England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT NEWCASTLE UPON TYNE
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF C (A CHILD)

		5 May 2015

Her Honour Judge Hudson:

Introduction

1. I give this ex tempore judgment at the conclusion of care proceedings concerning a young boy, C, now just four years old. The local authority applicant is ACC. C's mother is M. Her husband, F, is named on C's birth certificate as his father, although it is accepted by the parents, as I will call them, that in fact C is not F's child. That was confirmed through DNA testing undertaken in private law proceedings; a report dated 15^th August 2014 excludes F from paternity. The circumstances in which C was conceived are unclear. It is the case of M and F that it was an agreed conception through IVF, although the private law statements which address this issue in passing do not make the circumstances clear.
2. MGM and MGF are C's maternal grandparents (MGP). They are parties to these care proceedings having been joined by the court on 18^th December 2014. C is represented in the proceedings by his Children's Guardian, Shama Hyatt.
3. These proceedings came before me on the first occasion on 27^th April 2015 for an adjourned issues resolution hearing, following a hearing before the Magistrates on 16^th April 2015. In the unusual circumstances in which the case came before the court on 16^th April 2015, the Magistrates decided that they should not make final orders requested, but that the case should be transferred to me as the Designated Family Judge.
4. In circumstances which I will address further in the course of this judgment, on 27^th April 2015 I acceded to an application made by Miss Lugg (then representing the parents for the first time) to give her an opportunity to have a conference with the parents, against a background of their failure to engage in these care proceedings by attending any hearings since their inception.

The Private Law Proceedings

5. The public law case papers include case papers from two sets of private law proceedings concerning C. I do not propose to go into the content in any detail, but it is clear that there was a high level of acrimony between M and F on the one hand and the extended maternal family on the other, which resulted in a number of referrals to social care. This acrimony was considered to have a negative impact on C. F is the subject of a restraining order preventing him from having contact with the paternal grandparents.
6. There were also referrals to social care relating to the relationship between M and F and allegations of domestic abuse. M accepts that she has alleged domestic abuse against F but has subsequently retracted those allegations - she now says she had been pressured by her parents to make false allegations.
7. Private law proceedings were issued by F seeking a prohibited steps order against the maternal grandparents and other members of the maternal family. The maternal grandparents themselves issued proceedings seeking contact.
8. Shama Hyatt was appointed as the Family Court Adviser to report in the private law proceedings. In April 2014 she recommended that a Section 37 Report should be directed requiring the local authority to consider whether public law proceedings were required. The District Judge duly made a Section 37 direction.
9. The local authority commenced assessment work. The parents initially cooperated, but over a period of months it became clear that relations between the local authority and the parents were extremely strained.
10. By October 2014 the nursery manager of the nursery attended by C was reporting concern relating to his emotional wellbeing and physical care in the care of his parents. The local authority evidence records a lack of cooperation from the parents with the local authority assessment process, continuing concerns about C's emotional wellbeing in his parents care, with a lack of support by the parents for C's relationship with the maternal family and particularly his contact with the maternal grandparents. Those issues were of increasing concern during October and November 2014.
11. The situation came to a head in early November 2014. On 3^rd November 2014 an email was sent by the parents to the local authority social worker in which they referred to allegations previously made by them against the maternal grandparents, in particular an allegation by M that she was sexually abused by her father, MGF. The email included the following:

'We feel it is time for this to come to an end, everytime we have her [the social worker] in our home she interigates us about things that arent relevant and accuses [F] of something he didnt do. we have decided enough is enough and we cannot deal with Social Services any longer. we will not have them in our home and be interigated and we will be not attending team around the family meetings as we feel a case is just been built against us. noone is on our little boys side and we need you to ask the local authority what their intentions are as we cannot live with this any longer. if they are going to take our little boy they need to do this sooner rather than later so that everyone can heal. if their intention is to take [C] then I will be enquiring about terminating this pregnancy as my concouince will not allow another baby to be taken into care.

if they intend to take [C] we want to be able to say goodbye and try and get each other through it and if they dont we want to ask for our passports back in order to relocate our family to span.'

12. M went on to state that she would take C to contact sessions but not engage with Social Services any more. The reference to passports relates to an undertaking which was given in the private law proceedings, whereby the parents passports were lodged to prevent them removing C from the jurisdiction.
13. On the same day (3^rd November 2014) the parents' solicitor emailed the local authority solicitor, seeking confirmation of her understanding that the local authority was expecting to take 'the PLO route' if the parents did not cooperate with the assessment. The email from the parents' solicitor confirmed that she was planning to meet with the parents that week to explain the importance to them of cooperating.
14. The local authority evidence at this time records that there were further issues relating to C's care and his emotional wellbeing, once again reported by nursery. After 3^rd November 2014 there was no further cooperation by the parents with any further work the local authority sought to undertake.
15. On 11^th November 2014 a letter was sent to the local authority by the parents' solicitor. It included the following:

'We write to confirm that both parents have reached the sad decision they cannot work with the local authority any longer.

We are instructed to inform you that they will no longer cooperate and feel as though they have been lied to by the current social worker who has already indicated to them that the parenting assessment is negative.

We are instructed to inform you that if the local authority's intention is to take C into care then all parents ask is that they be allowed to say their goodbyes to C in a dignified way. Parents then intend to leave the UK. Once C is taken into care, parents would seek the return of their passports to allow them to do this.

Parents are concerned that the allegations made by M regarding the abuse she has suffered herself have not been believed. Parents did not feel they could risk their child being placed with the maternal family and they have therefore, as a result, we are instructed, made the painful decision to terminate the pregnancy.

We should therefore be grateful if Children Services would communicate directly with the parents regarding reception of C into care.

We have already shared parents' concerns should C be placed with the maternal family, therefore parents would prefer that C is placed with local authority approved foster carers.'

16. It is now known that, on 6^th November 2014, M did indeed have a termination (of a pregnancy which was understood to have been welcomed by the parents). M's allegations of sexual abuse against her father were referred to the police (on the evidence before me, by MGF himself after the allegations were made by M). They were investigated by the police who concluded that no further action should be taken after MGF was interviewed in February 2014.
17. The local authority evidence records that on 11^th November 2014 C made a statement at nursery which indicated that he had been exposed to domestic abuse between M and F. A strategy meeting was convened on 11^th November 2014. Following that meeting a joint visit was made to the family home by a social worker and a police officer (PC Trewick). I have been provided with PC Trewick's record of the visit, which included the following:

'[F] opened the door and welcomed Julie and PC Trewick into the home. [M] was at the top of the stairs with [C] who had just been bathed, she came downstairs shortly after settling [C] in his bed and sat with [F] on the sofa.'

18. The record went on to describe the home circumstances, then continued as follows:

'[F] did the majority of the talking and explained that they had lost faith in the local authority and that they had made the decision to sign [C] over to them as they did not feel they could win.'

19. On the morning of 12^th November 2014 the local authority emailed the court requesting an urgent hearing before the District Judge. The letter included the following;

'On the 11^th November 2014 I received a letter from the parents' solicitors indicating the parents' wish to have C accommodated but not agreeing to placement with grandparents. The senior practitioner visited the parents and they have confirmed they wish for C to be removed and accommodated in a planned way today. They then intend to recover their passports and leave the country. As you are aware an undertaking was given regarding the passports and they are held by the solicitors.

I would be grateful if an urgent hearing could be listed to make interim orders in this case. The maternal grandparents have been temporarily approved as foster carers due to a positive viability assessment and therefore the local authority would consider it in the child's best interest to be placed with them at this time. The parents object to this but agree foster care. It would be very disruptive for this child to have more than one move and therefore I am inviting the court to make an interim care order under Section 38(1)(b) of the 1989 Children Act.'

20. The case came before District Judge Traynor on the afternoon of 12^th November 2014. The local authority was asking that an order be made as a matter or urgency. The order of the District Judge records that all parties were represented; the parents were not present at the hearing.
21. The District Judge's order provided for C to be placed in the interim care of the local authority until 8^th January 2015 or further order. He gave directions for the further conduct of the private law proceedings and listed the case for a further hearing on 10^th December 2014. The order does not record the basis upon which the District Judge found that the Section 38 criteria were established.
22. From the accounts that I have been given, this was a relatively short hearing which took place at short notice. C was at nursery awaiting collection and the local authority was awaiting the court's determination as to whether an interim care order would authorise it to make arrangements for C's care. It is already clear from my judgment that the maternal grandparents had been positively assessed by the local authority as carers for C.
23. C was duly collected from nursery and placed with the maternal grandparents. He has remained in their care since 12^th November 2014 and therefore for a period of almost six months. Since that time M and F have had no contact all with C, including at Christmas and C's birthday last week. F is subject to a restraining order and there has previously been an issue about communication between M and her parents providing a breach of that order (as a conduit from F). There are, of course, other means of communication: the local authority is involved; the parents have a solicitor; C has a Children's Guardian and his own representation in these proceedings.

The Care Proceedings

24. The care proceedings were issued by the local authority on 28^th November 2014. In accordance with my direction on 27^th April, the solicitor for the parents (Mrs Walker) filed a position statement which sets out a record of the extent to which she has been able to receive instructions from the parents.
25. On 8^th December 2014 Mrs Walker was instructed that the parents would maintain contact with her by email and telephone. They did not disclose their whereabouts to her, but said that they were out of the jurisdiction. Since that time they have maintained regular communication with her by email and telephone. Some letters have been received through the post, which have had a Spanish post mark.
26. At a hearing on 18^th December 2014 the Magistrates gave case management directions. They timetabled the case to an issues resolution hearing: the local authority evidence was directed to be served 12^th March 2015, the respondents' statements in response on 26^th March 2015 and a report from the Children's Guardian on 9^th April 2015. The issues resolution hearing was listed on 16^th April 2015.
27. The local authority's final statement and care plan are dated 20^th February 2015; the special guardianship report is dated 26^th February 2015. The care plan supports C's permanent placement with his maternal grandparents, subject to a special guardianship order.
28. Statements were ultimately received from M and F, dated 1^st April 2015. They make it clear that the parents are not proposing to engage in the proceedings in any more active way. M's statement rejects any violence in her relationship with F. She attaches a number of documents to her statement which repeat her allegations against MGF.
29. The Children's Guardian's report was completed on 8^th April 2015. She had been unable to make contact with the parents; her report records the attempts that she made to initiate contact with them. It was in those circumstances that the case came before the Magistrates on 16^th April 2015. Although listed for an issues resolution hearing, the court was asked to make final orders in circumstances in which the parents were not present and had made it clear that they were not willing to engage in the proceedings or with the local authority. The local authority, the maternal grandparents and the Children's Guardian were all supporting C's continuing placement with the maternal grandparents subject to a special guardianship order.
30. The Legal Adviser and Magistrates were troubled about the circumstances in which the case came before them. They adjourned the Issues Resolution Hearing to 27^th April 2015 before me, but recorded that final orders would then be made if the parents failed to attend.
31. The parents did not attend the hearing before me on 27^th April 2015. They were represented by Miss Lugg for the first time. She sought an adjournment to give her the opportunity to try and take instructions from the parents. I was willing to allow her that opportunity in the unusual circumstances of the case. I directed that a position statement be filed by Miss Lugg by 1^st May 2015 setting out the extent to which she had obtained instructions and the nature of those instructions, together with the position statement from her instructing solicitor (to which I have already referred). I adjourned the issues resolution hearing until today. The order I made once again recorded that final orders would be made if the parents failed to attend.
32. There was some consideration given at that hearing to C's parentage and the circumstances in which F is named on his birth certificate. I was told that no party was then seeking to raise any issue about C's birth certificate. At that stage I did not have the full private law papers which are now available to me and which set out in some further detail the circumstances in which his conception is said to have taken place. Following that hearing, and in the light of matters raised by the Children's Guardian in her report and by the court, the local authority issued an application seeking a declaration of parentage. I am told that the issued application has not yet been received by the local authority for service.
33. I received a position statement from Miss Lugg as directed, setting out the instructions she received during a telephone conference she had with the parents. They say that they are in on holiday in Spain. They made it clear that they will not engage with these court proceedings or with the local authority. They do not accept C's placement with the maternal grandparents. They do not accept the findings sought against them in respect of the threshold criteria. They state they intend to pursue alternative routes to secure C's return to their care. They dispute that they have relinquished C's care: they argue that in November 2014 their position was that, if C was to be removed he should be removed without delay, but that they were never volunteering to give up his care.
34. This is an extremely troubling case. On all accounts C has been exposed to a volatile relationship between M and F and the maternal family. M has, on her own account, made and retracted allegations of domestic abuse against F, allegations which she says were prompted by her family. M has made very serious allegations against of sexual abuse against her father. Those allegations were investigated by the police, who took no further action. M has continued to make those allegations within the court proceedings concerning C. Despite her continued allegations against MGF, M has not been willing to engage in these court proceedings in a way which could have allowed those issues to be tried and determined.
35. The parents have, throughout these proceedings, had the advantage of representation by an experienced specialist family lawyer. Most recently they have had the additional advantage of representation by Miss Lugg, also very experienced specialist family counsel. I adjourned the issues resolution hearing to allow Miss Lugg to have a conference with the parents before she made representations on their behalf and any final orders were made. I know Miss Lugg to be forthright and clear in her approach in court in such cases. I would expect her advice to the parents to reflect that approach.
36. There have been long running private law proceedings in respect of C. In 2014 the Family Court Adviser concluded that a Section 37 direction was necessary. The local authority's involvement following that raised issues about C's emotional wellbeing in the care of his parents. By November 2014 it was clear that M and F were not willing to cooperate with the local authority or engage in the local authority's assessment of them.
37. In November 2014, in circumstances as I have outlined them, C was removed from his parents' care and placed with the maternal grandparents, while subject to an interim care order. At the very least, the parents' communications with a range of professionals (including their own solicitor, with the local authority and with the police) contemplated C's removal from their care. The account provided by PC Trewick indicates an acceptance on their part that C was to be removed from them.
38. The parents were aware that a hearing was to take place on 12^th November 2014 (indeed, their solicitors attended that hearing on their behalf), where the court was told of the communications from the parents regarding C's future care. The District Judge made an interim care order, which was not challenged by the parents. On 18^th December 2014 an interim care order was duly made in the care proceedings. The court found there to be reasonable grounds to believe that the threshold criteria were established based on the allegations of C's exposure to domestic abuse between M and F and the circumstances in which M and F had absented themselves from C's life.
39. The position of the parents was clear from their communications both before the interim care order was made and since. They made it clear that if C was removed from their care they planned to leave the jurisdiction. They have since failed to engage in further proceedings or with the professionals who are involved with C's care. Most importantly, they have had no contact whatsoever with their young son for six months.
40. M and F have had ample opportunity to engage in proceedings with a view to putting their case and arguing that C should be returned to their care, whether in the interim or at the conclusion of the proceedings. Although they have given instructions and provided written evidence, they have not engaged fully in the proceedings to allow the serious allegations they make to be tested and determined.
41. Their stated position is that international social services and other named individuals are assisting them to secure C's return to their care. They have, however, refused to participate in these proceedings in a way which would have allowed the merits of their case to resume C's care to be determined. The statements of the parents dated 1^st April 2015 refute the allegations made against them but give no explanation for their failure to maintain any contact with C. M's statement attaches a joint statement from the parents dated 26^th February 2015, which records their view that the social worker in the case is dishonest; that state that they know the case will be lost in the UK so they have chosen to fight it from Spain; they record their plan to move to Spain, should C be returned to their care. Although the statement records their love for C and that they miss him, it contains no reference to the impact on C of their disappearance from his life, now six months ago.

The Position of the Parties

42. The local authority's assessment of the maternal grandparents is positive. The local authority case is that C needs his care arrangements to be secured, with a placement within his extended birth family available which can well meet his needs. The local authority argues that the parents have relinquished C's care. It is not in dispute that they have failed to maintain any contact whatsoever with him.
43. The local authority supports the making of a special guardianship order. It does not seek any public law orders pursuant to Section 31 of the 1989 Act. Although the local authority has prepared a schedule of threshold findings, it does not seek any orders which require a determination of the threshold criteria.
44. Although the parents do not agree with the local authority's case, they have not been willing (and remain unwilling) to contest the proceedings and the plan for C. Miss Lugg was clear in her submissions today that the parents are themselves very clearly aware of the course that was open to them - of engaging in the proceedings to ask for their allegations to be determined in the course of these proceedings and to put forward their case for C's return to their care. They have chosen not to do so. They are fully aware that the court is likely to make a final order in respect of C today. They have absented themselves from the proceedings in the knowledge of that likely course.
45. The maternal grandparents seek a special guardianship order to secure C's permanent placement with them. The placement and the proposed order are both supported by the Children's Guardian.
46. In circumstances in which no contact has taken place of any form in the last six months, the issue of indirect contact was raised at a late stage on behalf of the parents. The local authority will offer assistance to the maternal grandparents in facilitating indirect contact, although the framework for that needs to be clarified. MGM and MGF agree that it will be important for C to have some contact with his parents (if that can properly be achieved), but they would look to the local authority to provide support in facilitating any such contact. This approach is supported by C's guardian.

The Legal Framework

47. C's welfare is my paramount consideration in accordance with Section 1 of the Children Act 1989. I have regard to the welfare checklist in Section 1(3) of the Act. I must not make any order in respect of C unless it is better for him than making no order. A delay in reaching decisions in respect of C is likely to be prejudicial to his welfare.
48. In Re G (A Child) [2013] EWCA Civ 965, McFarlane LJ stressed the need for a proper, thorough and holistic evaluation of the placement options, giving full weight to the Article 8 rights. Such an approach involves the court to balance the pros and cons of the placement options in any case. In paragraph 46, McFarlane LJ considered that, where the placement options do not include adoption, the wording of certain elements of the welfare checklist involves a direct comparison of the relevant options that are being considered, giving the following by way of example:

(c) The likely effect of any change in circumstances;

(e) Any harm which the child has suffered or is at risk of suffering;

(f) How capable each of the parents, and any other person in relation whom the court considers the question to be relevant, is of meeting the child's needs.

The proper consideration of these issues requires the court to consider the positives and negatives of the placement options in material respects.

49. In Re W (A Child) [2013] EWCA Civ 1227 Ryder LJ set out in paragraph 99 the three questions the court has to answer in any care case: what is the harm and/or likelihood of harm; to what is that harm attributable; and what will be best for the child? The court is to undertake its evaluation to determine what is best for the child by reference to three questions: what is the welfare analysis of each of the placement options available; what is the welfare evaluation, that is the best option among those available; and what orders are proportionate and necessary, if any?
50. In a private law context, the Supreme Court in Re B (A Child) [2009] UKSC 5 said at paragraph 37 that 'all consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child's best interests. This is the paramount consideration. It is only as a contributor to the child's welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim.' The court must therefore undertake a rigorous analysis of what is the child's best interests having regard to the child's welfare as my paramount consideration.

My Welfare Analysis and Proportionality Evaluation

51. C is now just four years of age. He has the basic care needs of any four year old child. He has experienced a disrupted start to his life. He has been exposed to the fractured family relationships and volatility between them. He experienced an abrupt change to his care arrangements in November 2014. Whatever label is attached to the circumstances of C's removal from his parents care and placement with the maternal grandparents - whether they are properly described as having relinquished his care - they have since abandoned him, in that they have failed to maintain any contact with him. They have refused to disclose their whereabouts and they have not engaged in these court proceedings, which provide the venue for determining the relevant factual issues and for them to put their case in relation to C's care and contact arrangements.
52. There is evidence that C was suffering emotional harm in the months leading up to the issue of the care proceedings, as recorded by his presentation at nursery. The court has been prevented from exploring the circumstances in which that behaviour manifested itself. He has undoubtedly suffered further emotional harm by the abrupt disappearance from this life of M and F. They have not cooperated with the court proceedings to enable assessments of their ability to care for C to be determined. They argue that other assessments will demonstrate their ability. This court requires evidence. The failure of M and F to engage with the proceedings has resulted in that evidence being denied to the court.
53. The local authority's assessment of the maternal grandparents is positive. M makes very serious allegations against her father. The court cannot proceed on the basis of allegations or suspicions. Those allegations could only be tested and determined if M had been willing to cooperate with these proceedings. She has knowingly refused to do so and continues to refuse to do so. Without findings being made, these allegations cannot weigh in the court's welfare evaluation.
54. M and F have not participated in the proceedings to present their argument that C should be returned to their care. In the course of these proceedings they put forward no case, other than to indicate their unwillingness to engage in the proceedings and their opposition to C's placement with his maternal grandparents.
55. The only placement option which is put before the court is C's placement with his maternal grandparents. He has been living with them since November 2014. He is progressing very well and is thriving in their care. The local authority assessment supports this placement for C in circumstances in which MGF and MGM are considered well able to meet his needs throughout his childhood. The disadvantage to C of this placement is that it is a placement away from his parents, which has resulted in their absence from his life altogether.
56. The court could make no order, leaving matters (as they stand) with both M and F having parental responsibility for C, so they would be able to resume his care. They have not cooperated with the assessments which the court considered necessary to determine whether they could meet C's welfare needs. M and F have made it clear that they will no cooperate either with the local authority or the court. M and F have deprived the court of reaching an informed conclusion about their ability to care for C.
57. The only other alternative for C is a placement away from the birth family, whether in foster care or for adoption. Such a placement can only be contemplated where there is no option for a child's placement within the birth family. On the evidence, the maternal grandparents offer a suitable placement for C.
58. The Children's Guardian considers that C's care needs are well met by his continuing placement with MGM and MGF. C requires security after a troubled and turbulent period in his life. The evidence before the court indicates that MGM and MGF are well able to meet C's welfare needs. I agree that the only realistic care option for C in the unusual circumstances of this case is his continued placement with his maternal grandparents. The local authority, the maternal grandparents and the Children's Guardian all support the making of a special guardianship order to secure this as a permanent placement for C.
59. I have reached the clear conclusion that finality is required in terms of these proceedings. There is no prospect of the parents engaging further in these proceedings. Decisions must be taken as to C's future care. On the evidence before me, I am satisfied that his placement with MGM and MGF is properly secured as a permanent placement.
60. I must consider which order properly achieves that. There are of course a range of options that can secure his placement. The special guardianship report supports MGM and MGF as special guardians for C. A special guardianship order would give the maternal grandparents parental responsibility for C which could, if required, be exercised to the exclusion of others with parental responsibility. I see this as both appropriate and necessary to ensure that C's care arrangements are not disrupted by M and F. I am satisfied that C's placement with his maternal grandparents is properly secured by the making of a special guardianship order – this is the order which will best meet his welfare needs. It is a necessary and proportionate response to C's circumstances.
61. No public law orders are sought, in recognition of the conclusion of the local authority and the Children's Guardian that C's day to day care needs are well met. It is anticipated that MGM and MGF will require support in any contact arrangements that are to take place. I expect the local authority to provide MGM and MGF with clear channels of communication should issues arise in relation to that.
62. The declaration of parentage application will take a separate course following the conclusion of these care proceedings. Following the conclusion of this judgment, I will give directions for that application to be progressed.
63. It is, in my judgment, important that there is a record of the circumstances in which these proceedings have concluded. I will direct a transcript of this judgment, to be prepared at the shared expense of the parties on the application of the local authority. Subject to argument from the parties, I will direct that an anonymised copy of the judgment is published on BAILII once the approved transcript is available, so that the circumstances in which I have reached my conclusions in relation to C are known.
End of judgment

We hereby certify that this judgment has been approved by Her Honour Judge Hudson.

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