England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT EAST LONDON

		Westferry Circus, London E14 4HD
		9th October 2015

HER HONOUR JUDGE CAROL ATKINSON:

1. The London Borough of Croydon (Croydon) applies for Interim Care Orders in respect of J (9yrs), D (8yrs), C (6yrs), Jo (5yrs), F (2yrs) and B (11 months). The children's mother is LN. She is here and represented. Their father is RM. He is not here nor is he represented. The children are fortunate to be represented by a solicitor through their Guardian.
2. There is a considerable history to this case. The parents have had a long involvement with social services including when they were minors themselves. Suffice to say, for the purposes of this short Judgment, that so far as their own children are concerned they have attracted the interest of East Sussex, Hertfordshire, Islington, Ealing, Croydon and Barnet. Concerns have been expressed over the years around the following issues:

i) The mother's diagnosis with depression with suicidal ideation;

ii) The father's diagnosis of a personality disorder and tendency to aggressive behaviour. He is currently serving a SSO (8 months imprisonment suspended for 12 months) for public order offences.

iii) a history of substance abuse (alcohol, cannabis, cocaine and heroin);

iv) a long history of significant incidents of DV and a pattern of mother leaving and then reconciling with father. The children have been regularly caught up in the conflict between the parents.

v) The children's school attendance has been sporadic.

vi) The parents have not engaged with Children's Services and there have been multiple moves each time Children's Services has become involved.

3. Whilst Croydon has initiated these proceedings, it has done so because of the transient nature of the family and in consultation with Ealing. Frankly, says Croydon, someone must initiate proceedings in relation to this family. However, the issue of which authority should be designated is still live.
4. It is Croydon's case that these children must be separated from their mother and father and placed in safety pending the assessments necessary to consider whether they are able to care for them in the longer term.
5. The mother opposes the making of an interim care order and separation. It is fair to observe that the mother has had little notice of these proceedings. She was not served until after 4pm yesterday and it is sheer luck that she attends with Counsel. Having said that there is nothing new to her in the allegations made.
6. Because of the short notice the father is not here. He has remained at the mother's property to care for the children. That is the temporary accommodation provided to the mother to assist her in fleeing from him. They have indeed reconciled and present as a couple.
7. Mother insists that I should not proceed to consider the application made by Croydon. She argues strongly that she has had insufficient time to prepare, that she challenges much of the recent history that has been presented and that the father does not present as a threat to her or the children. Reluctantly, she offers to exclude the father from the house pending a full determination of this issue on a date to be listed when she can properly respond and her Article 6 rights can be better exercised. She reminds me that the father has had no opportunity to put his case before the court.
8. Croydon is supported in the application by Ealing (in attendance anticipating an argument regarding designated authority) and also by the children's Guardian.
9. Let me put this application into its factual context.

Background facts

10. This family, as I have said have had long involvement with various social services departments regarding the care of their children but I will begin in 2009 when they had three children. Proceedings were issued by Hertfordshire in 2009. This followed a period of local authority involvement with the children as children in need. The proceedings concluded after the birth of Jo, their fourth child, in 2010 when, after a period of residential assessment, the parents were considered to be capable of providing good enough care. Those concerns were around drug use, mental health and domestic abuse. The family moved to Spain for a time returning around the end of 2013 after the birth of F, the fifth child. By July 2014, the family were living in Barnet and the children were again subject to child in need plans.
11. They moved to Croydon in October 2014 after which their sixth child, B, was born. The mother is recorded as making complaints to her IDVA worker that the father was leaving to go on drug and alcohol binges and that he would sell items from the home in order to fund his habit. Concerns were expressed that she was socially isolated in Croydon, a borough to which she had little connection. The family bounced between Hertfordshire and Croydon during May 2015 and June 2015.
12. In June 2015, the children were made the subjects of Child Protection Plans in Croydon due to reports of DV. To give a flavour of the level of violence alleged, on 4^th June 2015, the minutes of the MARAC meeting record that an incident was alleged to have taken place in Croydon, witnessed by a member of the public who called the police. The referral describes the father strangling the mother, holding her off the ground by her neck. She was, it is alleged, then pushed to the ground, whereupon the father was seen to pick up the double buggy and slam it into her, he then dragged her across the road by the hair, took her keys and told her to sleep "with one eye open". The father, who was apparently in company with his sister, alleges that during this incident he was simply trying to get the children off the mother and that it was she who assaulted his sister, the paternal aunt. It would appear that this played out in front of the children. It was this incident that led Croydon to escalate the matter to a child protection conference.
13. Meanwhile the mother issued an application for a non molestation order and prohibited steps order against the father who had on a number of occasions sought to remove the children from her care and indeed at the time that the application was made had retained the case of J and D. A hearing was held before HHJ Wright in Watford County Court on 13^th July 2015. The Judge ordered a s.37 report considering that the children may have been at risk of significant harm. On 14^th July 2015 at Watford County Court the father was arrested following him making threats to the judge and security. He was charged with public order offences and later sentenced as set out above. The children were returned to the care of their mother following which they made disturbing allegations including that their father had held their heads under water and had made them knock on doors and run away and drink vodka.
14. The chronology suggests that the MARAC meeting held in the middle of August 2015 assessed the risk of domestic violence as high.
15. Croydon struggled to undertake direct work with the family and on 27.08.15, Croydon issued a missing person alert for all six children as their whereabouts were unknown; it is alleged that the mother refused to provide details to the social worker.
16. It turns out that the family moved to Ealing in early September 2015. The older children are now enrolled in school in Ealing. It transpires that the accommodation in which they were placed by Ealing was accommodation found for the mother and children by Barnet on the basis that the mother was fleeing domestic violence from the children's father.
17. On 16.09.15, the private law proceedings in Watford County Court were dismissed by HHJ Wright and a direction for Hertfordshire County Council to undertake a section 37 report was discharged. This hearing was attended by social work representatives from Croydon, Ealing and Hertfordshire Children's Services, Solicitor for the mother and Counsel for Croydon. Neither parent attended. Hertfordshire informed the court that it could not undertake the section 37 report because the family had moved to Croydon. Croydon informed the court that it was considering issuing care proceedings.
18. It is believed that the parents have resumed their relationship. Further attempts to engage the mother have failed. After some delay arising whilst the various agencies decided which of them should take action, proceedings were issued by Croydon.

The Law

19. Croydon brings this application and it is for Croydon to satisfy me on the balance of probabilities that the matters set out below are made out. At this stage in the proceedings I should take care not to stray into determining issues which are substantive issues in the case.
20. Pursuant to s. 38(1) Children Act 1989 I am empowered where "in any proceedings on an application for a care order or supervision order, the proceedings are adjourned…" to "make an interim care order….".
21. I can only make an interim care order if firstly there are reasonable grounds to believe that the child in question has suffered significant harm or is at risk of suffering significant harm and that harm is attributable to the care given to him by his parents. This test is known as the interim threshold.
22. If satisfied that the interim threshold is crossed I must next move on to consider what, if any, order I should make. At this second stage the interests of the children are paramount in my decision making. I am guided by the welfare checklist in my consideration of what is in their best interests and I can confirm that I have had regard to it in my decision making.
23. I am well aware of the many authorities on the proper approach to applications for interim care orders such as Re H(A child)(Interim Care Order)[2003] 1FCR 350, Re K and H [2007] 1 FLR 2043 and Re L [2013] EWCA Civ 489 which emphasise the draconian nature of an interim care order and the fact that it is an emergency remedy which by its very nature should only be made where the "child's safety requires interim protection" [Re K and H supra].
24. I am equally mindful of the right that each of these children and their parents has to respect for their family life and bear in mind always that any order that I make which would have the effect of separating any of the children from his/her parents is an interference with those rights. Any order that I make must be necessary in order to keep the child/ren safe and proportionate to the identified risks. Only then will such interference be permissible.
25. Finally, given the short notice given to the parents I also have in mind their respective Article 6 rights to a fair trial. I must likewise balance those rights and any interference with them brought about by such short notice against the need to protect the children. Once again an interference with those rights must in the circumstances of the case be necessary to protect these children and proportionate to the risks.

Interim threshold

26. The history of social services involvement with this family is troubling indeed and speaks for itself. The most troubling part of that history for the purposes of the interim is the risks that these children continue to be exposed to the domestic abuse between their parents. Croydon's case is that this domestic abuse is ongoing and serious. This ongoing violence and volatility and the unstable and chaotic lifestyle that results provides ample evidence to cross the interim threshold.
27. The mother argues that the interim threshold is not crossed. Whilst she acknowledges that there is indeed a considerable body of paper before me setting out recorded complaints that she has made to various agencies regarding domestic abuse that she has suffered at the hands of the father she argues passionately that I have not given her the chance to comment on that evidence. This is important she says because much of the recent history is untrue.
28. She agrees that there was domestic abuse between herself and the father and that it has played out in front of the children but insists that this ended in 2009. She accepts that she received housing from Barnet allocated to her on the basis that she was fleeing domestic violence and that she sought injunctive relief against him as recently as August last but insists through her Counsel that she was not truthful in that claim; she made these things up in order to get her own back because he had gone off with someone else. Mother's position is that the father is not presenting as a threat to her or the children. Hence, she argues, the interim threshold is not crossed.
29. If I am doubtful about that she asks that I give her the opportunity to demonstrate that this is the case and sufficient time to prepare for a fully contested hearing. The father is unable to comment on these matters as he has not attended today.
30. At this interim stage I must take care not to make findings on the substantive issues in the case. If there is an issue as to ongoing violence then these issues will be substantive issues in the case.
31. I need to be satisfied that there are "reasonable grounds for believing" that the circumstances of the child are as set out in s.31(2) Children Act 1989. The complaints made regarding domestic violence come largely but not entirely from the mother. The incident described by me above which took place in June 2015 was witnessed by a member of the public who was sufficiently concerned to call the police. There is sufficient concern between various agencies involved regarding the truth of these allegations that MARAC is involved and has assessed the risk of DV as high. Such an assessment requires some evidential basis. Mother's current position with regard to the truth of her allegations has to be seen against a background of her persistently disclosing that she is the victim of abuse and then reconciling with the father.
32. It seems to me that there is ample evidence here to persuade me that there are reasonable grounds to believe that these children are at risk of suffering significant harm, attributable to the care given to them by their parents. The harm is the emotional and possibly physical harm that flows from exposure to domestic violence and the chaos in which they live with parents who are unable to recognise the impact of their behaviour on their children.

Welfare decision

33. In spite of the ease with which the interim threshold is crossed I must nevertheless go on to consider whether it is necessary and proportionate to the identified risks for me to make an order which would cause these children to be separated from their parents.
34. The children's welfare is now paramount in my decision making. Applying the welfare checklist to my assessment, I have here a large sibling group who have never been parted. I have no doubt that were they to be asked they would express a wish to remain with their parents – one or other or possibly both. Removing them from their mother will, I am sure, be distressing for them and cause them some considerable disruption and upset. Not least because Croydon intend to place them in pairs in three separate foster placements for the time being. I hope that such separation would be temporary but I have to accept that such a large sibling group is unlikely to be able to be placed together. Thus, the disruption to them will be considerable.
35. However, I am equally satisfied that the evidence suggests that they will be at risk of significant harm if in the care of their parents. The mother's current position that the father poses no risk to her or the children is clear. However, it is not simply that he poses no risk now but that he has not done so since 2009. The evidence suggests otherwise and although I make no findings in that regard it is difficult to see how she can suggest that all reports since then have been fabricated by her or wrong. The most powerful of those accounts is the incident in June 2015 witnessed by a member of the public.
36. Recognising that I may not accept her position on this she puts forward a way of managing the situation which would enable the children to remain with her. She suggests that I could exclude the father from the home and leave the children with her. She would not permit him to enter the home pending the listing of the fully contested hearing on the interim care order.
37. I have, of course, given this proposal some thought. However, I am not at all confident that this mother would be able to keep the father against whom such serious allegations are made by her and the children, at bay – even for a couple of weeks. Her opening position in this interim hearing was that the father was there at her home because she needed him to care for the children. The suggestion of excluding him pending a full contest was actually mine and was initially greeted by the mother with the assertion that he should not be excluded pending the next hearing because, again, she needed him to help her care for the children. So it has been reluctantly that she has agreed to comply with his exclusion.
38. Excluding the father from the home only works if the mother informs the authorities if he breaches the exclusion order. This lady asserts and believes that the father poses no risk. I do not think that she is capable of policing such an arrangement and therefore I do not think that she is capable of guaranteeing her children's safety.
39. Accordingly, I have no alternative but to make the order sought. Whilst such an order is an obvious interference with the Article 8 rights of children and parents, it is both necessary to keep these children safe and proportionate to the identified risks.

Article 6

40. I have of course borne in mind that the father is not here to argue his case. The mother has also had limited time to prepare. However, the risks to these children are such that their safety requires that I make the order for their interim protection now. I will list the case for an early return date at which hearing the parents will have a full opportunity to challenge the evidence of the local authority on both threshold and welfare.