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Cite as: [2015] EWFC B69

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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.


		Case No: NE14C00036

IN THE FAMILY COURT AT NEWCASTLE UPON TYNE
IN THE MATTER OF THE CHILDREN ACT 1989 &
THE ADOPTION & CHILDREN ACT 2002
AND IN THE MATTER OF A, B, C, D AND L (CHILDREN)

17th April 2015

B e f o r e :

Her Honour Judge Hudson
____________________

Between:

	A Local Authority
	- and -
	T&F

____________________

Compril Limited
Telephone: 01642 232324
Facsimile: 01642 244001
Denmark House
169-173 Stockton Street
Middlehaven
Middlesbrough
TS2 1BY

____________________

Hearing dates: 23rd – 26th March 2015
____________________

HTML VERSION OF JUDGMENT
____________________

Her Honour Judge Hudson

Introduction

This is the second substantive judgment I have given in these care proceedings. I gave the first judgment on 19^th February 2015 following a fact finding hearing relating to the youngest of the five children, L. That judgment has been transcribed and is taken as read for the purposes of this judgment.

The local authority case at the finding of fact hearing was that L had suffered two separate episodes of non-accidental head injury. My judgment set out the circumstances in which I concluded that the evidence did not lead me to a conclusion, on the balance of probabilities, that L had sustained any non-accidental injury. I found that the cause of the subdural haemorrhaging, found when L was admitted to hospital in March 2014, remains unknown. As that judgment made clear, this is far from a single issue case. This hearing has concerned the other issues in the case and the appropriate planning for the five children.

The Children

M is the mother of all five children; the eldest two children are A and B, aged 11 years 9 months and 10 years 9 months respectively. Their father is F1. C, aged nine years 4 months and D, aged three years five months are the children of M and F2.

L is now sixteen months old. The identity of L's father is unknown, in circumstances in which F2, who is named as his father on his birth certificate, was excluded from paternity by DNA testing undertaken in the proceedings. M has said she is unable to name L's father.

F1 and F2 are named on the birth certificates of their respective children. In the case of all but A, this confers parental responsibility on the father. In A's case, her birth was registered before 1^st December 2003, and the naming of F1 on her birth certificate does not therefore confer parental responsibility on him. He has not otherwise acquired parental responsibility for A.

L was admitted to hospital on 6^th March 2014. He was discharged to foster care on 11^th March 2014, where he has remained. L now has significant developmental delay and special care needs. I will return to this further later in my judgment.

Protective measures were put in place for the older children following L's admission to hospital. The older four children have remained at home throughout. Initially, they were cared for by M, supported by the children's maternal great-aunt, PH. In July 2014, M moved out of the house at the local authority's request. She has nonetheless continued to play a significant part in the children's care, visiting daily. In circumstances in which PH has struggled to manage the care of the children over what has proved to be a significantly longer period than envisaged, M's involvement has been an important part of the care package.

The Children's Guardian appointed to represent the children's interests is Richard Ash. The elder three children have had separate representation at the final hearing, as the Children's Guardian's recommendations are at odds with their wishes and the Guardian and their solicitor considered their views should be represented independently.

The Position of the Parties at the Final Hearing

The local authority does not support any of the children remaining in the care of birth family members. In the case of the four oldest children, the local authority's care plan is long term foster care; for L, the plan is a time limited search for prospective adopters over a period of 12 months, with a contingency plan of long term foster care. The older children are, of course, still living at home. The local authority plan is for the children to be removed to separate bridging placements; A and B together and C and D placed separately, with a further move to long term foster care, thereafter. The ultimate preferred placement arrangement would be for all four children to be placed together, but the local authority recognises that such a placement may not materialise. Should this be the case, the local authority proposes that the children would be placed in pairs in the same way.

The local authority plan is for the four eldest children to maintain direct contact with their mother six times a year. Direct contact is also proposed between C and D and F2 six times a year, provided it meets the children's welfare needs. In the case of A and B, the local authority proposes indirect contact with F1, insofar as it meets their welfare. In the case of L, the local authority plan is for indirect contact with the birth family if he is adopted, otherwise limited direct contact with his mother and his older siblings. In the event that the four older children are not placed together in long term foster care, the local authority proposes additional direct contact between the four siblings to promote their relationship.

M seeks to resume the care of all five children. Her sister, MA, was one of six interveners at the fact finding stage of the proceedings, in circumstances in which the timeframe for any non-accidental injury to L was wide and a large number of people had been involved in his care. Apart from MA, all the interveners were discharged from the proceedings following the fact finding hearing. In the case of MA, I joined her as a respondent as she put herself forward as a carer for the children in the event that M was not considered a suitable carer for all or some of the children. MA offered to care on a full time basis, or with a shared care arrangement with M. In the event that the children are placed in their mother's care, MA offers support.

F1 seeks contact with A and B. He has not been involved in their lives for many years, but has had some limited indirect contact since the local authority's involvement in 2014. He seeks indirect contact with a plan to progress to direct contact. F2 seeks the care of C and D. His statement dated 18^th March 2015, indicated his support for A, B and L, living with M.

The Children's Guardian supports the local authority's plans for the children. The consistent wish of A, B and C has been, and remains, for all children to remain in their mother's care. This was put forward on their behalf through their separate representation.

Before I leave the position of the parties, I should also mention the children's maternal step-grandfather, MSGF, who was an intervener at the fact finding stage. On 23^rd March 2015 he applied to be joined as a respondent to the proceedings to put forward a case to care for the children. Based on the written evidence, together with the oral evidence I heard in the fact finding hearing, I concluded that there was no realistic prospect of a placement of any of the children in his care. I gave a judgment setting out my reasons for refusing his application on 23^rd March 2015.

The Final Hearing

The hearing took place over four days from 23^rd to 26^th March 2015 (although full court days were not available because of other listing commitments). It was not possible to hear submissions in the time available. I directed written submissions on 8^th April 2015, following the Easter break. I give judgment today, 17^th April 2015, the first opportunity I have had since to do so.

M attended the final hearing and participated fully throughout, as she had during the fact finding hearing. MA was also present each day, and fully cooperative. MA represented herself at the fact finding hearing and this final hearing (the only person in each hearing to do so).

F1 did not attend at any stage during the fact finding hearing. His attendance was not necessary in circumstances in which the findings did not relate to his children and he was not implicated. He failed to attend the first day of the final hearing on 23^rd March 2015. He did attend on the second day and sat in court for most of the court hearing. Mr Dodgson, on his instructions, made a number of concessions in relation to the local authority's findings. In these circumstances, it was not envisaged that F1 would give oral evidence. I was told he would only return on the final day for judgment to be given.

After two completely inappropriate and abusive outbursts, during the course of the hearing directed by F1 towards M, I made it clear to F1 (and to Mr Dodgson) that I did not expect F1 to remain for the rest of the day, in circumstances in which he had failed to heed my warning about his behaviour and M refused to remain in court with him as a result of his verbal assaults upon her. F1 left court as requested and did not return for the remainder of the hearing.

Despite seeking the care of C and D, F2 did not attend at any stage of the four day hearing. He had attended sporadically during the fact finding hearing, but did give oral evidence. I allowed Mr Pinkney, on his behalf, to ask questions during this hearing, unclear whether F2 may attend at some stage to pursue his case. The only explanation I was given by Mr Pinkney was that F2 found the proceedings stressful.

During the course of the hearing, I heard evidence from the local authority social worker, Ruth Rainsley, from M, from MA and, finally, from the Children's Guardian. In addition to the oral evidence, the case papers include extensive social work assessments undertaken in the case. This has been a substantial and difficult case for the local authority to manage. Apart from the five subject children, one with very particular needs, the practical care arrangements for the children have been far from straight forward. Numerous assessments have been undertaken. In addition to assessments of each of the parents, many other carers were proposed, each of whom was subject to quite detailed local authority viability assessment, in circumstances in which it was unclear which of them may or may not be excluded from the pool of perpetrators of any non-accidental injury to L. The burden of this work has fallen very substantially on the key social worker, Ruth Rainsley, who is to be commended for the work that she has been required to undertake in this difficult case.

The Relevant Law

It is for the local authority to prove its case as to threshold and welfare. The standard of proof is the balance of probabilities. It is therefore for the local authority to prove, on the balance of probabilities, the facts on which it seeks to rely. The court must consider all of the evidence. Each piece of evidence must be considered in the context of all the other evidence.

The President in Re A (A Child) [2015] EWFC 11 and the Court of Appeal (McFarlane and Aikens LJJ) in Re J [2015] EWCA Civ 222 have provided recent and timely reminders to the court of the need for proper evidence to establish disputed factual issues. Hearsay evidence, though admissible, has strict limitations where the evidence is in issue. It is for the local authority to prove there is the necessary link between the facts upon which it relies and its case on threshold. The local authority must demonstrate why certain facts, if proved, justify the conclusion that the child has suffered or is at risk of suffering significant harm of the type asserted by the local authority.

In undertaking my welfare analysis, I must apply section 1 of the Children Act 1989 and the Adoption & Children Act 2002, as appropriate. The welfare of each of the children is my paramount consideration. In L's case, where the care plan is for adoption, my paramount consideration is his welfare throughout his life.

I must have regard to the welfare checklist in section 1(3) of the 1989 Act and, in respect of L, the welfare checklist in section 1(4) of the 2002 Act. The welfare checklist in section 1(4) includes, of course, in section 1(4)(c), the likely effect on the child throughout his life of having ceased to be a member of the original family and become an adopted person. In deciding the placement application and whether to dispense with parental consent, I can only do so pursuant to section 52 of the 2002 Act if L's welfare requires it.

The judgment of the Supreme Court in Re B (A Child) [2013] UKSC 33 is of central importance in providing guidance as to the correct approach of a court where it is asked to consider a care plan for permanent removal of a child from the birth family. The judgments of the Supreme Court judges stress the significance of a decision of the court to remove a child from his or her birth family and for the child to be placed for adoption against the wishes of the birth family. The judgments emphasise that a Care Order and adoption is an extreme outcome and 'a last resort', in the words of Lord Neuberger. A Care Order cannot be made in such circumstances unless the Order is proportionate, bearing in mind the requirements of Article 8.

Lady Hale described the test for severing the relationship between parent and child as 'very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short where nothing else will do'. It is a test of necessity, therefore.

The welfare of the child is paramount, but as Lord Neuberger said at paragraph 77, the interests of a child self-evidently require his or her relationship with natural parents to be maintained, unless no other course is possible in the child's interests. He went on to say (at paragraph 104) that the interests of the child include being brought up by the natural family, ideally the natural parents, or at least one of them.

The judgment of McFarlane LJ in Re G (A Child) [2013] EWCA Civ 965 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 requires the court to balance the pros and cons of the placement options in any case. He emphasised the need for substantive consideration of the Article 8 considerations, in relation to the issue of permanent separation of a child from the birth family. He said:

'What is required is a balancing exercise, in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared side by side, against the competing option or options.'

McFarlane LJ also referred to Re B and the repeated use in their Lordships' judgments of phrases such as 'high degree of justification', 'necessary', 'required', 'a very extreme thing', 'a last resort' and 'nothing else will do'. He said that, in the light of this: 'it is clear that the importance of a child either living with or maintaining a relationship with the parents and natural family have not been reduced'.

In Re B-S [2013] EWCA Civ 1146 the President also again referred to the striking language used by the Supreme Court in Re B, as to the degree of necessity before a care plan for adoption is approved. In paragraph 18, by reference to Strasbourg authority, he said that family ties may only be severed in very exceptional circumstances; everything must be done to preserve personal relations and rebuild the family; it is not enough to show that a child could be placed in a more beneficial environment for his upbringing.

The President approved the global, holistic approach to the welfare evaluation. He stressed the need for proper evidence from the local authority and the Children's Guardian, addressing all the realistic options with an analysis of the arguments for and against each option. He further stressed the assessment of the parents' ability to care for the child must take account of the assistance and support the local authority and other professionals should reasonably make available to the family.

In Re G at paragraph 46, McFarlane LJ considered that, where the placement options do not include adoption, the wording of certain elements of the welfare checklist involves the 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; and

(f) how capable each of the parents and any other person, in relation to 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 every material regard.

In Re W (A Child) [2013] EWCA Civ 1227, Ryder LJ set out the three questions the court has to answer in any care case.

(i) What is the harm and/or likelihood of harm?

(ii) To what is that harm attributable?

(iii) What would be best for the child?

Ryder LJ said that:

The court is to undertake its evaluation to determine what is best for the child, by reference to three questions:

(i) What is the welfare analysis of each of the placement options available?

(ii) What is the welfare evaluation, that is the best option among those available; and

(iii) What Orders are proportionate and necessary, if any?

The local authority is required to set out the range of services available in respect of each placement option and under each of the Orders the court can impose.

Re B-S was considered by the Court of Appeal in Re R [2015] EWCA. The Court of Appeal clarified the circumstances in which a plan for permanent removal of a child from the birth family is properly to be followed. The President made the following important points:

(i) The importance of the welfare balance under s.1 of the 1989/2002 Acts and the use of the 'welfare checklist' (paragraph 46);

(ii) The fundamental principle that care and placement orders against the parents' wishes can only be made where 'nothing else will do' (paragraph 50);

(iii) Where an application for a care order is made with a care plan of adoption, the court must have regard to the welfare checklist in s.1(4) ACA 2002, whether or not there is an application for a placement order (paragraph 51);

(iv) Where the care plan is for adoption, the court's paramount consideration is the child's welfare 'throughout his life' (paragraphs 52-54);

(v) Nothing in Re B-S erodes or otherwise places a gloss on the statutory requirements of s.1 CA 1989 and s.1 ACA 2002 (paragraph 55);

(vi) Re B-S did not change the law, but was primarily directed to practice: the need for proper evidence from the local authority and Children's Guardian addressing all the realistic options with an analysis of the realistic placement options and an adequately reasoned judgment (paragraphs 56-57);

(vii) Full consideration is only required with respect to those options which are 'realistically possible' (paragraphs 59-62);

(viii) There is nothing wrong with discounting placement option(s) at an early stage, provided an appropriate degree of rigour is applied in doing so (paragraph 65);

(ix) A second assessment (following a negative assessment) is only to be undertaken where it is 'necessary to assist the court in resolving the proceedings justly', with the court adopting a robust and realistic approach (paragraph 66);

(x) Extended family members and, in principle, parents may be ruled out before the final hearing as not providing a realistic option. Judges should, however, be appropriately cautious, particularly before ruling out the parents or the only parent putting themselves forward at a final hearing (paragraph 67).

The judgments in Re A and Re J also emphasise the approach local authorities and the court must take to the diverse circumstances of families and the care they can provide to their children. Aikens LJ dealt with this at paragraph 56(6) as follows:

'It is vital that local authorities and, even more importantly, judges bear in mind that nearly all parents will be imperfect in some way or other. The state will not take away the children of those who commit crimes, abuse alcohol or drugs, or suffer from physical or mental illness or disability, or who espouse anti-social, political or religious beliefs, simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that nothing else will do, when having regard to the overriding requirements of the child's welfare. The court must guard against social engineering.'

The Relevant Chronology: The Early Years

At paragraphs 26 to 74 of my judgment of 19^th February 2015, I set out what I considered to be the relevant chronology for the purposes of the fact finding hearing. That earlier judgment records the vulnerabilities and circumstances of the maternal grandmother, MGM, which are reflected in the very protective relationship that MA, in particular, has had with her.

MGM has a mild learning disability. The local authority viability assessment described her as needing 'prompts and motivation to maintain her general welfare'. She receives help (from MA in particular) in reading letters and dealing with any written material. My earlier judgment made reference to MGM's vulnerability, as assessed by Dr Rippon, in her psychiatric and capacity assessment of MGM.

MA was aged about eight and M about two years when MGM formed a relationship with MSGF. The parenting assessment of M records that she was sexually abused by MSGF's son (RT), who later sexually abused B. The parenting assessment records that M suffered sexual and emotional abuse for about six years, from the age of five. The assessment records that she told MGM of the abuse, which was not reported to the police.

M agrees that she was out of control during her teens, truanting from school, going missing from home with violent and challenging behaviour, substance abuse and other risk taking behaviours. M and MA have described how M's behaviour had a negative impact on MGM, already a fragile woman. There was local authority involvement with M, her older brother and MA for significant periods.

M's relationship with F1

M formed a relationship with F1 when she was only 15 years old and she moved from the north east to Yorkshire to live with him. He was three and a half years older than her. M became pregnant when she was only 15 and gave birth to A when she was just 16. In the course of her parenting assessment, M gave an account of an extremely violent and abusive relationship with F1, during the course of which she was subjected to repeated physical abuse and controlling behaviour.

The parenting assessment records that M told F1 of the sexual abuse she had suffered as a child. It was that abuse and the later sexual abuse of B that provided the focus for F1's repeated aggressive and abusive outbursts, directed specifically at M, in the courtroom. I consider this behaviour in the courtroom, albeit in the stressful situation of care proceedings, gave me a good insight into F1's behaviour.

Following A's birth, M returned to live with MGM, she says because of the violent relationship. She nonetheless reconciled with F1 quickly becoming pregnant again, so that B was born less than 13 months after A. M was then aged 17. The relationship between M and F1 ended when B was a young baby.

The parenting assessment of M, at C257-262 (paragraphs 6.3.5 to 6.3.32) includes very detailed information about the extensive abuse that M alleges she was subjected to, physical, verbal and emotional from F1. During the course of his social work assessment, F1 admitted domestic abuse in a number of relationships over the years, including his relationship with M. He also admitted daily cannabis use. Ruth Rainsley did not consider that F1 was 'entirely open and honest' during the assessment and recorded that he failed to volunteer evidence of his criminal convictions. She considered that he spoke of domestic violence as if it is normal in relationships.

On the day that F1 attended court at the final hearing, Mr Dodgson prepared a document which set out the concessions made by F1 in relation to the threshold findings sought against him. They read as follows:

'With regard to the allegations of domestic violence, the third respondent adamantly denies the allegations that have been made against him. The third respondent would accept that he and the first respondent did argue and that their relationship was not without its difficulties. However, he would categorically deny the allegations of physical harm raised against him by the first respondent. He would also deny that the children witnessed any violence perpetrated by him against the first respondent.'

In the course of this hearing it was neither proportionate nor indeed feasible in the circumstances to explore in detail the relationship between M and F1. It was, on all accounts, a violent and abusive relationship. In continuing that relationship and reconciling after periods of separation, M exposed herself and her children to this abusive relationship which was emotionally damaging to the children.

M's relationship with F2

This relationship started in 2004 when B was only a few months old. M was then aged 17; F2 was 19. M was soon pregnant once again; C was born in December 2005.

My judgment dated 19^th February 2015 considered the relationship between M and F2, insofar as I was able on the evidence I heard and in the light of the shortcomings I identified in the evidence. In paragraph 28, I recorded the very different accounts M has given about the relationship. The positive account in her police interview in March 2014 contrasts sharply with the account she gave in the parenting assessment and in her oral evidence. In paragraph 31 of my judgment, I recorded the wide ranging allegations made by F2 against M in the course of his oral evidence. I found myself compromised in my ability to resolve the factual issues between M and F2 because of the shortcomings in the evidence of them both.

I had the opportunity to hear further from M in this hearing. F2 did not attend and therefore did not avail himself of that opportunity. During the fact finding hearing and the case management hearings before that, the court was subjected to F2's aggressive and abusive outbursts, directed variously at the court, professionals and M. M and F2 both agree that their relationship was volatile with frequent separations and reconciliations. F2 said that he would at times go 'AWOL' as he described it. They agree the relationship was violent, although they disagree about who perpetrated the violence and their respective responsibility for such episodes.

In February 2015 I heard evidence from M and F2 about a violent incident in or about February 2014, which directly involved L. I dealt with this at paragraphs 62 to 63 of my judgment. I concluded that I could not make specific findings about their behaviour, other than to find that there was a violent altercation between them which involved L directly and that neither had a proper regard for L's safety during the course of their dispute.

The Children's Guardian's report at E62 (paragraph 57), E64 (paragraph 62) and E65 (paragraph 67) records comments made by A, B and C respectively about F2's physical and abusive behaviour towards them and/or their mother. M says that she was not aware of the children being treated in this way by F2. She accepts that the children did not confide in her about their experiences which she says she accepts, based on their accounts.

Beyond the findings made in February 2015, I have considered the extent to which I can properly make findings in the light of the following: the shortcomings in the evidence; the varying accounts given over time by M; F2's allegations in evidence, not previously made; and the unreliability of the evidence, as I found it, from both of them, in circumstances in which allegations have not been tested. I am satisfied, on the balance of probabilities, that the following findings are made on the evidence:

(a) M has had two significant relationships, both of which have involved domestic abuse. The relationships have been volatile, turbulent and violent;

(b) The relationships span twelve years, during the course of which the children were exposed to domestic abuse. They thereby suffered emotional harm and were at risk of physical harm.

I do not make findings as to specific incidents, other than as I have addressed in the judgment of 19^th February 2015 and this judgment, but I am satisfied on the balance of probabilities that the relationships were, in each case, significantly more violent than JM and SF have conceded and that their respective behaviour was significantly more violent than they have accepted.

The Care of the Children

I have recorded the inconsistent care arrangements for the children in the light of M's volatile relationships. At the start of the relationship between M and F2, she had two young children and was herself still only 17. Within a short space of time, another baby joined the household when C was born. At paragraph 38 of my judgment on 19^th February 2015, I recorded that M and F2 were living a life which was unsuited to the care of young children. They were out partying a great deal, leaving the children in the care of others. I also recorded F2's evidence of the extent to which he drank and took drugs during the relationship. In his evidence at the finding of fact hearing he repeatedly referred to himself as 'a shit dad'.

From an early age, A and B were cared for by other family members for extended periods. A was frequently cared for by MGM, to the extent that A has been described and has described herself as living with MGM and visiting her mother. B spent a great deal of time in the care of MSGF, to the extent that he was said to be living with him. Although C was less frequently cared for by others, it was nonetheless a regular feature of her life as well.

There is a consistent picture in the accounts from family members (not disputed by M) of these children being cared for by a number of different care givers, providing little stability for the children. M agreed that at times the extended family needed to offer each other respite, such was the level of care they were providing for the children. M also accepted that she continued to leave the children with her mother, even after MGM asked her not to. MA accepts that she previously described M as using MGM as 'a slave' in the way she put upon her to care for the children.

During her oral evidence, M repeatedly said she did not make the children stay away; they went because they wanted to. In relation to MSGF, M has consistently said that he took over with B, so that he had B in his care as and when he chose, regardless of her wishes.

There were two particularly serious incidents which resulted in local authority involvement and the children being subject to child protection plans. In paragraphs 39 to 40 of my earlier judgment, I dealt with a burn injury sustained by C in the care of MGM in May 2006. An important feature of these events was a false account given by the maternal family (MA and others, including M), that C had been in MA's care at the time. Their actions, apparently to protect MGM, were not readily explained. MA, in particular, was implicated in this deception.

The other significant feature was the delay in seeking medical attention for C, over a period of days. On the evidence of M and MA, consistent with the documented accounts at the time, MSGF was instrumental in this, advising that what was undoubtedly an extremely serious burn was not a serious injury, which could satisfactorily be treated by the application of Germolene. C spent some six or seven months in foster care following this before she was returned to M's care. In April 2007, the child protection plans ended and social care involvement ceased altogether in August 2007. M's case is that this served as 'a wake-up call' so that her 'party lifestyle' ceased, although she accepts that she continued to go out (she said less frequently), and the children continued to stay with others.

Between August 2009 and July 2010, the children were once again subject to child protection plans. In 2009 it became known that MSGF's son (RT) had sexually abused B. This must be seen in the context of the unhappy history of M herself being sexually abused by RT. M said she had accepted MSGF's assurance that the children were never left alone with RT. Her case is that she first became aware of the sexual abuse after B told F1 during a contact visit. F1 and M then reported it to the police.

Ruth Rainsley's evidence was that the children remained an 'open case' to social care until 2011. Although there was a referral in 2012, no action was taken. I heard no evidence of the circumstances of this. No social care involvement was considered necessary when D and then L were born, despite the number of children then in the household.

RT is currently serving a prison sentence for sexual offences. He is due for release in the near future. It is clear that MSGF does not consider his son to be a risk. Since RT has been in prison, M and MA have both allowed MSGF unsupervised contact with their children. In MA's case, she said only for short periods when she has been shopping, because she does not trust him. M said she was told by a social worker that she could allow unsupervised contact with MSGF as RT was not around. There was no other direct evidence about this, one way or another. Ruth Rainsley said she could find no record of such advice being given. I make no finding about this, in the light of the absence of evidence.

JT is MSGF's carer. She has had contact with the children through MSGF, although on her own account she has had some contact which has not involved MSGF. M said she always told MSGF that JT should not care for the children, because of aspects of JT's own past, which M said she recognised made JT unsuitable. It is not disputed that JT has cared for the children on occasions, apparently because of MSGF's willingness to let her do so.

On the evidence before me, both written and oral, neither MGM nor MSGF were suitable carers for the children: in the case of MGM, as a result of her own vulnerabilities; in the case of MSGF, because of his failure to protect both M and B from abuse by RT and his failure to acknowledge RT presents a risk. MSGF also allowed JT to care for the children, on the mother's evidence against her wishes and despite what was known generally among the family about JT's own background.

I am satisfied and I find that M and F2 abrogated responsibility for the care of the children to family members and other carers on a regular and frequent basis. In the case of MGM and MSGF, they were not appropriate carers for the children.

I have already recorded the periods during which the local authority was involved before the concerns in respect of L that led to the proceedings. Ruth Rainsley agreed in her evidence that M has cooperated well with the local authority at such times as there has been social care involvement. Similarly, there is no evidence of a lack of engagement or cooperation with the health visitor. M's case is that she has worked well with the children's health visitors over years. There is no evidence before me to indicate otherwise.

Ruth Rainsley accepted in cross examination that the children have attended school and nursery regularly over the years. The children receive therapeutic support in school and have been receiving additional support from a community support worker, Tracy Nattress, since the proceedings started. Ruth Rainsley said that M's engagement with the school has not always been consistent. She was not able to provide any detail beyond that. She accepts that M's engagement could not properly be described as 'poor'.

B has ADHD; there has been an issue about the administration of his medication. The local authority evidence was unclear as to whether this pre- and/or post-dated M leaving the house. B now receives his medication at school.

In paragraph 65 of my judgment of 19^th February 2014, I considered the evidence relating to the home conditions in February and March 2014. The evidence from M and others was that the photographs of the home in March 2014 were not representative of home conditions as they usually were. I concluded that the photographs showed what appeared to be longstanding issues relating to the cleanliness and home conditions, which accorded with the description of the house by paramedics who had been there in February 2014. This is not, however, a case in which there has been a long history of significant concern about the home conditions.

F2 accepts that he drank to excess during the parties' relationship and that he took drugs. M admits that she drank excessively with F2 and otherwise. She says she cannot recall the identity of L's father, because of her intoxicated state at the time of his conception. There is, however, no evidence of such behaviour by her since the proceedings commenced.

The Medical Issues Relating to L

It was the discovery of subdural haemorrhaging and possible retinal haemorrhaging to L that precipitated these care proceedings. The medical findings raised the prospect that L had been the subject of repeated non-accidental head injury, most probably by shaking. My earlier judgment set out my reasoning for concluding that the local authority had not made out the findings it sought of non-accidental head injury. I concluded that the cause of L's subdural haemorrhaging remains unknown. In the absence of a finding of non-accidental injury, it is not permissible for a suspicion that something untoward caused the bleeding to weigh in the balance.

Events since the Care Proceedings

Each of the respondent parents accepts that the threshold criteria are established based on concessions that they made. I have already set out findings that I have made about events which preceded protective measures being put in place, which go beyond the concessions. It is necessary to consider a number of developments that post-dated the care proceedings, which are of relevance to the welfare determination.

The Care of the Children

Initially, M and her aunt, PH, were caring for the four eldest children in the family home. That arrangement only lasted until 4^th July 2014 when M agreed to move out. PH has continued to care for the children, although she has struggled to do so and has required considerable support. M spends four hours a day at the house and, over the Christmas and holiday period when professional support was not available, she was permitted to be at the home for even longer to ensure the children's care needs were met. Tracy Nattress, the community support worker, has been assisting PH and supporting the children. There is health visitor and social work support. The older children are attending a breakfast club and D now has nursery provision.

The events which led to M moving out took place in May and June 2014. The first hearing took place before me on 29^th May 2014. M and F2 agree that they met on 31^st May 2014. They disagree, however, about the circumstances but do agree that there was a violent altercation between them, which involved F2's mother and which resulted in the police being called. M did not report the incident to the local authority, although she did report it to the police. Her case is that she changed her telephone number following this to prevent contact. MA accepts that she acted as a conduit on occasions thereafter and passed messages from F2 to M.

On 2^nd June 2014, the police were again involved. The evidence relating to this is contained in M's statement prepared in support of an injunction application (at H15 to 16). She says that F2 went to her house, together with his mother. Her statement records he forced his way into the property, causing damage to a door as he did so. Her account is that the four children were at the house at the time and were hysterical. A non-molestation Order was made on 5^th June 2014; F2 disputes M's account of these events. I did not hear his evidence to evaluate his description of what happened.

On 23^rd June 2014, there was a further incident when F2 was at M's property. She accepts that another man was at the property with her at about 6.30am. She says that this was a man by the name of JD, a friend who she said had helped her with shopping the previous day and who called by to drop off a purse which she had left in his car. This unlikely explanation does not explain why she then took him upstairs to talk to him while, she said, she folded the children's clothes. Nor does it explain how F2 apparently knew that a man was at the house. I did not find M's evidence persuasive about this. I did not hear oral evidence about this in any detail. I have no evidence, written or oral, from JD. In these circumstances, I concluded it would be wrong to make a specific finding about what he was doing there, but I was not satisfied that M gave the court a full or honest account of events. Criminal proceedings were pursued in relation to this alleged breach of the injunction. In December 2014, the court was not satisfied that a breach had occurred, following M's evidence.

F2 has said that the relationship with M continued until January 2015. His mother has also told the local authority that the relationship has continued. M's case is that the relationship ended at the time of L's admission to hospital. I did not find F2 a persuasive or a reliable witness. On the evidence, his mother is extremely loyal to him. I considered that I could not rely on either of them to provide a reliable account of the relationship.

I also heard evidence about an association that M accepts she has recently developed with another man. At E50, paragraph 8, the Children's Guardian records:

'M also told me she has been spending time with a man, but they are not in a relationship, although everyone thinks they are. She said it might develop into a relationship in the future, but her priority is the children at the moment.'

The Guardian recorded that MA told him that her sister was in a relationship. M denies she said she was considering a relationship in her conversation with the Guardian. MA said that she misunderstood the Guardian's question. I accept the Guardian's evidence of what he says he was told. I find that MA told him she was at least considering a new relationship. The man in question has been checked out by the local authority. No child protection concerns are evident from the information available to date.

Contact

M has had daily contact at home with the four eldest children. The contact is generally positive. Ruth Rainsley acknowledged that without M's positive contribution, the placement could not have been sustained.

The social work evidence includes reference to tensions in the relationship between M and A. In evidence, Ruth Rainsley accepted that A is approaching adolescence and her behaviour needs to be seen in that context. M has contact with L five times a week, supervised by the local authority. She attends very regularly, with only very occasional absences which have been explained. The quality of that contact is also generally good.

F2 has been having contact with the children; contact has been available for all five children to attend. B has chosen not to attend contact. The children have recently given information which has indicated that they have experienced harm when cared for by F2. That is information which will be considered in the context of his contact arrangements in the future.

The Children

It is relevant to say more about each of the children before considering my evaluation and analysis. The eldest four children have all experienced a disrupted childhood, because of the inconsistent care arrangements and their exposure to the abusive relationships between F1 and F2 and their mother. They have found the last twelve months confusing with their changed care arrangements.

A is 11 years, nine months old and approaching adolescence. She has always had a particularly close relationship with MGM. Some tensions have been noted on occasion between A and her mother, but it was accepted by Ruth Rainsley in cross examination that this is as likely to be related to her general confusion about her situation and her approaching adolescence as anything else. A is a shy child who does not volunteer information much of the time. The school report that she has been more withdrawn recently. The Guardian and Ruth Rainsley agree that A wants her mother and L to return home.

B is ten years and nine months of age. He has experienced significant harm in the sexual abuse he suffered. He has a diagnosis of ADHD and takes medication daily. It has a significant impact on him if his medication is not taken. B presents as confused at the current circumstances. Once again, the Guardian and the social worker agree that he wants to live at home with his mother.

C is nine years and four months of age and a talkative, confident child. The Guardian considers she shows signs of emotional insecurity, however. That is reflected in information from the school, who have described her as 'all over the place at the moment', struggling to concentrate and in a heightened state of anxiety. The school report that C has a clear attachment to her mother.

D is now three years and five months old. She is described as a friendly, inquisitive child, with a keen sense of humour. The Guardian said that D has been particularly affected by her mother's absence and that of her younger brother, L, from the home. She is confused and anxious about her situation.

L is now almost 17 months old. He only lived with his mother (and, to the extent that he was there, F2) for four months. L has considerable special needs with significant global developmental delay. The Children's Guardian's report at E67 (paragraphs 76 to 78) gives an account of L's circumstances. The foster carer describes him as 'a full time job'. A further document was produced by the foster carer (at D84) which sets out L's care needs. There is a high level of professional involvement. His developmental delay is such that he is fed like a young baby with a bottle, he eats pureed baby food and is unable to manage finger foods. He needs constant supervision. L is unable to communicate his care needs and his likes and dislikes. He is distressed on occasions by noises which surprise him.

Tracy Nattress, the community support worker, has been working with A, B and C since the proceedings started. At E66 (paragraph 71) the Guardian records her views.

'The children present as a close sibling group who understand each other well and are caring and protective of each other.'

This chimes with the Guardian's observation of contact; the older children responding to D, who looked to them. On occasions, D prompted responses from the older siblings, which had the effect of uniting them as a sibling group. L's primary relationship is inevitably with his foster carer. The older children nonetheless miss him and want him to come home.

A, B, C and D were all exposed to the volatile and abusive relationships between their mother and F1 and F2. They have had inconsistent care arrangements. At times, home conditions were unsatisfactory. B and C have said that they were physically abused by F2 and that A was too. C and B both suffered significant harm in the past, by reason of the events already recorded in my judgment. The children have experienced further disruption in the last twelve months; L has been removed, followed by the departure of his mother from their home. PH is struggling to cope and the children are showing signs of emotional insecurity.

There is a risk for the children, should they continue to be exposed to damaging and abusive relationships, or that they continue to receive inconsistent and inadequate care, or that they are exposed to further harm, physical or otherwise. Aspects of the children's care have undoubtedly been good. That is reflected in the children themselves and the relationships they have with their mother and with other family members.

The Placement Options

M's case

M seeks to resume the care of all five children. There was some recognition by M that caring for L would add considerably to the overall burden. I formed the view that she was reluctant to concede that she would not be able to care for him, in no small part because of her unwillingness to choose between her children, or to give up on L.

M says her relationship with F2 is over. In her evidence, M said that she accepts the damage this relationship, and the relationship with F1, caused the children. She accepts the Freedom Programme has been offered to her previously, she says on one occasion only. I heard no evidence to the contrary. M says she would now do the Programme. She says she intends to prioritise her children over her new relationship.

As I have already recorded, I was not satisfied with M's evidence of the events of June 2014, when JD and F2 were both at M's house, shortly after 6am. Her explanation left more questions than it answered: why JD was taken upstairs at all, if he arrived simply to drop off her purse; and how F2 came to be at the property and apparently knew something was afoot.

I also concluded that recently M has at least formed a friendship with a man, which she has contemplated developing further. There is nothing to suggest that he is currently unsuitable as a partner, but it calls into question her understanding of her priorities. It also lends support to the argument of the local authority and the Guardian, that M is reliant on relationships with men.

M has cared for her children with considerable support from her family and others, some of whom, I have concluded, were unsuitable. C and B both came to significant harm as a result. M says she will regulate the contact the children have with others, as required. The question remains whether she is able to do so, because of her own needs and because of the relationship she has with her family and the personalities of those involved.

There have been other shortcomings in the care of the children. Home conditions were unacceptable in February and March 2014. This is not, however, a case of chronic neglect. The children have attended school and nursery regularly, without significant issues raised and, in the main, have, on the evidence before me, engaged appropriately with medical and health visiting services.

There have undoubtedly been positive aspects to M's parenting. The children each have positive relationships with her, although A's main attachment appears to have been to MGM.

It is concerning that in the case of B in respect of the allegations of sexual abuse, and in the case of B and C in respect of the allegations of physical abuse by F2, they did not apparently feel able to tell their mother. It begs the question why not.

But for the concern about L's head circumference, the local authority would not have become involved with the family in 2014. M's commitment to the children in the last year has been very good and the quality of care she has provided has not been criticised in any significant regard. She has been instrumental in enabling the placement to continue. This has, however, been for time limited periods. M has cooperated with the local authority, on the evidence, during the past and current local authority involvement. She was criticised for not reporting the events of May and June 2014 to social care, but she did report them to the police and took action in seeking to enforce the injunction, albeit unsuccessfully.

M has cooperated with the local authority's parenting assessment, providing a wealth of information about the past relationships which would not otherwise have been known and which did not help her own cause. When written agreements have been in place they have, in the main, been adhered to. M says she would work with professionals and accept whatever involvement is required to keep the children in her care.

MA offers herself as a support to M in her care, or to provide a home for the children if they cannot be with M. She saw no reason why her sister could not care for all the children.

MA is married and has her own son, K, aged 5. I have heard evidence from MA twice now and considered the assessment of her, in the context of the evidence overall. From the evidence I heard, MA and her husband have been under considerable strain in recent times, because of events within his family, as a result of which he has been absent from work for a lengthy period. They care for K without any significant concern. I was told there was some social care involvement, but that arose from events in MA's husband's family and was not related to the care that K receives. The current stressful home circumstances are clearly a significant preoccupation for MA at present.

I found MA to be well intentioned, but a vulnerable woman who, in my judgment, does not cope well with additional stress. This can be seen over time in her management of her own life. She has not previously played any significant role in the alternative family care for these children and did not consider M to be struggling as much as she evidently was. She did not have a clear understanding, or acceptance, of the risk posed by MSGF.

K is described as a quiet little boy. He is part of a large extended family and MA accepted that he has struggled to find his place among the other children on occasions. I do not doubt that MA is well motivated and well intentioned. Her ability to care for any of the children and the extent to which she can offer support must be seen in the context of these issues.

F2 did not participate in the welfare hearing. He provided a statement and, in the light of his intermittent involvement in the fact finding hearing, I considered it appropriate to allow Mr Pinkney to continue to represent his interests in the hearing, to avoid the risk of his later appearance derailing the proceedings in any way.

My earlier judgment sets out the many shortcomings in F2's involvement in the children's lives; as he described himself, 'a shit dad'. I found I could not rely on his evidence. On the findings I have made, F2 was violent to M during the course of their relationship. He has not attended the hearing to put his case against the local authority's assessment. Despite Mr Pinkney's valiant attempts to highlight the positives, there is compelling evidence to rule F2 out as a carer.

The local authority's plan

The local authority plan for the four eldest children involves a move to bridging foster care before permanent placement. The local authority had previously identified a bridging placement for the four children together, but that is no longer available.

At the hearing before me in March 2015, the plan was proposed to place the children in two separate foster placements: A and B; and C and D . I received confirmation from the local authority this week that that remains the position. The children would be in these placements for some time, until a permanent placement is found for them. The local authority would search for a permanent placement for the four children together, including using resources beyond the local authority's own pool of foster care.

Apart from the evidence of Ruth Rainsley that the local authority has previously placed a sibling group of four, I received no other evidence about the likely prospect of the placement of these four children together. In the event that a placement for the four children is not found within a reasonable period, the children would move to separate permanent foster placements, once again separated in pairs, with A and B placed separately from C and D.

In the case of L, the local authority's case is that his care needs are such that his return to M cannot be considered, whether on his own or as part of a larger sibling group. The local authority recognises that L's prognosis is uncertain, but considers that there is a realistic prospect of a placement for adoption. The local authority case is that adoption is achievable and, if achieved, would provide L with the permanency and security throughout his life that he requires. In the event that no placement for adoption is found, the plan for L would be one of long term foster care.

My Welfare Analysis

This is most conveniently dealt with by considering the four older children and L separately as a result of their different parenting experiences and circumstances and, as a result of the different plans, requiring analysis of their welfare within different legal frameworks.

My judgment has already considered aspects of the children and their circumstances. I have identified the significant harm the four eldest children suffered and the risk to them if their parenting exposes them to the same harm in the future. I have also identified the harm that L suffered whilst cared for within the birth family, exposed to the relationship between M and F2. In the light of the conclusions in relation to the four eldest children, L is also at risk of suffering significant harm in other respects.

A, B, C and D all want to stay living together and with their mother. In the case of each of these children, their wishes and feelings must be seen in the light of their age and understanding. D is, of course, still very young and her wishes and feelings must be seen in that context.

A, B and C have been separately represented in the proceedings, in recognition of their wishes and feelings and the strength of them. It is recognised by the local authority and the Children's Guardian that a plan of removal of the four eldest children to foster care carries risks with it, in the light of the children's wishes and feelings, and their relationships with the birth family. The local authority accepted in the evidence of Ruth Rainsley that the placement may simply not work, so far as the older children are concerned. It carries with it a risk of causing emotional harm to them.

The four eldest children are a close sibling group. The local authority and the Children's Guardian accept that splitting the children would have an adverse impact on them. This would be a significant change in circumstances for children who, but for the short time that C was in foster care in 2006, have always lived together.

In the case of L, his circumstances are very different. He is a child with a very high level of care needs which will continue, in all probability, throughout his life. L has only lived within his birth family for the first four months of his life. He has been in foster care for 13 months. He has continued to have a relationship with his birth family, in particular with his mother, through the contact that has taken place. L will need reliable, high quality and consistent care throughout his childhood and, most likely, beyond. His welfare interests will not be met if he does not receive such care.

At E69 (paragraphs 83 to 84) the Children's Guardian said this about the eldest four children:

'Due to their experiences, I consider A, B, C and D to be emotionally vulnerable children. In my view, they need a long term care giver to provide them with consistent reassurance, while containing and managing their emotional insecurities. I think that this care giver will also have to provide a framework of consistent routines, boundaries and expectations, in order to promote their stability and address the confusion and uncertainty which characterises their current functioning. A, B, C and D need to be protected from exposure to any further adult conflict, poor home conditions or uncertainty in relation to their future care.

A, B, C and D have always resided together and, in my view, they are a close sibling group, although there is the usual level of dispute and disagreement. They all told me they enjoy spending time with each other and I think it is likely they will have relied on each other at times to have their own needs met. It is, in my view, important for A, B, C and D to continue residing with each other and if they are to be separated this will need to be managed sensitively, in terms of the emotional impact the separation will have on them.'

The Children's Guardian went on to identify L's exceptional care needs in the future.

The Children's Guardian identified M's strengths in paragraphs 33 to 34 (at E56 to E57) as follows:

'In my opinion, [M]'s strengths and the factors which would support her capacity to look after the children are her close relationships with the children; her acknowledgement of some of the deficits in her past parenting; her acknowledgment of the abusive nature of her relationships with [F1] and [F2] and that this affected the children; her engagement with the parenting assessment; seeking support and engaging with counselling; in addition, leaving the family home so that the older children could remain there; her consistent attendance at contact with L; supporting the children's placement with their maternal aunt on a daily basis; maintaining a level of emotional stability, despite the stress of the proceedings and her own adverse history; her desire to engage with the Freedom Programme, counselling and other forms of support; her openness to the prospect of the local authority remaining involved.'

He addressed her vulnerabilities at paragraphs 35 to 42. At paragraph 35, he said this:

'In my opinion, [M]'s vulnerabilities and the factors which would make it difficult for her to look after the children are her experience of inconsistent parenting and abuse in her own childhood; her involvement in abusive relationships as an adult; the pattern of separating from abusive partners and then resuming relationships with them; prioritising her own social life above the children's needs; regularly placing the children with family members which affected their stability and caused B and C harm.'

He went on to identify M's past failure to attend the Freedom Programme and to maintain counselling, her limited family support, her limited acceptance of her shortcomings in parenting and the difficulties she would experience as a sole carer.

At paragraph 39, E58, the Children's Guardian said this:

'In order to meet the children's needs in the future, I think [M] would need to fully recognise the deficits in her past parenting and the challenges inherent in meeting the children's needs in the future; engage with family members who could provide practical and emotional support, as well as robust monitoring and guidance; attend counselling and undertake the Freedom Programme; engage with the local authority and follow advice; avoid any further abusive relationships; have some time to herself on a regular basis. In my view, these are the minimum requirements for meeting the needs of any of the older children, before factoring in the requirements of meeting L's complex needs.'