England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT BOURNEMOUTH

		31st July 2015

1. This case concerns N who was born on 4^th September 2011. He is one of three children. He has two elder sisters E and A. In June 2013 all three children were made the subject of Care Orders in favour of the Local Authority. The Care Plan at that time was for the children to be placed with their mother. During those earlier care proceedings it was the parents' case that they had separated and did not plan to resume their relationship.
2. The reunification of the children with their mother was not successful and the children were removed from their mother in August 2013. The girls were placed with their maternal aunt where they remain.
3. Initially it was hoped that N might be placed on a long term basis with his great aunt. That was not possible. N was placed with foster carers in March 2014.
4. At this hearing the court is dealing with an application by the Local Authority for a Placement Order in respect of N. The parents, who have reunited, accept that they are not in a position to care for N.
5. The mother is represented at this hearing. The father was unable to attain public funding and appeared in person. His case, however, is essentially the same as that of the mother
6. By a letter dated 20^th March 2014 the paternal grandparents gave notice of their intention to apply for a Special Guardianship Order (SGO) in respect of N. The application was issued on 12^th June 2014. Permission to apply for an SGO was granted following a contested hearing in January 2015.
7. The assessments of the grandparents was undertaken by Tracey Goode. The conclusion of the assessments was that Tracey Goode was unable to recommend the paternal grandparents as Special Guardians for N.
8. In summary the reason for this conclusion was:-

(i) the grandparents do not accept that the parents pose a risk to N;

(ii) the grandparents were over optimistic with regard to their parenting abilities;

(iii) the grandparents expressed the hope that in due course N might be returned to the care of his parents;

(iv) the grandparents' loyalty to the father (their son) may take precedence to the interests and welfare of N.

9. In the earlier stages of the case the grandparents (and in particular the grandfather) appear to have been dismissive of the concerns expressed on behalf of the Local Authority. The grandparents now claim that by reason of a better understanding of the issues in this case, they accept the reasons for the Local Authority's concerns. The grandparents have told the court that they will take whatever steps are necessary to control the parents and generally to ensure that N is safe and secure with them throughout his minority.
10. The parents support the application of the grandparents.
11. Each of the parents has certain difficulties. Those of the father are summarised in the report of Dr D Derry dated 17^th May 2013 at paragraphs 17.2 – 17.23 at pages E59 – E61 in the previous proceedings bundle. In his later addendum report prepared for these proceedings which appears at D4 of the current proceedings bundle and dated 23^rd October 2014 Dr Derry reports:-

"1.7 To my knowledge there has been no further evidence of any sexually inappropriate behaviour by (the father) that would contribute to his history of sexually deviant behaviour (Dr Derry, 17.5.13, para. 17.2 – 17.23)."

12. In his earlier report at E45 when considering the mother Dr Derry said:

"10.15 Conclusion - In sum, (the mother's) history of relationships would describe a pattern of unstable and transitory relationships with high-risk men. Her almost exclusive relationships with high-risk men would be unlikely to occur by chance and would indicate some compulsion towards these relationships."

13. Starting at paragraph 10.16 Dr Derry deals with what he describes as the mother's Parental Risk Factors. In his later report at D4 paragraph 1.6 Dr Derry briefly describes the circumstances which led to the removal of the children from the mother's care in August 2013.
14. It is right to stress that Dr Derry was considering the parental capacity of the parents. They are no longer seeking to care for N (or the other children). The guardian and the Local Authority, however, still contend that given what is said to be the grandparents' lack of sufficient understanding of the risks posed by the parents, the grandparents cannot act as sufficiently protective of N. It is said that they are not committed to providing him with a permanent and secure home throughout his minority.
15. The court is therefore presented with a stark choice. Should N be kept within his family by the means of a SGO in favour of the grandparents together with whatever additional protective measures may be required? Alternatively is the situation now such that nothing else but adoption will do and therefore a Placement Order should be made? No other plan for N is before the court for realistic consideration.

Law

16. The original Care Orders remain in force. The court is therefore concerned with the Adoption and Children Act 2002 and in particular with the matters set out in Section 1(2), (3) and (4) of that same Act.
17. I bear in mind the rights of the parents, the grandparents and N under Article 8 ECHR. The paramount consideration is N's welfare throughout his life pursuant to Section 1(2) of the Adoption and Children Act 2002. Section 1(4) of the ACA 2002 contains a checklist of factors to be taken into account. In this case the important factors are N's needs, the likely effect upon him throughout his life of having ceased to be a member of his birth family and becoming an adopted person; his background; any harm he is at risk of suffering: the concern in this case is the risk of sexual and emotional harm; his relationship with his birth relatives. N has an established relationship with his grandparents and his parents. The questions therefore is whether the grandparents can, under provisions of a SGO, provide N with a secure environment and meet his needs. Further pursuant to Section 1(6) of ACA 2002 the court must have regard to the range of orders that are available.
18. These provisions have been considered in a number of cases: Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 and in the Court of Appeal in Re B-S (Children) Adoption Order: Leave to Oppose) [2013] EWHC Civ 1146 [2014] I WLR 563 and Re W (A Child) (Care Proceeding: Court's Functions) [2013] EWCA Civ 1227 [2014] 2 FLR 431.
19. It is clear from this line of cases that the statutory language in ACA 2002 imposes a stringent test. Further if a Placement Order is to be made without the consent of the parents what must be shown is that the child's welfare "requires" parental consent to adoption to be dispensed with.
20. In relation to Section 1(3) N will be 4 in September. The original proceedings began in January 2013 and culminated in the orders made in June 2013. The plans for N's future have therefore been unresolved since his removal from his mother's care in August 2013.
21. The hearing of these applications started on Tuesday 21^st April. At the outset the court was provided with a witness template. I was surprised to be told that none of the parties had requested the attendance of Dr Derry to give evidence. During the course of the oral evidence of the grandmother on the second day of the hearing it emerged that the grandmother did not accept some of the factual background in relation to the father and upon which Dr Derry had based his opinion. I therefore adjourned the matter for a short time to allow the parties to consider the position. It was decided that the parties would put certain written questions to the Doctor but that the case would have to be adjourned. Because of the pressure on the court lists and the commitments of others it was not possible to resume the hearing until 9^th July. This further delay is very unfortunate.

Evidence

22. The first witness was Tracey Goode. She is a social worker in the Local Authority's Adoption Team. She prepared the Viability Assessment in respect of the grandparents which appears at C31 and the Special Guardianship Assessment which appears at C77. She also compiled the SGO Support Plan which appears at C110.
23. The SGO Report was complied under a significant pressure of time in order to comply with the court timetable. Tracey Goode met the grandparents together and separately over a period of four weeks and spent some hours with them. She accepted that the grandfather appeared to have changed his approach towards the case by the time of the full SGO assessment. Tracey Goode remained cautious as to whether the grandparents still really appreciated that the father remained a risky individual and whether the grandparents' commitment was to care for N throughout his childhood.
24. Given what she described as N's attachment difficulties, Tracey Goode thought it probable that N would show significant behavioural difficulties particularly when he becomes a teenager. By that time the grandparents will be older and less able to cope with such a situation. N, in Tracey Goode's view, requires what she described as therapeutic parenting. The grandparents would have to accept N as he is and understand that he will show worrying and disturbed behaviour.
25. The grandparents' response to this point is that they experienced very difficult behaviour from both the father and his sister Samantha both of whom the grandparents had adopted.
26. Tracey Goode discussed the contents of Dr Derry's report with the grandparents. It seemed clear to Tracey Goode that both grandparents had significant reservations about Dr Derry's views and opinions as to the father. Tracey Goode was concerned that the grandparent had found it very difficult not to support the father given his needs which might be particularly pressing if he and the mother separated. They would be torn emotionally she thought between N and the father. Tracey Goode accepted that at the present time there is no evidence other than that the mother and father have a strong relationship and propose to marry later in the summer. The mother has done nothing to undermine the placement of either N or his sisters.
27. When questioned on behalf of the guardian Tracey Goode was referred to page C108 where she summarises her concerns about the grandparents' proposal to act as Special Guardians for N.
28. As appears from her short CV on page C77 Tracey Goode is a very experienced Practitioner.
29. Mr Quaddy has been N's Social Worker since 31^st July 2014. He first had some dealings with the case in August 2013 but was not involved in the earlier proceedings. His statements are C22 and C131.
30. At C134 Mr Quaddy records the comments of the grandmother made in November 2014 as to whether Dr Derry was independent of the Local Authority. I accept that it was suggested to the grandmother that if she felt Dr Derry was not impartial she should discuss the matter with her solicitor. The same topic arose a few days later at a Looked After Child Review on 19^th November 2014. It does not appear that this matter was pursued further.
31. Starting at C142 of his statement Mr Quaddy goes through his Re B-S analysis.
32. Mr Quaddy has recently seen N. He describes him as well, active and happy in his present foster placement. N will be distressed at leaving his present placement. Mr Quaddy described him as a gentle child who is generally calm and thoughtful but can display a volatile temper. He finds it difficult to express himself but generally has a good level of understanding.
33. If the court were to grant a Placement Order and there were subsequently to be an adoption the question of N's contact with his sisters will require careful consideration. The sisters live with their maternal aunt with whom the mother is in contact. The wishes of the adopters would also have to be considered.
34. Mr Quaddy conceded that he had not discussed the case on a one to one basis with the grandfather. He had seen the grandparents in the home on two or three occasions since July last year. He accepted that the grandparents have managed the present level of contact with N perfectly well. Mr Quaddy described how the mother had told him that she hoped that the grandparents would obtain a SGO following which the mother would take over the care of N. She had asked Mr Quaddy how she would go about that. He had advised her that she would need evidence to show a change in the situation so that the SGO could be discharged.
35. He accepted that at C146 when dealing with the application for the SGO he has not mentioned the change in the grandfather's attitude to risk which had occurred since the first report of Dr Derry in 2013.
36. If there were to be a SGO Mr Quaddy thought that this would involve a period of two to three weeks during which N spent increasing time with his grandparents leading to an overnight stay. There would eventually come a time when he would not return to the foster carers. There would be a significant reduction in N's contact with his parents and Mr Quaddy thought that such contact as did take place would need to be supervised by the Local Authority. There would also have to be a Contract of Expectations to which the parents and the grandparents agreed. Mr Quaddy accepted that in her statement at C122 the mother says that she supports the making of the SGO and accepts restrictions on her contact.
37. At no time did Mr Quaddy encourage the mother to think that N would be returned to her at some stage in the future. But he did ask her to write down her feelings about N in order to give her an opportunity to express herself.
38. Mr Quaddy was aware of the difficulties that the grandparents had had in bringing up the father and his sister Samantha.
39. The father who works as a painter and decorator is mainly employed in his father's (the grandfather's) firm. Mr Quaddy thought that the father would find it difficult to work independently from the grandfather's business. He does not drive and wondered if the father could manage to run his own business. He thought that the father's dependence on his parents, which is both practical and emotional, is likely to continue indefinitely and be a distraction from their focus upon N.
40. The grandmother's statements are at C1 and C150. She described N as delightful. He has great empathy, kindness and is bright and fond of animals. He enjoys meeting people. He adores his grandparents who, I am sure, love him. She described her husband and herself as being constant figures in N's life for the last two years or so.
41. She emphatically denied the suggestion that they were seeking an SGO as a temporary holding position pending return of N to the care of his parents. In essence she and her husband would do whatever was required of them to keep N safe with them throughout his minority. They would be open and honest with the Local Authority if the parents in her words "broke the rules". If this meant calling the police or other agencies to enforce an order they would do so.
42. Generally the grandmother was concerned that much of the Local Authority documentation was selective in its reporting and concentrated on what the Local Authority saw as the disadvantages of the SGO proposal. She pointed out that the father has matured considerably over the last four years or so. They had accepted what Dr Derry has recommended and therefore they need to go forward with his views in mind and not simply pay lip service to the contents of his reports. The grandmother was concerned that the Guardian had only briefly visited them once at their home. She had not had what she described as a proper discussion about the case with the Guardian. The grandmother was concerned at the suggestion that her support network consisted only in families of their age group. She pointed out that she first put forward as referees those who had supported the grandparents when they were seeking the adoption of the father and his sister. They do know other couples in their 30s who would help and who have children of their own.
43. When cross-examined on behalf of the Local Authority it became clear that she had considerable reservations about the way in which she and her husband had been treated. She said that she had been mistaken to assert that the mother had been thrown to the wolves by the Local Authority after the children had been returned to her. The grandmother accepted that she had been unaware of the amount of support that the Local Authority had provided.
44. She described how, at least in part, their attitude to the Local Authority was a product of their ignorance of the system and the manner in which Children's Service were obliged to operate in cases such as this. She said on a number of occasions in her evidence that she and her husband are now in her words "fully on board". She described the parents as being in a very strong relationship and going from strength to strength. She did not think that relationship would fail. They have what she described as a comfortable home and can manage their practical affairs. Each strengthens the other.
45. When cross-examined on behalf of the Guardian the grandmother was referred in particular to paragraph 12 of the second report of Dr Derry on page D19. This is the passage where Dr Derry deals with risk management in relation to the father. She was taken through the extent to which she disagrees with Dr Derry's observations and opinions.
46. She was referred in particular to the mother's statement at C16 which is dated July 2014. Towards the end of paragraph 17 of that statement the mother says as follows:

"I am in a relationship with (the father) and with his support and that of (the grandparents) and my wider family, I believe that I could cope as a parent to (N). If (N) was living with (the grandparents) I do not see why myself and (the father) could not gradually take on more of a parenting role in connection with (N) and try to give him a proper family life."

47. The grandmother described herself as worried when she had read this. She had since discussed it with the mother and with her solicitors. Following those discussions, the grandmother told me, the mother now clearly knows that there can be no hope of N returning to her care. She accepted that from N's point of view if he thought he was temporarily living with grandparents it would be harmful to N for the reasons described by Dr Derry and the Local Authority. She denied that she viewed this case solely from the point of view of the father rather than N.
48. At this point the case was adjourned as I have already explained. I was worried whether the grandmother was able to be objective as to N's welfare as against her feelings of loyalty and concern about the father.
49. The hearing resumed on 6^th July. Dr Derry had been asked certain additional written questions and produced an addendum report dated 4^th June 2015 which appears at D65. In the event Dr Derry was not called to give evidence at the adjourned hearing. Further during the interval the grandparents have put in a Position Statement dated 29^th June.
50. In his report at D72 Dr Derry explains that he has not seen the grandmother since April 2013. At that time she was very committed to the father and had been able to prioritise his safety and care despite the significant difficulties associated with (the father's) early developmental trauma and developmental difficulties.
51. In paragraph 2.53 at page D73 Dr Derry reports as to the grandparents' attitude:-

"2.53.1 Minimisation of the father's historical difficulties in his sexual behaviour.

2.53.2 Distortion in her interpretation of some of (the father's) sexual difficulties.

2.53.3 Denial of important information about (the father's) sexual deviancy.

2.53.4 A lack of objectivity in their thinking about (the father's) sexual risks.

2.53.5 A lack of awareness of some of the information that they would need to make clearer decisions about (the father's) sexual risk to children.

2.54 This would compound my concerns about (the grandparents') ability to accept (the father's) sexual risks in order to act protectively of their grandson".

In assessing the question of risk the court must take a view firstly as to the nature of the risk and whether it is high, medium or low. Having made that assessment the court must consider the extent of the damage caused if the "risky event" takes place and whether and to what extent effective measures can be arranged which will stop the occurrence of the "risky event". If the "risky event" in this case were to occur to N at the hands of the father, it is likely to cause him harm.

52. At the resumed hearing the grandmother returned to the witness box for the purposes of re-examination. She dealt with the question of the parents' contact to N if he lived with the grandparents. In so far as the father's contact is concerned the grandmother thought they could work with such measures as were thought necessary. She speculated that contact perhaps once a week or once every two weeks might be right. She emphasised that this would be a matter of discussion between them, the father and the Local Authority. From what she had observed it seems that the parents were getting on well together.
53. The next witness was the grandfather whose statement is at C3 dated 15^th July 2014. He had also seen Dr Derry's addendum report.
54. The grandfather came across as determined, clear thinking and articulate. He made it clear that N's welfare is paramount in his and his wife's thinking. He did not understand why others might doubt that.
55. Although he accepted the reports of Dr Derry he pointed out that he had never met or spoken to Dr Derry or been able to explain or deal with criticisms made of him and his wife. He cited Dr Derry's reports at D67 paragraph 2.9 and D72 paragraph 2.48 and explained that the father had always had empathy with the stage and theatre and that Dr Derry was confusing what was done in fun with deviant sexual behaviour. Had Dr Derry visited the grandparents the grandfather would have explained and discussed this with the Doctor. The grandfather also pointed out that he and his wife had reported the father's sexual behaviour to the Local Authority and had they not done so nobody would have known about it. He said that he and his wife were fully aware of the sexual risk posed by the father.
56. He described N as charming, sensitive and engaging and the grandmother as caring and sensitive. I am sure that is so.
57. The grandfather accepted that if N came to live with him and the grandmother, it would be wise for there to be no contact at all for approximately six months.
58. He was asked about what appeared to be a change in his position since he first discussed the case. It appears that he had originally seen the proposed SGO as an interim arrangement which might, for example, only last until N was 12 at which point he might return to his parents. He pointed out that he had had very limited advice from the Local Authority as to the full implications of a SGO and no advice at all as to the sort of contact which might be suitable under such an arrangement. He had only met the Guardian on one occasion in December 2014 at which they had a general conversation. There had been no telephone contact with the guardian since then. The conversation that he and his wife had had with the Guardian was not, in his view, challenging and she seemed to be supportive of them.
59. He was referred to the Guardian's analysis at D58/9 where she sets out the negative factors in respect of a SGO. He could not recall a specific conversation about how to deal with the need for therapeutic support for N. He pointed out that N knows his grandparents and his parents as mummy and daddy. He did not regard it as "therapeutic" to break those established relationships and arrange for his adoption by strangers. The grandfather did remember a general discussion with the Guardian about the grandparents' ages, his heart condition and generally about N's experience of early neglect.
60. He accepted that in the event of an SGO the father would have to fend for himself to a greater extent. The question of the father's work schedule was mentioned. The present arrangement is that the grandfather collects the father from his house and takes him to the Site. The grandfather emphasised that they now understand significantly more about the case and its various implications than they did in December last year. He and his wife had thought long and hard about the position and can deal with the problems which will arise if N lives with them.
61. The grandfather was referred to C43 which is part of the viability assessment carried out by the Social Worker. It is recorded that the grandfather said that he and his wife were putting themselves forward to look after N out of duty and moral obligation and that he feels trapped in having to make this commitment. The grandfather was not certain that he had used the word "trapped". He accepted that he did use the words "duty" and "moral obligation". In his evidence I understood him to say that such duty and obligation existed because N is part of the family but that the question went further. He did not mean to imply that he did not love and care for N. He expressed surprise that, as he put it these words had been "turned against me".
62. He pointed out that both parents had known the location of N's current foster carers and had done nothing to disrupt either that placement or the contact arrangements.
63. As to why he agreed that contact by the father should be supervised, the grandfather pointed out that the risk posed by the father is not quantifiable but he has an overall responsibility to be sure that no harm comes to N.
64. The grandfather is clearly a capable man. I think he does now (if he did not before) understand the full implications of what is required both of him and other members of N's birth family if N came to live with his grandparents. I have no doubt that in the short to medium term the grandfather would adhere to all that is required of him. I think the longer term may pose greater difficulties both because of the grandparents' increasing age and what I suspect will be the father's own requirements for support.
65. The next witness was the mother who has put in three statements at C11, C16, and C123.
66. She generally works as a Care Assistant but is presently not working following an injury. That has had the result of reducing the parents' income and is one of the reasons why they have postponed their intended marriage. They lived together full-time in the mother's flat in Wareham.
67. She told me that she too has gained a greater understanding of the meaning of SGO because of what had happened to her daughters. The intention had been that they would be adopted by the mother's sister, their maternal aunt. Adoption has now been ruled out following the breakdown of the aunt's marriage. The plan now is for the aunt to have SGO's in respect of the two girls. The mother sees the two girls once a month and this will shortly be reduced to once every two months.
68. The mother also agreed that there should be a six month period following N's move to his grandparents when neither parent would have any contact.
69. The mother told me that she respects the paternal grandparents and will do as they say in relation to contact. Hitherto she was always kept away from Swanage when N has been visiting his grandparents. She understood that if she had turned up unexpectedly this would confuse and unbalance N. She thought that N had what she described as a strong bond with his grandparents. She also thought that the father had himself grown up in the last two years and that he will abide by any rules and boundaries designed to protect N.
70. She accepted that she would like to see N every day but realised that is simply not realistic in the proposed circumstances.
71. I thought that the mother acquitted herself well in the witness box. She has had significant difficulties in her life but seemed to me to have gained in understanding of the situation.
72. The father has put in four statements: C46; C76(a), C156 and C159.
73. He told me that he has lived full-time with the mother since March 2015. He thought that he had grown up significantly over the last two years and enjoys living with the mother and having some independence from his own parents.
74. The present arrangements mean that he sees his parents about four times a week because of the work that he does for his father's business.
75. As to the future he realises there will be a significant change in his routine. He would not be able to visit his parents' home or their shop which is close by on the regular and informal basis that he does now when N is not with his grandparents. I pressed him on this point later in his evidence and he reiterated his understanding of the position.
76. He told me that he sees N once every two weeks at his grandparents' house between 10.30 and 4.30. He told me that N rushes up to his father and wants to hug him. He and N have what he described as a natural bond like any father and son. He and his parents had discussed this hearing and the implications of what the proposed SGO would entail.
77. He pointed out that he had complied fully with the current restrictions on contact for the last two years or so. He said that he felt he had been treated wrongly but had lived with it. He agreed that his own emotional development had been seriously delayed because of the appalling experiences of his own childhood. He felt that he had now come to terms with that background and had in his words caught up with his development. Both his parents and the mother had helped him. He and the mother are in what he describes as a very solid relationship. He pointed out that this court procedure had been a great strain on the couple but they had come through it.
78. The Guardian's report is at D50 dated 23^rd March 2015. There is also a position statement at C20. The Guardian supports N's adoption and the evidence at this hearing did not cause her to change her recommendation.
79. Her principal concerns are as follows:

(i) the loss of N's present foster family and how that can be supported;

(ii) if he lives with the grandparents how N would be protected from:

(a) The specific risk posed by the father's potential for sexualised behaviour and the breaching of sexual boundaries;

(b) the emotional risk which comes from the pressure upon the grandparents both to protect the father and to protect N who is liable to be caught in the middle of that attention.

80. The Guardian was concerned at the early stance of the grandparents which conveyed the impression to the Guardian that they would only wish to care for N for a limited time as a sort of bridging placement until N was older and matters had settled. The Guardian therefore suspects that the grandparents' present position had only come about because of the pressure of court proceedings and not because they were really committed to N.
81. It was accepted by the Guardian that the grandparents had done a remarkably good job in respect of their son. The Guardian saw that as a potential danger for N because of the divided loyalty which the grandparents would have as between the father and N.
82. The Guardian said that she relied upon the reports of Dr Derry in respect of the father's sexual risk to N. The earlier report at D24 warns against the risk of rehabilitating N to the father's sole care. That is not presently an option which is being considered by anybody. On behalf of the father it was further pointed out that Dr Derry had more recently has expressed the opinion that the risk has reduced. She referred to the possible effects of a breakdown in the father's relationship with the mother and how that might affect N.
83. The Guardian had nothing but admiration for what the grandparents had done for both the father and his sister but the relationship was so emeshed that the Guardian felt the grandparents would not be able to properly protect N from the father if that were necessary.
84. The Guardian had met the grandparents once in December 2014. She agreed that in an ideal world she would have seen the grandparents again. She had had no telephone conversations with the grandparents but had had some such discussions with the Local Authority. Her talk to the grandparents she described as a general discussion during which their responses echoed what they had said to the parenting assessor and to the previous Guardian.
85. The Guardian was taken through the matters set out at page D52. At D58/9 his/her B-SA analysis). She had not gone through this with the grandparents but was clear that the proposed SGO is not a safe option for N. In her view nothing else but adoption will do in this case. The reality is the required level of supervision are such that the proposed SGO would not work in the longer term. It would, she thought, be an untenable situation. N needs permanency for the rest of his childhood and protection from what she described as sexual risk and emotional instability.
86. She agreed that the grandparents had received no guidance about the question of contact were a SGO to be made and must therefore have come to their present view on their own. She accepted that the history of the case supported the view that the grandparents would comply with the necessary orders and restrictions. The Guardian feared that after the court and the Local Authority had withdrawn from the case there was a substantial risk that N would be in a vulnerable position.
87. The Guardian agreed that Dr Derry had assessed the father as posing a low risk and that such risk as he did present would be in a parenting role. She agreed that a biological attachment reduces the level of risk. She accepted that on a practical level the father has managed very well but he retains his emotional vulnerabilities. I agree with that assessment. The question is whether the grandparents would be distracted by that and its consequences (as well as the sexual risk) in their duty to care for N as their paramount concern.

Submissions

88. I am grateful to the applicants for their written submissions. On behalf of the grandparents Mr Malik points out there are two applications before the court. The first in time is that of the grandparents dated 27^th May 2014 by which they seek a SGO in respect of N. The second application is that of the Local Authority dated 20^th October 2014 by which they seek a Placement Order. There is no alternative and N's future and choice facing the court is therefore a stark one.
89. On behalf of the grandparents it is submitted that this is a case in which it cannot fairly be said that nothing else but adoption will do.
90. It is submitted that both the guardian and the Local Authority have failed to acknowledge the capacity of the grandparents to deal with the difficulties that flow from the father's history and emotional vulnerability. The matters upon which the Local Authority and the Guardian are particularly concerned are:-

(i) the risk of sexual abuse to N from his father; and

(ii) what is said to be an emeshed domestic situation between the grandparents and the father which would result in a lack of vigilance and consequent risk to N.

91. In his review of the evidence Mr Malik points out that as to Dr Derry he assessed the parents and not the grandparents. He saw the grandmother on one occasion for a short period in April 2013 but has never met or spoken with the grandfather. A significant part of Dr Derry's assessment is upon the basis of the father's parenting N which is not an option being placed before the court. Further, on Mr Malik's analysis of such risk as the father does pose to N, it is pointed out that the risk is accepted as low and appears to have reduced over time. Mr Malik referred to Dr Derry's report at D23 and D24. There appears the following:-

"15.1 Since May 2013, the increased risk of neglect that would contraindicate any rehabilitation of (N) to this couple's collective care or in (the mother's) sole care.

15.2 By dint of the time passed and evidence of greater stability in (the father's) adult attachments, I would estimate that there had been a decrease in the sexual risk presented by (the father). However, given the severity of his previous pattern of sexual deviancy, I would still not be able to exclude the possibility of any inappropriate sexual behaviour in his parenting. I would not recommend that N should be rehabilitated to (the father's) sole care."

92. In relation to the evidence of the Social Worker Tracey Goode she had only seen them with N once throughout her involvement in the case. Tracey Goode had also accepted that the grandparents had invested a great deal of time and effort in the father (and his sister) which had gone far beyond what other parents would normally have done. It is submitted that this should not be taken as a criticism of the grandparents or used in a way that suggests that they would lower their guard in respect of N if he were to be placed with them. I agree.
93. It is submitted that the evidence of Barnaby Quaddy and his analysis at pages C107 – C108 were not based on the up-to-date position but upon the situation that existed about a year before. I think there is force in that submission.
94. As to the Guardian it is submitted both by Mr Malik and by Mr Ward-Prowse that she was placed in a difficult position. She clearly would have liked more time to conduct her assessment, having come into the case at short notice in December 2014. She met the grandparents for what was described as a general discussion at about that time and which lasted for two hours or so. She did not see or speak with the grandparents again and has never seen them with N. Neither had the Guardian been able to talk to the grandparents about the list of "negatives" set out in her analysis at pages D58 – D59. It is submitted that given the stark choice before the court the Guardian should have been able to take more time and trouble with the grandparents. I agree.
95. As to the evidence of the grandmother it is submitted, and I agree, that her love for N was apparent. While she did not accept that the risks which the father might pose to N were as high as stated by Dr Derry, she did accept that there were concerns enough to warrant supervision and she also accepted the worries about the mother. They had worked with the Local Authority throughout the time they had cared for the father and his sister. She stated in evidence that she would welcome advice from the Local Authority about contact.
96. I agree with those submissions. I do, however, feel that the grandmother is potentially more vulnerable to pleas from the father to see more of N than is provided for in any order as to contact.
97. As to the grandfather it is submitted that he clearly has N's best interests at the forefront of his thinking and provided a glowing picture of N. It is pointed out that he had worked successfully with the Local Authority and was clear about the restrictions that would be necessary in respect of the parents and in particular the father. They have supervised the contact over the last two years or so and have behaved properly. There has never been any criticism of the way in which they dealt with that question. He accepted that contact will have to be supervised because there had been a Risk Assessment and no one could guarantee that, in the absence of supervision there would not be some unfortunate incident.
98. As I said earlier in this judgment I was impressed by the grandfather's evidence. I think it is a fair comment to say that at the outset he was wary to embark upon a long term commitment. He did see his position and that of his wife as providing a holding position for the parents. Having seen and heard the grandfather it became clear to me that he now fully accepts the proper concerns put forward by both the Local Authority and the Guardian. He is clear and firm in his view and capacity to keep N safe.
99. There is, of course, a risk that the father's relationship with the mother may break down. There is no doubt that this relationship has been beneficial to both of the parents and the father would be likely to look to his parents for help and support. There is therefore a danger that N might be at greater risk from the father. My view is that even in such a situation the grandparents, and in particular the grandfather, would put N's interests and welfare ahead of that of the father. He would devise a scheme whereby they could support him without prejudice in N.
100. Mr Malik submits that the mother's evidence was clear and compelling. She had accepted that her daughters will now live with the mother's sister subject to SGO's. She has not sought to undermine N's foster placement and has accepted the restrictions upon her contact with her daughters.
101. As to the father it is submitted that he is now a stronger person.
102. On behalf of the father Mr Ward-Prowse makes many of the same points as those made by Mr. Malik. At paragraph 11 of his written submissions it is submitted that the level of risk that the father may pose to N has been identified as low risk although no formal risk assessment had been conducted using, for example, Risk Matrix 2000. It is submitted that the risk posed by the father is at the lower end of the spectrum of sexual risk to N. It is accepted that the mother poses a risk of neglect to N should he return to her care based upon her history of depression, her pattern of relationships and her own parenting. I do not overlook those historical factors and their implications for the future.
103. It is submitted that the parents' evidence showed that they are now in a solid relationship and that each showed insight into the position of both N and his siblings. At paragraph 5 of his earlier skeleton argument dated 6^th July Mr Ward-Prowse considers the negative factors set out in the Guardian's report at D58 – D59. I bear those comments in mind.
104. Finally he submitted that this court has to consider very carefully whether it is established that the welfare of N demands the permanent displacement of his family. It has to consider whether or not it is proportionate to the legitimate objective: securing N's immediate and long-term stability and safety. It is pointed out that in a case such as this the option of adoption cannot be evaluated in the same way as possible family placements with people whose strengths and weaknesses can be examined in the court process. Plainly a prospective adoptive family will go through a lengthy and careful process before they were selected and matched with N. Mr Ward-Prowse submits that nevertheless is something of a step into an unknown future. Adoption placements do break down and are never entirely without risk.
105. Finally submits Mr Ward-Prowse it is not necessary in this case to make a Placement Order. Such a step is disproportionate to any risk of harm which can be guarded against because of the trustworthiness of the grandparents. In the event that the court makes a SGO a Prohibited Steps Order could also be made to prevent the parents from having or seeking any contact with N over and above that ordered under a Child Arrangements Order.
106. On behalf of the mother Miss Gillette supports the application of the grandparents for SGO. It is submitted, and I agree, that the mother has been successful in improving herself. She now has stable accommodation and has a job. Notwithstanding this it is pointed out that she recognises she is not in a position to care either for N or her two daughters.
107. She accepts that restrictions will be placed upon her contact and such contact as she has will have to be supervised.
108. It is submitted that the mother's good conduct in relation to her contact with all three children is a factor considering what is likely to happen in the future if an SGO were to be made. Further both she and the father have been aware of N's foster carer's address as a result of an error within the Local Authority but have not misused this information. She has not intervened or disrupted the father's contact with N. A further matter which the court is asked to bear in mind is that at present N sees his sisters once a fortnight and the Social Worker has noticed a good relationship between the three of these children. If the placement order were to be made it is likely that link would be broken.
109. Finally, submits Miss Gillette, these grandparents have shown both by their actions and behaviour in relation to the father in the past and by what they have said during the course of evidence at this hearing that the they can be trusted to protect N.
110. On behalf of the Local Authority Miss Hudson accepts that the grandparents are caring people with the best of intentions but submits that they will not be able to meet N's needs throughout his minority and consequently that a placement order leading to adoption is necessary and that nothing else will do.
111. In summary Miss Hudson contends that the grandparents lack insight and deny the reality of the parents' difficulties; they will not be able to put N's interests above those of the father's; they blame the Local Authority when matters have not gone as planned for the parents; their commitment towards N has varied.
112. In paragraph 5 of her submissions Miss Hudson sets out what she says are telling examples of the grandparents' criticism of the Local Authority.
113. It is also submitted that the grandparents, in spite of the addendum reports of Dr Derry are not able to accept his conclusions.
114. Further it is pointed out that there appears to be a divergence of view between those of the grandfather who in July 2014 was suggesting their long term commitment to N whereas the parents themselves appeared to be talking in terms of a gradual transfer of N back to the care of his parents. It is also submitted that the evidence of the Social Worker Tracey Goode was cited at paragraph 9 of the submissions are matters of importance and undermine the grandparent's case.
115. At paragraph 12 of her submissions Miss Hudson points to what she submits is the lack of insight in the grandparents into potential risk of N's parents as highlighted in Dr Derry's reports. It is submitted that the grandparents' continuing challenge to Dr Derry's reports amount to evidence of their prioritisation of the father. It is submitted that the risks to N are too high and a placement order should be made.
116. On behalf of the Guardian Miss O'Hara adopts the points made on behalf of the Local Authority. It is accepted that the grandparents have done a huge amount in support of both the father and his sister. They have achieved the best possible results for them having regard to their own unfortunate early lives. It is accepted that in material and practical terms N would be well provided for.
117. The Guardian, however, says that the critical point in this case is the grandparent's relationship with an attitude towards the father who has particular vulnerabilities and limitations.
118. It is pointed out that although the father has gained some independence from his own parents and has the support of the mother, she has her own difficulties.
119. It is submitted that the grandparents do not fundamentally accept the need for supervision and have a uniquely enmeshed relationship with the father. I do not agree with that. I think that the grandparents and in particular the grandfather does now understand the situation, is a strong personality and will keep rigorously to the requirements so that N's interests are put first. It is the case that Dr Derry continues to voice serious doubts about the grandparent's capacity to respond protectively in respect of the father. It is also right to observe that the grandparents did not require the attendance of Dr Derry so that he could be cross-examined during the course of this hearing.
120. It is pointed out that in their initial approach to the question of making an application for an SGO the stance of the grandparents appeared to be one of shouldering a duty until the parents could resume care. As I have already indicated I think there has been a fundamental change in their approach to this. The grandparents were not properly interviewed by the Guardian for reasons already set out in this judgment. They were not interviewed by Dr Derry before he wrote his various reports.
121. The concern of the Guardian is that although in the short term the grandparents will perform the functions of Special Guardians as they have said, the concern lies in the longer term. As N grows older (as will the grandparents) if there is a breakdown in the relationship between the parents, the father may once again become emotionally dependent upon the grandparents.
122. The Guardian concludes that the option of placing N with his grandparents under a SGO produces a significant risk of continuing emotional harm and exposure to sexual risk.
123. The Local Authority and the Guardian point to their contention that the grandparents do not accept the level of risk from the father to N. It is said that the parents may undermine the placement with the grandparents. The grandparents will be in their 70's and 80's when N is a teenager and the grandfather has a heart condition. It is said there is a lack of support network for the grandparents. It may be that N will require therapeutic support in order better to understand his situation.
124. There is a medical report in respect of the grandfather [D64] that confirms there are no health reasons why he could not care for N. The grandmother in her statement made reference to the local support of friends. If N requires some form of therapeutic support and as Special Guardians their experience of dealing with the father and his sister, the grandparents will be to arrange this.

Conclusion

125. Option 1 – living with the grandparents. The positive factors are as follows:

(i) this will maintain N's identity, his place in the family, the relationships with his grandparents, parents and siblings;

(ii) the grandparents love and care about N and have a relationship with him;

(iii) the grandparents have supervised N's contact with his father;

(iv) if an SGO is made it can be buttressed by injunctions which will control the parents' contact;

126. The disadvantages are:

(i) The risk of sexual harm posed by the father;

(ii) The risk that the grandparents may not appreciate and guard against the risk;

(iii) The risk of emotional harm from unstructured contact with the parents;

(iv) The age of the grandparents;

.

Option 2 - Adoption

127. The positive factors in such a course are:

(i) It is likely that N's emotional and physical needs would be met in such an adoptive placement;

(ii) N would be placed with carers who would have been assessed as having the capacity to look after him and matched to his particular needs;

(iii) there is no likelihood that he would suffer significant harm in the care of adopters and would be safe and secure.

(iv) In such a placement N would have a good chance of developing into a balanced and emotionally stable person.

128. The disadvantage of a placement order and subsequent adoption are as follows.

(i) N is now 3 years and 10 months. He has established relationships with both his parents and his grandparents;

(ii) he would therefore lose the relationship with both those and his extended family members;

(iii) he would lose a sense of identity as being a member of the birth family;

(iv) although most adoptions are successful a not insignificant number do break down and this risk increases as the age of the child at the point of adoption increases.

129. The father does pose a sexual risk to N. The question therefore is whether that risk can be guarded against not only in the immediate term but throughout N's minority. The grandparents have an established record of looking after their two adopted children (the father and his sister) and cooperating with the Local Authority. I accept that in the earlier stages of these proceedings the grandparents were indeed looking upon their proposed care of N as an interim arrangement until the parents were "ready". Having seen and heard them, I think they do now accept the reality of the situation. This litigation has been a difficult learning process for them but I am of the view that they do now fully understand the nature of the commitment they would enter into if the SGO were to be made.
130. The grandparents are fully capable of caring for N. I am of the view that even if the parents' relationship were to break down, the grandparents would not succumb to the father's needs in that event in a way that would be damaging to N.
131. Consequently I am not satisfied that the Placement Order is justified.
132. In coming to that conclusion I am taking a different view to that put forward by the Local Authority, the author of the Annex A Report and the Guardian. In summary my reasons for taking a different view are:-

(i) The parents do not seek to care for N;

(ii) the grandparents accept that fact;

(iii) the risk posed by the father is assessed at "low";

(iv) the grandparents can protect N from that risk;

(v) N has an established and happy relationship with his grandparents;

(vi) the grandparents have long experience of dealing with the Local Authority in respect of the difficulties posed by the father and his sister;

(vii) I do not regard those as disadvantages (as the Local Authority and Guardian do) but as helpful experience;

(viii) I do not think that either the Guardian or the Local Authority had given themselves sufficient opportunity to assess the change in the attitude and approach of the grandparents.

133. For all these reasons therefore I will make a SGO in respect of N in favour of the grandparents. I shall make an injunction as proposed by Mr Ward-Prowse in respect of the parents. The Care Order is discharged and will be substituted with a Supervision Order.

Dated this 31st day of July 2015

…………………………………………..

HIS HONOUR JUDGE BOND