accepted that F had texted her from the school to tell her that social workers were taking the children away, but she claims that she did not press him on why, being satisfied with his statement that she would find out everything from the social workers. That is so contrary to common human experience as to lack credibility.
78. The reported comment by V in English that so surprised Ms Rowley and Ms Wallis raises a concern that V had been coached in advance of their arrival to support M's explanation, which in itself supports a view that F told her a good deal more in his texts than she or he admits. M accepts that V did not speak English at this time beyond "hello" and "good-bye".
79. It has to be said that apart from issues of plausibility about these events, there are very serious concerns about M's credibility arising from her wider evidence.
80. M and F both now present as a couple who have gained insight into their parenting deficits, have changed their behaviour, and are keen to show that they have now turned matters around. One aspect of this relates to F's alcohol consumption, which has been a problem in the past, particularly as it has been a factor in the violence between them.
81. Despite their protestations that this is now no longer a problem, on 10 May this year, less than a month before this hearing, F was for the third time arrested for driving with excess alcohol. M says she found out about this a "few days later". However, not only did she not mention it in her witness statement signed on 13 May, she also failed to tell either the LA or her solicitor. When asked why, she said quite openly that she did not tell her solicitor because she would not be able to "hide" it and would have to tell her social worker. She hoped no-one would find out until after these proceedings.
82. It is difficult to think of a clearer illustration of M's willingness to be dishonest in her dealings with professionals when it suits her purpose to do so.

The Father

83. He denies any responsibility for the injuries found on the children. He was not at home from the Friday until the Monday when the injuries were found on Mk. He and M had a number of temporary separations at this time, both believing that the other was having an affair.
84. He purported only to be aware of small, insignificant bruising which he attributed to the children playing and fighting. He was unable to explain the bruising reported on by Dr Rose. He said that he never hit or smacked the children, nor did M beyond giving them a light tap on the bottom, and not such as to leave a mark.
85. He had conceded in his witness statement that the injuries had been caused by someone, and only he or M had care of the children and so only he or M could have caused them.
86. He agreed that he had texted M to tell her that social workers were on the way after attending the school to collect Mk and learning of the allegations, and he regretted now prioritising going to work over accompanying Mk to hospital.
87. Like M he was complicit in trying to conceal his third offence of driving with excess alcohol for which he narrowly escaped prison with a suspended sentence, and which would not have come to light had it not been for his Probation Officer contacting the LA in the first week of this hearing.
88. However much he might try to minimise the circumstances of its commission (supposedly moving a parked car a short distance after a one-off drink at a birthday party), the fact is that it was a lie to say in his witness statement of 13 May that he had stopped drinking.
89. That is not the only lie that F admits. He also now admits that when he saw on the morning of Monday 30 June that Mk had an injury to his knee, relations were then so poor between him and M that he encouraged Mk falsely to say that M had caused that injury.
90. So both M and F have lied. The court must have regard to the guidance given in R v Lucas [1981] 1 QB 720. A conclusion that a person is lying about one matter does not mean that he or she is lying about a different matter. Also there can be many reasons why a person might not tell the truth to a court concerned with the future upbringing of a child. People sometimes lie, for example, in an attempt to bolster up their case, or out of a wish to conceal disreputable behaviour.
91. Nevertheless, whilst their lies may not lead directly to a finding that one or both of them inflicted violence on their children, the fact of their willingness to lie is a very important factor when deciding whose evidence to prefer when their evidence is in conflict with others.
92. So I can confidently conclude that I prefer the evidence of Ms Wallis and Ms Rowley as experienced professionals with no ulterior motive to be untruthful where their evidence is in conflict with the evidence of M or F. In particular, I accept that M did indeed tell Ms Rowley that she had hit the children with her bag.

FINDINGS

93. I bear in mind that the burden of proving the facts alleged rests solely with the LA and the standard of proof is the simple balance of probabilities.
94. The medical evidence is but one part of the evidence available, and the court must survey a wide canvass including such matters as the history of the parent's lives, their relationship and their interaction with professionals. The court has to have regard to the explanations given by the parents and their credibility, and all the evidence both medical and non-medical has to be considered. The court has to take an overview of the totality of the evidence.
95. Evidence supporting a finding that injuries were deliberately inflicted on the children by M or F or both of them

(1) The parents' own relationship was a violent one so the use of violence within the home was a regular feature;

(2) Diane Wallis herself observed M grabbing V roughly;

(3) Diane Wallis recorded M as having said that Mk made her angry when he did not obey her;

(4) M has trouble controlling her emotions, something not only recorded but also very apparent from her behaviour during this hearing;

(5) M admitted that she would at least tap the children on the bottom in her police interview and I have found that she hit them with her bag;

(6) Both Mk and V are recorded as having said that M hit Mk;

(7) F is recorded in a police interview as saying that M hit the children:

(8) F used alcohol to excess which lessens self-control and can cause him to become aggressive;

(9) The children were challenging and demanding which would stretch the self-control of a parent;

(10) The evidence of Dr Rose was persuasive. He was measured in his analysis, not seeking to say that he was sure where he could not be, but consistently maintaining his view in respect of those injuries he considered as inflicted by an adult. He was willing to identify some injuries as clearly accidental. He was also willing to make proper concessions being willing to accept that other explanations were possible, for example that bruising on the thigh was the result of being pushed in to an object, but nevertheless being steadfast in his view as to what was probable.

96. Evidence contrary to the view that the injuries were deliberately inflicted by M or F or both of them

(1) The children are known to have lied on previous occasions about harm being inflicted on them;

(2) As the children spoke both Latvian and Russian, but the interpreter engaged at the time of the precipitating incident spoke only Russian, there was scope for misunderstanding;

(3) M and F deny inflicting physical injuries on their children;

(4) The children were observed by a number of professionals being aggressive and violent towards each other;

(5) The violence used by the children was such as to cause significant damage to the foster carers' house when they were subsequently placed with them.

97. However, Dr Rose was clear in his evidence that the injuries relied on by the LA were not such as could be attributed to one child injuring another. When balancing up all the circumstances I am satisfied on a balance of probabilities that the injuries identified by Dr Rose in his oral evidence as inflicted by an adult were so inflicted. I find it is likely that they were inflicted as a result of a loss of self-control in coping with three demanding and challenging children. Beyond that I am unable to find how or the circumstances in which they were inflicted individually.

Who caused the injuries?

98. It has never been suggested by M or F that these injuries could have been inflicted by anyone other than the children, and I have discounted that as an explanation. It follows that either M or F or both of them must have caused the injuries. Identifying the perpetrator requires an application of the simple balance of probabilities test, but I remind myself that the court should not strain to identify the individual who inflicted the injuries and if it is clear that identification of the perpetrator is not possible, it should say so.

What evidence is there to identify the perpetrator?

99. The matters recorded above at paragraph 94(2) to (7) and (9) could be seen as pointing to M as the likely perpetrator. However, F has a history of using significant violence on M in the household, including an occasion involving a hammer, and he has been convicted of assault on her. He clearly therefore also has trouble controlling his actions, particularly when he has been drinking to excess. It may be that it has never been alleged that he harmed the children but he is evidently a man capable of inflicting violence, and paragraph 94(9) has equal relevance to him.
100. There are a number of injuries that were inflicted on the children, and it may be that were inflicted at different times, Dr Rose reminding us of the fact that bruises cannot be aged with any confidence.
101. In the context of a household that was violent and with demanding and challenging children I regret that I cannot determine whether M or F is the perpetrator of the inflicted injuries, and all I can find is that the injuries were non-accidental and were inflicted by either M or F.
102. However, I can also say this. Both parents were involved in the care of the children. M has not sought to say otherwise, and I do not accept F's assertion that he only tended to see the children when they were already dressed. By way of example, he clearly saw the bruising on Mk's knee on the morning of 30 June when putting his socks on. I am satisfied that both parents were fully aware that the children were being bruised by the application of excessive force. To the extent that either of them may not have been a perpetrator, they were nevertheless prepared to collude in not disclosing the physical abuse to the social workers who were working with the family.

THRESHOLD CRITERIA

103. Under s.31 CA 1989 a care order can be made only if –

(a) the child concerned is suffering, or is likely to suffer, significant harm

AND

(b) the harm, or likelihood of harm, is attributable to the care given to the child, or likely to be given if the order is not made, not being what it would be reasonable to expect a parent to give him.

104. The parents accepted in their final evidence that the threshold was crossed in respect of all the children. There is an agreed Schedule recording the extent of the domestic violence in the household. I am satisfied that the other matters relied on are made out by the LA in the light of the admissions made by the parents, the findings I have now made and the evidence I will review when considering the welfare issues now arising .

WELFARE

105. The Threshold Criteria under s.31CA having been established, the court must then consider whether an order should be made at all and if so what type of order.
106. In Re G (A Child) [2013] EWCA Civ 965 McFarlane LJ said –

para 49:

"In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

para 54:

"What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options."

107. In Re B-S [2013] EWCA Civ 1146 Munby P said –

para 33:

"The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option …"

para 44:

"The judicial task is to evaluate all the options, undertaking a global, holistic and multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons of each option."

108. The realistic options in this case before me are

return of the children to their parent's care

placing the children with the MGP

long-term foster care for all the children.

long-term foster care for Mk and V and adoption for I

109. In carrying out the balancing exercise the court must apply the principle that the children's welfare is the paramount consideration and their welfare throughout their lives. The benefits and detriments of each option must be considered having regard in particular to the matters set out in S.1(3) CA 1989 and S.1(4) Adoption and Children Act 2002 ("ACA 2002").
110. Those matters are firstly -

S.1(3)(a) The ascertainable wishes and feelings of the children in the light of their age and understanding

111. The G gave evidence that Mk had said on a number of occasions that he wanted to go home to be with his parents. It would be reasonable to assume that V and I feel the same.
112. The next matter to which the court must have regard is this, namely

S.1(3)(b) The children's physical, emotional and educational needs

113. The children have the usual needs of young children dependent on their carers for food, shelter, stimulation, love and affection. They also need a safe, secure and stable environment in which to develop and thrive. It is clear from the evidence that they are challenging children with behavioural problems reflecting the violent and emotionally fraught environment provided by their parents.
114. M accepts that things were not always good enough for the children when they were at home with her and that there were rows, shouting and violence. In her oral evidence she still seemed to be seeking to minimise the extent of the children's exposure to this, but accepted that it most likely harmed them emotionally. She found it difficult to agree that they were unusually physically aggressive before they went in to foster care, but did accept that they fought and hit each other.
115. The admissions of the parents and the evidence of professionals that the parents were not meeting the needs of these children is now supplemented by my findings that violence was inflicted on them. There is therefore compelling evidence that M and F did not meet the needs of the children when they were in their care.
116. MGM gave evidence that she and the MGP could meet the children's needs. They care for their own young daughter Polly without their being any concerns, and are confident they could also meet the needs of their three grandchildren.
117. Although I did not understand it to have been raised before, and despite having lived here for nine years, MGM said that if the children came to live with her she would move back to Latvia to be part of the large family they have there. When dealing earlier this week with an application to transfer the case to a Latvian court (refused for reasons given in a separate judgment), the MGM's position was much less certain. Quite understandably she found herself torn between her established life here with her husband and daughter, and the urge to do all she could to maintain her grandchildren within her family. It was as she told me "a difficult decision".
118. Whilst no-one could doubt the MGM's love for the children, Sue Bach's report identified significant concerns about the children being placed with the MGP, and this late proposal to remove them to Latvia now also creates a level of uncertainty which would require further assessment and investigation if it was to be seen as a realistic option. In reality I do not think it is something the MGM will want to see through when this judgment is explained to her, but in any event I do not consider that the MGP can meet the children's needs for the reasons identified by Sue Bach. My findings have confirmed that the risk issues referred to by Sue Bach, and that the MGP did not acknowledge, and which arise from the parent's lack of care, are very real ones. I do acknowledge though the very real commitment of the MGM in particular to these children, and the very dignified way she has conducted herself during the long final hearing.
119. Alison Salt, the psychologist, gave evidence relevant to the children's needs.
120. Her report had been focussed on Mk and V and although she did see them in the company of I she last saw the children in December 2014 so now over 6 months ago, which is a significant length of time in the lives of young children.
121. In her opinion there was a bond and attachment between the sibling group but the attachments were complex and there were both positive and negative aspects to the attachments. Mk was dominant and aggressive which had a negative affect on V's self-esteem and confidence and which could lead to her being withdrawn. She was concerned that this might also be the impact on I towards whom Mk was controlling and aggressive. V's attachment to Mk was similarly complex with positive and negative features, and she also reported that I was important to Mk and V.
122. In examination-in-chief I understood that her only reservation as to the children's needs being met by them remaining together was that it would be a lot for one family to have to take on. In cross-examination by the LA however she expressed mixed views as to whether I's needs could be met alongside his older siblings.
123. She did not have a strong view but had reservations as to whether the needs of the older children might take priority; all three children required "compensatory parenting" that is to say better than good enough parenting.
124. She agreed that ideally all three children would be placed together because sibling relationships were very important throughout their lifetime. The current foster carers had been meeting the children's needs for attuned parenting but would need formalised support and respite care. Not having carried out an assessment on the foster carers she had some reservations supporting a plan for all the children being placed with these foster carers.
125. There was nothing she had identified in the children's psychological profile that meant that the children had to be placed separately, and her reservations were focussed on the difficult behaviour between the siblings when she observed them six months ago.
126. One aspect of Mrs Salt's evidence concerned me. She was referred to the information which was made available at the most recent LAC Review on 7 April 2015 and the recording of greatly improved behaviour by Mk, and good progress by I in developing bonds with his siblings.
127. Somewhat grudgingly I thought she referred on more than one occasion to this providing evidence of "slight" improvement. When pressed on this, it was apparent the she interpreted this as "slight" because it was based on limited professional observations.
128. That shows a lack of precision in analysis. What Mrs Salt presumably means to convey is that the evidence available to her of the stated improvement is limited (although I would not personally see it as "slight"). For Mrs Salt to proffer an opinion that the improvement is "slight" is to confuse the level of improvement with the evidence available to her to assess it, and in my view shows an unhelpful lack of disciplined analysis.
129. One might perhaps have expected Mrs Salt to be more willing to embrace this evidence of improvement bearing in mind that it is consistent with her view expressed in her report that their relationships would improve once they felt confident that their basic needs were being met.
130. Conversely, in other areas of her evidence I did sometimes feel that Mrs Salt was overly willing to agree to the propositions put to her by counsel, such that it was difficult to discern what her expert view as to placement was. So she was willing to accept that outcomes varying from placing all three children together, placing two together or placing them individually were all feasible options, as was adoption for I and long term foster for Mk and V. In fairness to Mrs Salt this may simply reflect the reality of this case, and she had the disadvantage of not having assessed the M, F or I.
131. Whilst I found Ms Salt's evidence added to the general understanding of the needs of Mk and V, and their presentation in the light of the parenting they had received from M and F, I found her evidence to be of limited assistance in terms of the appropriate long-term placement for these children to meet their needs.
132. Mya Higgins carried out a Sibling Assessment and her report is dated 1 March 2015.
133. In her oral evidence on the matter of the proper placement for the children, Ms Higgins readily admitted that this was a difficult issue where there had been a number of meetings to consider different permutations.
134. I gleaned from her evidence this -

(1) Ideally the LA would rather not separate siblings; Ms Higgins was herself very much against the initial plan to separate all of them. Sibling relationships were the most enduring throughout life and placement together also helped with such matters as socialisation skills, overcoming the trauma of separation from parents, and maintaining family links. In this case the siblings were close in age and with a particular cultural connection.

(2) She understood that the current foster carers were willing to continue the care of all three children, were committed to them and were meeting the needs of all three children.

(3) Ideally the children would remain together in this placement but the foster carers needed support, in particular respite care.

(3) Also ideally all three children should be placed together but in the context of adoption realistically this was not possible because

- not many adopters would countenance a sibling group of three children with high level needs

- V and I would be most likely to be adoptable but it would be very difficult to separate Mk from V

- I's young age was a relevant factor in recommending adoption for him; he was a very young child to remain in foster care and also has suffered bullying and aggression from Mk who appears to have taken on this learnt behaviour from his parenting within the family.

(4) There was nothing in the Sibling Assessment that she carried out that would prevent the children being placed together, and their needs could be met by one family.

(5) Information provided at the recent LAC review on 7 April 2015 had identified that Mk's behaviour had greatly improved and that there had been real progress in terms of his behaviour. Also I was making good progress, learning to play and developing a better bond with his siblings.

135. Ms Higgins agreed that I would in any event remain with his current foster carers with Mk and V while a search for an adoptive placement was carried out. That could take some months, and might mean that not only the therapy he needed but also the therapy for Mk and V could not be commenced, as stable placement for all children was normally a pre-requisite for the commencement of therapy.
136. Louise Dunne, Social Work Team Manager at the LA also gave evidence about how the needs of these three children should best be met.
137. Whilst confident that it would not take so long, she nevertheless countenanced that it might take up to 18 months to find an adoptive placement for I, although she would hope that SUSTAIN (the local organisation providing child and carer therapy services) might commence work with the children even before I moved to his adoptive placement.
138. As Team Manager her role was understandably one of less immediate involvement with the family, and so she had only seen the children at the foster carer's once when a LAC Review was held at their home. Nevertheless her role in supervising the social workers working with the family kept her informed.
139. She agreed that the foster carers, although relatively new as foster carers, had become extremely experienced in caring for these three children. She said that the three children had received a very high standard of care from the foster carers who had always said that they wanted to care for all three of them.
140. In her witness statement of 15 June 2015 she had listed some matters of concern but these were not criticisms of their care; they were matters that needed to be addressed to ensure that the foster carers got the right support to maintain the placement and meet the needs of Mk and V.
141. She said that although initially it had been intended to place all three children separately until challenged by the Independent Reviewing Officer, Claire Boland, there was now no intention to move Mk and V.
142. She remained concerned however that the foster carers would not be able to maintain meeting the needs of all three children over the very lengthy period of their dependencies that lay ahead, and the challenges that would arise, e.g. when they commenced therapy, or on reaching adolescence.
143. She accepted that it was inherent in the LA plan that the children would suffer some instability on learning that I was to be moved away, but in her view this could be managed and a plan for adoption for I would lead to greater long-term stability for all three children.
144. Rebecca Routh is the social worker currently working with the family. She endorsed much of what had been said by Louise Dunne.
145. She agreed that the parents contact was now positive and helped to meet the children's needs to maintain their cultural and linguistic heritage.
146. She became the children's social worker only at the end of March and so was not involved in the earlier care planning. She was able to confirm that the foster carers had always been clear that they were willing to care for all three children.
147. She had concerns when carrying out a statutory visit earlier this month as to the somewhat chaotic nature of the household, the sleeping arrangements and the apparent reliance on a 17 year old girl to assist with caring for the children.
148. On the other hand, her visit coincided with the family's own support worker being there, the male foster carer returning the children from school and the foster carer's own children being in the house. In those circumstances it is perhaps not surprising that the household seemed somewhat overactive.
149. The sleeping arrangements (the three children sharing a bedroom) turned out to be the arrangements that the foster carers understood had been advised by the LA, so no fair criticism can be made for them continuing to follow that guidance.
150. The young girl turned out to be a friend of the family and it could be seen as positive that they had been proactive in engaging help.
151. When reviewing the evidence of the LA as to the needs of these children, it is intended as no criticism when I say that at times there appeared to be some inconsistency in the case they put forward – rather I think that this is a reflection of the difficult issues involved. It does however confirm that there are realistic options for the care of the children beyond those set out in their final care plan. It was with that in mind that I required the LA to file an alternative care plan setting out how matters would be dealt with if long term foster care for all three children was the court's evaluation as to how their welfare was best catered for.
152. All are agreed that all three children are currently having their needs well met in the care of their foster carers. The foster carers have indicated that they want to continue providing that care for all three children. The foster carers can therefore provide the stability and security the children need, and an environment in which they can continue to flourish as they are currently doing.
153. Long term foster care however cannot provide the permanence and sense of belonging that adoption would provide. It may be brought to an end at any time by either the LA or the foster carers. It also leaves the children subject to the monitoring and overall control of the LA, which can seem intrusive particularly as a child gets older, and does not meet their emotional need to truly belong to a family.
154. On the other hand, long term foster care provides access to a level of practical support to meet the family's needs that would otherwise not be available, or so readily available, under an adoption order. Sandra Andersen, adoption social worker, explained that Adoption Services would retain some responsibility for supporting an adoptive placement for three years from the adoption, but then the adoptive parents would be treated simply as any other parents. All are agreed here that these children will need continuing therapeutic support for an indefinite time.
155. A further matter to which the court must have regard is this, namely

S.1(3)(c) The likely effect on the children of any change in their circumstances

156. The children are currently settled in their foster placement. They moved there now some 10 months ago after the breakdown of their original foster placement. A further move would have a de-stabilising effect on these children.
157. Louise Dunne was clear that the LA would have to be honest with the children as to the plans for their future, so there will be a period of uncertainty for them if I is awaiting an adoptive placement, which will be unsettling for all of them and potentially for the placement with these foster carers.
158. When the time comes, removing I from that placement will undoubtedly have a distressing and unsettling effect on both him and Mk and V, all of whom will suffer loss.
159. This is a convenient point at which to consider also one of the relevant factors from the checklist provided by S.1(4) ACA 2002 to which the court must also have regard when considering I's welfare throughout his life in the context of a placement order application, namely

S.1(4)(c) The likely effect on I throughout his life of having ceased to be a member of his original family, and becoming an adopted person

160. By becoming an adopted person I will be provided with a permanent substitute family with adopters who will be providing a family life within that family, and who are legally responsible for him. They will have been through a rigorous and thorough assessment process to determine their ability to provide good parenting, and will be making a lifelong commitment to him.
161. There is less risk of placement breakdown than there would be with long term foster care which in his case would have to extend for many years. He would be free from any continuing monitoring by the LA inherent in the continuance of a care order with regular LAC Reviews.
162. On the other hand the parental responsibility of the birth parents will be extinguished, and all legal ties with them and his siblings will be severed. The court must have regard to the loss of his sense of identity with the birth family, and the risk of damage to the his psychological well-being.
163. A further factor specifically referred to in the CA 1989 has a particular relevance here, namely

S.1(3)(d) The age and background and cultural heritage of these children.

164. All are agreed that the children have presented as aggressive and challenging. Mk and V are 6 and 4 respectively with a particular heritage and an attachment between them, albeit with positive and negative features, but an attachment which on the most recent evidence is improving in its presentation.
165. I is 3 and has the same heritage and cultural background as his siblings. Sandra Andersen said he was young enough for it to be realistic for them to identify prospective adopters; by that measure however one might say so too is V, and adoptions of 6 year olds are not unheard of.
166. Ms Andersen accepted that there were no potential adopters of which she was aware with a Latvian heritage, and the political situation between Russia and Latvia meant that it would not be appropriate to seek to place I with prospective adopters of a Russian heritage.
167. Realistically one has to accept therefore that maintaining I's cultural heritage to any meaningful level is likely to be nigh on impossible in the context of adoption. Reference was made in the course of the evidence to the fact that the children are already losing their native language skills.
168. If Mk and V do not return to their parents but remain in long term foster care their heritage may be maintained by contact with M and F, but I as an adopted person will not have that contact. Indeed, it may not even be possible to maintain his link with his siblings. Ms Andersen said that the question of on-going contact with his siblings would prove a real issue in placing him. Many potential adopters would baulk at that in the light of those siblings themselves having regular contact with birth M and F.
169. The heritage of the children would be secured if they were returned to their parents or placed with MGP, but neither of those may be realistic options in the light of their inability to meet the children's needs. However, their heritage would also be secured to a large measure by long term foster care which would allow for continuing contact with the M and F and MGP.
170. A further specific factor to be considered under the CA 1989 is

S.1(3)(e) Any harm which the children have suffered or are at risk of suffering.

171. The harm which the children have suffered is obvious from the admissions made by M and F in respect of the threshold criteria, supplemented by the findings I have made.
172. It does seem from more recent contact that M and F are now presenting more positively but the risks of harm to the children remain.
173. The M's emotional nature was apparent throughout these proceedings when she presented almost constantly as distressed. On day 8 of the hearing we were unable to continue in the afternoon because she was emotionally overwhelmed by matters. She has not engaged in any courses or therapy which might help her to meet the challenges of caring for these children.
174. F claimed to have stopped drinking, yet as recently as last month was again convicted of driving with excess alcohol. He too has not engaged in any courses to address his problems.
175. So the factors which contributed to the environment in which they caused harm to their children remain present. The MGP were assessed by Sue Bach as providing inadequate protection against that harm.
176. There is minimal risk of harm to the children in long term foster care, except perhaps the harm that would follow from placement breakdown. That risk is itself statistically minimised by adoptive placement which could be available to I.
177. it is convenient when considering the risk of harm to consider also the following factor under the CA 1989 namely

S.1(3)(f) How capable each of the children's parents (and any other person in relation to whom the court considers the question to be relevant) is of meeting the children's needs

178. The parents simply did not engage with Dianne Wallis when she tried to carry out a parenting assessment despite the fact that she had been engaged with the family as their Family Support Worker since 2009, and (as M acknowledges) has built up a good relationship with M.
179. Ms Wallis's advice was not taken on board at all by the parents who did not seem to understand the effect their volatile relationship was having on the welfare of their children. M agreed in her evidence that at the time of this assessment last October she had thought that everything was "OK".
180. M's approach to the assessment process is summed up in the notes made by Ms Wallis in respect of the session on 13 May 2014. M is recorded as abusive from the beginning of the session saying the whole assessment was stupid, shouting and throwing things, and using abusive language. She is recorded as threatening to throw eggs at an absent social worker and using words like "fuck" and "bitch" when referring to her.
181. In her oral evidence to the court M accepted that she thought that the whole process of the parenting assessment was "stupid" with its questions about her past life, and that maybe she had used words like "bitch" because she was very angry at the time.
182. F claimed not to have been able to engage fully with Ms Wallis because of his work commitments and to have tried to re-arrange appointments with her, but then disclosed his real lack of commitment to the process by accepting in his words that he "partially" agreed that the parenting assessment was "stupid".
183. Mya Higgin is no longer with the LA but she was the family's allocated social worker from August 2014 until March 2015 and she carried out the parenting assessment contained in the report dated 6 October 2014. In contrast to Dianne Wallis she did receive co-operation from M and F who engaged in the process and all the sessions.
184. I was impressed by the very reasonable and open way in which Mya Higgins gave her evidence. That was reflected in her willingness to accept that contact recordings showed that there had been an improvement in the quality of contact which had now been maintained over a period of time. Both parents, but M in particular, were much more compliant and engaging with contact workers; indeed in respect of M she described it as a "huge improvement" with contact being calmer, home-cooked food being provided, engagement in play and so forth.
185. However a major concern was that the parents did not feel that they needed to change anything in their parenting, and considered that they provided good enough parenting; that was the biggest issue for her – their failure to acknowledge any deficit in their parenting.
186. A lack of genuine insight makes it unlikely that enduring change can be effected whatever the parents may now profess when faced with the stark reality of the long-term removal of their children from their care.
187. Ms Higgins acknowledged that the parent's case now did purport to show a willingness to accept the need for change, but she said that their timescale for achieving that was not now consistent with the children's timescale, and it was beyond the current capabilities of the parents to meet the complex emotional needs of the children.
188. M and F dispute that and say that they have now changed and are capable of meeting the children's needs. The state of their relationship is unclear. They have presented as a couple and were keen that the court should see photographs showing the improvements they have made to their home in preparation for the children's return. F said that there were no relationship problems now. That did not seem to be a view M shared as she announced on the final day of evidence that their relationship was now over "if necessary" (whatever that might mean).
189. M said in her oral evidence that she understood now that it was part of the assessment process to establish underlying problems from the past to avoid any problems in the future, but I viewed that evidence as delivered glibly and without conviction.
190. She said that she and F now both wanted to engage in a parenting course and a course addressing domestic violence. She claimed to have been trying to contact Mya Higins in February this year to enquire about courses that might help in parenting, but apparently did not see that saying that this had been done on the advice of her legal representative does little to inspire confidence that she has her own motivation to change.
191. F also claims that everything has changed but seemed to see it as the responsibility of their social worker to identify courses and opportunities for them to improve their parenting rather than to pursue his own enquiries with any conviction.
192. His true position was revealed in his evidence when he still maintained that the children being removed from their care was only partly down to their own failings, but was otherwise the fault (or as he said "partial guilt") of the LA. That does not indicate a full acceptance of the deficits in their parenting which would be a significant factor in their capability now to change and offer good enough parenting.
193. His lack of insight in to his own problems was also apparent from his evidence that he did not have a drink problem. Someone recently convicted of a third drink-driving offence for which he is now on a suspended sentence needs to reflect on that.
194. Similarly, whilst accepting that he had used domestic violence on M in the past (including an incident with a hammer) he appeared to minimise the impact on the children, claiming that they had not seen the violence, only the rows and arguments.
195. Perhaps the clearest indication of his lack of insight was when he told the court that he and M were coping before the children were taken away and did not need help with anything.
196. The G's assessment was informative. Whilst she acknowledged the improvement there had been in contact sessions, she described the parent's professed changed position as not really enlightenment, but more a pragmatic realisation that this was the only way they were going to get their children back. The willingness they now expressed was too late in the process to allow for any work to be carried out with them to achieve and consolidate any change.
197. The issue of trust and honesty clearly remains an issue. That was apparent not only in respect of F's recent conviction for driving with excess alcohol. M also told us that she had arranged an appointment with her doctor to discuss her mental health and well-being, but did not want to do this before this hearing in case the LA turned it against her. She did not register that this approach continued to show a failure to be open with the LA.
198. Sue Bach reported as to the capability of the MGP to care for the children, and I have considered earlier in this judgment the difficulties that they would face in meeting the children's needs and securing them from harm from the parents which the MGP find it difficult to acknowledge as a risk.
199. There is no doubt that the foster carers are very capable of meeting the children's needs. The G described them as remarkable and said they had done "so well" in caring for the children. In her view they offered good long term prospects for these children and provided a good solid placement.
200. Obviously one would expect adoptive parents, having been through a challenging approval process, to be fully capable of meeting I's needs. The G accepted that for a child of I's age the "gold standard" would be an adoptive placement and that was certainly not out of the question for him. The LA plan for adoption was within the parameters of reasonable plans and the best outcome for I was a finely balanced matter.
201. She accepted that historically there had been problems with foster placements, but said that sometimes foster care was seen as a poor option when in fact it was the best one for a particular child. She thought the LA were wrong to view the current foster placement as unsustainable for all three children. She was concerned that the LA were not approaching matters with sufficient open-mindedness, leading to a lack of clarity as to what support might be offered to these foster carers, and even some unwarranted reservations as to whether they would be approved as foster carers for all three children (despite already being approved for a sibling group) if that was the court's preferred option.
202. Whilst accepting that it was finely balanced, the G saw a greater argument for keeping all three children together. It would be an extended period for foster care, but she identified many positives to their current placement. The foster carers own children (two of whom are adults) enthusiastically contributed to the care provided, and she saw no issues of concern arising from the foster carers taking the initiative and engaging a friends' daughter, a 17 year old young woman studying child care, to provide an extra pair of hands.
203. The G said that she deliberately challenged the foster carers to test their commitment, but there was no doubt in her mind that they wanted to see all three of these children through to adulthood and beyond; they would not step back just because the children reached 18. They were in it for the long haul and were already talking about aspirations for the children to go to university when they were 18.
204. So the parents and the MGP do not have the capability to meet the children's needs, but the current foster carers do, and it may properly be assumed that carefully matched adopters would be capable of meeting I's needs.
205. When the court comes to consider

S.1(3)(g) The range of powers available to the court

it must bear in mind that by virtue of s.52 ACA 2002, a placement order as a precursor to adoption can only be made without the parents' consent if that consent is dispensed with. That consent may only be dispensed with where the welfare of I requires it to be dispensed with, which has a connotation of the imperative.

206. S.1(2) ACA 2002 states that the court's paramount consideration must be I's welfare throughout his life, and that the court must have regard to the welfare checklist set out in S.1(4). A number of the matters in S.1(4) replicate the factors to which the court has already had regard under the CA 1989 and I have already considered one of the additional factors, namely S.1(4)(c).
207. However, there is one additional factors to which the court must have regard and that is –

S.(1)(f)The relationship which I has with relatives and with any other person in relation to whom the court considers the question to be relevant, including –

the likelihood of it continuing and the value to I of it doing so

the ability and willingness of any of I's relatives to provide him with a secure environment in which he can develop and have his needs met

the wishes and feelings of the relatives

208. The parents and the MGP are very willing and anxious to care for all the children, but they do not have the capability to do so and meet their needs. No other relatives have been identified as willing and able to do so. Nevertheless there is value in their relationship with I continuing as the only way his heritage and culture is likely to be maintained, bearing in mind the unlikelihood of placing him with a couple attuned to a Latvian heritage.
209. Sibling relationships are important in this context. The view of the G was that on the facts of this case there was a greater argument for keeping all three children together than there was for placing I separately. She wanted to preserve the bond between the siblings. She specifically could not approve the LA final care plans because they involved separating the children, and in her view they should stay together if at all possible. They were close in age, they had a common history and they had never been parted before.
210. She further said that a great deal of compensatory work had been done in their current placement to make the siblings' relationships with each other more positive. There were growing signs of a bond between the children who were looking out for each other and were developing an understanding of their identity as brothers and sister.

CONCLUSION

211. The court should begin with a preference for the less interventionist rather than the more interventionist approach, and in Re B [2013] UKSC 33 the Supreme Court restated the importance of the court having in mind Article 8 of the European Convention on Human Rights and the right of the child and its parents to a family life; intervention in the family must be necessary and proportionate, and in pursuit of the legitimate aim of safeguarding the welfare of the children.

At paragraph 198 of her judgment Lady Hale expressed matters in this way –

Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do.

212. When one balances up the pros and cons of the realistic options one finds this. The parents and MGP cannot meet the children's needs for a safe, stable and secure environment in which to be brought up and develop. The parents do not currently have the capability to provide it and further delay for these children in proceedings almost a year old cannot be countenanced. The MGP have shown the capability to care for their own daughter Polly, but not that they could protect their grandchildren from harm from the parents – MGM plans in any event appear to be uncertain.
213. The current foster carers have shown that they can care successfully for all three children, meeting their needs and protecting them from any further harm. Given the opportunity, they have shown a commitment to maintaining this placement throughout the children's childhoods and beyond. Being placed in long term foster care would allow for continuing contact with the birth family and maintaining of a Latvian heritage and culture.
214. Adopters would undoubtedly be chosen with care to make sure that they could meet fully the needs of I, and they would provide him with permanency and security beyond that which can be assured in long term foster care. However, separating I from Mk and V would cause emotional harm to all three which it cannot be assumed would be short term.
215. Providing an adoptive placement for I would also mean that there was little prospect of maintaining his cultural background and heritage in any meaningful way.
216. The court cannot of course dictate where children are to be placed in long term foster care, but the success of these inexperienced foster carers with these challenging children shows that there are foster carers available who can meet the needs of all these children together.
217. On balance I am not persuaded that the welfare of I requires his parent's consent to the making of a placement order to be dispensed with. This is not a case where nothing else will do. I take the view that I's welfare throughout his life is best served by him remaining with his siblings, and the welfare of Mk, V and I is best served by them being placed in long term foster care.
218. I very much hope that the LA will be able to minimise any distress the children feel from not being able to return home by maintaining their placement with their current foster carers, and providing all the necessary support services to do the best to ensure the continued success of that placement.
219. The LA proposals for on-going contact would appear sensible and allow for a period of settling down and assessment of the parent's ability to accept the outcome of this case. If they continue to make contact the more worthwhile experience it has recently been for the children, no doubt LAC reviews will take this on board. Rebecca Routh certainly saw reason to be optimistic abut this.
220. However, I know that there is concern amongst the advocates that the alternative care plan is not sufficiently detailed to enable the court to make final orders today, so I will hear further submissions on the matters relating to that.

26 June 2015
HHJ Perry