England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT NOTTINGHAM
IN THE MATTER OF s.31 of THE CHILDREN ACT 1989
AND IN THE MATTER OF A and K-F

		16th June 2015

HHJ LEA:

1. These are public law care proceedings. I am concerned with 2 girls. A (born 22.2.2011) and K-F (born 31.12.2012) are the daughters of CK. I have to decide whether to make care orders with a plan for adoption or to make a special guardianship order to SH.
2. These proceedings have a tortuous history. I set it out because it has importance for the decisions I must take.
The background to the proceedings
3. When CK gave birth to her first-born child A she was in a relationship with KH. CK was a young mother then nearly 18 years of age. KH was 19. They then separated. A lived with her mother. KH had regular contact to her. CK then began a relationship with HH. In April 2012 CK and HH set up home together with A. Their relationship was stormy. HH admits it was abusive but denies ever assaulting CK.
4. The social work chronology indicates a first referral on 30.5.2012. On 12^th September 2012 after a number of domestic incidents CK signed an agreement under which she agreed to prevent HH coming to her home and further agreed that she would not allow contact between A and HH.
5. At this time KH was living at his mother's home (SH). CK would permit A to stay there. On 20^th September 2012 SH contacted social care. She reported that CK had telephoned KH and been abusive. CK was suggesting that KH was not in fact A's biological father and she was threatening to remove A from KH's care.
6. By this time CK was pregnant for the second time. At the end of September A was placed on a child protection plan under the category of emotional harm through exposure to domestic abuse between CK and HH.
7. On 8^th November 2012 at a review child protection conference and pre-birth conference it was decided that A should remain on a child protection plan and that the unborn child should be placed on a pre-birth plan.
8. A decision was taken at a legal planning meting on 14^th November 2012 to take care proceedings in respect of A. A decision was made not to inform CK of this until A was in the care of KH as there was a concern that CK would flee with A which she had threatened to do before.
9. Care proceedings were in fact issued in respect of A by Derbyshire County Council (hereinafter the LA) in the North East Derbyshire and Dales Magistrates Court on 3rd December 2012.
10. The case was brought for a removal of A from CK's care on the following basis:

i. CK was in a relationship with HH characterised by domestic violence

ii. A had been exposed to that violence

iii. CK had breached a written agreement by allowing A to be in contact with HH as well as another person known to be a risk to children

iv. There were concerns about deficiencies in CK's parenting skills

v. CK had been on occasions hostile to social care and had failed to engage with support services

vi. KH had not acted upon advice to protect A from significant harm.

11. The care plan was for A to be cared for by KH and his mother SH and to have supervised contact with CK. It would seem therefore that at least as a temporary measure KH with the assistance of his mother SH was deemed by the LA to be able to adequately safeguard A.
12. At the first hearing of the care application on 6^th December 2012 a prohibited steps order was made against HH. The matter was listed for a contested hearing on 13^th December to consider whether A should be removed from the care of CK.
13. At Court on 13^th December before DJ Davison sitting in the FPC it was noted that the LA intended to issue care proceedings on the birth of CK's unborn child. It was agreed that A could remain in the care of her mother, CK subject to an interim supervision order. It was CK's case that she had separated from HH. She entered into a further written agreement. In a preamble to that agreement CK acknowledged that any breach of the agreement was likely to lead to an application for A to be removed from her care. The main focus of the agreement was CK's agreement to have no contact with HH. KH was to continue to have contact with A.
14. On 31^st December CK gave birth to K-F. HH is her father. Care proceedings were commenced. At the first hearing on 3^rd January 2013 it became clear that CK had breached her agreement and that there had been not only indirect but direct contact between HH and CK. It was ordered that A would live with KH under an interim residence order and that K-F would be accommodated by the LA in foster care. The interim supervision order to the LA in respect of A remained in place.
15. Given the uncertainty about A's paternity DNA testing had been ordered at the hearing on the 6th December 2012. The test results dated 17^th January 2013 excluded KH as A's biological father. Her paternity has not been determined. This means of course that SH is not in fact A's paternal grandmother. She was not however immediately informed of this fact. She was not a party to the care proceedings involving A. SH continued to be involved in A's life in the belief that her son, KH was A's father.
16. The separate proceedings involving both A and K-F were consolidated. They were listed for a final hearing over 4 days commencing on the 25^th June. In advance of that hearing it came to light that CK had taken A to visit HH whilst on remand in prison on more than one occasion and at a time when she was telling social workers that her relationship with HH was over. The then social worker Louise Hancock questioned KH's complicity in permitting this contact and doubted his ability to be able to recognise and manage the risks posed by HH and his ability to withstand the manipulative behaviour of CK. The Guardian Gareth Jones took the view that either KH was complicit in A being taken to visit HH in prison or he had been duped into allowing lengthy periods of unsupervised contact to take place. The Guardian however did not support the removal of A from her father's care, given that the final hearing was only a few weeks away. It was therefore agreed that A should be placed until the final hearing with SH so recreating a situation that had been in place at the outset of the proceedings. Mr Jones was aware that there had been a negative assessment of SH but felt that in the shorter term the risks could be managed by a placement of A with SH. Mr Jones expressed the opinion that A's short term needs were very different to her long term needs for permanence. Thus at a hearing on 6^th June 2013 it was ordered that A should live at SH's home until the final hearing.
17. At that final hearing SH was present but did not have party status. She was in effect a witness. She gave evidence and asked the Court to make such final orders as would permit A to remain in her care. The Guardian who had supported that as an interim arrangement no longer did so. He argued that the task facing SH was to manage the ongoing pressures exerted by CK, dealing with the consequences of KH's poor judgment, and dealing with any risks posed by HH. Mr Jones concluded that in the long term SH would be unable to protect A's physical and emotional welfare. In the event the Court concluded the proceedings by making final care orders on 27^th June 2013 in the case of both A and K-F with a plan for adoption. There are facts and reasons contained in the Bundle (albeit confusingly dated 27^th June 2012). The suggestion that A would be exposed to adult conflict if in the care of SH appeared to be born out by events at Court once the decision had been made when a distressed SH confronted and assaulted CK, for which she was subsequently cautioned by the police.
18. Matters would have remained there, subject to the outcome of the application for placement orders (which were not before the court and were not made until several months later) but for the determination of SH. She sought to appeal the decision taken by the Justices.
19. Her "appeal" was heard by HHJ Orrell. He gave her party status in order to do so. He dismissed her appeal. His reasons for doing so can be found at B36 in paragraphs 36 and 37 of his judgment.
20. Undeterred SH sought leave to appeal that decision by appeal notice sealed on 7^th February 2014 in which she sought permission to appeal and an extension of time for doing so. Still acting in person SH appeared by video-link from Derby Combined Court and persuaded Lady Justice Gloster that she should have permission to appeal. A one day hearing was directed before a 3 judge Court.
21. The appeal process was slow. The applications for placements orders were made. Mr Jones was appointed Guardian. No progress could realistically be made on the LA application for placements orders because of the outstanding appeal.
22. In his first report within the placement order proceedings the Guardian had indicated his support for the LA's application. However shortly after filing his report the Guardian became aware of what he considered had the potential to be a significant change in position. He had been contacted by the children's mother, CK, who reported to him that she had changed her stance as to the children's future care. She had previously vehemently opposed A being placed in the care of SH. Now she told the Guardian that her attitude to such a placement had changed. Accordingly in his position statement the Guardian raised the possibility that the Court may feel that this constituted a change in circumstances such as may require a further assessment by the LA. In addition SH was indicating that she would be prepared to care not only for A but also for K-F , a child who had never previously been in her care. In consequence and to avoid further delay Judge Orrell ordered an ISW to report.
23. Tina Pugh was appointed. Her resultant report dated 24^th November 2014 concluded that the children A and K-F if placed in the care of SH would be exposed to ongoing risk such that it was not in the children's interest to place then in her long term care.
24. SH's appeal finally came before the Court of Appeal on 26^th November 2014, so 2 days after Tina Pugh reported. Her appeal was not ultimately opposed. The preamble to the Order explains why… " and upon the LA informing the Court that it did not resist the appeal because it became clear ….that SH's wish to be considered as a carer for one of the children (A) which was supported by her son (the second Respondent in the proceedings) was not fully argued either by her son's advocate or any other party . Consequently the evidence in respect of this opinion was not fully tested during the hearing on 26^th June 2013 before the Lay Justices, and their decision to approve a care plan of adoption for A was flawed."
25. The appeal was therefore allowed. SH was joined as a party. The case was remitted to a Circuit Judge for a rehearing together with the applications for placement orders. It was first remitted to Keehan J, as FDLJ for this Circuit for further directions.
26. At the directions hearing before Keehan J on 4^th February 2015 the case was allocated to me for final hearing. The Court also indicated that a further ISW assessment was necessary for that hearing, and was thus ordered. The reasons for so doing are set out in the Order:

"The report of an expert is necessary to assist the Court to resolve the proceedings as

i. SH puts herself forward as a carer for the children

ii. There is no other realistic option for the children other than adoption.

iii. The complex history of this case dictates that a further ISW assessment is necessary to avoid the prospect of any further delay in these proceedings in circumstances where it might otherwise be argued that the conclusions of the previous assessment (by Tina Pugh) were unduly influenced by the decision of the Justices which has been subject to a successful appeal."

27. Jane Pinder was appointed as ISW to report.
28. The case came before me for final decision initially on 27^th, 28^th and 29^th May with further days on 1^st and 2^nd June.
The position of the parties
29. CK as mother of both children, A and K-F does not put herself forward as carer for either of her daughters. She supports the placement of A and K-F with SH.
30. KH supports the placement of both children with his mother SH.
31. HH, father of K-F and currently a serving prisoner, supports a placement with SH.
32. SH having succeeded in the Court of Appeal to the extent of achieving this rehearing urges the Court to place both children in her care subject to Special Guardian Orders. She also invited the Court to make a number of protective orders to reinforce her position and to help her to safeguard the children against the potential risks posed by CK and HH. She is supported by a positive assessment by Jane Pinder, the second appointed ISW. Thus unusually there are ISW reports coming to opposite conclusions.
The hearing
33. I heard from both ISWs, Jane Pinder and Tina Pugh. I heard from the social worker, Rebecca Cram, from SH and from the Guardian. Neither CK, KH nor HH was required to give evidence.
34. I was somewhat critical, and unapologetically so, of the way in which the report of Tina Pugh was written. Reports by experts are not written solely for the benefit of other professionals, the advocates and the Judge. The parents and other litigants need to understand what is being said and why. Thus if dealing with a litigant whose first language is not English, the Court would consider whether it was necessary to have at least of summary of the report's conclusions translated into the native language of the litigant. Otherwise there may not be a fair hearing.
35. There were passages in Tina Pugh's report which were written in language which made their meaning quite opaque. I suspect as far as SH was concerned, these passages might just as well have been written in a foreign language. Thus by way of just one example, at para. 3.113 Tina Pugh writes as follows when referring to the relationship between CK and HH:

" I do not intend to address the couple's relationship suffice it to say it is imbued with ambivalence : both having many commonalities emanating from their histories that create what could be a long lasting connection or alternative relationship that are a reflection of this. Such is this connection they may collude to undermine the placement."

36. I very much doubt that SH would understand on reading this passage what is being said. I think I know what Tina Pugh is saying but her meaning is obscured by the language she uses to express it. SH told Jane Pinder that she found it hard to understand some of the words Tina Pugh used. She found some concepts unfamiliar and had difficulty asking what they meant. I accept Jane Pinder's evidence as to that, and make the finding that SH was telling her the truth when she said to her that she did not always understand what Tina Pugh was saying.
37. By way of further example at para. 2.20 of Tina Pugh's report:

" In narrowing down the issues [SH] clearly believes that paternity issues had a significant interplay on [KH]'s ability to say no to the mother. However she has taunted him (sic) the idea of paternity before A was placed with [KH]" Interplay is a word frequently used by Tina Pugh (paras 2.13, 3.19, 3.21, 3.22) . I think it can be more understandably translated as "impact" or "effect".

38. I may be accused of linguistic pedantry. There is a serious point here. My reason for criticising Tina Pugh's report in this way is not solely borne out of my concern that such reports should be so written as to be readily understood but because I have to question whether Tina Pugh was able to communicate orally with SH. Did SH fully understand what was being asked of her or said to her? Did SH feel able to express herself appropriately?
39. I must also ask myself whether Tina Pugh's criticism of SH for not identifying the difficulties she might face if the children were placed with her is fair. Did she discuss issues with SH in a language which she would understand? SH is, and I am sure she will forgive me for saying so, a simple soul. She does not have a large vocabulary but speaks in plain language and would not readily comprehend a lot of what Tina Pugh has written about her. I give one more example of what I mean: (para 3.61) " due to [SH]s' apparent difficulties identifying the concerns , I asked her to convey a narrative about her observations in respect of [KH]'s and [CK]'s relationship." What would be wrong in saying "I asked her to tell me" ?
40. I conclude that there is at least a possibility here that the negative assessment of SH stemmed in part from the fact that Tina Pugh and SH were simply not on the same wavelength when discussing matters.
41. Tina Pugh made a number of unfair criticisms of SH. So at para 2.14 Tina Pugh states " I was really concerned, that despite going through a Final Hearing (sic), and now on to the second Appeal, [SH] does not appear to have familiarised herself with the paperwork in order to grasp all the complex issues in this case and come up with reasoned responses around risk". Tina Pugh agreed that she had not appreciated that because SH did not have party status at the hearing she would not have had access to the case papers. It is therefore not a fair criticism to suggest that SH may not be able to assess risk because she had not familiarised herself with the paperwork when that paperwork had never been given to her.
42. I found Jane Pinder's conclusions much more soundly based. There is of course a difficulty here. Just like an examination student doing a resit I would naturally expect SH to "perform" better at her subsequent assessment by Jane Pinder. She was going over material for a second time. It was more familiar to her. Jane Pinder recommends the making of a Special Guardianship Order in favour of SH for both children, both in her report and in the additional questions she was asked.
43. I prefer Jane Pinder's conclusions over those of Tina Pugh for a number of reasons. Firstly Tina Pugh's report was completed prior to the outcome of the Court of Appeal hearing and is therefore based on the factual matrix established by the LA and the Guardian at the final hearing in June 2012. It was for that reason that Keehan J ordered a second ISW assessment. Secondly Jane Pinder carried out a far more detailed and in depth assessment of SH's ability to meet the needs of A and K-F. Tina Pugh met SH on 2 occasions only, at most for one and a half days in total. Jane Pinder by contrast met SH on 10 separate occasions over a period of some six weeks. She met her children. She met the

foster carers. Tina Pugh did not meet the children at all. Nor did she meet the foster carers. Jane Pinder met SH's wider family and observed SH with D-L, her granddaughter. Tina Pugh did not meet any of SH's wider family. As I understand it Tina Pugh's assessment was based simply on her reading of the papers and her 2 meetings with SH.

44. There is a significant risk that in carrying out her assessment Tina Pugh did so in order to see whether the LA's case "stacked up". It was certainly written against the factual matrix of the findings of the Justices and of Judge Orrell. I therefore find that the ISW better placed to assess whether SH can safely meet the needs of these 2 children is Jane Pinder. Her conclusions therefore carry greater weight in my consideration of all of the evidence.
45. The LA social worker, Rebecca Cram has not in reality carried out any proper and thorough assessment of SH's ability to meet the needs of A and K-F. She was cross-examined as to the discussion she had had with SH during her involvement in the case. She eventually produced case notes which were not contemporaneous but had been written up after cross-examination in order to try to establish her position. The fact is that Rebecca Cram had not had any meaningful face to face meeting with SH to discuss her plans for the care of the two children and to assess the workability of those plans.
46. There was as I find it a complete lack of independent analysis by Rebecca Cram. She was insistent that her basis for the negative conclusions was her discussions with SH yet there was no real in depth discussion at all. She simply spoke (or had the opportunity to speak) during contact when inevitably SH's focus of attention would be on the children. Miss Sprinz's criticisms of Rebecca Cram in her final submissions are well made. I agree with them.
47. My real concern arose in this case from what SH said when she gave her evidence. She struggled at times to express herself. She plainly felt the Court experience to be a difficult one. Those of us who sit daily in these Courts too easily forget that for many litigants their day in Court is the most important day – they might even say "of their lives" given the enormity of the decision to be taken. SH plainly felt the burden of giving evidence and the stress consequent upon her wish to make a good impression upon the Court.
48. I was concerned when SH asserted that CK was "a very good Mum". Will she be manipulated by CK into permitting inappropriate contact in the same way that KH was when permitting A to be taken to visit HH? This remains a very genuine concern and the real risk in this case which has to be guarded against.
The law
49. SH is not A's biological grandmother. She has been called, in a phrase I find rather unattractive, her "psychological" grandmother. The fact is that A has a loving bond and relationship with A – no different from that which she would have if KH were indeed her birth father. SH formed an attachment to A at a time when she believed her son, KH, to be A's father. All parties agree that legally I treat SH no differently than I would if she were indeed the biological grandmother of A and thus a connected person so far as A's half-sibling K-F.
50. I am very familiar with the authorities in this area (re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 and both in re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146 and R (A child) [2014] EWCA Civ 1625) which confirm and do not alter the statutory framework). The test for severing the relationship between a parent and a 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.
51. Moreover I have to balance the advantages and disadvantages of placement and adoption against SH's proposals under a Special Guardianship Order and in assessing SH's ability to safeguard these children I must take into account the assistance and support which the LA could and should offer. For that reason I have to look at SH's case in the light of the SGO package of support that would be available to her in the protective orders I am invited to make.
Analysis
52. To place A and K-F in the care of SH means they would remain within their wider family with the potential for some kind of relationship with their mother and in the case of K-F with her father HH. Therein lies also the risk of exposure to conflict and domestic abuse. I was concerned that at moments throughout the hearing there were frequent references to "risk" without any comprehensive analysis as to what in practical terms that meant.
53. The risk has to some extent altered since the Justices dealt with the case in June 2013. In upholding their judgment HH Judge Orrell made reference to these important findings: (1) an extremely antagonistic relationship between CK (as mother) and SH; (2) CK had threatened to remove A from the placement so there was a very real risk that CK would take steps to disrupt any placement with SH: (3) there was a reference to a deep and persistent antagonism between SH and CK.
54. The position now is somewhat different. CK wholly supports the placement of her daughters with SH, as does HH in respect of his daughter K-F. It is plainly not in their interests to undermine or disrupt a placement with SH because to do so would lead to the very real risk of further local authority intervention and the ultimate possibility of an adoptive placement as a result, or at the very least long term foster care with little prospect of direct face to face contact if there were risks to such a placement from that level of contact. I am not satisfied that either Tina Pugh in her report or indeed the Guardian in his conclusions has given proper weight to this important change in the family dynamic, albeit in a family of shifting and altering dynamics.
55. There can be no doubt about the genuine commitment of SH to A and latterly to K-F. She appealed to HH Judge Orrell from the original decision in the care proceedings. Undeterred by his dismissal of her appeal she appealed as a litigant in person to the Court of Appeal. That there was merit in her arguments can be seen from the fact that her appeal was not ultimately opposed by any party. It is unfortunate that there was not an earlier realisation of the merits of her case given the considerable delays caused by the appeal process. It would have been far easier for SH to walk away at an early stage particularly once she became aware that her son was not in fact the father of A and she was therefore not her grandmother. SH plainly loves and cares for A as an individual – a child with whom she has formed a good attachment.
56. Concerns have been expressed about SH's ability to deal with sibling rivalry, and the attitude of A towards K-F that she (A) is the favoured one and is more special. I am satisfied that SH has an appreciation of the difficulties she may face over the coming years. I am satisfied that she does have the necessary parental skills to deal with this behaviour. Any potential adopters would face the same problem of sibling rivalry.
57. There is no doubt and all parties accept and acknowledge that SH has good general parenting skills. She successfully brought up her own 2 children when for several years she had no partner to support her. She has a good relationship with her own granddaughter, DL.
58. In the past SH has shown an ability to protect A. On the 20^th September (A8 in the chronology) it was SH who contacted social care and reported that CK had telephoned KH and been abusive and had threatened to remove A from KH's care. Having gone to the extent that she has to be in a position to care for A and K-F , I assess SH as most unlikely to permit either the mother CK, her own son KH or HH , K-F's father to remove A and K-F from her care and to undermine all that she has been working so hard to achieve.
59. One issue that arose in the hearing was the question of SH relocating somewhere some distance from her current address so that CK and HH would not know where she was living with the 2 children if placed with her. To do so would be to lose the support network which SH has – her neighbour in particular provides considerable practical and emotional support – which is very important to her. Unless she moved to an entirely different part of the country, where she would know nobody, it would not I suggest be difficult for anyone intent on finding her to do so. I would not therefore see a move as providing any long term security. Her case for A and K-H to live with her has to be looked at, realistically as I see it, on the basis that she will remain living where she does with the community support that she currently relies upon. Moreover it becomes easier to enforce an exclusion zone around the area where she lives.
60. The Guardian continues to support the local authority proposals. I have to give considerable weight to his analysis given his long involvement with this case, and the evaluation he is able to make of the risks involved, knowing as he does the personalities of the parties. It is of course difficult for him to look at matters entirely afresh, as is required for this rehearing, and I do not think he has. He very firmly supported the original care plans. I accept that he showed a flexibility of approach by identifying the need for a fresh look at the position of SH, once it became clear that she was prepared to have long term care of both A and K-F. I would question whether he has see the deficiencies in the report of Tina Pugh, as I have found them to be, or in the work (or more accurately) the lack of work carried out by the social worker, Rebecca Cram. To that extent his analysis is somewhat flawed. Of all the professionals I heard from I found the assessment of Jane Pinder to carry the greatest weight when assessing SH's ability to safeguard the 2 children.
61. It is agreed that the threshold criteria for the making of statutory orders is crossed at the date when the care proceedings were commenced inn respect of both children. In terms of future placement, with neither parent in a position to care for A or K-F the only realistic alternative to SH as their carer is adoption. So SH offers to A and K-F the only opportunity to be raised within their family. It is too easy to forget Lord Templeman's words ( in Re KD [1988] 1 AC 806) that public authorities cannot improve on nature.
62. The care that SH can offer to A and K-F should not be judged by some stellar standard. As Hedley J said society must be willing to tolerate very diverse standards of parenting which includes the barely adequate and the inconsistent (Re L threshold criteria [2007] 1 FLR 297). I should therefore only accede to the applications for care and placement orders if persuaded that there is cogent evidence that nothing else will do.
63. A and through her K-F has the opportunity now to be brought up by a loving "grandmother": she has to be seen as such for the exercise I am undertaking. I should only take that opportunity away if satisfied that SH is not able to meet the particular needs of A and K-F. On the evidence I have heard I am not so satisfied. I accept Jane Pinder's careful assessment of her for the reasons I have already given.
64. There will need to be a transition plan. The one that has been proposed seems to me to meet the needs of these 2 children. There also needs to be in place the Special Guardian package – the scaffolding as Tina Pugh called it – to support the placement. Amendments were made to it in the course of the hearing. I approve it in its final form. There also need to be protective orders in place.

(The judge addressed the parents directly emphasising the importance of doing nothing to undermine or sabotage the placement of A and K-F with SH. He invited Mr Semple for the local authority to draw the necessary Orders to reflect his findings)

[JUDGMENT DELIVERED ON 16^th JUNE 2015]