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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Southend Borough Council v JMA & Ors [2015] EWFC B43 (9 March 2015)
URL: http://www.bailii.org/ew/cases/EWFC/OJ/2015/B43.html
Cite as: [2015] EWFC B43
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Case No: CM14C05120

IN THE Chelmsford COUNTY COURT

Priory Place, New London Rd, CM20PP
9.3.2015

B e f o r e :

HHJ Murfitt
____________________

Between:
Southend Borough Council
 Applicant
- and -
JMA
-and-
MMA
-and-
Mr and Mrs C
-and-
MDMB, MSJAAA, OJCA by the children's Guardian Linda Gillespie
 Respondent 1

Respondent 2

Respondents 3-4
Respondents 5-7

____________________

Ms Gemma Spence (instructed by SBC) for the Applicant Local Authority
Ms Yvonne Hume (instructed by) for the Mother (R1)
Ms Sarah Dines (instructed by ) for the Father (R2)
Mr and Mrs C appeared as litigants in person (R304)
Mr Martin Michaels solicitor for the children by the Guardian (R5-7)
Hearing dates: 16-23 January 2015, 25-26 January
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    HHJ Murfitt :

  1. By their application dated 16 May 2014 Southend Borough Council (SBC) are seeking final care order in relation to three children who are: MDMB (born 16.8.2008) now aged 6, MSJAA (born 25.3.2010) now aged almost 5, and OJCA (born on 8.5.2013) aged two years and ten months. Their mother is JMA, and the father of the two youngest is MMA. (Mr and Mrs A)

  2. Mr and Mrs A were married on 4.9.2012 and have raised all three of the children together, although the father of MDMB is believed to be a DK whose whereabouts remains unknown, and he has played no part in these proceedings. Mrs C is the paternal grandmother (aged 49) and she and her husband Mr C (51) are joined as Respondents because they have applied to be special guardians of the children in the event that the Court should determine that the girls cannot remain with their parents. Mr A's birth father is Mr JA who is not a party, but during the course of this hearing I heard oral evidence from each of the above family members. The children remain living with their parents at home, and the family are all united in opposing the local Authority's application for care and placement, as is the children's Guardian.

  3. This is a case in which the Local Authority's primary concern relates to the neglect of the children, against a history of statutory input into the family which dates back to 2011. Before that Mrs A herself had a difficult start in life, having been a 'looked after child' from the age of 11. This was the result of experiencing her own mother's drug misuse, sex working, and nomadic lifestyle. The reasons why MDMB MSJAA and OJCA suffered or were at risk of suffering significant harm by reason of their parents' care are set out in the undated but agreed threshold document provided at the beginning of the case. With regard to MDMB Mr and Mrs A accept that she is globally delayed by about 18 months, and that it is possible that by neglecting to take her to some medical appointments when she was a baby, they contributed to this. They also accept that when the local authority commenced proceedings MSJAA was not fully toilet trained notwithstanding the advice and practical help which had been provided to them by professionals in this respect. They do not dispute that both MDMB and MSJAA have been observed to use dummies and nappies within the home, even after they maintained to visitors that the children had stopped using them. They also accept that OJCA's health visitor expressed her concern in 2014 that OJCA was not yet able to sit unaided, and that the development of her gross and fine motor skills was delayed. Mr and Mrs A agree that they failed to provide appropriate boundaries for the older girls with the result that they were exposed to the risk of significant harm, when for example MDMB and MSJAA were able to leave the house undetected on two occasions on 8.8.2013 and again on 8.3.2014. On both occasions they were found wandering alone on a busy road, and were returned home by the Police before their parents had become aware they were missing. The parents also accept that they were wrong at the time in minimising their failure of responsibility, and their failure to protect their children from that risk of harm. During 2011 a parenting assessment identified that MDMB and her mother appeared to have attachment issues, and that MDMB preferred to seek emotional warmth from Mr A. Mrs A has always openly acknowledged that her bond or attachment with MDMB is not very good, and this is likely to have had an impact upon MDMB's physical and emotional development. At the time when a referral for Theraplay was first made in late 2013 on the recommendation of psychologist Dr Banks, Mrs A accepts that she did not follow it through adequately, because she placed her own needs above her daughters' with the result that the Marigold Centre terminated the service at that time.

  4. In 2011 MDMB and MSJAA were first made subject to 'child protection plans'. However those were de-escalated to 'child in need plans' on 18.12.2012. In July 2013 a pre-proceedings meeting led to a recommendation for a psychological assessment of the parents which was thereafter completed by Dr Nicholas Banks on 27.8.2013.

  5. Dr Banks' assessment which was completed in August 2013 identified that Mrs A has a full scale IQ of 64 which places her in an overall low range of intellectual functioning or mild intellectual disability. He identified that she and the children would be likely to need additional parenting support from a specialist team, particularly if their father Mr A should go out to work, since in Dr Banks' view Mrs A would not be able to manage the children as a sole carer even on a part-time or temporary basis. MDMB was noted to be developmentally delayed with high levels of activity and low levels of attention, possibly amounting to ADD or ADHD in Dr Bank's opinion, although he did not specifically assess her for the condition. This he considered would be likely to lead many parents to experience parenting difficulties. Without specialist parenting skills training and support he predicted that Mrs A's levels of parenting stress would be likely to increase. He recommended input via CAMHS or local educational psychology services to help the family with techniques to better support and manage MDMB's particular needs. MDMB is still scheduled to be seen at the Lighthouse Centre for further assessment of whether she meets the criteria for ADHD, however due to the many other assessments which have since intervened, this piece of work has yet to be done.

  6. Dr Banks also noted when carrying out a personality Assessment inventory of Mrs A that her results showed some 'post traumatic stress anxiety-type symptoms' including rapid and extreme mood swings, which he considered might well relate to the traumatic residue of earlier childhood sexual abuse. She acknowledged her need for help in this regard, and Dr Banks noted that she may need assistance to locate and access an appropriately skilled confidential therapy service locally. Simply providing her with an appointment-time would, he considered, be likely to set the family up to fail, since they would need help with transportation as well. Dr Banks identified that due to her low IQ Mrs A should also be eligible for additional support in the form of a 'home help' from the Social Services Parents with Learning Disabilities service. She has since been provided with some home-care support of 90 minutes per week within the available funding limits. She has also been provided with an advocate to support her in meetings and at hearings concerning her children.

  7. Dr Banks next identified that a McGaw PAMs type course of parenting skills training for those with learning disabilities (such as those run by Barnardos or Sure Start) would be of benefit to both Mrs A and to Mr A, even though in the case of Mr A, he has a learning difficulty rather than disability.

  8. So far as Mr A was concerned Dr Banks described him as a " young and committed father who is functioning in the borderline level to low average range of IQ". His overall full scale IQ was assessed at 79. This he opined would be likely to make him appear somewhat 'concrete' in his thinking, impulsive under stress, and immature when criticised. However he was observed to be more competent in his parenting skills than his wife, with the effect that MDMB and MSJAA responded to him as their primary attachment figure. Whilst Mrs A was more prone to losing her temper and shouting at the children, Dr Banks noted that Mr A displayed a better level of emotional control with them, and in consequence they paid him more attention.

  9. In observing the children's interaction with their parents Dr Banks considered both parents were able to engage with the children in a constructive and stimulating way, but that they had difficulties in adequately managing MDMB's behaviour in particular, due to the latter's high over activity and impulsivity. He recommended that both parents would benefit from a 'Theraplay' approach to improve their overall parenting of the children, and to enhance the attachment between MDMB and her mother in particular .

  10. In terms of timescales Dr Banks expressed the view that individual therapy for Mrs A would be needed for 'not less than six months', and depending on what arises, might be needed for 'up to eighteen months'. As to the 'Theraplay' he considered this would be needed for 'not less than six months'. He concluded by recommending that MDMB's educational statementing should begin immediately, and by endorsing the particular benefit to this family of being provided with a home with a secure garden. For reasons which I will return to, Dr Banks recommendations for therapeutic input were not implemented in advance of these proceedings starting.

  11. Three months after Dr Banks' report was provided the children were once again made subject to 'child protection plans' on 28.11.2013 and those plans have remained in place ever since. The Local Authority's application for care orders was issued on 16 May 2014 (now some ten months ago) whilst the children have remained at home in the care of their parents throughout. The 'summary of the Local Authority's plan for the children' (contained within their C110 application) states that the girls will be placed within a foster family with a 'long-term plan for the children to be placed for adoption'. However that placement application was not filed with the Court until 15 January 2015, that is: one day prior to the commencement of this final hearing.

  12. At the first case management hearing on 9.6.14. SBC had considered but then decided not to pursue an interim care order. Instead the parents agreed to sign a written agreement whilst a PAMS assessment was carried out. The Local Authority also agreed to carry out an special guardianship assessment of paternal grandparents Mr and Mrs C (who had made an application to be joined for this purpose on 4.6.2014). That report was duly directed to be filed by 1.9.2014. At the next case management hearing on 16th June 2014 the lay Justices directed that the PAMs assessment by independent social worker Susan French should be filed by 29.8.2014, and that the Local Authority's final evidence together with any placement application should be filed by 10 September 2014. At the same time they reallocated the matter to be heard in the county court for an IRH on 1 October with a final hearing between 6-9 October 2014.

  13. At the first CMH listed before me on 3.9.14 I acceded to the Local Authority's request for an extension of time until 19 September in which to file Ms French's report, and extended until 24 and 28 September the time within which the Local Authority was to file its final evidence and placement application respectively. Nevertheless by the time of the IRH on 1.10.14. the case was still not ready for hearing. SBC had received Ms French's report dated 14.9.2014, and had almost completed a SGO assessment of Mr and Mrs C on 2.9.14. which was negative. They had not however filed any final evidence. A statement by the allocated social worker Beatrice Kamau dated 22 September 2014 indicated that Local Authority proposed to 'assess the parents' level of engagement and any positive changes they are able to implement over (a further) 6-8week period' indicating that 'at the end of this period the Local Authority will be in a position to make a clear long term plan.'

  14. In the light of the parents' learning disabilities a proposed package of work and support which had been recommended within Ms French's report, and I accepted that it would be fair and just to allow the final hearing to be deferred beyond the usual 26 weeks, in order that the parents' assessment might be fairly completed following the work which Ms French had recommended should be done with them. An updated report from Ms French was duly directed to be filed by 15.12.14, together with a report from the Marigold Family Support team by 8.10.14. The Marigold team comprised Sue Wayland who undertook 10 sessions of positive parenting work with the family in their home, and Christine Packer who undertook 9 sessions of 'Theraplay' together with 3 feedback and 3 assessment sessions with the family at the Marigold Centre. An extension of time for the finalised SGO report in relation to the grandparents was granted until 10.11.2014, and the Local Authority was ordered to file its final evidence care plans and placement applications by 23.12.2014.

  15. Despite being ordered to attend Court to explain their failure to do so, the Local Authority failed to complete the final SGO report until 9.1.2015 which was three working days before the final hearing began. Whilst blame for this was deflected onto Mr and Mrs C for failing to provide medical reports from their G.P., I am satisfied from the evidence that the substantive impediment to those reports being provided punctually as directed, was the Local Authority's failure to respond to the GP's request for payment in advance.

  16. Ms French duly filed her final report on the date directed, following a final unannounced visit to the family on Sunday 14.12.14. Whilst her report noted that with the constant intervention of the Local Authority the family had been able to make some marked improvements to their children's lives, she nevertheless doubted their ability to sustain these improvements once the support was removed, and/or when the pressure of proceedings ceased. Ms French therefore recommended that the Local Authority should seek alternative care for the three children.

  17. On 18 December 2014 social worker Ms Kamau signed what was headed the 'Final Witness statement' of the local authority. A final care plan was not filed at the same time but the statement suggested that once the parents were informed of either Ms French's conclusion, or of the local authority's final care plan for adoption, there was a risk that the children might be 'emotionally abused' by their parents' emotional response to it. At the behest of SBC a notice of application for an urgent interim care order was issued on the same day, returnable before DJ Shanks on 23rd December 2014. With scarcely 24 hours notice, the parties' attended Court where (in addition to a Court bundle exceeding 650 pages) they were served with the report of Ms French and a further statement headed 'Final statement of Beatrice Kamau' dated 23.12.14.

  18. In the light of the parents' learning disabilities, and in the absence of any cohate care plan or placement application, not to mention the fact that Ms French's report had nowhere suggested that the children's welfare demanded their immediate removal, DJ Shanks robustly and rightly dismissed that application. The order reflects that Mr and Mrs C (who had paid to be represented on that occasion) sought an order for their costs to be paid on an indemnity basis, and this issue has yet to be adjudicated. The order also records that the Local Authority agreed to provide up to £500 towards their legal costs of obtaining support and advice in preparing their statements.

  19. The preamble to the order made by DJ Shanks further records that the Local Authority would be providing a family support worker to 'monitor and advise the family for up to one hour' over the festive dates of 26, 27,and 28 December as well as 1st and 2nd January 2015 when the Local Authority would be operating a skeleton staff only. Mrs Angela Golshan from Premier Children's Services was appointed to undertake this piece of work. Notwithstanding the trauma of the ICO hearing shortly before Christmas, her reports indicated nothing of concern in the parents' physical and emotional care of the children over that period.

  20. As the order of DJ Shanks recorded the Local Authority gave notice that it would be unlikely to comply with the direction to file its placement application as directed, stating this was because 'further work is required to assess the children before considering proposals for placement'. So far as I am aware no further assessment work on the children was in fact undertaken between 23 December 2014 and the date in January when the placement application was ultimately issued.

  21. The final 'final witness statement of Beatrice Kamau' signed on Friday 9.1.2015, together with the Local Authority's 'final care plans' dated 7 January 2015 were provided to the parties only three working days prior to the start of this final hearing. Mr and Mrs C filed their statement in response to the final SGO report on 6.1.2015 (without sight of the final report on them) whilst Mr and Mrs A managed to provide their substantive statements in response to the Local Authority evidence on 15.1.15 and 13.1.15 respectively. Both they and their representatives deserve considerable credit for their achievement in these difficult circumstances. The Court itself has been provided with approximately 1500 pages of documents in the care bundle alone, with an index omitting reference to approximately sixty pages, notwithstanding that a version updated to 15.1.15. was provided at the end of the hearing.

  22. The Local Authority's final care plans are as mentioned dated 8.1.2015. Paragraph 1.2 proposes that the siblings will be placed together in a foster placement "whilst the children settle, and work is completed with (them) to consider the appropriate family for (them)." It is proposed that this work "will be to consider the children's attachment once out of the home, and whether adoption together is a viable option". At paragraph 2.14 it is stated that "should the children have separate adoptive placements the level of contact would need to be assessed and discussed with the relevant adopters". Inferentially (but not expressly) this refers to both sibling as well as parental contact. At paragraph 5.1 the plans state that a suitable foster placement has been identified for the girls, and that "preparation work needs to be undertaken to prepare all siblings for a placement with prospective adopters who will be identified as soon as possible. This plan remains subject to a decision by the agency adoption maker". Para 5.7 indicated that "a decision from the agency adoption decision maker is expected by 9th February 2015". However paragraph 5.6 was clear that there would be no familial reunification and that "The long term plan will be adoption". Perhaps recognising that this care plan was likely to remain inchoate throughout the hearing, the local authority subsequently brought forward its Agency Decision making to 14th January 2015, when the plan to seek placement orders in respect of the children was approved, and the application was finally drafted on the following day, which was on the afternoon prior to the final hearing commencing.

  23. To elaborate upon the Local Authority's plans should a placement order be made Lorna O'Connor from the adoption team was called to speak to a statement which she had prepared on 22.12.14. Asked about the number of families currently known to be willing to adopt three siblings in an age range of 20months 4 years and 6 years, she said that there is currently one prospective family on the National Adoption Register, but that her own authority had no adopters on its lists who would consider three. She said she had no personal experience of placing a sibling group of this or any size. She was aware of colleagues who had done so, but did not know whether MDMB's special needs (which include a diagnosis of oppositional behaviour disorder) might affect the search. Ms O'Connor was candid about her lack of experience in dealing with difficult or multiple placements, and this may be a reflection of the fact that she was only qualified at the end of July 2014. She said that a sibling group would be a 'new challenge' for her, and envisaged that after doing around six weeks work with the children she might form an opinion as to their attachment to each other, and their readiness to attach to new people. However she also said she would be 'guided by others' who had assessed their need to be placed together. Having not met them yet, she said she was unable to say if they might be placed within six months, but considered that 12months might be a more realistic timeframe. She said the statistics did not help her to know whether the girls ages or their need for post adoption contact might impact on their chances of placement. Whilst she did not known what their needs were yet, she nevertheless said that she had formed a view that there should be post adoption contact, particularly since MDMB will have 'thoughts and feelings' about that.

  24. In final submissions on behalf of the Local Authority Ms O'Connor's evidence was described a little 'woolly'. I can only agree with the observation made on behalf of the Guardian, that this description was an understatement. The Local Authority's plan as to how these children's needs will be met following their removal from their family, remains worryingly indistinct.

  25. On 11 September 2014 Mr David Britton (who is a supervising social worker at the Marigold Centre) visited the family home with Ms Kamau at the latter's request in order to undertake 'a brief sibling attachment assessment.' An unsigned record of that visit is appended to Ms Kamau's statement on 25.9.14. It was his only direct involvement with the children. Whilst Sue Wayland and Christine Packer had been responsible for the substantive work which the Marigold Centre had done with the family, Mr Britton explained that he had drafted a few paragraphs at the end of each of their reports by way of 'conclusions'. Whilst acknowledging that Marigold work had not comprised a parenting assessment as such, he said he had felt obliged to offer some conclusion for the ISW Sue French who needed it, and that the PLO had meant this had to be done quite quickly.

  26. Mr Britton noted that Ms Packer and Wayland had agreed that much improvement had been shown by Mr and Mrs A in their parenting, he did not think that this would be sustained. His reasoning was that whilst a lot of local authority input had enabled the parents to implement appropriate strategies, the concern remained that they would not carry this on in the absence of a practitioner. He accepted they had shown the necessary motivation, but doubted they would carry on the work of their own volition in the absence of support. He described their 'intrinsic' motivation as having derived the pleasure they took in doing tasks which were as enjoyable for them as they were for the children, but felt unsure if they fully understood the impact of their behaviour of their children. He acknowledged the parents had shown an ability to be 'good enough parents' but repeated that his misgivings about whether the parents would sustain their good work remained based upon his reading of Sue French's assessment. He considered the parents would rather have the local authority 'off their backs' and that they may have been participating only under duress. However he added that he had not read the later more encouraging reports which Ms Gulshan had provided over Christmas.

  27. Mr Britton fairly observed that at some point theraplay skills have to be learned and taken on by the parents themselves without prompting. Critically however he was clear that the Marigold had been directed to undertake the theraplay work with the parents in a very short timeframe of 6-8 weeks which had never been enough, and that the parents might well benefit from more time limited work. He said that a standard period of theraplay is usually 10-12 weeks.

  28. He agreed that the parents' criticisms of the local authority had been appropriately aired at review meetings, rather than during interventions, and that they had worked well with the Marigold to address the problems to the best of their ability. He accepted that they ranked high on the list of vulnerable parents, who would continue to need the support of the adult disabilities team with or with or without children to care for, and accepted that despite these difficulties they had taken to theraplay quite quickly, and had done well in a short period of time, particularly in the light of the fact that Dr Banks had recommended 6months of theraplay.

  29. He surmised that MDMB's oppositional defiant behaviour may 'look like' a disorder but might just be a tool she uses to get attention. He accepted that he is not a psychologist and that this is his 'instinctive' view. When asked what work he considered the children needed having done his assessment, he said he planned to 'revisit it in future' adding that he would be curious to see what the impact might be on MDMB's development and behaviour after a period of living apart from her parents.

  30. Within the sibling attachment assessment which he undertook in September 2014 Mr Britton observed that: " it was a very brief meeting with all three children and their parents however there was nothing in any of the children's presentation to suggest that they were not happy in each others company" He then continued: " Whilst there remains a strong biological and emotional imperative to keep the children together- and at this time there does not appear to be justifiable reasons to separate them, what needs to be factored into any placement is the need to ensure that the children's carers are aware of MDMB's developmental delay and the high level of supervision and care that she will need". Acknowledging that it is unusual to undertake a sibling attachment whilst the children remain living in their parents care, he did not ask the children for their views on whether they wished to remain together or separately, but opined that they would 'survive the trauma of separation from their parents' better if placed together with 'attuned resilient foster carers'.

  31. Mr Britton concluded his assessment with a recommendation that all three girls should be placed in foster care, whilst another sibling attachment assessment was done, preparatory to the search for an adoptive family. He also posited an alternative of placing MDMB separately if an adoptive family could not be found who is able to see the 'gains that can come from keeping all three of the children together'. Bearing in mind that the Marigold is a resource which is independent of the Local Authority, Mr Britton was subject to some criticism on behalf of the Guardian for offering recommendations about the long-term placement of the girls when his remit had been confined to the provision of a sibling assessment. Having listened to his evidence I found Mr Britton somewhat evasive in answering questions as to whether he had been aware of the Local Authority's view as to future placement of the children, or whether he had been asked to express a view on the children's placement. He maintained only that he had offered a recommendation in order to 'help out his colleagues.' On any view his sibling assessment work was incomplete, whilst by his own admission the Marigold's work with the family had been shorter than standard, and rather less than this family required. His reading of the all papers was inadequate for the purposes of an holistic opinion as to the children's future needs, and in all the circumstances I consider that very little weight can be attached to his recommendation.

  32. The substantive report of ISW Susan French was completed on 14.9.2014. and was supplemented on 15.12.2014 after a final visit of 1.1/2 hours to the family on the preceding day, which was intended to gauge the progress which the Marigold work may have wrought upon the parents care of the children at home. At the end of her first report Ms French observed under the heading 'Recommendation' that Mr A appeared to compensate for quite a lot of his wife's shortcomings, and that both had scored well in the safety/abuse category of the assessment meaning that there were no indicators of imminent danger, apart from the concern about the children having absconded unnoticed from home. That risk she noted had been minimised by the placement of locks on all doors and cupboards and she noted that this particular risk had not recurred since. She recommended that the local authority would need to provide targeted support to deal with neglect issues related to diet, stimulation and boundaries. However since she considered it was not the parents' knowledge but their practice which was deficient, she suggested the issue may be related to their commitment and motivation. She described Mr A as a very pleasant young man who is able to listen and respond to suggestions, but nevertheless she identified him as the 'main culprit' where commitment was concerned. She made six recommendations as to things that needed to be put in place. These included (i) teaching and support twice a week from the family support team on feeding and healthcare routines using picture strategies, (ii) continued health visitor monitoring and guidance with regard to feeding general health and symptom recognition and response. (iii) Mrs A to contact her GP regarding her poor relationship with MDMB (iv) That an urgent referral be made to CAHMS for individual therapy and family therapy (v) the provision of after school and weekend activities for the children to enhance their stimulation and (vi) a nursery placement twice a week for OJCA to ensure her simulative needs are met. Ms French concluded her report by observing " If there is no improvement in Mrs A or Marc's ability to cope after the above recommendations have been put into place or if the children's care deteriorates below the level currently provided, I would recommend the Local Authority seek alternative care for the children". As mentioned it was these recommendations which led to the provision of 6-8 weeks of parenting work by the Marigold centre and the provision of Theraplay with the family.

  33. In her oral evidence Ms French observed that both parents always tried to keep on top of what the Local Authority asked of them, and that they did achieve in areas such as food and tidying. However she returned to visit the home unannounced on Sunday 14th December 2014 because she knew no other support workers would be around, and wanted to see what it was like when as she put it: 'the local authority support is pulled out'. It was her conclusion from this visit that they were unable to sustain their improvements 'when support is removed and the pressure taken off' and that the Local Authority should seek alternative care for the children since it was not in their interest to remain at home without constant intervention by the local authority. Due to the 'very clear and very positive attachment between MSJAA and MDMB' she did not recommend the children be separated but ventured that the difficulty of finding a permanent home for all three together might mean only the two eldest could be kept together.

  34. During her visit between 11am and 12.30 she noted that there was washing on the stairs, which Mrs A said she had thrown over the banister that morning to take downstairs, nevertheless Ms French observed it was a tripping hazard. In the lounge she said she noted 'tobacco pouches' and also a 'lighter' and lots of toys on the floor. In cross examination she said the tobacco pouch had been wrapped, but she was unsure if it was a single pouch or more or whether she had seen it on the floor by a chair or by the door. For their part Mr and Mrs A accept that tobacco pouches must be kept out of the children's reach and maintained they have since ensured that they are placed inside a bag and on a shelf out of the children's reach and sight behind their CDs. They accepted that lighters were a serious safety hazard if left within the children's reach but firmly denied that any lighter had been left on the floor on 14th December when Ms French visited. I accept that Ms French had no reason to 'lie' about what she thought she saw, but I do think that it is reasonably probable that she mistook a children's toy thermometer for a lighter. Having been shown a photograph of a play digital thermometer which the children commonly play with in their doctor and nurse play set, it is easy to see how its shape and size might be mistaken for a disposable lighter. Ms Gillespie the Guardian thought so too. She also observed with some force that had the parents had left a lighter on their living room floor within reach of the children then it is very surprising that Ms French did not pick it up to place it out of harms way, and then challenge the parents as to why it was there. Has she done so, she may also have been able to better discern if it was a lighter as she suspected.

  35. Another item of potential danger which Ms French spotted was what she described in her report as 'razors left on the sink in the bathroom', where she felt that one of the older girls may have been able to climb on to the bath and reach them. However she could not remember seeing loose or packeted blades, and the uncontroverted evidence of Mr and Mrs A was that these are kept out of the children's reach on a windowsill behind the basin.

  36. Ms French also voiced her concern that she had only seen OJCA down on the floor crawling and taking a few steps for a brief period during her visit and that for most of her visit she was in her high chair. She also said she had never seen anyone work as hard as Mrs A does, describing her as 'always on the go,' She agreed that Mrs A always listens and tries to respond, and said she could not criticise any of her efforts, as her learning disability impacts what she is able to do so, rather she was more critical of Mr A who she felt needed to step up more when his wife is tired or exhausted. She described Mrs A as someone who does not want anyone to think badly of her, who was mortified that Ms French had seen anything that was not right. At the end of the visit whilst in the kitchen Mrs A had an emotional outburst, as a result of this anxiety which, Ms French recalled, prompted her to say that she wished she had not had MDMB. Ms French said she could not be sure whether this may have been overheard by the children who were next door in the lounge with their father at the time. However she did not think it would be fair on the children to have constant social services input in the future, because it impacted on relationships and their Mum's ability to contain her anxiety.

  37. Ms French said that she gave Mrs A the telephone numbers for CAMHS noting that her recommendation for this input had not been actioned. However she said she did not know whether the family might meet CAMHS criteria as she is not a psychologist. In Kent (which is her local authority) it is her experience that the local authority works hand in hand with CAMHS and so she presumed that in Essex they would respond to a request for assistance from the Local Authority. In cross examination she was asked if she was aware that Mrs A had contacted CAMHS who told her that she would need a professional referral to access that service, but there had been no referral from social services. Clearly local practices differ, and in Essex the Local Authority expects individuals to obtain a referral from their GP. Ms French recalled that Mrs A had talked of going to her doctor, but she made no criticism of the local authority for failing to take up her recommendation to refer Mrs A for therapy, nor had she asked them why they had not. She conceded under cross examination that perhaps she should have.

  38. Asked what she had realistically thought 6 weeks of Theraplay would achieve given Dr Banks' recommendation that this family would require 6 months of it, Ms French simply replied: "I'm not a psychiatrist, I cannot comment". Asked whether she thought that what she had seen was probably 'good enough' on scale of 'terrible to very good' she did not expressly answer but replied " I'd say it is inconsistent" and that "something awful could happen on a day when it is not good".

  39. Ms French agreed that it did appear that the Theraplay had helped the children to calm down. Unlike her other visits when MDMB 'was like a whirlwind' she said that when she got there all the children were calm and she said it was positive and nice to see unbroken toys there which they were able to use. She accepted that the levels of care may well go up and down, and even that they may be better than good enough at times, but she remained concerned about the impact upon the children if their mother became emotional as she had prior to her departure on that day, and how many years it might be necessary to test out the changes they could make.

  40. When it was put to Ms French that Dr Banks had advised back in 2011that the children would be likely to need intervention throughout their minority, so one might expect his advice should be followed, she replied " I can't comment, I did not have enough information". She expressed her concern that with a learning difficulty the parents' problems could only become more acute as MDMB who is developmentally delayed moves through school. She said she had never seen such a child become 'easier' and that in her experience " it's a chain of decline with a learning disability" and she speculated that MDMB may become more threatening and difficult to guide, although she will have her own support as a child with a disability.

  41. When it was put to her that in contrast to her predictions the evidence from the Marigold shows that MDMB's relationship with her mother is showing signs of improvement Ms French replied " I can't comment on something I'm not part of all the time, hopefully Theraplay is supportive of Mum". She then acknowledged the importance of taking on board that work to contain MDMB's behaviour, before concurring that she had seen "a massive improvement" compared to previously when she had observed her behaviour to be 'off the wall" She also agreed that the conclusions in her second report relied largely on the observations of others rather than her own. However when challenged that her observations in relation to OJCA being quieter than she would have expected, were in contrast to the observations of the Marigold who saw an 'animated and delighted' child, she replied " I would like to have seen more of her outside of her chair, it seemed like it is what they always do, but I can only base it on what I see"

  42. When asked why she was saying that intervention should be removed, she replied that she did not say that, but asked rhetorically "How much? How often? Will it ever be removed?" indicating that the crux of her concern is how long support will be needed, and whether 'enough is enough'. She said she could not say if they had received enough support in the past. She agreed that she could not imagine what their emotions must have been like in the face of the threatened ICO before Christmas but agreed that they had reacted appropriately. She also agreed that throughout the last two months of intervention their care could be described as 'good enough'. In predicting what the future may hold she acknowledged that she is not a psychologist and said she did not seek to question Dr Bank's recommendation that the family may require 6 months of theraplay and lifelong intervention by support services. She questioned whether the uncertainty of the future would be fair to the children. She accepted that her first report had recommended removal of the children only if there was no improvement in response to her recommendations, but said despite the fact that there were improvements in the home and through theraplay, it was 'difficult to know it (the past) is not going to repeat itself'. She accepted that her recommendation for nursery and after school activities had been acted upon by the parents and that only one of the six 'things that need to be put inn place' as outlined at the end of her main report which remained outstanding was the referral to CAMHS which was partly a local authority obligation to support. In the circumstances it was put to her that she had 'moved the goalposts' since her first report. This in my judgement was a fair observation since she was generally willing to agree that a lot of effort had been put in by the parents, and that the family had made reasonable improvements. She conceded that with the help of the theraplay Mrs A had been able to show that she is now able to speak in nice tones to MDMB, and it is positive that MDMB is able to now say " Mummy loves me". She also accepted that the Health visitor had no clinical concerns in relation to OJCA's development, and that if the parents continued to engage things might be improved further. She agreed that whilst they had appeared defensive when she arrived unexpectedly on a Sunday morning that this might be considered a 'classic reaction' of parents with learning difficulties, yet they had let her in and had not been obstructive. She also agreed that they had attended all the other sessions which had been required of them. She conceded the possibility that Mr A's rather monotone way of speaking may be effected by his prescribed anti depressants, rather than an indication of low motivation, and accepted that he was welcoming and conversational. She agreed that the family home presented no issues of cleanliness or hygiene, rather the issue was one of general untidiness. Equally she accepted that there may be seasonal reasons why the children's bedrooms had toys all over the floor at Christmas time, and considered it possible this may have been remedied fairly quickly after she had left. She retracted her observation that the house had been untidy on 'every visit', and accepted that Ms Gulshan's observations of the home over Christmas also showed that there had been significant improvement. Whilst repeating her concern that the gains might fall away without social worker intervention, she did not refute that their engagement may be greater because they do now recognise the concerns which the local authority have, as well the importance of protecting the children from dangers within the home, particularly after the shock of the ICO at Christmas when they realised what might happen if they did not.

  43. The Theraplay which Christine Packer commenced with the family on 8.12.14 aimed at fine tuning areas of parent/child interaction via the Marshak Intervention method or MIMS method. It looked at 4 areas or 'dimensions' namely structure, engagement, challenge, and nurture. Working with parents who have learning difficulties she used strategies to ensure she was understood including a pictorial timetable and going through their progress every fourth session and asking for their comments. Teaching is also given via DVDs as well as demonstration, whilst a list of activities to do at home is also provided. It was her view that the parents managed to develop an understanding of the principles, to the point where they were able to identify which of the 4 dimensions any particular activity fitted into.

  44. Ms Packer noted that MDMB sometimes rejected her mother's attempts to give her care which in turn affected how Mrs A reacted to MDMB. Equally when MDMB was observed with just her parents and not her siblings her mother switched to using the terms of endearment and nurturing care which had been suggested. When all three siblings were present and Mum was unable to respond to MDMB alone, MDMB would become distressed and tearful and at times overwhelmed. MSJAA and OJCA responded in a more positive way. She agreed with an observation Dr Banks had made about Mother becoming more stressed if two or more children made conflicting demands, as she had difficulties giving each the same amount of individual attention. She said that her colleague Sue Wayland told her that both parents had been observed to practise the theraplay within the home, and believed it was effective because it was enjoyed quite a lot and the children looked forward to the activities with their parents. It took a little while but she said the parents did remember to bring with the props she suggested for doing theraplay outside of the home. She said that they continued to need support to work on their interactions with the children, to maintain the attachment behaviours consistently. She agreed with Dr Banks' recommendation that 6months rather than 6 weeks of theraplay is required to effect a positive outcome which is sustainable. Should the family be referred to the Marigold again she had no doubt that they would respond appropriately. As the only therapist currently available she confirmed that she could not offer more than one session per week, but observed that they could be shown much more, and that it was positive that they had clearly tried to implement what they have been shown so far. She said that they had not had the luxury of time to demonstrate their ability to manage the techniques with all three at home, but this opportunity should be given, as they had shown they were listening and taking on board what had been shown to them. She made it clear that Mrs A does most of the fetching and carrying, and whilst Mr A does try to compensate he can be 'inactive' and needs to be more supportive. He does take over the nurturing when Mrs A is distressed, and Ms Packer considered his inclusion a 'strength'. The aim is for him to recognise when the children need more comfort, more structure or more fun in their play. In other words to empathise and pick up on the children's emotions and feelings. She regarded MDMB's calmer behaviour at home as a definite positive, and considered there was hope for this to become better over time. Motivation and understanding why they are doing it is important, but Ms Packer sensibly observed the fact they enjoy it makes it more likely they will continue.

  45. Ms Packer agreed with Dr Banks' opinion that they would benefit from additional parenting skills training as regards MDMB's specific developmental needs, but confirmed that her manager would have to decide whether a long or short term piece of work could be approved. Whilst working with all 3 children she envisaged that more work might be adapted towards MDMB and her mother, in a flexible rather than rigid programme, both at home and at the family centre. Asked what she regarded as the minimum number of session she would need she said she would plump for six months but that it depended on their progress and it might need more.

  46. Sue Wayland said the aim of her work had been to help the parents with child routines and parenting skills. She had the benefit of PAMs training and 23 years of experience working with learning disabilities. She looked at using pictorial aids to encourage routines and house rules and confirmed that the families had pinned these up on the their walls at a height above the children's' reach so they are not removed. An example of house rules included not leaving lighters around within OJCA's reach since she now cruising around the furniture on her feet. After discussing the issue many times Ms Wayland said there were no lighters around by the last two of her visits. Other hazards such as hair ties or rubber bands left within the baby's reach were picked up when she commented on them.

  47. With regard to healthy eating she said she saw in her ten visits fresh fruit and veg on one occasion but frozen veg was in the freezer, and she also saw meats and other foods in their fridge which they were going to use. When Mrs A made spaghetti Bolognaise which the children did not want to eat she was upset, however Mr A offered to make them a sandwich and yoghurt to avoid them being hungry, and tried to calm Mrs A. Notably the children were not upset by their mother's reaction on that occasion. Mr A usually occupied the children in the lounge whilst Mrs A was doing tasks in the kitchen, although he chipped in a couple of times. She noted that they did not always tick off the tasks they had done on the lists provided whilst she was there, but accepted this may have been done later. Mrs A was always observed to be busy doing something whether getting a meal ready, getting the theraplay items together or drawing with the girls. The written routine indicates that her day starts at 5am with getting the children ready for school, and charts each stage of the day. In hindsight she considered these might have included pictorial rather than just written lists. Mr A was also observed drawing writing or colouring with the children and he would cuddle them whilst the TV was on.

  48. An area of concern related to MDMB opening the door to Ms Wayland, so it was made a house rule that she was not to open the door unless her mother or father gave her permission to do so. She said maintaining consistency with the house rules and routines remained a concern. Ms Kamau said she too had been concerned that the children had recently opened the door to her, although the parents maintained they had given permission for this. Ms Wayland said that sometimes the house was tidy and sometimes not, and this may be a feature of family life, but there should not be safety issues. Whilst unmade beds or undrawn curtains may not be a safety issue leaving small toys within OJCA's reach might be. She said that in more recent times these issues had been addressed and that it was positive that no more lighters for example had been seen. During theraplay activities which she observed them do whilst she was there she said there were no derogatory comments to MDMB, and the parents had not reverted to swearing which were positive moves forward. On the other hand the children had not always had their uniform removed on return from school, which was part of the routine. Ms Wayland's view was that the parents are motivated to keep the house tidy because they want to keep their children, and she agreed that their standard of care is presently good enough, but added that we also want them to move on, and more can be done. On balance she said she thought they would maintain the good work whilst they are worried about keeping their children, adding that more time could help the professionals to get to the bottom of whether their learning difficulties contribute to the inconsistency. She agreed that a level of intrinsic motivation existed as regards using theraplay because the parents and children all enjoy it. She acknowledged there has been progress in that a better response from MDMB is achieved when there is less shouting, and there is a consistency with more smiles and laughter being noted by all the Marigold workers. The longer such progress continues she considered there is cause for optimism, and she added that she could offer no evidence that they would not carry it on.

  49. Ms Golshan who was employed between Christmas and new year to attend the home for up to an hour, said that she noted a clean a tidy house with happy children whom she observed playing and eating a couple of times. Mrs A showed her around all the rooms. On her arrival she encountered the parents standing on the doorstep having a cigarette, whilst the children were outside. This was a cause of further concern to Ms Kamau since the children would not have been being supervised. Ms Gulshan said that the hallway can be seen from the doorstep and that once inside the kitchen can be seen, but not the lounge until you are farther in. Whilst I accept that the children may have been audible and within easy reaching distance of the doorstep, in OJCA's case I accept that need to be able to see that she is safe at all times when she is awake is also imperative. On a better note Ms Gulshan said she observed no hazard to a child lying about, albeit there were toys on the living room floor. She observed Mr A playing Lego with the children, as well as singing with them, and playing tickling games whilst he swapped who sat on his lap. She also saw him clearing away the toys, and the children enjoying meals which their mother had made including stew, soup and sandwich. From time to time she also saw other family relatives visiting who were familiar and expressed herself happy with what she saw. She said there was no point when she felt the need to intervene to give advice, and that all the children talked to her, and none reacted differently to her.

  50. At the end of her evidence Ms Kamau acknowledged that a number of the professional witnesses had agreed that the quality of care Mr and Mrs A are able to provide is 'good enough' and that there is room for optimism. However she said "in 2011 we were told there was a level of optimism. I don't think it is possible to have optimism with this level of peaks and troughs, and I am less optimistic than Ms Wayland who is not a qualified social worker, or Ms Packer. Unlike Ms Kamau however those two ladies have been engaged in undertaking the most direct work with this family. Work which has been recommended by Dr Banks back in 2011 but which has only more recently been implemented in a manner which has borne fruit. Ms Gillespie the Guardian has also observed the improvements which have been derived from a move to better house with garden. Whilst in her early visits she saw hazardous items like a hoover left lying about over six or so visits she has not seen similar dangers. She accept the floor has been strewn with toys at times (adding that she would be more concerned if there were none) and that she has not witnessed lighters or tobacco left within reach. At her suggestion much of the older clutter has been packed into larger Tupperware boxes and removed to the shed. She was concerned that help for MDMB at the Lighthouse had been put on hold during all the other work but was optimistic that it would be available from March. She noted that MDMB has been on medication for constipation and considered that a recent episode of soiling at school was likely to have resulted from a combination of her medication being changed, and stress in relation to these proceedings of which she is very aware. I have no other evidence to suggest a more concerning explanation for MDMB's soiling related to the care she receives.

  51. Although concern had been expressed by others about MSJAA telling her sister off for misbehaving (when it was her parents place to this) Ms Gillespie saw this as a positive reinforcement of the fact that MDMB should not be doing something, since MDMB does not always appreciate that her behaviour is inappropriate, and her younger sister who is much brighter than her can help.

  52. Ms Gillespie agreed that it was not appropriate for a 5 year old to be wearing nappies, but considered that Mr A's explanation that MSJAA had recently done so when she was unwell was not unreasonable, since many children wet the bed until a much greater age especially if they are unwell, She added that she has seen MSJAA take herself to the toilet as well.

  53. Both older girls are said to love their baby sister and have been observed taking turns to feed her with a spoon together with their grandmother. Ms Gillespie observed of the grandparents who are weekly visitors that they give their granddaughters including MDMB frequent cuddles, so even though her behaviour may be challenging she is not unloved. Ms Gillespie concurred that Mr and Mrs C lack the necessary space in their home to care for all three girls (although it is adequate for overnight stays for the elder two at the weekend). She did not find any reason to oppose their suitability as alternative carers for the girls if they were to move to a more suitable home as they have indicated they would be willing to do.

  54. Having seen and heard from Mr and Mrs C I had no doubts that they are committed and caring grandparents who are also intelligent and sensible people well able to recognise when Mr and Mrs A fall short. Crucially they are also supportive and understanding of their son and daughter in law's limitations. Mrs C made a particular effort to help her daughter in law with colour coded menu suggestions and simple recipes. They have made suggestions for making sure that MDMB cannot get out of bed at night and wander alone downstairs, and Mr C has helped them to fit a movement sensor and alarm over the stair gate.

  55. Ms Gillespie's view with which I concur is that the case for statutory intervention is not quite a 'borderline' one, nor is it far from it, rather it is a 'bit over the borderline' in the right direction. She considered and I agree that it would be helpful if she could be part of a meeting with the Local Authority and parents to work out a schedule of work and an agenda of matters with which the family continue to need support whether from the local authority other agencies or the wider family.

  56. Whilst Ms Gillespie favoured the making of a family assistance order over a supervision order on the grounds that the local authority may be minded to provide more statutory help under the former rather than the latter, I do not agree. Ms Kamau made it clear that if a supervision order were to be made the statutory requirement for visiting would be six weekly but that she would visit more often than that and at least monthly. In either case the obligation on the nominated agency is to advise assist and befriend the family, but crucially in the case of family assistance order the nominated parties have to consent and in this case they do not.

  57. I have come to the clear decision that a care order is neither necessary nor proportionate at this stage for the protection of these children. I am not satisfied that the care plan for alternative care by the local authority provides an adequate or more compelling safeguard of the children's emotional needs in any event. I am also not satisfied that Mr and Mrs C ought properly to be eliminated as alternative kinship carers in the event that the girls are unable to live with their family. I do consider it appropriate for the Local Authority to have a continuing obligation to support this family in the longer term in the light of the family's learning disabilities, and their willingness to work in partnership with the local authority to make use of the support they receive. I do consider it speculative at this stage to say that they will not sustain the improvements they have made. They above all will now be wholly aware of the consequences for their children if they do not.

  58. Ms Kamau was professional enough in her evidence to acknowledge that if the Court did not endorse the local authority plan, then she would need to continue working with the family under a supervision order. Placing the children's best interests above all others as my paramount consideration, I accept that a supervision order is a necessary and proportionate response to safeguarding the children's welfare at this stage. I will make a supervision order in favour of SBC for 1 year, which may be renewed thereafter on application, as circumstances require.

  59. I express the hope and expectation that over the next two weeks a meeting with the guardian, Ms Kamau, Mr and Mrs C, and the parents can be arranged to draw up a list of the resources that will be made available, and that the parents will be expected to engage with, and that this will be engrossed within a revised care plan. Although not an exhaustive list I express the hope that this list will include the provision of the Marigold resource and theraplay for at least six months, the lighthouse resource for MDMB, and provision of the local authority support for a referral to CAMHS or similar for Mrs A to obtain the counselling which all professionals in this case have agreed is so desirable for her.

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