SITTING AT MILTON KEYNES.
B e f o r e :
____________________
Re C, E, J, JB | ||
(Care Proceedings, placement with family member or in foster care.) | ||
BUCKINGHAMSHIRE COUNTY COUNCIL | Applicant | |
And | ||
Mother | First Respondent | |
And | ||
Father of C | Second Respondent | |
And | ||
Father of E and J | Third Respondent | |
And | ||
Father of JB | Fourth Respondent | |
And | ||
C, E, J, JB | ||
(by their children's guardian Diane Clarke) | 5th to 8th respondents |
____________________
Mr. Murray for the Mother.
Mr. Taylor for the Father of C.
Ms. St. Matthew-Daniel for the Father of E and J.
Mr. Stott for the Father of JB.
Ms. Gibbons for the children.
(By their Children's Guardian Ms. Diane Clarke.)
Hearing dates: 7th. 8th. 9th. 12th. 13th. 14th
and 16th. January 2015.
Draft judgment sent out on 15th. January 2015.
Judgment handed down on 16th. January 2015.
____________________
Crown Copyright ©
Her Honour Judge Brown sitting at Milton Keynes.
I heard evidence over 5 days and heard submissions on the sixth day. By the end of the hearing the agreed position of all the parties was that C should remain living with his father and that final care orders must be made in respect of E and J. In respect of JB it was agreed by all that his proceedings would have to be adjourned and further assessments undertaken. The key issue was whether in the interim, JB should be placed with his father or placed with his brothers E and J in foster care pending the final hearing. In that case, I must determine the level of contact between JB and his father. Having heard all of the evidence, I made an interim care order in respect of JB and he was moved on 14th. January 2015 with his brothers E and J to foster care. These are the reasons for my decisions.
This is the final hearing in respect of four children, C now aged 11, E now aged 9, J now aged 7 and JB now aged 5. Their mother is M who I shall refer to as mother throughout this judgment. The father of C is D who shall be referred to as Mr. D. C has resided with Mr D since 23 July 2014 and he holds parental responsibility for C. The father of E and J is AM who shall be referred to as Mr. M. He holds parental responsibility for E and J and he was married to the mother. He has not had contact with his two sons since September 2008. The father of JB is B and he shall be referred to as Mr. B. He has parental responsibility for JB. The children are all represented through the Children's Guardian Mrs. Diane Clark. They are represented by Ms. Georgia Gibbons. The three younger children have remained in mother's care pending the outcome of this final hearing.
The Applications
I say at once that the issues in the case have substantially narrowed and I am grateful to all advocates and the parties for their assistance and cooperation which has led to this. In setting out these reasons I have focussed only on the outstanding issues. There is a wealth of evidence before me and I have considered all of the evidence. It would be a long and cumbersome judgment to rehearse all of the arguments and the reasons for the agreed positions of the parties on so many issues. Given that I must send out this draft judgment within the next 24 hours I have limited my reasons only to those outstanding matters.
Within these proceedings, the key change of stance has been by mother. With a very heavy heart and no doubt a great deal of distress, mother has taken the painful but realistic step of accepting that none of the children can remain in her care. This has narrowed the range of issues considerably and therefore shortened the hearing. Mother has therefore been in the very difficult position of having to return home every evening after court to her three younger sons knowing that at the end of these proceedings they will be removed from her care. This must have been unimaginably difficult for her and the children. Throughout this hearing, mother has behaved very properly and through her Counsel has informed me that she will do everything in her power to make the transition to the boys' placement as easy as possible, including ensuring that the children's belongings are moved with the children. Mother has offered Mr. B, JB's belongings and his bed to enable JB to settle into his home if indeed that is where JB is being placed. I commend and thank Mother for this stance and whatever the problems of the past, I am extremely grateful to her for the way she has conducted herself throughout this hearing.
The first key issue for the court is whether the threshold criteria have been met in respect of each of the four children. Once again I am grateful to all concerned for their assistance and the threshold criteria have been agreed.
The threshold criteria have been agreed as follows;
At the relevant date all four children were suffering and were likely to suffer significant harm and that harm or likelihood of harm was attributable to the care given to them or likely to be given by to them being not what it would be reasonable to expect a parent to give to them.
The relevant date is the date of issue proceedings, namely 18 July 2014.
Particulars of harm
Domestic violence.
(1) On 9th January 2014 X School made a referral about JB in respect of a bruise on his buttock [C15]. He told the school that he slept too long and his mother punched him. The mother denies this.
(2) E was seen with bruises on his arms and neck and J was seen with a carpet burn on his back on 13th May 14 [C16].
(3) On 30th June 14 year J had a bruise on his neck [C16 para 56]
Emotional harm
Neglect
Risk of physical or emotional abuse
Lack of insight
I accept these concessions and find that the section 31 threshold criteria are satisfied in respect of each of the four children on this basis.
The Position of the parties by the conclusion of the hearing and the remaining issues.
The situation now is that all relevant parties support a Child Arrangements Order being made in respect of C in favour of Mr and Mrs. D. There remain outstanding issues in respect of contact. The local authority applies for Care Orders in respect of E and J. These applications are not opposed by mother and Mr. M and they are supported by the Children's Guardian.
The position of JB is the most difficult. At the start of the hearing the local authority sought a final Care Order in respect of JB with a care plan to place JB with his two brothers E and J. The local authority has identified a short and medium term foster placement for all three boys. The foster carers are both in their sixties and therefore it is felt that they are not suitable carers for all three boys for the long term. The local authority will endeavour to find a long term foster placement for all three boys together but if that is not possible, JB will be placed separately in a foster placement with E and J remaining together.
During the hearing Dr. Green (a psychologist who had undertaken an assessment of Mr. B) attended at court to give evidence. It emerged that he had not seen Mr. B's medical records. Ultimately the decision was made that Dr. Green would attend court on a different day to give evidence having read the records. Dr. Green was then unexpectedly taken ill and was unable to attend court. That meant that I could not complete the evidence in respect of the case concerning JB. That however left the issue of interim placement live. I should also say that by the end of the local authority evidence it was clear to me and indeed to the local authority that further assessment was needed in respect of Mr. B's ability to care for JB before I would approve a care plan for long term foster care and removal of JB permanently from the family. The issue therefore became whether pending further assessments, JB should be placed with Mr. B or placed with his brothers in foster care and if placed in foster care, what should the level of contact be between JB and his father. The local authority supported by the Children's Guardian applied for an interim care order being made in respect of JB with staying contact between JB and his father and further assessments pending a final hearing.
Mr. B opposed the interim care plan for his son and continues to oppose any suggestion that JB be placed in foster care even for a short period of time. His case is that he has a good relationship with his son and he can resume full time care of JB immediately. Whilst mother is distressed about the three boys being separated, on balance she supports J being placed with Mr. B. At the beginning of the hearing the Children's Guardian cautiously supported the placement of JB with his father. However, the Guardian's position now is that she supports an adjournment of the final hearing and placement of JB with his brothers in foster care pending further assessment of father and his partner Ms. M.
The Remaining Issues.
1. Should JB be placed in foster care under an interim care order with his two brothers E and J pending further assessment of Mr. B and Ms. M or should he be placed immediately with father and Ms. M pending further assessments?
2. What assessments should there be?
3. What level of contact should there be between mother and each of the four children in the short, medium and long term?
4. What level of contact should there be between Mr. M and his two sons?
5. If JB does not live with Mr. B what level of contact should there be between JB and his father pending further assessment?
6. What inter sibling contact should there be in the short medium and long term?
Therefore the agreed positions of the parties are as follows;
A Child Arrangements order in respect of C in favour of Mr and Mrs. D.
Care Orders in respect of E and J approving a care plan of long term fostering.
An adjournment in respect of the proceedings relating to JB with further assessments required.
The local authority proposals in respect of contact are as follows;
Local Authority proposals
Phased reduction in contact for mother with E, J and JB.
1. first four weeks
Weekly supervised contact for one hour after school at contact centre
2. next six weeks
Fortnightly supervised contact for one hour after school at contact centre
3. Then one further contact after three weeks
Supervised contact for one hour after school at contact centre
4. Then one contact after four weeks
Half day/3 hours supervised contact in the community
5. Then contact four times per year – once in Easter and Christmas holidays and twice in the summer holidays – starting in summer holidays
Half day/3 hours supervised contact in the community
Inter-sibling contact
Twelve times per year
All parties agree that the four siblings should have monthly inter sibling contact wherever they are placed.
In respect of the local authority's proposals for reduction of contact between the children with mother, they are agreed by all relevant parties until the stage when contact reduces from monthly to four times a year. Mother and the Children's Guardian supports there being ongoing monthly contact between the children with mother. At first the Children's Guardian's proposal was that monthly contact should continue until a permanent placement is found for the children. I suggested to Mrs. Clarke that one way forward may be to put a time limit on contact taking place on a monthly basis and that after for example 12 months, contact between mother and the children should reduce to four or six times a year. In evidence the Children's Guardian supported this. In her report Mrs. Clarke had supported a reduction of mother's contact to a minimum of six times a year and in evidence Mrs. Clarke suggested a minimum of four times a year. By the end of the hearing Mrs. Clarke's position is that she does not feel strongly about whether contact is placed at a minimum of four or six times a year but stressed the importance of constant review of contact looking at the particular needs of the children rather than simply applying a generic formula with which professionals feel comfortable when looking at a long term fostering situation.
In respect of the position of Mr and Mrs. D, their proposal is that they fully support monthly inter sibling contact. They support mother joining 6 of those contacts and in addition they would organise 4 contacts between C and mother in X town, supervised by Mr and/or Mrs. D. If I were to order that mother has monthly contact with the children as part of the monthly inter sibling contact, it may be that the extra four contacts for mother are not arranged. The local authority does not wish to stand in the way of these private arrangements for C.
In respect of JB there is a difference of professional opinion about the level of contact between JB and his father. The local authority recommended that on the days that JB has contact with his mother on a Friday he returns to the foster carers' home with his brothers and then goes to his father on a Saturday morning and remains with his father until school on Monday morning. However as contact decreases, the local authority accepted that JB should be picked up by his father after school on Friday and remain with his father until Monday morning. The Children's Guardian supported JB going straight to his father's home every Friday (either after contact with mother or if no contact straight away) rather than return to the foster placement (although she recommends that JB has some time - possibly 15 minutes - with his foster carer after contact to ensure he is happy and settled after the contact with mother.) One of the reasons for this is that the foster placement is a one and a half hour journey from Mr. B's home. The local authority and Children's Guardian support JB being placed with Mr. B for half of the half term holiday starting on 13th. February 2015.
In respect of contact between E and J with their father, there is agreement that the first indirect contact between E and J should be within the next three months. The Children's Guardian and Mr. M would thereafter like there to be monthly indirect contact. Counsel on behalf of Mr. M argued that I should order this indirect contact to take place and that I should also at the least order a review of this indirect contact expressly to consider whether direct contact can start. It was strongly argued that the position of Mr. M is likely to become sidelined unless an order is made to focus the mind of professionals in the future.
I heard evidence from Dr Sarah Helps, the social worker Ms. Amanda Haydock, Mr. B's partner Ms. M, Ms. Wendy Franza worker with the court assessment team, father Mr. B and the Children's Guardian.
Dr. Helps has prepared a report in respect of mother and the four boys. I accept the evidence of Dr. Helps together with the evidence of the social workers and the Children's Guardian that mother is unable to meet the needs of any of her four children. I have read the report of Dr. Helps with care and it is clear to me that mother had a very difficult childhood due to her own mother's mental health difficulties. This no doubt is at least part of the cause of mother's alcohol abuse problems. Given mother's acceptance of her difficulties and her acceptance that she cannot care for her children I need not detail the evidence in this regard any further.
However, in my judgment Dr. Helps's report was very helpful to understand the difficulties of the boys. In my judgment it is worth reciting Dr. Helps's summary of the three younger children.
In respect of E Dr. Helps writes,
"E is an eight year old boy who has some speech and language difficulties, although the background notes do not give a great deal of information about his conflictive profile. He currently attends a specialist school for children with learning difficulties. The CAHMS view as expressed in their correspondence is that his difficulties are in large part a function of his negative experiences. He has been diagnosed as having an attachment disorder. Parent-child work and individual therapeutic work were recommended to try and treat these difficulties but it is not clear whether the individual therapeutic work for him was ever offered or accepted. At this point in time I am not convinced that individual child psychotherapy is the most appropriate treatment intervention to address his current difficulties. Mother continues to believe that E has something called social attachment disorder. This is not a recognised diagnostic term. CAHMS correspondence confirms that this is not a term they have used. I think she may have become confused over time about professional views about the nature of E's difficulties given the number of professionals he has seen and perhaps a difference of opinion between professionals and between her ideas about the cause of E's difficulties and the views of professionals. However it is clear that he has complex needs which are currently affecting his developmental progress and which are not entirely social/emotional in origin."
In respect of J, Dr. Helps writes,
"J appears to be a typically developing seven year old boy who has significant attachment difficulties stemming from his experiences to date. I do not think J fulfils the criteria for a diagnosis of attention deficit hyperactivity disorder. I think he has tremendous difficulty in regulating his emotions and exists in a state of constant hyper-vigilance, most likely as a result of his experiences. I think that his difficulties can most effectively be described as significant attachment difficulties. I am concerned about how he and the other boys constantly apologise to their mother. While she denies ever shouting or hitting I am mindful of the comments made by C and do not rule out the possibility that there have been times when she has lost control and either shouted in a frightening way or hit the children in an attempt to get them what she wants them to do.
J has ongoing toileting problems for which he is receiving some intervention. I think that more intervention needs to be put in place for example giving him very clear rewards for successfully using the toilet when he needs to go."
Of JB Dr. Helps writes,
"JB seems to be a typically developing five year old boy who made good eye contact and who seemed to be the least emotionally damaged of all three boys. I do however note that his needs tend to get a bit "lost" given the presentation of the older boys. I was concerned that he, like his brothers, was so tuned into his mother's emotions. No concerns about his development or emotional well being have been expressed by professionals who know him well although he is also to be seen by CAHMS and by Helping Hands service."
In my judgment a particularly important comment by Dr. Helps is the following,
"The four children have been exposed to many frightening and physically abusive interactions between mother and her male partners. I think that this has made them hyper-vigilant and has contributed to their significant difficulties in regulating their emotions and behaviour.
The children have been exposed to their mother's fragile mental psychological state which I think has also significantly negatively affected them and has affected their ability to make and form a meaningful, secure attachment relationship with her. This is less the case of JB and C that for E and J and it may be that the oldest and youngest boys have been afforded a certain amount of "protection" given their relationships with their fathers. I have not seen the assessment of JB's father or E and J's father so cannot comment specifically on the quality of the nature of these relationships or indeed the ability of his father to meet his needs."
In her oral evidence Dr. Helps stood by her reports. Regrettably the one key issue I would have liked her assistance upon was Mr. B's ability to care for JB but Dr. Helps had not been asked to carry out an assessment of him. Dr. Helps confirmed that JB was the least damaged of all of the children. Dr. Helps sees the three younger children as a tightly knit sibling group and that the three boys should be kept together. However, it was pointed out to her that if a placement for all three boys could not be found it would be JB who would be placed in a separate foster placement on his own. Dr. Helps was extremely concerned by that prospect.
Asked about contact Dr. Helps told me that it is always a balancing exercise but that in general inter sibling contact is less disruptive than contact with birth parents.
Dr. Helps took the view that a "reasonable level" of contact for the boys placed in foster care would be four times a year. Asked about contact between JB and his father Dr. Helps told me that one needed to be very clear about the purpose of contact. Would it be with a view to a possible placement in the future. If JB is to be placed in long term foster care the level of contact must be set at a level whereby JB can see his father but he can also settle in a placement. Dr. Helps made the point that the boys are used to two of the children having contact with their fathers and having different levels of contact. Dr. Helps thought that the individual relationships C and JB have with their fathers is very important. Dr. Helps told me that she would not want the relationship damaged between JB and his father and was even prepared to accept fortnightly contact between JB and his father as long as JB's life in foster care was not disrupted, for example, JB could join in with holidays with his foster parents.
Dr. Helps confirmed that as soon as life story work commences for the children in particular E and J, it will be to their benefit.
Asked about indirect contact between E and J with Mr. M Dr. Helps told me that the boys may not have memories of their father that they can put into words but they may have "bodily feelings" about him which were received when they were "pre-verbal." Her concern about the introduction of direct contact between Mr. M with E and J is that they may see him as some sort of "saviour" who will take them out of care and "the way forward" when in fact this may not be possible. However Dr. Helps was very clear that "it is much better to know and be able to process information about one's parents than to have a black hole about them." They may have some very difficult questions for Mr. M in the future including why they cannot live with him and what happened between Mr and their mother.
Dr. Helps was asked about moving JB straight to his father's house and she was clear that it would be better to have one move than two.
In re- examination Dr. Helps was asked about contact with Mother and the boys in foster care and she told me,
"I wouldn't be averse to 6 times a year."
It is important to record that Mr. B is a registered sex offender. He was convicted of two counts of assault and one count of digital penetration against his second wife in 2007. These offences arose out of Mr. B finding his wife with another man with whom he believed she had a sexual relationship. Mr. B pleaded guilty to these offences at the first hearing and was given a 9 month prison sentence suspended for two years. His name has been placed on the sex offenders register for 10 years. He sees his probation officer every six months. Mr. B has not been convicted of an offence since that date save for a drink driving conviction in 2009. There have been reports of two instances of domestic violence since that time between Mother and Mr. B with Mr. B alleging mother is the aggressor. There have been no reports of domestic violence between Mr. B and his current partner Ms. M.
I then heard from the social worker Ms. Haydock. Ms. Haydock has filed 4 statements and has been responsible for the children's care plans. Ms. Haydock is a newly qualified social worker. She has set out at some length her concerns about Mother which have in the main been accepted. She is critical of Mr. B. In her final statement at C219, Ms. Haydock sets out her concerns about Mr. B. Her main concern is Mr. B's lack of engagement with her and the local authority. She writes, "Mr. B has been unwilling to engage with the local authority. It has been difficult to get hold of Mr. and meet for assessments and visits." Ms. Haydock sets out her attempts to engage with Mr. B. At times Mr. B has been defensive with her and unwilling to book further appointments. He questioned the need to see her again. On 17th. September 2014 Mr. B was involved in a road traffic accident. Ms. Haydock is concerned that the details of the accident as put forward by Mr. B are not consistent with the details held by the police. The police account is that Mr. B left the scene of the accident. Ms. Haydock described difficulties, confirmed by solicitor on behalf of the children, in getting Mr. B to appointments with Dr. Green.
Ms. Haydock has observed JB with his father on 26th. November 2014. She writes,
"It was clear to see that JB felt comfortable at Mr. B's home and interacted well with his partner."
Ms. Haydock is particularly concerned that Mr. B has not recognised or accepted the concerns about Mother's ability to care for JB. This is a particular concern for Ms. Haydock because of the severity of Mother's alcohol abuse problem and her concerns about Mr. B's failure to protect JB. She writes,
"Mr. B shows little insight into the needs of his son. Mr. B appears to understand the basic care needs such as getting him to school, feeding him and providing him a home. However in relation to JB's emotional needs Mr. B overlooks this and appears to believe J has not been affected at all."
Ms. Haydock was very concerned that Mr. B had not contacted JB's school, had not attended parents' evenings and had not spoken to any of JB's teachers about any concerns they may have had for JB.
Ms. Haydock has been unclear about Mr. B's personal arrangements although Mr. B explained that he was spending time at Ms. M's home and hoped to move in with her. Ms. Haydock is critical that father suggested JB moving into foster care pending him being able to make suitable arrangements, ironically the very solution now argued for by the local authority.
Ms. Haydock finds it extremely difficult to understand why Mr. B has not been more proactive in seeking to care for JB and has not had JB for staying contact during the proceedings. She is also concerned about how new the relationship is between Mr. B and Ms. M. This is an untested relationship and to put into the mix a five year old child when Ms. M has no children of her own is a concern to her.
In my judgment all of the concerns raised by Ms. Haydock are entirely understandable and legitimate and must be taken into account by the court. However I am concerned about this local authority evidence due, in my view, to a lack of analysis in respect of the section 1 (3) factors and section 1 (5) of the Children Act 1989. Ms. Haydock sets out in a balance sheet the positives and negatives in respect of each placement. Under cross examination by Mr. Stott, in my judgment it became obvious that the welfare analysis of the benefits of JB being placed with Mr. B as opposed to long term foster care was inadequate. In stating this I do not want Ms. Haydock to feel disheartened by any criticism. I assess her to be a professional who has tried very hard to discharge her duties in one of her first cases. I accept her analysis of risk insofar as she was able to make one. It is the analysis of what is in the best interests of JB that I am concerned about. Mr. B has not assisted the local authority in carrying out a thorough analysis of the welfare considerations in respect of the different placement options and Ms. Haydock understandably has felt frustrated by what she sees as his lack of co-operation. However I accept the points ably made by Mr. Stott that the analysis set out at C232 – 234 is inadequate and does not reflect the many positives which in my judgment there are in placing JB with his father. Nor does it recognise the risks to JB of the local authority care plan.
I have also read the evidence of Ms. Wendy Franza in particular in respect of Mr. B. Ms. Franza carried out a first and then addendum assessment. Ms. Franza is also concerned about the apparent difference of account in respect of the road traffic accident that Mr. B was involved in September 2014. Ms. Franza is concerned about the effect on Mr. B of the serious head injury which he sustained in 2003 after he hit a wall in a cycling accident. It was Ms. Franza who recommended the assessment by Dr. Green.
Ms. Franza sets out that Mr. B has a good relationship with his four children from his first marriage and that he has continued to have contact with them. As she writes,
"Mr. B has a positive relationship with his four older children. His ex-wife reports that he has always had a consistent relationship with them, that he is reliable and has had contact with them every other weekend throughout their childhood. This demonstrates that Mr. B has a commitment to his children and prioritises his contact with them. Mr. B is reported to have a positive relationship with all four of his older children and JB has also met them several times. Whatever difficulties Mr. B has had, he has worked hard to maintain contact with all five of his children even though there is a considerable distance between him and his four eldest. He has taken them out every weekend and juggled the needs of four children at once. According to the children's mother, Mr. B has a positive and loving relationship with each of his children."
Ms. Franza views Ms. M as a "positive factor" and "she could potentially be a protective factor for JB."
Following on from that assessment the court sanctioned an assessment of Mr. B by Dr. Green who is a chartered clinical psychologist and who undertook a neuropsychology assessment of Mr. B. Dr. Green reports,
"I believe that Mr. B has cognitive functioning that is of a good enough standard to be able to recognise difficulties were dangers in the care of his children either from himself or from others present. This will include in my view from the mother of the child."
"Mr. B was open and straight forward in clinical interview about the change in his personality following his brain injury. Mr. B from his description as well as collateral information available to me. Appears to have sustained some damage to his frontal lobes. This is an area of the brain associated with what is called executive functioning which describes an individual's ability to regulate mood, problem solve. Inhibit themselves from inappropriate behaviour. Whilst Mr. B has had the history of damage to this area it appears that he has engaged and responded well to rehabilitative strategies. He does openly and honestly admit to "mood swings" following the incident but these appear to have decreased in recent years. It s encouraging that both he and his partner with whom he lives, recognise the potential for aggression but neither report any violent outbursts. Therefore whilst it is likely that Mr. B has experienced a change in his personality such that he has become more irritable and possibly aggressive, this would be seen in any individual who had a similar brain injury. It is to Mr. B's credit that he has worked well with Dr. W and others to learn to control his tendencies towards these phenomena. In my opinion it is likely therefore that given his good start with this set of behaviours, Mr. B will be able to sustain non violent well controlled behaviour in future."
After this assessment was completed Ms. Franza completed an addendum report. This was a negative report. Ms. Franza relied upon concerns about the recent car accident in September 2014 and conflicting accounts, continued lack of engagement by Mr. B with JB's school, lack of acceptance of the concerns arising from Mother's care of JB, father's mood swings which occur as a result of his head injury in 2003 and a lack of certainty about his plans for caring for JB. There is again real criticism of Mr. B suggesting that JB be moved into foster care pending Mr. B settling his plans to care for JB. Ms. Franza writes,
"There are too many risks to consider that Mr. B could provide JB with a safe and stable placement throughout his childhood."
In oral evidence Ms. Franza stood by these concerns but accepted that there was merit in further assessment. Ms. Franza told me that when she had observed JB with Mr. B she saw nothing of concern about that contact.
Again whilst I understand and accept Ms Franza's concerns, there was no analysis on her part of the risks to JB in respect of the local authority care plan. I accept that her role was limited to assessing Mr. B.
I heard Ms. M give evidence and I have read her statement. Ms. M presents as an intelligent, capable, likeable, organised and disciplined lady. She has an excellent work record and holds down a responsible and relatively well paid job. She is 40 years old and has no children of her own. She lives in a one bed roomed, privately rented flat with her cat. She has known Mr. B for three years, has been in a relationship with him for 6 months and allowed him to move in with her at the beginning of January 2015. She was present throughout Mr. B's assessment by Dr. Green and seemed aware of Mr. B's background. She has met JB and Mr. B's 4 children in Bristol. She made it clear that she is willing and prepared fro JB to come and live with her and Mr. B. She accepted the constraints on space within the flat but told me, "It can be made to work." She felt she knew JB "fairly well" and described the contact she has had with him on Sunday afternoons. She thinks her relationship with him is "very good" and she will sit with him and cuddle him as they watch television together.
Asked about Mr. B's irritability Ms. M told me that "generally he is fine" but that he "is aware he can lack patience" and that he will become quiet. Ms. M can recognise when Mr. B is not "feeling great" and they will talk about it straight away. Sometimes he can be "quiet" for 2 – 3 hours but he will take himself off for a walk and then he is fine. This can happen up to once per week.
Ms. M was not able to tell me whether she would be able to rent a larger property. It seems unlikely that there would be any state assistance because of Ms. M's income level.
Ms. M told me that she had accompanied Mr. B down to Y town to see his other sons. She spoke fondly of these children and of their completely different personalities. Ms. M told me that she had never seen Mr. B lose patience with any of his children and that he does not have this "quiet time" phase when with the children.
Ms. M told me that she would endeavour to create a "calm warm peaceful structured routine for JB with good food."
I heard Mr. B give evidence. He was adamant that JB should be placed with him directly. He is very emotional about the thought of JB of going into foster care. He told me of his difficulties in gaining employment. These are a combination of being on the sex offenders register, of being a plumber without formal qualifications, of being in the accident in September 2014 and now of having to consider child friendly hours. Asked about why he had not had JB for staying contact he could not really give an answer save to say "I cannot dress that one up, I guess selfish."
Mr. B told me about his four sons in Y town, of their personalities and of one occasion when they all stayed in his one bed roomed flat. The sitting room was turned into one big, "den." During the course of his evidence he admitted that he is an occasional cocaine user, "getting his gear with friends before going to the local pub." He has recently taken cocaine. He has not disclosed this information to Ms. M or to any of the child care professionals.
He assured me he would tell Ms. M of this revelation and the next day I received a statement from Ms. M in which she set out her disappointment in this behaviour, stated in no uncertain terms she did not support it but remained committed to Mr. B and JB.
Mr. B told me about his personal life in 2014 and it is clear to me that he has been in transition from his long term girlfriend N to this new relationship with Ms. M. His one bed roomed flat is being rented by a friend of his "S" and he is unclear whether he will be able to transfer his tenancy to this friend. He does not think he will get any of his deposit back.
He was very positive about promoting contact between JB and his brothers if JB were in his care and would have no difficulty in arranging contact between JB and C directly with Mr and Mrs. D.
The last witness I heard from was Mrs. Clarke. I say at once that she is an extremely experienced Children's Guardian and that experience shone through in her final report to the court. Faced with professional evidence ruling Mr. B out as a carer, Mrs. Clarke cautiously supported him. Her report was fair and balanced and undertook the requisite balancing exercise of recognising all of the risk factors in placing JB with Mr. B but also looking at the whole picture, applying the welfare checklist and asking what would be in JB's best interests. I commend her for her work and her approach.
Mrs. Clarke summarises the positives and risk factors in placing JB with his father as follows;
a) On the one hand, as reported by Ms Franza at C130 "Mr B has made the effort to be there for his children and I can see that he and JB have a good relationship with each other". There is one report that I have seen of some ambivalence from JB when asked by Ms Franza if he liked seeing his Dad, and he made a "so-so" gesture (C118).
b) There is the concern about lack of proactive contact with the School.
c) There is the concern about lack of proactive contact with the Social Worker. Mr B has explained/ accepted this to a degree but perhaps could accept a greater responsibility in this regard. However he feels that the Local Authority failed to properly inform him of events early enough at the Child Protection planning stage, despite him having PR for JB.
d) There is concern from the Social Worker and to a lesser degree perhaps Ms Franza about Mr B' demeanour during meetings (C256- the Social Worker describes Mr B as follows: "aggressive in his tone and his body language showed that he was frustrated with me and was very confrontational with me". However Ms Franza initially felt that although Mr B could be "quite defensive" (C130)….at C131, she reports her view that "when Mr B feels that he respects and trusts somebody, it is possible to be much more challenging with him without him reacting negatively". She confirms he developed a positive working relationship with him.
e) There is concern about lack of awareness of the Mother's difficulties with alcohol and I have already dealt with that issue in paragraphs 49-50 above.
f) He has a good relationship with the Mother and this is concerned a strength and a potential weakness by the Local Authority.
g) There is the Social Worker's statement that says that whilst suggesting the Mother needs a break, at the same time, Mr B has not taken the opportunity to have JB to stay with him overnight, which would have reduced the number of children the Mother had to care for at least for a night. I note his accommodation is less than ideal, but I am not sure what Mr B would say in response to this.
h) There is the concern that Dr Helps states that JB requires far better than good enough parenting because of his attachment difficulties and what he has been exposed to at home. I do not have a crystal ball but on the evidence before me currently, I am not persuaded that Mr B is not able to provide good enough care and I believe he has the potential to meet JB's needs in the future to a good standard, from my observations of him with his son and in my assessment. It should be noted that his needs are less serious than his brothers but clearly I would agree with Dr Helps that he needs assistance from CAMHS. I also note Mr B' willingness to undertake any courses recommended by the Local Authority.
i) There is the concern about housing and benefits which I have already addressed above.
j) I note Dr Green mentions that in the past, Mr B had used "weed" and cocaine but not for some considerable time. There is also the drink driving offence in July 2009.
k) The relationship with Ms M is very new and to some extent therefore untested for obvious reasons. She has disclosed to Dr Green that Mr B "gets proper stroppy about twice a week", which can last around 30 minutes or could be a whole day. During my discussions with the couple, they discussed how Mr B manages these feelings for example going for a walk and this seemed appropriate. Caring for a young child on a full time basis of course brings its own pressures and how Mr B, with Ms M's support, will manage this is unknown. I believe that JB should not be denied the opportunity to live with his father rather than in foster care, because how the situation will pan out in reality is unknown. I am cautious but I am more optimistic than the Local Authority are.
l) I note that there seems to be a suggestion that there was a degree of overlap between Mr B' relationship with his former girlfriend of 3 years, N and the relationship with Ms M. I cannot comment on this. However of concern is that at F51, J is reported to have been upset by the break-up. JB exhibited warmth in his interactions with Ms M when I observed them. JB has experienced more changes in the partners to both his parents than one would ideally hope for.
m) Although not much weight, if any, is placed upon it, the Court will be aware of the criminal record of Mr B and in particular the conviction for assault by penetration (H69) and ABH. Mr B' account is set out at C43-4. There is a summary by KB of Thames Valley Police at H87 and the conclusion is that the overall risk rating is Medium but that there is no information that Mr B presents a risk of harm to his son or other children.
n) There have been two reports of domestic violence between Mr B and Ms mother (I40 and I60), one with Mr B as the alleged perpetrator (alleged grabbed throat) and one with Mother as the alleged perpetrator (Mr B seen by Probation with bruised eyes – C11). At C43, Mr B denies any physical violence between them although he accepts there were arguments. However the Social Worker states that Mr B says he was assaulted to Probation and that Mother confirmed it at the time (C11). It is reported that Mr B successfully completed his IDAP programme where he apparently learnt a lot of skills in dealing with issues that could lead to Domestic Violence.
o) Mr B' sister Ms H has reported concerns at C172 that Mr B was violent to his ex-wife and that his eldest son was traumatised by what he witnessed. She also suggested that Mr B would not cope with caring alone for JB full time. To Ms Franza, Ms H described how her brother's behaviour changed dramatically (after his head injury in 2003): "he became volatile, aggressive, his mood changes were dramatic, and he also lost his sexual inhibitions. Ms H informed me that these behaviours were completely out of character for Mr B". However she acknowledged she had had little contact with her brother for the last five years, since leaving the Jehovah Witnesses. I am not clear that the Local Authority have spoken to any of Mr B' elder children but they have spoken to his ex-wife who has reported on his behaviour changing (C119) but also his commitment to the children (C122).
p) Lack of insight or awareness regarding concerns about Mother's parenting – already dealt with above. It seems to me that Mother was not always open with Mr B and Local Authority in Buckinghamshire should have involved Mr B earlier on but equally I am concerned that at times Mr B has not sought to avail himself of the relevant information, for example by responding promptly to requests to contact the Social Worker, or contact the school. Furthermore it should be borne in mind that he first met Mother's in September 2007 or possibly earlier March 2007. When they moved to the Y town area in March 2008 with the three children, the children were subject to Child In Need plans in August 2008 due to Mother's moving into the area to flee domestic violence and concern about her being in a relationship with a registered sex offender. When they were living in Y town, she was receiving parenting support from a Children's Centre and there was then a section 7 report prepared in the private law proceedings with Mr (I54 – 12th February 2010), and a report from Dr G, Psychiatrist (I35-30TH Sept 2011). I am not sure exactly when Mr B says that he and the Mother separated- in his statement at C41 in July 2014 he says it was 3-4 years ago. When Dr G saw the Mother on 12 July 2011, he refers to her "present relationship" and I am not sure if this refers to Mr B or not but it is noted that Mother and Mr B moved from Y town in February 2010. The relationship seems to have lasted for 4 years and so Mr B has lived with all the boys for a large part of their lives. The difficulties the Mother has experienced are not new but may well be masked and hidden at times, to a degree.
This is exactly the sort of balancing exercise which is needed. I understand why local authorities are increasingly risk averse. Being a front line social worker is a difficult job and in my view social workers must be supported in their invaluable role. However section 1(3) and 1 (5) are part of the Children Act 1989 for very good reason and they must be applied.
In her evidence Mrs. Clarke told me that she now has greater concerns about Mr. B having heard the evidence, than she did when she wrote her report. However, she remained of the view that further assessment of Mr. B was required before the local authority care plan could be approved. She recommended every weekend staying contact from Friday evening to Monday morning for JB with Mr. B. She recommended that JB stay with Mr. B for half of the February school holiday. She did not recommend that JB be placed directly with Mr. B as she felt that the risks were too high including the recent revelation of drug use, the untested relationship between Mr. B and Ms. M, lack of clarity about long term accommodation plans and Mr. B's lack of engagement at times with professionals
Mrs. Clarke was clear that she had observed a very positive contact between JB and Mr. B. With hindsight about her visit to Mr. B she felt Mr. B may have felt under stress as he seemed to engage in cleaning whilst she was there and given the evidence she had heard she felt this may have been a stress reaction. Mrs. Clarke also told me that she had never had a problem contacting Mr. B and he had co-operated fully with her.
Mrs. Clarke would like Mr. B to be assessed by Dr. Helps and for him to be tested for cocaine.
In terms of her other recommendations, Mrs. Clarke supports monthly contact between the four siblings with mother being present for some of that contact on a monthly basis. Mrs. Clarke could see the sense in monthly contact reducing to four or six times a year after 12 months but subject to review. Mrs. Clarke supported the private arrangements suggested by Mr. D for C. She recommended that the first indirect contact for E and J with Mr. M be within three months and so as not to "lose the momentum" she would support monthly indirect contact with a specific review to see if direct contact could be commenced albeit on a limited basis for E and J with Mr. M.
Analysis and orders.
I will turn firstly to the issue which I have found the most difficult namely whether JB should be placed immediately with his father.
In short the arguments for are;
1. JB has a right to be placed with a birth parent before any other placement.
2. This is the only placement which will give him a permanent family life. There is no suggestion of a Placement Order being applied for.
3. JB has a good relationship with his father and observation of that contact by the social worker, Ms Franza and Mrs. Clarke is of a warm and appropriate relationship.
4. Having seen Ms. M in the witness box she appeared to be an intelligent, insightful, disciplined and hard working individual who told me she is totally committed to JB living with her and Mr. B.
5. Having seen JB and Ms. M together, Mrs. Clarke took the view that JB has a good relationship with Ms. M and appears to have known her for some time.
6. JB would retain a relationship with his four half siblings in Y town who have a good relationship with Mr. B.
7. Mr. B has a positive attitude towards promoting contact between JB and C, E and J.
My concerns about Mr. B are as follows;
1. He has not co-operated with professionals as I would have hoped and expected. It is clear that he has not been easy to contact at times although that is not the experience of Mrs. Clarke.
2. Mr. B has had a private life which has been somewhat in flux over the last 12 months. He was with a partner called N. He started a relationship with Ms. M in July. This relationship has strengthened and the couple "officially" started living together at the beginning of January 2015. On any view, although Mr. B may have known Ms. M for three years, this relationship is new and untested.
3. One of my key concerns is the level of contact which Mr. B has had with JB. JB has remained living with his mother. He has not been in foster care until 14th. January 2015. I find it of concern that father has not had staying contact with JB throughout these proceedings. Mr. B told me that he used to have JB to stay before these proceedings and for one overnight stay right at the beginning. He has therefore only had weekend visits until very recently, he has had one or two overnight stays. Mr. B could not really give me any explanation for this save to say that he had been, "selfish." It may be that Mr. B was trying to sort out his own private life but given the severity of these proceedings his inaction and failure to prioritise JB is deeply concerning. I entirely understand why Ms. Haydock in particular was left perplexed by Mr. B's lack of activity and organisation in seeking to have a much greater level of contact and involvement in JB's life at this crucial time.
However, I am extremely concerned by the local authority care plan that will be put in place for these three brothers, namely into foster care in a placement for all three boys. If one cannot be found JB will be placed on his own in a foster placement away from both parents, and all his brothers. The local authority care plan for JB in respect of contact is at a rate of 4 times a year for each parent. There is no evidence before the court about the likelihood of a placement for all three children being found. In my judgment the local authority will encounter difficulties in finding such a placement for three boys, in particular when considering E and J's special needs. In my judgment there is a very real possibility that JB will find himself on his own in foster care at the age of only 5 or 6 years old. Nowhere in the local authority evidence are the risks to JB's emotional and psychological wellbeing set out if this care plan comes to fruition. That is a significant lacuna in the evidence and demonstrates to me that the balancing exercise as to what is in the best interests of this child has just not been properly assessed. This is particularly so when one considers that JB has a good relationship with his father.
I would like to remind all the professionals in this case of the dicta of Hedley J in the case of Re L (Care; Threshold Criteria [2007] 1 FLR 2050 as follows,
"What about the Court's approach, in the light of all that, to the issue of significant harm? In order to understand this concept and the range of harm that it's intended to encompass, it is right to begin with issues of policy. Basically it is the tradition of the United Kingdom, recognised in law, that children are best brought up within natural families. Lord Templeman, in Re: KD (a minor ward) ( termination of access) [1988] 1AC806, at page 812 said this:
"The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature."
There are those who may regard that last sentence as controversial but undoubtedly it represents the present state of the law in determining the starting point. It follows inexorably from that, that 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, whilst 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."
JB has a right to be placed with his father if at all possible. I accept that Mr. B has not helped himself in the months leading up to this final hearing and he could and should have done a lot more to organise his life to present himself as a committed parent who can meet the needs of JB. I accept that fathers can sometimes feel in a difficult position if professionals are involved, they don't know what is expected of them and Mr. B may have been unsure how to approach mother who will have been feeling particularly under stress in the months leading up to the hearing. Whatever the reasons, the time for excuses is over. I want JB to be placed with Mr. B if it is consistent with his welfare. I am very concerned about the future for JB in foster care but that may be the care plan I have to approve if Mr. B cannot demonstrate his ability to care for JB in the long term. He needs really to think about his plans, his relationship with Ms. M, whether these two adults are committed to each other and JB, what accommodation plans they have, how JB will get to school. Mr. B must prioritise JB. He must refrain from any drug use. He must focus. He must communicate with professionals. The future of his son lies with him. I have no doubt he genuinely adores JB. I sincerely hope he does not let him down.
I found the decision as to whether to place JB in foster care or with Mr. B extremely difficult and finely balanced. I accept that a further move for JB will be disruptive and potentially traumatic and JB may find a move to foster care very hard to understand when he knows his father wants him with him. However, on balance the uncertainties and risks to JB of a premature placement with his father, for it only to break down at this stage, is in my judgment too much of a risk for JB and not in his best interests. Mr. Stott urged me to apply the test for interim removal and if I did so I would be driven to place JB with Mr. B. I have gone back and read Re K and H [2007] 1 FLR 2043 and Re L-A [2010] 2 FLR 283.
I am removing JB from mother not Mr. B. JB will suffer significant harm if removed from his mother and placed with a father who through lack of organisation, drug use, mood swings or relationship breakdown cannot care for him and he is placed in foster care in an unplanned way. Mrs. Clarke in particular is concerned that JB would at that stage not be placed with his brothers and the very care plan which I am most concerned about would occur. Mr. Stott argued the case exceptionally well but in my judgment, the risks are too high for immediate placement.
However, my focus is firmly on a realistic assessment of JB with Mr. B. I know that JB will be placed with foster carers on 14th. January 2015. I order contact between JB with Mr. B on Sunday 18th. January 2015 for between 2 – 3 hours and I hope Mr. B and Ms. M can go into the foster home for 30 minutes to see E and J and settle JB after the contact. Thereafter JB is to have contact every weekend from after school or after mother's contact on Friday until school on Monday morning. JB is to spend from the Friday before the half term until the second Saturday morning with Mr. B and be returned to the foster placement by 12 noon on that Saturday or in accordance with the plans of the foster parents. Unless there are clear and compelling reasons to the contrary, JB is then to spend every Thursday after school until Monday morning with his father. Mr. B will be responsible for ensuring JB attends school on time when he is in his care and I will look closely at how JB presents at school when I look again at this case.
I will determine the exact ambit of any further assessments at the directions hearing on 16th. January 2015.
In respect of C, I respect and accept the unanimity of the expert evidence in respect of Mr and Mrs. D's care of C. They have provided a safe home for C which has seen him flourish and his anxieties and fears decrease. They have promoted contact with mother which C now enjoys. They have facilitated fortnightly contact which they supervise. I can only commend, congratulate and thank Mr and Mrs. D for their ability to assist C at this very difficult time. I therefore approach any suggestion made by them with the utmost respect.
I approve of their plan but ask that it be implemented from January 2016 for reasons which I will set out below.
In respect of contact with the four children and mother, I approve the reduction plan as set out by the local authority until the decrease is from monthly to 4 times per annum. In eloquent and heartfelt submissions, Mr. Murray asked me not to fall onto the time honoured formula which is put forward for almost all children in foster care but to consider these particular children in these particular circumstances. He rightly emphasised the remarkable attitude of this mother who has consented to her children being removed, who has prepared these boys, packed their bags and fully supported their placement in order to minimise their distress. She has offered to transfer any belongings and offered Mr. B, JB's bed. She has commenced life story work and provided information and photographs of the children for that work to begin. She has given Mr. M a photograph of E and J. She wishes to go to the foster home with her boys to help to settle them. In short, whatever the mistakes of the past she has done all she can to mitigate the inevitable distress. She has co-operated with Mr and Mrs. D for the benefit of C. Again I thank and commend her.
I have listened to all of the arguments in respect of contact. In my judgment this is a very difficult issue because this mother appears to be supporting the children's placements. I am particularly concerned about E and J. They are the most damaged children of the four and they have the most to lose. Their father is not currently actively involved with them. This may add to their sense of rejection. There is no prospect of a permanent placement within their birth family.
I take into account that these boys have only been removed from their mother this week. They have not had a chance to settle into foster care for a period of months as one so often sees within care proceedings. They need a period of adjustment. The example of C shows that these boys can settle with regular contact with this mother who has tried so hard in her contact with C.
On balance and having considered all of the arguments, in my judgment it would be in E and J's best interests for mother to have contact as per the proposed reduction save that the contact will reduce to monthly contact until December 2015. In November 2015 there must be a thorough review of mother's contact with E and J (and possibly JB depending upon where he is placed.) I sincerely hope that contact between E and J will not reduce below 6 times a year for E and J with mother and there needs to be clear and compelling reasons before that contact is reduced below 6 times a year. I expect mother's monthly contact to take place on the same day and as part of the monthly sibling contact.
In respect of C, I anticipate that C will see mother during the monthly contacts which will also be the monthly inter sibling contact which is agreed by everyone. Once mother's contact is reduced to 6 times a year in January 2016, Mr and Mrs. D may wish to implement their plan which is to promote four extra contacts between C and mother in X town supervised by themselves. I will hear any further submissions on this point in due course.
Turning to Mr. M I have read the history and understand that E and J have negative views of their father. This in part is due to the recollections of C. I have read the social work evidence and it appears to me that Mr. M's life has moved on in a positive way and he has tried hard through private law proceedings to have contact with E and J. In my judgment it is in E and J's best interests to have at least indirect contact with Mr. M. They are aware that their brothers have a good relationship with their fathers. In my judgment the following is required,
1. Active life story work with E and J to explore their feelings in respect of Mr. M.
2. Preparation of E and J each to receive a letter from their father no later than 16th. April 2015.
3. Thereafter monthly indirect contact by way of letter or card between Mr. M and E and J with E and J being encouraged to respond to their father. J's birthday is on 24th. May and Mr. M will be permitted to send a birthday card to J and a small gift to each boy. Mr. M will be permitted to send a Christmas card and a small gift to each boy.
4. In November 2015 there must be a review of Mr. M's contact with E and J and real thought given as to whether direct contact should be introduced. There should not be an assumption that it should not be introduced. These boys have lost enough and they need to know their father cares about them and supports them.
5. After this review Mr. M must be permitted to send no less than four indirect contacts per annum whether or not direct contact has commenced, subject to any further agreement between Mr M and the local authority.
6. Telephone contact between E and J with the paternal grandfather and step grandmother shall be promoted and real thought given to direct contact commencing. This may be a good way to introduce direct contact with Mr. M.
My decision in respect of Mr. M's contact will be in the form of an order.
All parties are agreed that there should be Skype and telephone contact between the children.
Mr and Mrs. D should be assessed for the possibility of having E and J to stay with them. If JB is to be placed permanently with Mr. B I hope Mr. and Mrs. D can communicate directly with each other to promote contact.
I would like there to be a sibling contact for all four siblings before the end of January 2015.
I will hear further submissions at the directions hearing on 16th. January 2015 on any of the issues I have not dealt with in this judgment. I know there are several other directions which the parties require. I will permit disclosure of agreed documents to Mr and Mrs. D in order that they can put forward their views about C's contact with JB depending on the care plan.
My thanks to all the parents in this case for their constructive attitude. My thanks to the social work team and to Mrs. Clarke. My thanks to the advocates.