England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT SWINDON

		11th November 2015

INTRODUCTION

1. References to page numbers within round brackets in this written judgment cross refer to the final hearing bundle.
2. By these proceedings issued on 2nd March 2015 Swindon Borough Council, "SBC", sought a care order in respect of a little girl, "S", born on 7^th November 2011 and now aged 4, the child of the Mother, "M" and an unknown father^[1].
3. S is the Second Respondent and her guardian is Ms Khadija McCombie.
4. M's mother is MGM, she was joined as a party on 6^th August 2015.
5. S currently lives in MGM's home with M and MGM further to M's agreement under section 20 Children Act 1989 and she has been the subject of an interim supervision order since 6^th August 2015.
6. M has a half sister who is thus aunt to S; she is A. A is not a party but has attended most of the hearings.
7. The so called "threshold criteria" for the purpose of establishing jurisdiction to make care or supervision orders under section 31(2) of the Children Act 1989 are not in issue; see the agreed threshold document which I have put in the bundle at the end of section A. It is agreed that:

(i) M suffers from a learning disability, is partially sighted and experiences anxiety which means that she struggles to take on and retain the information which assists her to respond to S's basic needs;

(ii) MGM undertakes a lot of the basic parenting of S;

(iii) M's diet and sleep pattern has at times meant that she is not able to respond to S's needs;

(iv) Extensive support has been put in place for M but that has not been a significant or consistent improvement in her care of S

causing physical harm in that:

(a) S's development has been delayed as a result of the parenting that she has received from M;

(b) M has suffered from periods of mental ill health, including episodes of psychosis leaving S's needs unmet at times;

(c) M's inability to take on and retain advice has led to S being at risk. One example is placing of papers on the surface of the oven after advice against this

and emotional harm in that M is not attuned to S's needs and as a result S seeks comfort from MGM and professionals.

8. There are concessions with respect to M's ability to work with professionals and I quote:

(a) M has attended courses in an attempt to improve her parenting but does not accept the assessments by professionals that she has a learning difficulty;

(b) M has disengaged with mental health services;

(c) M has frequently asked for changes in social workers.

9. The court remains concerned with welfare evaluation and the orders (if any) it should make after having regard to the welfare checklist found in section 1(3) of the Act, the legitimacy of the aim of any orders and whether such orders are proportionate given that any court order amounts to an interference with the right to respect for private and family life enshrined in Article 8 of the Convention Rights.

PARTIES' FINAL POSITIONS UPON PLACEMENT & ORDERS

10. The final positions of the parties at the conclusion of evidence and submissions are as follows:

(1) SBC seeks to place S with A under a Special Guardianship order and to have the benefit of a Supervision Order for 12 months (SBC's final care plan was received by e-mail on 3^rd November 2015 including some of the outstanding material required for a special guardianship order to be made). SBC's secondary position (formerly its primary position) was to place S with MGM but to the exclusion of M.

(2) M's preferred option is to care for S alone in her own home. Her second choice (not now available because of MGM's position) is to care for S with MGM in MGM's home. Her third choice is for MGM to care for S.

(3) MGM's preferred option is to care for S alone. She does not support M caring for S alone.

(4) G supports SBC.

CASE MANAGEMENT, THE HEARING & REPRESENTATION

11. From the very beginning of this case it was apparent that the placement outcomes to be considered for S were:

(1) M alone

(2) MGM alone

(3) M and MGM together

(4) A and her husband

Thus one would expect SBC to produce within its social work evidence a thorough and robust assessment of each of those options further to the judgment of the Supreme Court in Re B [2013] UKSC 33 and of the President in Re B-S [2013] EWCA Civ 1146.

12. Appropriate directions were given on 15^th April 2015 (B35) leading to the Issues Resolution Hearing on 28^th July 2015 and listing the matter for final hearing on 4^th and 5^th August 2015.
13. The IRH was ineffective because SBC failed to comply with the direction to file its final evidence and care plan as recorded in the order of 28^th July 2015 (B49).
14. The hearing was listed to take place on 4^th and 6^th August 2015. It was SBC's then care plan that MGM should continue caring for S to the exclusion from her home of M. SBC's second choice was placement of S with A. SBC had not prepared an analysis for any other outcome or permutation. MGM gave evidence on 4^th August 2015 and she said that she wished to care for S with M (see the transcript B69). SBC changed its care plan on 4^th August 2015 and thus caused an adjournment for further evidence to be obtained (see the judgment at B99 when I referred to the case as a "train wreck"). The hearing resumed on 26^th and 27^th October 2015. Thus it became impossible to conclude the proceedings within the statutory requirement of 26 weeks found within section 32(1) of the Children Act 1989.
15. Given SBC's management of the case as set out above it was quite extraordinary that SBC did not comply with the directions given on 6^th August 2015 until 9:30 am on 26^th October 2015 when it belatedly presented the parties and the court with its final evidence and purported final care plan. This also amounted to flagrant disregard of M's learning disability: M and her advisers were forced to read absorb and consider this late evidence that morning. In those circumstances no criticism is to be made of Ms McCombie for filing nothing more than a brief position statement. After the hearing but before judgment SBC was still sending in required evidence and information with respect to considering a special guardianship order in favour of A.
16. The parties were represented by advocates as follows:

SBC E. Southern (counsel)

M A. Burge (counsel)

S J. Evans (counsel)

MGM N. Williamson (counsel) from 6^th August 2015

and I am grateful to all for their assistance.

17. The hearing bundle comprises some 500+ pages in breach of paragraph 5.1 of Practice Direction 27A; no court authority was given to exceed 350 pages but I do note that an attempt was made to remove documents that were not needed from the hearing bundle. Some documents, notably Ms Tully's statement, were double sided in breach of paragraph 5.2 of the same practice direction. SBC should note that the practice direction is not optional.

EVIDENCE

18. The documentary evidence is found within the hearing bundle to which I have already referred.
19. For SBC I heard from:

(1) Kath Jones, author of the parenting assessment at E43 on 4^th August 2015;

(2) Ms Davies, Team manager who has been supervising since 2^nd September 2015. There was no statement from Ms Davies who was, in a sense, a late substitute for Loice Maisokwadzo who was the primary social worker but who has left SBC;

(3) Jacqueline Tully, current social worker.

20. I heard from M
21. I heard from MGM twice (4^th August and 26^th October).
22. I heard from A on 4^th August 2015.
23. For S I heard from:

(1) Judith Dallimore the independent social; worker and

(2) The Guardian Ms McCombie:

24. No challenge was made to the credibility of any witness who gave oral evidence and I am confident all witnesses were honest with the court and sought to assist to the best of their ability. Generally, this is not a case in which there are any major disputes of fact or event.

BACKGROUND & PRECIPITATING EVENTS

25. SBC's chronology begins on 12^th September 2011 following a referral from the psychologist of the learning disabilities team stating that M was pregnant and that there were concerns from wider family members.
26. S was born on 7^th November 2011 and was discharged to MGM's home on 9^th November. M moved back to her own home with S in April 2012 but often saw MGM who provided M with support.
27. In June 2013 M suffered a psychosis and was referred to mental health services on 10^th June 2013. MGM assumed the care of S. M attempted to resume independent living in her own home but was back with MGM by October 2013. In January 2014 M became anxious as a result of SBC's concerns with respect to S and she took an overdose of Lorazepam. S has remained with M in MGM's home to date.
28. M has visual impairment and would accept that she has a degree of learning disability although the extent of that disability is disputed by M.
29. Since S was born SBC have intervened and much of S's care has been provided by MGM in MGM's home although the extent of this care is disputed by M.
30. SBC are generally concerned that M does not recognise her disabilities and the resulting effect on her abilities to parent. Whilst SBC acknowledge that M has cooperated with all assessments, it feels that M has not agreed with any of the conclusions or otherwise shown any real improvement in her ability to parent.

NEEDS OF THE CHILD

31. Plainly S requires good enough parenting. What is "good enough" turns on the needs of each child.
32. There is evidence to show that S has thrived whilst being cared for by M and MGM but, in fact, S is at nursery for 3 very full days per week (until 6pm). Prior to attendance at nursery S was developmentally delayed (by 6 to 9 months in all areas as of March 2014 according to the SOGS assessment (C17)) but her speech and social interaction have greatly improved and the improvement is attributed to the support S receives from the nursery. S does not appear to have any special needs.

ASSESSMENT OF M'S ABILITY TO CARE FOR S

33. M is now 32 years old. She has problems with her eyes/ eyesight but she seemed to me in court to manage those problems very well and I do not think they have any significant impact upon her ability to parent S.
34. To date M has a home at X (which would suffice for the purpose of raising a child) but she continues to live with MGM. M is up to date with her rent and bills and I have the impression that she has been and continues to be a responsible tenant.
35. There is nothing in the evidence to suggest that M is anything other than a decent law abiding citizen who genuinely wishes to care for S whom she plainly loves. M showed me a recent photo and video of S clambering over her in a playful way. M has no convictions, she does not abuse any substances and is anxious to obtain regular employment.
36. M has a learning disability and Autistic Spectrum Disorder as diagnosed and described in greater detail in the report of Dr Weston, consultant clinical psychologist, dated 8^th August 2011 (E1).
37. A full report dated 14^th July 2014 was prepared upon M's cognitive functioning and capacity by Dr Indoe, Consultant Clinical Forensic Psychologist, for the purpose of these proceedings and is found at (E11). He agrees that M has learning disabilities with significant mental impairment in her verbal, performance and overall intelligence. Dr Indoe concluded that M had capacity to litigate but lacked a practical capacity (I suspect ability rather than capacity within the meaning of the Mental Capacity Act 2005) to act upon advice guidance and instructions given by professionals with respect to parenting tasks; see paragraph 77 of his report.
38. A full report dated 1^st April 2015 was prepared upon M's cognitive functioning and capacity by Dr Tizzard, Chartered Psychologist, for the purpose of these proceedings and is found at (E88). It seems to me that there is no material difference between Dr Indoe's conclusions and Dr Tizzard's conclusions.
39. A full report dated18th July 2014 was prepared upon M's mental health by Dr Sivasubramanyam, Consultant Psychiatrist, for the purpose of these proceedings and is found at (E36). He was M's treating clinician and first saw her on 11^th July 2013. He refers to M's self diagnosis of ADHD which no clinician has supported. He speaks of a vicious circle. M has limited abilities to cope with day to day life. At times of stress she becomes anxious and consumes carbonated caffeinated soft drinks which affect her sleep which contributes to her anxiety making her even less able to cope with day to day life. He tells us that:

"In the context of extreme anxiety and limited coping skills, psychotic symptoms emerge"

(E40) and there is no prognosis for change for the better and we are warned that the vicious circle could start over.

40. M's state of mental health as at July 2015 is described in her GP's letter (C59); currently she is well but she is living with MGM.
41. A full parenting assessment dated 5^th September 2014 has been carried out by Ms Katherine Jones for the purpose of these proceedings and is found at (E42).
42. SBC agree that M cooperates with professionals (see the first statement of Ms Maisokwadzo paragraph 1.7) and M has supported S's intensive and regular attendance at nursery. M has attended various courses and has strived to improve herself; she has acquired a number of certificates (C43ff). She told me of her efforts at securing employment and at becoming a better cook. On the Sunday before the resumed final hearing M had managed to assemble a roast dinner for the family which is something the media tell us many people struggle with nowadays.
43. M has been supported by Children's Services for all of S's life and has had one to one parenting support by family support workers from Y Children's Centre on a weekly basis for 2 years. M has sought to attend all proffered courses but in oral evidence Ms Jones said:

"M is often very good at going to courses but has difficulty in transferring knowledge from her learning environment into day to day living"

44. Ms Jones advised that M could care for S by herself for up to half a day if the care was activity themed but not for longer. M still lacks 35% of the necessary parenting skills and Ms Jones concluded that:

"[M] could not provide safe, consistent and attuned care to S at this time or in a timescale appropriate for [S]'s needs. There has already been considerable input and this has not overcome the issues about [m]'s parenting which have had a negative impact on S's development."

45. Ms Tully's assessment (C72) is that:

"It is clear that the significant amount of intervention to date and the specific support provided for [M] and her needs has achieved little measurable change and inability to progress further or sustain the changes has been observed. It is therefore of concern that M appears unable to "keep up" with S's development and is not able to provide her with the necessary age appropriate level of stimulation and interaction to facilitate and support S's social, emotional and cognitive development."

46. M believes that she can care for S alone although she does acknowledge she would need support from MGM (see M's August statement (C40).
47. An example of lack of M's insight is M, in oral evidence, told me the only reason why others disagree that she and MGM can care jointly for S is that MGM does not have enough bedrooms in her home (there are two). She was asked whether she could think of any other concern; she was not able to identify any. No one has put forward number of bedrooms as a reason and M has been unable to take on board MGM's current view (let alone anyone else's) that she cannot co-parent with M in any event. In her August statement M said (C39):

"I do not agree that an order to my mother is necessary but I may consider it if I am able to stay living with my mother"

at which time it was MGM's position that M had to leave (until MGM gave oral evidence).

48. M maintained that position at the resumed final hearing when MGM made plain her revised position that M would have to leave (C65); this time she maintained that position in oral evidence.
49. M says she will leave if ordered to do so by the court but she is plainly unaware of why it is best for S that she leaves.
50. M has not tried any independent living since her mental health improved. Whilst she wavered in evidence I think M accepted that her mental health failed when she was trying to live by herself but she does not perceive any vulnerability on her part and stressed to me in oral evidence that she would not find it difficult to live by herself.
51. MGM is in a good position to tell the court whether M can care alone for S; she accepts that M is unable to care for herself in the community let alone care for S (as said to Ms Maisokwadzo (C32). In oral evidence MGM seemed rather unsure whether M could live independently. MGM accepts telling ms Dallimore that "all hell would break loose" on the part of M if S were removed from M's care which, I think, is indicative of how notwithstanding her best intentions M finds herself overtaken by her own needs and feelings.
52. In evidence I found M to be honest and frank. She has not sought to tailor her evidence to her advantage and I believe her when she says she intends to comply with any orders this court makes. She has always said this; see for example the statement of Ms Maisokwadzo (C32).
53. G agreed with all assessments of M and former her own conclusion that M could not provide S with good enough parenting.
54. Therefore this court is concerned with a genuine mother who loves her daughter and desperately wants to care for her. Tragically there is overwhelming evidence from a number of persons with appropriate expertise which forces the court to conclude that M, through no fault of her own, cannot give S good enough parenting. Indeed, the court is concerned that M is unable to consistently care for herself to a reasonable standard. M is unable to recognise this and that lack of recognition is a symptom is itself a symptom of M's psychological makeup and disabilities. M does not have the ability to acquire the requisite skills within a time frame appropriate for S and I fear that M will never acquire that ability.

ASSESSMENT OF MGM'S ABILITY TO CARE FOR S

55. All concerned appear to agree that but for her relationship with M and M's dependence upon MGM, MGM would be able to provide good enough parenting to S.
56. I have no doubt that MGM deserves recognition and credit for taking a 32 year old dependent adult child and her grandchild into her home to care for the two of them during these proceedings and that she has done the best she can.

RELATIONSHIP BETWEEN M AND MGM

57. Given that M and S have been living with MGM to date, the first question is why can't that state of affairs continue? The 'easy' answer to that question is that MGM is no longer offering to share her home with MGM. Nonetheless, given how MGM has wavered, it remains important to consider why co-parenting in MGM's home would not be a satisfactory solution in any event.
58. The question that then follows is why cannot MGM continue to look after S if M is excluded from MGM's home? M and MGM say they would comply with any orders that kept M away. Can they actually implement such a care plan?
59. The above questions require the court to look more closely at the relationship between M and MGM and its effect upon S.
60. MGM is in an extraordinarily difficult position. She agrees that M is vulnerable and dependent on her. Likewise S is a vulnerable and dependent grandchild. MGM's loyalties are divided between M and S if she is forced to choose between the two. I saw for myself the conflict and pain MGM found herself in when forced to state her position. She feels that the time has come for her adult child to be out of her house (on a number of occasions MGM emphasised her daughter's age). She recognises however her daughter's needs and dependence and wants to help her. She also wants to care for S. MGM has often prevaricated:

(1) In April 2015 MGM wanted to co-parent with M in MGM's home;

(2) In her written evidence before the final hearing MGM wanted to parent alone;

(3) In her oral evidence on the first day of the hearing MGM went back to her initial position;

(4) In the resumed final hearing MGM again said she wanted to parent alone;

61. There is copious evidence that the relationship between M and MGM can be very difficult and conflict can arise to which S is exposed. In Ms Maisokwadzo's statement of 29^th July 2015 it is said (C32):

"However [SBC] is concerned about how [MGM] appears to be controlled and manipulated by M's specifically regarding the care plan of S being cared for by [MGM] and M moving back to her property. When visited and talked to on her own on three separate occasions [MGM] has made it clear to me that she would not cope with M and S in the long term."

"However it is concerning that [MGM] says completely the opposite when M is present i.e. that she will not ask M to leave as the three of them need to be together. This concern has also been shared by D Care manager Y Children's Centre and R Family Support Worker. [A] has also echoed these views stating that her mother will not say or admit anything regarding her controlled and difficult relationship with [M] in her presence. A says she feels this control will remain as long as [M] feels this is the way she can get S to remain in her care"

MGM herself said in her August statement (C61):

"[M] has put pressure on me to continue to support her living with me …"

and she went on to say:

"… I think it must be made clear to [M] who is making the decisions as otherwise she will think she can just tell me what to do"

before describing her strategies for dealing with M "when she kicks off"

62. The relationship between M and MGM has been considered by Ms Dallimore in the Special Guardian Assessment (E257) dated 30^th September 2015. MGM's conflict of interest can be seen in paragraphs 4.8 to 4.11 (E260) and in my judgment the key conclusions are found in the following paragraphs of the report:

8.1.3 "Due to the inextricably linked dependency of her mother and grandmother and their considerable needs, it is likely that they will be unable to prevent [S] finding herself in a position of having to be responsible for them so that she might take on a caring role. Thus as a child she would be parenting the adults in her life."

8.2.1 [MGM] and [M]'s relationship is characterised by an inter-dependency and ambivalence regarding their respective roles. This can cause constraints and difficulties between them which at the present time are reflected in their competing wish to be the primary carer of [S]

8.2.2 MGM recognises that M will always be dependent on her and, as her mother, she cannot free herself from this responsibility. She appears confused about her priorities, wishing at times to live her own life; to devote her time to the care of her granddaughter and to support M. She cannot find a strategy to unravel these competing demands.

8.2.3 [M] does not fully accept that she cannot care for [S] and greatly desires to care for her daughter. At times, when she is able to express an understanding of her inability to care for her daughter, she is able to agree that her mother should do so. However, this is a compromise in which [M] could maintain some control

8.2.4 It is difficult to see how the relationship between [M] and [MGM] will change even if they live apart. The relative social isolation of both increases their interdependency. This and the tension and ambivalence in their relationship could continue to impact negatively upon [S]."

Thus S would be, as Ms Dallimore said orally, competing for resources.

63. Ms McCombie identified that if S remained co-parented she would struggle to identify her primary carer.
64. As Ms McCombie emphasised this is not a case where one needs to look at the quality of the locks MGM could put on her front door to keep M out (i.e. court orders to exclude M) or the distance MGM could put between herself and M (e.g. by moving to Z). This is a case about M's ability to stay away and MGM's ability and desire to keep M away. In similar vein I can see that a special guardianship order would be of no practical effect when it comes to solving any power struggles between M and MGM.
65. In my judgment whilst I remain convinced that M and MGM would want to do the right thing, being compliance with whatever the court orders, I cannot see that they could sustain separation and independence from each other and I cannot see that M could acknowledge MGM as the primary carer of S.

ASSESSMENT OF A'S TO CARE FOR S

66. A lives with her husband in Z with her two young boys (a little younger than S). Although A's youngest child had a cardiac problem that appears to have resolved and neither child has any out of the ordinary need.
67. A and her husband are the subjects of a positive special guardian assessment report by Ms Dallimore (E262ff). I note that A has been involved with the care of S since S's birth and has a strong attachment to S.
68. Brief medical reports have been obtained since the hearing. A has some history of mental illness and depression; SBC have informed me by e-mail that they were aware of A's medical history. Satisfactory references have also been obtained now.
69. M was concerned that if A took on the care of S A would cut M and MGM out of S's life (C39). I had no such impression from A when she gave evidence in August and all the evidence before the court suggests that A would promote S's welfare and is empathic towards M and MGM.

GUARDIAN'S ASSESSMENT

70. Ms McCombie firmly rejects any plan based on MGM continuing to care for S. It has been her consistent expert view that M has a number of limitations including emotional non availability to S resulting in physical and emotional neglect of S and that whilst M has displayed willingness to acquire skills she continues to refuse to acknowledge her own shortcomings and fails to, in effect, apply that which she has been taught.
71. The Guardian herself has noted (as have other professionals) that S has an ambivalent attachment to M and is, in fact, rather more attached to MGM.

CONCLUSIONS

72. The parties have conceded threshold but nonetheless I remind myself of the words of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, para 50:

"society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done."

For the reasons I have already given I conclude that the care M has given S and would give to S falls short of that which a reasonable parent would give so I agree that section 31(2) of the Act has been satisfied.

73. That does not mean that M is automatically ruled out. I must look at each placement option and look at the positives and negatives of each applying section 1 of the Children Act 1989.
74. As sole biological parent of S and the only person with parental responsibility for S, M has a very powerful case for saying that she should be the person who parents S and her plan would provide continuity for S. However, I conclude that M's lack of capability is an overwhelming factor and she cannot provide S with good enough parenting.
75. MGM has a close relationship and bond with S. MGM has done well to date and she also offers S continuity. But for the issues in her relationship with M and their inter-dependency as described above, I would conclude that it was in S's best interests to continue to be cared for by MGM alone.
76. A has the least bond with S but there is a relationship between them. A is a young mother with 2 young boys both of whom have had or have some degree of additional need but she has a husband with whom she shares the burden of child care. A has some history of mental health problems but when I saw and heard her give evidence in August she impressed me as a sensible healthy young mother committed to providing care for S if the court concluded that she should. Placing S with A would amount to a great change in S's circumstances.
77. I have come to the conclusion that overall it is in S's best interests to live with A because of the nature of the relationship between M and MGM. In my judgment placement with A gives S the opportunity to receive good enough parenting for the rest of her childhood.
78. I appreciate that this will be a disappointing decision for M and MGM but I am pleased that I am able to keep S within her family.
79. I have considered whether the placement should be by way of a live with order under section 8 or a special guardianship order. A section 8 order would give A and her husband parental responsibility and equal legal status with M but M would not see it that way. Therefore in my judgment S's welfare requires her carers to have the enhanced status afforded to them by a special guardianship order which comes with the added benefit of a support plan which I consider A and her husband to need.
80. Transition and contact need to be carefully planned and supported. I am content with SBC's plan for contact noting that it is essential S settles into her new home. I have no doubt that S's welfare requires there to be a 12 month supervision order in favour of SBC to support the placement. All being well, state intervention in this family by way of the supervision order will cease in 12 month's time.
81. The aim of the orders that I am making is to secure S's welfare; given the positions of the parties the court was going to have to make an order regulating S's arrangements in any event and I conclude that the orders are proportionate and appropriate responses to the circumstances of this case.

District Judge Ralton

11th November 2015

Note 1   There is some speculation by MGM (C63) upon the identity of the father but thus far M has refused to identify him.    [Back]