England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT WREXHAM
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF A (A CHILD)

		25th August 2016

JUDGMENT 25^th August 2016

HIS HONOUR JUDGE GARETH JONES:

1. I have before me an application made for a Final Care Order in respect of a child identified as A born on 15^th February 2016 and she is therefore some six months of age. She is a female child.
2. The parties and their representatives are as follows:

(i) The Local Authority (who I shall identify as such) is represented by Mr Sellars;

(ii) The mother (who is present today and has been throughout these proceedings) is represented by Mr Abberton;

(iii) The father (who is not present today nor during these proceedings) is represented by Mr Jamieson; and

(iv) The child is represented by her Guardian Mr DM and by her solicitor Miss Edwards.

3. This application was listed for a four day hearing commencing on 22^nd August 2016 and at the outset of the hearing I announced my decision and gave a brief judgment in relation to two aspects. Firstly, I indicated that the mother's case to care for her daughter A as a sole carer at this stage should be considered in accordance with the decision in North Yorkshire County Council v B [2008] 1FLR 1645 and Re R [2015] 1FLR 715. Secondly, I announced my provisional decision in relation to an application issued on the father's behalf shortly before the commencement of the hearing to adjourn the hearing and to extend the twenty-six week time limit in accordance with section 32 Children Act 1989.
4. It was contended on the father's behalf that the Local Authority's Final Care Plan was inchoate. Furthermore, his absence outside the jurisdiction of England and Wales in Pakistan precluded any parenting assessment of him and prevented him from participating fully in these proceedings. Consequently, on the basis of fairness and respect for his family life, the "necessity" text for timetable extension was established and the Local Authority's application should therefore proceed no further at this stage.
5. In an email from the father's solicitors (acting for him in relation to his separate immigration application), it was indicated that no certain timescale for the father's return from Pakistan could be given at this stage. The Home Office might provide a response upon the receipt of the father's passport in a period of about three to four weeks.
6. For reasons given by me on Monday of this week, provisionally I did not accede to that application. Without in any way expressing approval for the Local Authority's Final Care Plan, I indicated that the Plan might be capable of approval in accordance with the decision of the House of Lords in Re S [2002] 1FLR 815, in particular the judgment of Lord Nicholls at paragraphs 95 to 99, and on that basis adjournment with time limit extension and re-timetabling was not required at the outset. This decision was contended for by the Local Authority and the Guardian, but was opposed on behalf of the mother and the father. I indicated that the application by the father could be renewed once I had heard evidence from the Local Authority about the Final Care Plan.
7. I concluded that part of the mother's case (to be considered as a sole carer for A) should be heard at this juncture because the separation of a child from a parent should not be continued for longer than is required. In addition to the documentary evidence adduced, I have heard oral evidence from the Local Authority's key social worker Miss Hughes. I have heard oral evidence from the mother and I have heard oral evidence from the Guardian. On the penultimate day of the hearing, the Home Office replied to the request for documentary disclosure that was outstanding and that was circulated to all parties.

The background to this case

8. The mother is thirty-nine years of age and as a result of three separate family proceedings concluded while she lived in South Wales, she has lost the care of seven of her children. These children vary in ages now from three to twenty-one years. The proceedings were concluded in 2006, 2008 and 2011/12 by Her Honour Judge Isabel Parry and by District Judge (MC) Watkins. There are transcripts of judgments from these proceedings which are available and which are included in a separate core bundle.
9. I should indicate that as a result of these proceedings the mother's eldest child was placed with her birth father. She is now an adult. The next two children were placed with their birth father (a different individual) and these are sixteen and fourteen years of age respectively. The mother's four remaining children from the earlier proceedings were placed outside the birth family permanently by way of adoption. Their birth father was ID.
10. Following the last of these proceedings, the mother separated from ID and she decided to leave South Wales and she moved to North Wales for a fresh start. She lived in temporary accommodation until she obtained her current one-bedroomed flat on a third floor with a separate kitchen, sitting area and a bathroom. She has lived there for the past four years. She has no rent arrears and her home conditions are considered to be acceptable.
11. Initially, on relocating to North Wales she established a relationship with P. He was controlling and he was older than the mother and when he went to strike the mother, she left him (that was the mother's oral evidence to me).
12. In February 2013, she met A's father. He is of Pakistani origin and he had lived in this country since 2009. Their relationship commenced it would appear either in June, July or in August 2013 and they were married in April 2014.
13. The father's application to remain in the United Kingdom was refused in March 2015 and he returned to Pakistan in May 2015 and the mother accompanied him. The mother returned to the United Kingdom in July 2015 and she gave birth to their daughter in February 2016 while the father remained in Pakistan.
14. The father re-applied for a right of entry to the United Kingdom, which was initially refused. At G42 to G52 of the trial bundle there is a note of a decision given on 23^rd May 2016 which confirms the father's successful appeal from this refusal, in part because of his subsisting family life in the United Kingdom. A provision of a passport to facilitate the father's return to this country has been delayed. The father's solicitors have indicated in correspondence to this court that upon the father's return, he may apply for a visa for a period of two and half year's residence with the possibility of an extension and it is possible that he may qualify for indefinite leave to remain in the United Kingdom.
15. Because of the mother's parenting history, the Local Authority issued Care proceedings in February 2016 and an Interim Care Order was made from 18^th February 2016 after an initial period of voluntary accommodation. A has been placed with Local Authority foster carers. The twenty-six week limit expires on 26^th August 20165 and the application has been timetabled to this final hearing this week.
16. Despite the father's physical absence from the courtroom, he has filed three court statements and he has been able to give instructions to his solicitors. He has participated in a preliminary interview session with the Local Authority's key social worker Miss Hughes by Skype (I was told) for approximately one hour. The court had made provision for a court interpreter, on the basis that the father might at least be able to participate long-distance by VC link/Skype or by telephone. In fact, the father did not require an interpreter; his mastery in English being sufficient for him to participate directly without an interpreter. The court in a number of pre-hearing directions has done as much as it can to secure the father's attendance by technological means, unfortunately without success.
17. The mother during the currency of the proceedings has been afforded regular contact with A four times per week, which she has attended. A parenting assessment of her has been undertaken as a sole carer by the Local Authority. The mother (who was the subject of a psychological assessment in the South Wales proceedings) has been re-assessed by Dr Moshe, a psychologist within these proceedings.

The Local Authority's Care Plan

18. At D13 in the preamble section under the heading "Overall Aims", the Local Authority indicated clearly the difficulty encountered in this case by the absent and unassessed father. At page D13 to D14, the following appears:

"At this time, however, it has not been possible to complete any assessments in respect of [the father] as he has for the duration of these proceedings been residing in Pakistan."

And later:

"[The father's] ability to care for A is unassessed and whether this can be assessed within a timeframe suitable to A's needs is of extreme significance in the context of the current situation."

Further:

"…As such it is the Local Authority's view that the mother as a sole carer cannot meet A's needs whilst the father's ability to care for his daughter remains unassessed, whether parenting as a sole carer or in conjunction with his wife."

Finally:

"…The Local Authority do seek within this Plan to provide an outline of the short-term plan for A and the different long-term placement plans which remain a planning option for the Local Authority and the timeline that decisions will be made in respect of A's place of permanence. For clarity, at this stage the Local Authority consider that permanency for A could be achieved in one of three ways: reunification into the joint care of her parents; reunification into the sole care of her father; or, adoption."

19. There are extremely detailed provisions at page D16 to D20 which set out the manner in which the Local Authority intends to complete the inevitable concurrent plan for A's permanence, proceeding from her current Local Authority foster placement. However, at this stage the Local Authority had ruled out the mother as a sole carer and the "realistic" options remaining, in the Local Authority's view were (as I have already indicated):

(i) parental reunification into joint care;

(ii) reunification into the father's sole care;

(iii) permanence outside the birth family by way of adoption; and

(iv) foster care.

20. The Local Authority has an approximate target date for implementation, i.e. A's first birthday in February 2017 or as close thereto as can be managed. The timescale is achievable provided the father has returned to the United Kingdom by early November 2016 (which is approximately two months from now) so that the assessment of the father as a joint or as a sole carer can be undertaken.
21. No Placement application has been issued by the Local Authority and obviously the decision by the Agency Decision Maker in accordance with the Adoption Agency (Wales) Regulations 2005 (as amended) has not been taken. However, the Local Authority and the Guardian has indicated that delay is prejudicial for A's welfare and these proceedings having been in existence for six months, A cannot wait indefinitely for her father's return. Apart from contact provision by Skype, A is largely a stranger to her father.
22. The Local Authority's Care Plan is supported by the Guardian in his final report and it is opposed by the mother and the father.
23. As I indicated at the outset, whatever be the father's difficulties the mother has consistently maintained that while she would hope to resume married family life with the father upon his return, she is able to care for A currently as a sole carer without his assistance. She has been separated from her daughter for six months. This contention by the mother requires examination at the first opportunity available to the court when the relevant evidence has been assembled. The court should not tolerate parental separation for any longer than necessary in accordance with the child's welfare.

The legal provisions to be considered

24. I have already found the threshold criteria under section 31 Children Act 1989 to be established on the basis of District Judge (MC) Watkins' judgment and the threshold in the earlier proceedings – this giving rise to a likelihood (i.e. a real possibility) of significant harm.
25. Next, I must apply the paramountcy of A's welfare and the so-called 'checklist provisions' under section 1 Children Act 1989 when I consider the Local Authority's Care Plan. The Care Plan has to be a proportionate and a necessary response to the welfare needs of the child.
26. Since 6^th April 2016, the Social Services and Well-being (Wales) Act 2014 has carefully defined the obligations of Local Authorities within Wales towards children and others who need care and support. While the content of family law and procedure remains a reserved matter, the Welsh Government is entitled to legislate for social welfare as a devolved matter under Schedule 7 Part 1 of the Government of Wales Act 2006.
27. A local authority with responsibility for a looked after child (which includes a child in its care or a child being provided with accommodation) must:

"(a) safeguard and promote the child's well-being, and

(b) must make such use of services available for children cared for by their own parents as appears to the Authority reasonable in the child's case."

(See section 78(1) of the 2014 Act.)

28. "Well-being" is a key concept of the 2014 Act defined under section 2 thereof which includes "welfare" as defined by the Children Act 1989. That is the effect of section 2(3) of the 2014 Act.
29. Under section 37 of the 2014 Act (in the case of children who are not looked after) a local authority in Wales has a duty to meet the care and support needs of a child provided:

(i) the child lives in the local authority area;

(ii) the needs meet the eligibility criteria; or

(iii) the local authority considers it necessary to meet the needs in order to protect a child from abuse or neglect or risk thereof or other harm or risk thereof;

(iv) the conditions in the appropriate Regulations are met; and

(v) the needs are not being met by the child's family.

30. Under section 38 of the 2014 Act, the appropriate local authority in Wales has the power (as contrasted with the duty) to meet a child's needs for care and support, if a child is within the local authority area. Where a local authority in Wales is required to meet the needs of a child under section 37, that local authority must prepare a Care and Support Plan under section 54 of the 2014 Act in accordance with the appropriate Regulations.
31. Under section 75 of the 2014 Act, a local authority in Wales must (so far as reasonably practicable), accommodate a child with local authority foster carers within that local authority area and meet the needs of the child, provided this is consistent with the child's well-being.
32. Accordingly, these provisions are designed to provide a "safety net" of local authority care and support for a child who is either:

(i) a looked after child; or

(ii) a child who falls outside that definition, e.g. if being cared for by a parent or a family member.

33. Furthermore, just as the United Nations Convention of the Rights of the Child has been partly incorporated and binds CAFCASS Cymru as an Agent of the Welsh Government (a fact which is acknowledged in all CAFCASS Cymru's reports to the court in their heading), under section 7(2) of the 2014 Act, Part One of that Convention now binds Welsh local authorities in relation to looked after children.
34. A court, therefore, exercising its discretion under the Children Act 1989 in Care proceedings or when making other family orders where relevant for children in Wales is now entitled to proceed on the basis that local authorities in Wales acting in good faith will comply with these statutory obligations fully. Furthermore, in Re A [2016] 1FLR 1, the President of the Family Division provided a general reminder of some fundamental principles:

(i) the burden of proof is on the local authority;

(ii) proper evidence must be adduced, although hearsay evidence is of course admissible in family proceedings;

(iii) the connection between facts A, B + C and the existence of a threshold risk X, Y or Z must be demonstrated;

(iv) the State cannot and should not intervene in all cases of deficient parenting; only in those cases where the limit of acceptability has been crossed.

35. The court quoted with approval the decision of Hedley J in Re L (Care: Threshold Criteria) [2007] 1FLR 2050 at paragraph 50:

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

36. The court in Re A also cited with approval the observations of Lady Hale in Re B [2013] 2FLR 1075 at paragraph 143:

"…We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse antisocial political or religious beliefs…"

37. The Local Authority (for perfectly understandable reasons) has concentrated upon the mother's poor parenting history. That is inevitable in a case such as this. In ruling out the mother, the focus has unavoidably shifted to the father's capabilities to remedy the mother's alleged parenting shortfall. However, it would not be fair to "write off" the mother simply on the basis of her historic track record. Why assess her at all if upon the birth of each successive child, that child is removed from her care because the previous child or children had also been removed from her care?
38. The court has a duty to the child to consider afresh any changed circumstances, while not of course disregarding important background information. In this case, four/five years have elapsed since the previous proceedings; the mother is nearly forty years of age; it is her care of one child, not multiple children, which is currently at issue. I therefore turn to the benchmark established by the original proceedings.

The South Wales proceedings

39. The judgments of District Judge (MC) Watkins in 2011/12 referred to the following threshold features:

(i) Domestic violence between the parents and/or third parties;

(ii) The alcohol abuse of the father in those proceedings;

(iii) The unmet psychological needs of both parents which prevented them from providing 'good enough' parenting and giving rise to a risk of neglect/emotional harm.

It is only the last of these which now appears to be relevant so far as this mother is concerned.

40. The judgment in 2007 by Her Honour Judge Parry referred to the mother's massive emotional needs arising from her childhood abuse which had been dealt with by:

"…means of shutting down on that part of her life".

41. The mother was reluctant to access therapy, which would be essential if she were to develop/maintain her parenting capacity. The precise nature of the therapy suggested was unspecified by the expert in the earlier proceedings.
42. The mother's relationship with ID was unstable (see paragraph 22 of Judge Parry's judgment). Judge Parry also referred to the exercise of physical chastisement by ID (at paragraph 25 of her judgment). The Judge referred to attachment difficulties between the mother and her eldest children. However, this is not raised by the Local Authority and the Guardian in this case, Mr DM in his report seeing early evidence of attachment between A and her mother.
43. I need also to exercise some care with regard to the mother's alleged "track record" of forming a succession of unsuitable relationships with violent aggressive or controlling husbands or partners. It is true that the mother has made a number of allegations about her first two partners, being the fathers of her eldest three children. However, I am not in a position today to determine whether the mother's allegations in this regard are correct or not. I remind myself, however, that these two partners had sufficient parenting capacity to permit the court in 2007 to entrust three children into their care. These could not have been wholly unsuitable fathers whatever be their alleged shortcomings as partners. However, ID was certainly a poor partner but considered from this perspective, the mother's history of partner selection is more nuanced than originally contended for.
44. In 2007 and 2008, two psychological reports were completed on the mother by Denise Parker, a psychologist. At paragraph 7.4 of the first report, the mother's full-scale IQ was assessed at 81 (low average) and she had a reading age of around seven years and nine months. She had suffered (and it is accepted) a chronically abusive childhood. ID had an offending history going back to thirteen years of age and a substance misuse history also going back to thirteen years of age.
45. The mother has one caution recorded and alcohol/substance misuse is not a feature in her assessment in these proceedings.
46. Similarly, the father in these proceedings has one caution recorded. There is no indication of substance misuse. He has lived in this country since 2009 and there are no recorded episodes of domestic violence involving these parents together and the father has led a substantially blameless life in the United Kingdom so far as I am able to determine.
47. At paragraph nine, there is a reference to the mother's personality problems (which are not specifically diagnosed) and her clinical depression and anger difficulty. She was prescribed anti-depressants and there had been episodes of self-harm and suicidal threats. This depressive condition (which appears to be a reactive one) remains a feature of the mother's presentation. By 2008 (the second report), the following developments were noted:

(i) there were no suicidal thoughts/self-harm (see paragraph 8.9);

(ii) the mother was able to leave the house on her own (see paragraph 8.11);

(iii) concern was expressed about her truthfulness (see paragraph 15.8);

(iv) she remained on medication for anxiety/depression (see paragraph 15.13); and

(v) the child L could be cared for by his parents after therapy (again unspecified) (see paragraph 15.23).

48. There are two sections of these reports which should be considered. At paragraph 18.32 of the 2007 report at page C98, the following appears:

"[The mother] has significant therapeutic needs arising from her personality problems and mental health issues. Unless these are addressed she is unlikely to be able to prioritise good parenting of the children and although it should be acknowledged that she has tried hard more recently to put newly-learned parenting skills into practice with some success, she is unlikely to be able to do this on a consistent basis. Her personality problems appear to be deeply etched and date back to her abusive childhood. In view of this, it is likely to take a long time, over a year or more, for her to begin to make changes in her emotional well-being that will then allow the possibility of her being able to prioritise other changes. [The mother] has expressed strong resistance to the idea of therapeutic input to address her personality problems, apart from an acceptance that she would benefit from support to manage her anger more appropriately. I feel that help with anger management alone would not be beneficial without therapeutic support to address the emotional needs that trigger the angry outbursts."

49. At paragraph 15.20 and 15.22 of the 2008 report, the following appears (see B73):

"I don't feel that [the mother] or ID could parent alone. [The mother] has responded to advice in relation to parenting skills and should be commended in her attempts to use these skills in contact sessions, with a considerable improvement being seen in her interactions. However, I felt that [the mother] tended to be rather inflexible in her use of new skills, finding it difficult to apply them and use them appropriately in a variety of situations. This is not uncommon in parents with below-average cognitive ability but would mean change is less likely to take place successfully in the home context without active support to generalise her new skills to this situation. In addition to requiring a high level of on-going professional support, in my view the mother also needs the day-to-day support of a more able partner or other adult who is able to encourage her to reflect on her actions and think through any problems rather than impulsively reacting to difficulties…

"…It would seem, therefore, that we can only consider the possibility of [the mother] and ID parenting as a couple. As a couple, I feel they have the potential to develop 'good enough' parenting skills with a good level of support, but as stated above we cannot feel confident in their ability to use these skills consistently in prioritising L's needs unless their emotional needs are addressed as a priority."

50. This last extract is close to the Local Authority's formulation in this case eight years later. The question is, is it justified? The Guardian in his final report in these proceedings highlights the mother's limitations in stimulating A in contact. This may be because of her own innate limitations. However, parents have diverse capabilities and abilities and I remind myself that "social engineering" is not permissible. A parent of low average intellect may find it more innately difficult to stimulate a child in play when compared to a more intellectually gifted or resourceful parent. That, however, is not the point. I have to consider whether the mother's care and stimulation is unacceptably poor or deficient and is likely to remain so, thereby harming A's educational, social or emotional development. The Guardian in his oral evidence believed that the mother could be assisted to improve her abilities to stimulate A.

The mother's current circumstances

51. The precise therapy recommended for the mother in 2007/2008 was unspecified but I proceed on the basis that it is generally accepted that therapeutic intervention has not been completed by the mother, who may be reluctant to embark upon this potentially debilitating work. However, there are many individuals who have suffered traumatic events in their lives who proceed without medical/therapeutic assistance. The real issue is whether the mother's functioning is affected to an unacceptable and damaging extent which might impact upon her care of A in the future?
52. Dr Moshe has reassessed the mother. The summary is at page D65 and it is as follows:

“(i) [The mother] does not currently have a diagnosable psychological difficulty;

(ii) Her overall profile remains much the same as it was in 2007 but the problems, whilst remaining, are much less severe at this time;

(iii) Her mood is slightly low and her anxiety slightly elevated. She remains acquiescent and passive, is mistrustful and socially uncomfortable and she is not assertive, but not to clinical levels;

(iv) She remains interpersonally vulnerable;

(v) She is more confident and optimistic;

(vi) These change are likely almost entirely due to her marriage and her husband. She has likely made very little psychological change;

(vii) The work with 'Stepping Stone' has likely been insufficient to effect real change;

(viii) Her current stability is predicated by her continued positive views of her marriage. If the marriage founders, she is unlikely to be able to effectively and safely care for A;

(ix) Her profile still entails some parenting risks but they are reduced compared to 2007;

(x) She accepts the historical concerns as valid;

(xi) [The mother] is dismissive of the current concerns of the Local Authority and she lacks insight here;

(xii) Her motivation for intervention is low and in any event therapy is not indicated at this time."

53. The mother has completed the Freedom Programme in relation to domestic violence with Women's Aid and the Incredible Years Parenting Course. Dr Moshe's basic formulation centres around the mother's vulnerability as a personality:

"If the relationship upon which she has pinned so many hopes were to founder, I would anticipate her psychosocial health to deteriorate rapidly."

54. It is in these circumstances (as I understand Dr Moshe's report) that the mother's parenting of A might dip below acceptable levels. This apprehension of risk has a number of elements:

(a) The likelihood of relationship breakdown by separation between the mother and the father;

(b) The likely response of the mother were this eventuality actually to materialise.

55. The mother was a quiet and relatively unassertive witness. The oral evidence was broken (perfectly appropriately) by her request for breaks. However, there were episodes immediately before a break when she was tearful and upset. In one particular instance, she told me about a telephone call from her own mother (the maternal grandmother of A) in early 2015 which had led to a recurrence of her depression and a re-prescription of anti-depressant medication by her General Practitioner. She has had no contact with the maternal grandmother since this telephone call and she believes her father (A's maternal grandfather) to be dead.
56. Contact with her eldest daughter is maintained, but otherwise I formed the impression that the mother had not retained any links with her family in South Wales and her social network was newly formed in this area.
57. There is no reliable evidence that this undoubtedly upsetting telephone conversation between the maternal grandmother and the mother (bearing in mind the mother's poor childhood experiences) had any more serious sequelae so far as the mother was concerned. As far as I can determine, she did not harm herself or attempt any overdose or suicide. So far as I can judge, the mother overcame her difficulties with the assistance of prescribed medication.
58. The suggested appointments made by a PCN/Hafod CMHS were not taken up by the mother, although the mother in fact denied that any appointments had been offered. The mother's engagement with 'Stepping Stones' was, however, far more consistent (see E21(a) to E21(r)). There may also have been some GP organised counselling but the precise extent of this is unclear.
59. On 10^th January 2016, the mother was admitted to the local general hospital with a blood clot. She was pregnant and she was admitted as an in-patient.
60. On 14^th January 2016 (while in hospital), she was informed of the negative result of a Local Authority pre-birth assessment of her. The mother, with her unhappy past history, was fully aware of the implications; removal of A at birth would probably be sought by the Local Authority.
61. This was the context for the episode described at page F1 and the mother's GP and hospital records. The mother was distressed and she lost her self-control and it is recorded that she threatened to harm herself and her child (although the account recorded is not accepted by the mother herself). There is, however, no indication that the mother took any steps to give effect to these threats. There might well have been times in the past where this might have occurred. However, not seemingly on this occasion.
62. The mother's behaviour as recorded of course was not acceptable, but it stopped short of inflicting any physical harm upon herself or indeed upon her unborn child. The mother told me that after an interval she calmed down and she regained her self-control.
63. In May 2013, there is a reported overdose by the mother and a referral to a CPN (see E121). This would post-date the mother's acquaintance with the father but seemingly predates the commencement of their relationship. The episode was not considered to "evidence current mental ill-health".
64. I was told by the Local Authority key social worker that in general the mother's ante-natal care had been acceptable and she (the mother) had made perfectly adequate and appropriate preparation for the baby.
65. At some stage while the mother was in hospital after giving birth, she formed a relationship with a female in the circumstances described at page E70, paragraph 2.6, and I am told that this female was one GD. What exactly occurred is unclear, but the mother's friendship with this third party continued for a period of approximately two months. I have no information about this individual (GD) save that she is apparently known to social services and she appears to misuse drugs, because the mother admitted that she had lent her money and GD had betrayed her (the mother's) trust and used the money to buy illicit drugs. The money (I was told) had been recovered by the mother (that was the mother's evidence to me). The mother also lent this individual foodstuffs and the like. This episode is relied upon as an instance of the mother's interpersonal vulnerability which if unchecked might place A at situations of risk.
66. The mother (it is said) misjudges people who take advantage of her kindness or friendship and were A to be entrusted to her care, she would need to take far greater care or risk A's safety. The mother told me that this person subsequently made a malicious telephone call to the Police, but I have no further detail other than that.
67. The mother has also helped homeless people and others who appear to be in need. This altruism or perhaps a desire for company and friendship could lead (the Local Authority believes) the mother into compromising A's well-being because the mother lacks judgment and discretion and her protective responses are poor. She and A could therefore fall prey to unscrupulous individuals.
68. The Local Authority has also questioned the mother's honesty and truthfulness and her ability to work openly with the Local Authority in the future. The Local Authority pointed to inconsistencies in the mother's evidence, including:

(i) with regard to her future accommodation plans, whether she will indeed stay in North Wales (as indicated in her oral evidence) or whether she might move to Liverpool or Manchester (as indicated elsewhere in the documentation);

(ii) whether the mother fabricated her accounts of past celebrity acquaintance? In this instance, this is impossible for me to determine; and

(iii) whether the mother's information provided to the Home Office in connection with the father's immigration appeal is accurate or not, and in particular in relation to the mother's physical health (see H3 and recent documentation) but also in respect of the mother's alleged social reclusiveness?

69. In this regard (so far as her health is concerned), the mother told me about periodic back pain which restricted her mobility in cold weather emanating from a fracture in 1999. In the Home Office documentation, sciatica is mentioned. The mother denied the functional disability indicated at page H3, but the Home Office interview also mentioned her pastime of kick-boxing.
70. There is no medical report confirming any physical disability and there is no physical condition identified in the Local Authority's parenting assessment of the mother as a relevant consideration, and in any event the Guardian in his evidence did not believe that this "disability" precluded parental care.
71. In the case of inconsistency/lies, I must of course self-administer the direction given in R v Lucas [1981] QB70. There is an obvious alternative motivation for the mother and the father to emphasise the mother's need for personal/familial care in the father's immigration appeal, which was acknowledged by the mother herself in her oral evidence to the court.
72. The mother has attended contact regularly and her basic interactions with A and her conduct therein is assessed as being perfectly acceptable. The mother completed and cooperated with the parenting assessment and she attended all of the parenting sessions. The mother told me that she had been attending the Women's Centre where various activities and courses were provided recently. She said that she had a female friend whom she identified as W.
73. When asked to reflect upon the earlier proceedings, the mother said:

"I put a man first before the children".

This might be considered to be a fairly accurate "headline" reason for where she went wrong in the past.

74. If A's father did not return or if they separated in the future, the mother told me:

"I wouldn't fall apart. I would be upset, but that's a part of life. I wouldn't go back to what I was."

She would not go and seek another man, if A's father left her, and she reminded me that she had not fallen apart over the past thirteen months or so since the father had been in Pakistan – when at least until May 2016 she had no indication of his possible return.

75. The direction to which I have referred in the case of R v Lucas is also relevant when I consider the effect of the Home Office disclosure adduced yesterday, not only in relation to the mother's physical health (to which I have referred already) but also to the contention of social isolation and reclusiveness by the mother in 2013. This is mentioned in the South Wales proceedings (I have made reference to it already), but it is not referred to by the Local Authority or the Guardian in any assessment reports or statements adduced in this hearing. I cannot reliably conclude that it is a feature of the mother's behaviour currently, nor that there is a likelihood of its return. I conclude that this feature, raised at a comparatively late stage in these proceedings and without any other current supporting evidence, is a slender basis indeed upon which to proceed in relation to this assertion.

The Guardian's evidence

76. The Guardian's written final report appeared to be clear. He had reviewed the Local Authority's parenting assessment of the mother and Dr Moshe's report (see paragraph 1.4 and paragraph 1.5) and he accepted this "substantially detailed insight", and concluded that A would "continue to be at significant risk of harm if placed in her mother's sole care, even with the Local Authority sharing parental responsibility". At paragraph 2.1, he could identify "little significant change in relation to the mother's parenting capacity". The Guardian accepted that there was an observable attachment (to which I have already referred at paragraph 3.2), and there was an acceptable provision of basic care by the mother.
77. The mother's physical capacity was not verified by him (see paragraph 3.11). The mother's ability to provide stimulation was questioned by him (see paragraph 4.4), but this in his oral evidence could be addressed so far as the mother was concerned.
78. The Guardian recommended approval of the Local Authority's Care Plan and the making of a Final Care Order (see paragraph 6) on the basis that (see paragraph 3.8):

"I am minded to concur with the Local Authority that it is unlikely that the mother would be able to meet A's needs if she were to be reunited to her sole care".

79. This apparent clarity was I regret to say dispelled by the disorganised oral evidence presented by the Guardian when he entered the Witness Box. Generally, I found it difficult to follow his process of reasoning in his oral evidence. His evidence was given seemingly at random without much connection and consequently the clarity of his written recommendation was substantially undermined by the confused presentation of his oral evidence.
80. In his oral evidence he found it "difficult to quantify" the risks presented by the mother's future sole parenting of A. He appeared to accept that he period from the end of the mother's relationship with P to the inception of the current proceedings was "effectively blank" without any adverse indicator of the mother's capability. The mother was generally vulnerable because of her past behaviour because a third party had taken advantage of her and because of her relationship with the father.
81. The Guardian had relied upon the parenting assessment of the Local Authority and Dr Moshe's report and their stated concern about the validity of the mother's relationship with the father, but he had formed no independent judgment of his own. He appeared to voice criticism of the way in which CAFCASS Cymru now permitted Guardians to discharge their roles while simultaneously maintaining that he had adequately reviewed the Local Authority documentation and pursued his own independent inquiries. He did not identify any services which might assist mother, indicating that there was "little support available in R [the mother's locality was identified]".
82. If the Local Authority had identified services for the mother under the 2014 Act, he told me:

"I would see that as a realistic possibility. I'm always one to give the mother chances."

I infer from this passage that he was referring there to the possibility of maternal reunification. When asked to consider the harm to A were she to return to her mother's care, he said:

"I don't know what the harm would be. It's not quantifiable if A returned home."

The Guardian then appeared to alter the direction of travel and he made reference to the Local Authority's assessment which suggested the following concern:

(i) the mother's difficulty in keeping A safe;

(ii) the mother's past pattern of behaviour (I regret to say, unspecified in the Guardian's evidence); and

(iii) the mother's physical health.

This passage of his evidence was seemingly entirely unconnected with other passages.

83. The Guardian then indicated that he had not been asked to identify the relevant factors relating to the mother's sole care of A. He had proceeded in his analysis on the basis of joint parental care, and he had not been asked to consider whether A could return home to the mother solely:

"I have struggled with this case like many cases and have discussed it with my Manager."

He then in his oral evidence expressed a lack of clarity about his task:

"What is the Court asking me to look at?" (he asked rhetorically).

84. The Guardian appeared to answer his own question by indicating that he had considered whether the threshold had been met and he had considered the suitability of the Local Authority's Care Plan. I should indicate that the Court had already found the threshold to be established at an early stage in these proceedings and the mother's case in relation to sole care had been identified clearly in earlier case management decisions.
85. The Guardian's responses were not in reply to a particularly tough or difficult cross-examination by the mother's counsel or indeed to judicial questioning. I broke early into lunch to allow the Guardian time to collect his thoughts. In the afternoon, the Guardian accepted that his report:

"…was based on analysis of the Local Authority's assessment and my observation of the mother and A together".

He did not pursue any independent inquiry about the Freedom Programme or the Incredible Years Course or (if he did) he would have to check his notes. Unfortunately, he had not brought these notes with him when he gave his evidence. He had:

"…made an assumption that what was filed was what was available".

He replied to Mr Abberton:

"I feel your question suggests that I have to go over and above what is documented".

86. In his evidence, the Guardian appeared to indicate that this was either not required nor indeed expected of him:

"I thought the issue was whether A should be subject to a Care Order, not whether A should be returned to her mother".

When I suggested to the Guardian gently that these were in fact two sides of the same coin, he said:

"I've had a lot of difficulty with this line of questioning."

87. In re-examination, Miss Edwards tried her best with this material. The Guardian believed that the mother could meet A's basic needs for "a level of time". There were individuals or other difficulties and the mother's own vulnerabilities which might affect her care of A in the future and A (he believed) might have to be removed again. It was "very difficult to quantify" the risk presented by mother's sole care. He had proceeded on a basis of the Local Authority's assessment and Dr Moshe's report and the mother's belief that she would be caring for A with the father. The mother's choice of friends was questionable (he believed) and he was still worried that the mother had "not demonstrated that she can manage by herself".
88. The issue of course which the Guardian should have considered was whether the Local Authority had demonstrated that she (the mother) could not manage by herself, and not whether the mother had demonstrated that she could manage by herself.
89. I have set out the Guardian's evidence at some length (which I believe bears examination from any transcript of his evidence), and I do so for these reasons:

(i) because his oral evidence substantially overshadowed his written recommendation;

(ii) because it proceeded without forming an independent judgment of its own but as a result of the Local Authority and Dr Moshe's evidence;

(iii) because he appeared to be unclear about the scope of his assessment and his recommendation and the task expected of him;

(iv) because in several respects his application of the basic legal framework was, I believe, deficient; and

(v) for all of these reasons, I believe the Court can depart from the Guardian's recommendation in this case, which is unsafe.

90. At times, the Guardian's evidence appeared ( I am afraid) to be a rudderless vessel on the high seas blown hither and thither and I was uncertain whether (in fact) this vessel would be blown into any particular harbour or whether indeed it would be blown into any harbour at all.

The conclusion

91. The Guardian, the Judge and the Local Authority all share a common desire to protect children from the recurrence of a risk of future harm. However, I have to recognise, as does the President in the case of Re A, the acceptable limits of this protective desire, and of course I have to consider the duty placed upon the Local Authority to establish its case.
92. Mr Sellars tried valiantly (in his closing submissions) to contract the period of time without incident in the mother's life to 2012/2016, while including within this timeframe the episode of May 2013, February 2015 and perhaps also January 2016 to which I have referred, which would indicate (he submitted) that the absence of incident was itself an erroneous conclusion. There was not a "blank page" in the mother's life as asserted by the Guardian.
93. I accept the mother's vulnerability is a continuing feature of her underlying personality. She lacks confidence and her intellectual limitations have been documented. She is apparently prone (it would seem) to reactive depression and I accept that she may in the future be overcome by the vicissitudes of life. That is a risk, it is a possibility. This of course (in substance) was the argument relied upon by Miss Edwards in her formulation to me of the future risk encapsulated with perhaps greater clarity than was evident in the Guardian's own oral evidence. The mother's fragility, unaddressed by therapeutic intervention was evident as an underlying and latent feature, masked by her present relationship with her husband and evident in her dealings with third parties who took advantage of her and possibly also in her relationship with her husband. In a crisis, the mother would revert to her previously indicated behaviour and become psychologically unavailable to A, who would thereby suffer emotional harm.
94. The evidence in fact would suggest and indicate that the medical depression suffered by the mother rather than being general is in fact intermittent, and is usually overcome by her and there is no indication of a general emotional withdrawal, at least in the mother's recent presentation.
95. I was told that the Guardian did not support the return of A to the mother as a sole carer and would not do so even under a Care Order. The Guardian believed that the Local Authority's Final Care Plan was still capable of approval but he left the final decision to the Court, as indeed ultimately did the Local Authority.
96. Mr Abberton (on the mother's behalf) contended that the test for removal and continued separation of the mother and the child in accordance with Re A had not been established. This was supported by the father's counsel who renewed his primary application made on Monday of this week (which I had considered provisionally and to which I have already referred).
97. The underlying argument of the Local Authority and the Guardian was in effect jointly presented. However, there are other possibilities with regard to the future in respect of the mother. Her care of A may provide an outlet and a focus to her life. The mother has a great desire to succeed as a parent and her love for A is unquestioned. Far from being isolated and without support, the mother may engage (with perhaps some assistance) with child care Agencies, pre-school and nursery facilities, health visitors and others who would all provide a circle of new acquaintance, activity and experience for her.
98. Why should I conclude that the father will either not return to this jurisdiction or abandon the mother and his daughter in the future? While the father may of course lack experience as a father, there is no obvious indicator of any viciousness in his character either towards the mother or indeed towards children in general. I have referred already to the cautions recorded in relation to the mother and the father (without there being a history of documented domestic violence) and the father after all had been in the United Kingdom since 2009 and he indicates that he would wish to seek employment, were he to return to this country. There is no obvious adverse indicator so far as he is concerned.
99. Furthermore, in my conclusion I am entitled to rely upon the Local Authority's statutory framework of responsibility towards A under the 2014 Act and more generally. In this case, there is an elusiveness in pinpointing the likelihood of future harm presented by the mother's sole care. I conclude that the Local Authority and the Guardian have struggled in that respect. For every indication pointing in one possible direction, there is another pointing in a contrary direction.
100. The benchmark for the measurement of parental capability and behaviour (as indicated by the President) is a wide one. There are cases where the Local Authority fails to discharge the burden and where it cannot be established to the Court's satisfaction that the line of unacceptable future care either will or may be crossed, and this (I conclude) is one such case.
101. Accordingly, I do not approve the Local Authority's final Care Plan. The separation of the mother and the child A is not sufficiently justified by the evidence. The threshold having been established, I make a Supervision Order in favour of the Local Authority for a period of twelve months, which may of course be extended on application in accordance with the Children Act 1989.
102. I make a Residence Order in favour of the mother to provide for a current legal framework. The mother will not be permitted to remove A from the jurisdiction of England and Wales without the Court's permission until further order. That is a section 8 (Prohibited Steps) Order which can be combined with a Supervision Order but not of course with a Care Order.
103. I provide for the Court Service to disclose a copy of this order to the Home Office (as requested by the Home Office) and I propose to order a transcript at public expense in this case, a copy of the transcript to be made available to CAFCASS Cymru. There are a number of issues with regard to the Guardian's evidence in this case which merit further examination by them and possibly need to be addressed by way of further training. This transcript will be disclosed to the local Director of CAFCASS Cymru, who may consider her response to me in writing, once she has had an opportunity of considering the document itself.
104. There will be no provision of costs inter partes save for the public funding assessment.
105. I have indicated already so far as the transitional arrangements are concerned. They can either be dealt with by means of an Undertaking (which I have mentioned already) with the Local Authority to make the transitional arrangements probably over the next fortnight or so. The mother has indicated that she is prepared to give an Undertaking of that kind. If the Local Authority is not prepared to act in the way suggested voluntarily, I have indicated that I will stay enforcement of this order and deal with the interim position and transition by way of interim contact.
106. Unless any party objects (and applies for further directions within fourteen days of provision of this transcript) a copy of this anonymised approved transcript will be placed on the Bailii website in accordance with the Guidance on publication.

End of judgment