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Cite as: [2016] EWFC B119

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IMPORTANT NOTICE

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.

IN THE FAMILY COURT Case No: NE16C00546

SITTING AT NEWCASTLE-UPON-TYNE

The Law Courts

The Quayside

Newcastle-Upon-Tyne

NE1 3LA

IN THE MATTER OF THE CHILDREN ACT 1989

AND THEADOPTION AND CHILDREN ACT 2002

AND IN THE MATTER OF: C & ORS (CHILDREN)

Friday, 16^th December 2016

Before:

HIS HONOUR JUDGE SIMON WOOD

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Re: C & Ors (Children)

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Counsel for the Local Authority: Mr J Gray

Solicitor for the Mother: Ms M Lamond

Counsel for the Father (F1): Ms L McKenzie

The Father (F2) did not attend and was not represented

Solicitor for the Children/Guardian: Mr J Flower

Hearing date: 12^th – 14^th, 16^th December 2016

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APPROVED JUDGMENT

Transcribed from the Official Tape Recording by

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JUDGMENT

HIS HONOUR JUDGE SIMON WOOD:

1. The court is concerned with the welfare of five children:

G, a girl born in 2002, now aged 14;

H, a girl born in 2006, aged 10;

J, a girl born in 2010, almost 7 years old;

K, a boy born in 2011, now 5; and

L, a girl born in 2014, almost 2.

The mother of all five children is M. G’s father is F1, long-separated from the mother but himself in a longstanding relationship and the father of two younger children. H, J and L’s father is F2. Notwithstanding the fact that K was born within wedlock, and despite two attempts at DNA testing, with the third outstanding, K’s father has not yet been identified.

2. Northumberland County Council, on 6^th July 2016 issued an application seeking care orders in respect of all five children. It now seeks final order as follows: in respect of G, a child arrangements order in favour of her father F1, with a supervision order to the local authority for a period of twelve months; in respect of the four younger ones, it seeks care orders with a plan of permanence outside the family. The primary intention is that all four children should remain together in the hope that they can be placed together for adoption on placement orders being granted. There are contingent plans, as I will come to, for the alternatives in the event that the primary plan cannot be achieved.

3. The plans, as formulated, are supported by the children’s guardian, Mrs Wendy McGaughey. The plan regarding G is supported by her father and her mother on the basis that it accords very much with G’s wishes and feelings. G has lived with her father since February and very much wishes to remain where she is. The plan for the younger four children was, on the first day of this hearing which was scheduled to start on Monday of this week, for the first time not actively opposed by their mother. The father of H, J and L, who has only minimally involved himself in this litigation, F2, did not attend either the first or the third day of the hearing and I see is not here today. Likewise, when he did appear, whilst he did not consent to the making of orders, nor did he seek actively to oppose.

4. Just to mention K at this stage, it is possible that his father is PU, that is to say the brother of F2 or mother’s brother-in-law, but DNA testing of him has not yet taken place. If he is K’s father, the only thing that can be said with confidence is that he does not hold parental responsibility in respect of K. It is the court’s understanding that as a paternal uncle figure living in Cumbria, although he may be known to K, his involvement in K’s life has been very limited.

5. Why does the local authority say that the children were suffering or likely to suffer significant harm at the date of issue and that that harm or its likelihood was because the children were not receiving care that would reasonably be expected of a parent? In short at this stage, because the local authority says that these children in the care of the mother and F2 were suffering from neglect, neglect that was longstanding and therefore chronic. Having been removed from the care of her mother in February, G then disclosed what she alleges to be serious and sustained sexual abuse at the hands of F2, her stepfather, in respect of which her mother had failed to protect her.

6. That disclosure then in many ways became the dominant and most controversial issue within the litigation. The history set out in the initial social work statement and the chronology spells this out in more detail. The family first came to the attention of the local authority as long ago as 2003. By then, the mother had been in a relationship with F1 for three years and G was born in 2002. The concern in 2003 came from F1 who was concerned that the mother was in a relationship with a man who was thought to be a risk to children due to a relevant conviction, namely indecent assault of a child.

7. The first of what turned out to be no fewer than six initial assessments was then carried out and matters at that stage resolved on the mother agreeing to end contact with the man in question. Other concerns arose before the relationship between the mother and F1 finally ended in 2005 and that included, for example, the mother taking G to a house where drugs were being taken, that led to the second initial assessment, and the mother alleging that F1 was violent towards her. The mother then married F2 in 2008, having given birth to his daughter, H, in 2006.

8. In 2008, a third initial assessment was undertaken following a report that the mother’s brother, then on bail for a sexual assault of an 11-year-old girl, was having contact with G. A similar allegation followed in 2009 that led to the fourth initial assessment, and again in 2010, the fifth initial assessment which led to the first of what were four section 47 enquiries in which the failure of the mother and F2 to take concerns seriously resulted in the risk of harm being substantiated.

9. The second 47 enquiry followed in 2011, in which a concern regarding F2’s behaviour towards a child was also substantiated but as before, ultimately, it was concluded that the children were not at continuing risk of significant harm. From 2011, concerns of a different nature came to the fore. There was a domestic incident between the mother and F2, both in drink, when the children were in the house. The sixth initial assessment followed a report by H that F2 had punched her mother. Supervision was a running issue and in that year H, then under the age of six, was found in the town centre without her parents’ knowledge.

10. Another drink-fuelled dispute followed in which the mother said that she had been grabbed by the throat and punched in the face by F2 in the course of which she had bitten his leg. That was said to have occurred in the presence of children who were crying and screaming. The house was then found to be in a poor state of repair and basic hygiene was entirely lacking. The child support team was then brought in to assist the family. However, anonymous referrals continued through 2013 with regard to home conditions, the father, F2, shouting and swearing at the children, J, then aged 2, being found naked in the street, the poor presentation of the children generally, the lack of support that was provided for the family by F2 and the chaotic nature of the household generally.

11. A strategy meeting followed. That led to a third enquiry under section 47 attributable to neglectful parenting and the risk of emotional harm, which was continuing despite services working with the family, of the children being children in need. The outcome was a child protection plan in respect of each child under the category of neglect. That plan remained in place for the next 26 months. Within it, the parents undertook the Triple P Parenting Programme in order to assist them with their parenting of the children. Support was provided at school and also at nursery, but despite some improvements being noted the old concerns remained: supervision, the disorganisation of the family, the lack of routines and boundaries.

12. During the course of the ensuing 18 months, improvements were noted but concerns continued to be raised. There was an incident when the children were found unsupervised very young in a paddling pool. Home conditions were described as adequate at best. Supervision was wanting. There was an issue with recurrent head lice. By the end of 2014, the local authority had a report that the mother had assaulted a woman whilst she was drunk. She had also described drinking despite being pregnant, a pregnancy that caused the local authority particular concern as to the capacity of these parents to care safely and consistently for five children given their track record in respect of four.

13. G called herself a slave within the family home, such was the level of responsibility placed on her. Intensive support was put in place by the family recovery programme after L was born, and in July 2015 the plan was in fact ended, albeit concerns persisted, and in October the case was closed to the local authority when it was felt that the home would always be chaotic to a degree but at an acceptable level and that the parents could meet the need, again to an acceptable level, ensuring that the children were clothed and fed appropriately. No sooner had that plan ended, that the mother’s brother resurfaced leading to the fourth enquiry under section 47, but the parents agreed to ensure that he had no access to the family home and on that assurance the case was again closed with a written agreement in place. That then brings me to the precipitating event.

14. In February 2016, G disclosed to a pastoral member of staff at school that she had been physically abused by F2. She described being pulled by the hair, shouted at, kicked, dragged from her bunk bed, some of which had been witnessed by one of her friends. To make it perhaps even more serious, G also reported at the same time that her mother had an awareness of this type of behaviour directed at her. As a consequence, G left her mother’s home and went to stay with her father, F1. In the period immediately following, she went on to make further disclosures of a sexual nature which ultimately amounted to rape. Meanwhile, with the mother’s agreement, the younger four children were received into care, K and L together, H and J together in a separate placement.

15. When belatedly proceedings were issued, which was the subject of very considerable criticism when the matter first came before me at case management stage, the court granted interim care orders on 2^nd August. A police investigation followed G’s allegations in particular. The mother and F2 were each interviewed under caution. G gave an interview in accordance with the achieving best evidence procedure. It is understood that ultimately the Crown Prosecution Service has decided not to prosecute on the basis that there was insufficient evidence to meet the criteria to prosecute with a reasonable expectation of conviction.

16. It had, within these proceedings, been the intention of the local authority to try out the issue of sexual abuse within this hearing and to that end detailed arrangements were put in place to include not only G, but two of her friends who were witnesses to aspects of the history, giving evidence. The threshold was comprehensively revised on 12^th October to reflect all of the concerns, the sexual abuse and the neglect. As I will come to, a further revision this week has resulted in near agreement. Where there is not agreement the local authority has, in the interests of proportionality and pragmatism, not least thereby avoiding particularly G but also her two friends from having to give evidence, agreed to accept that which the mother has conceded, contending that it comfortably crosses the threshold for intervention in any event. That does not however include the allegations of sexual abuse.

17. The mother had, in fact, made significant threshold concessions in response to the revised threshold, denying any knowledge of sexual abuse by F2 on G and, save for once instance, physical abuse. She nevertheless accepted the truth of what G said about it. The domestic abuse between her and F2 was accepted, as was the inadequate supervision of the children, she said, by him. The inadequacy of home conditions was recognised, although she blamed F2 for that. Likewise, the burden that was placed on G and H by F2 in terms of household tasks and chores and care of the younger children was also accepted.

18. F2 made concessions to the original threshold as follows. He denied any deliberate violence against G, albeit accepted an accidental catching of her in the incident that G had described where her hair was pulled. There was some limited domestic abuse accepted, really on the basis that each was equally to blame, and there was some element of lack of supervision along with the state of the house was accepted.

19. By the second day of this hearing this week, when F2 was good enough first to attend this final hearing, he seemed to have wanted to rein back from even that limited acceptance. That said, he put forward no evidence. He did not attend the third day of the hearing, when he was expected to deal with all outstanding issues having, by all that he had said and done within the proceedings, indicated that apart from an aspiration that the children return to their mother, his principal objective was to see off G’s allegations of sexual abuse. The mother’s approach, it has to be said, has been altogether more child-focused and constructive, and thus with one exception not really related to G’s allegations about F2, G who importantly she maintains she continues to believe, she has accepted the further revised threshold as prepared by Mr Gray.

20. I am not going within the course of this judgment to set out the details of that beyond saying that it sets out nine particulars of neglect which constitutes the chronic neglect that I have referred to. The only controversy arises in relation to the third particular, which involved the risk of sexual abuse posed by the mother’s brother in which the local authority alleges that each of the mother and F2 were aware that he posed a risk of sexual abuse but failed to ensure that his contact was adequately supervised. The mother seeks to add a rider to that, which is that she denies that there was no supervision, albeit says that she should have ensured that he was excluded at a much earlier stage.

21. There is, as I was taken to, evidence of an apparent acceptance by her historically of an occasion when her brother was left unsupervised with the children. She does not accept that now. It is, in the court’s judgment, not proportionate to try that disputed issue or, indeed, any other issue. Those issues aside, the threshold is in the court’s judgment effortlessly traversed. This is, I emphasise, above all a case of chronic neglect in which its pernicious effect, despite the undoubted good periods and no doubt good intentions of the local authority with its repeated attempts to work with the family, has taken its toll on each of these children.

22. Although all are described, and it is not doubted, as delightful children, the harm that such children suffer as a consequence of the type of neglect that has been described may not be as immediately obvious as the harm caused by parents who break the bones of their children, but it is nevertheless every bit as harmful in circumstances where children cannot reliably predict or anticipate their needs being met safely, consistently and securely. The court has no doubt that it is significant harm within the meaning of the Act.

23. It is against that background therefore that the local authority has sought to carry out assessments. In the mother’s case, historically assessment found that she and F2 had struggled to meet the basic needs of the children and, despite significant professional intervention, enduring durable change had never been effected. The mother’s love for each of her children has not ever been in doubt, but her ability to meet their needs to the point that even in community-based contact during the course of these proceedings, she was unable effectively to supervise them and the passivity of her demeanour has ultimately seriously contributed to her failure to protect them.

24. A psychological assessment of the mother by Dr Roth repeated the mother’s inability to understand matters, her need for explicit explanations to be offered but, despite the use of appropriate strategies her inability to retain and sustain information that she had learned was noteworthy. Indeed, G and H both had an appreciation of their mother’s limitations and commented on them directly to Dr Roth. It was apparent in contact, when the children had to initiate conversation, where they struggled to cope with her lack of responsiveness and the social worker commented at the lack of insight into how this must make the children feel.

25. Whilst the parenting assessment showed some evidence of progress, the problem identified by the local authority was the lack of evidence that she could maintain consistently any change in the long-term in circumstances where these children, sadly, can wait no longer hence the inability of the local authority to recommend a return of the children to her care. Assessment of F2 was quite simply impossible because of his non-engagement, just underlining the concerns raised by G as to his ability to provide a safe or secure home. Although he answered the initial threshold and attended more hearings than not, he effectively completely disengaged.

26. Having had no contact with his children since February, despite indicating that he would like some, he has made literally no effort to engage with the local authority in order to make arrangements. These children cannot feel anything other than a sense of total abandonment by their father. He was a father figure to all five, despite being the biological father of only three of them, and his conduct continued up until the final moment despite, as he well knew, the enormous amount of sensitivity that had gone into choreographing this hearing for G to give evidence so that he could challenge her assertions: not attending on the first day of the hearing without any warning that he did not intend to attend, simply because the collection of the tickets, which the local authority had provided to enable him to travel from Cumbria, appeared to have interfered with his plans for a weekend away. There are really no words that can adequately express the extent to which these children have been let down by F2.

27. The assessment of F1 was entirely positive in his ability, and that of his excellent partner, to meet G’s needs and to his enormous credit, in very difficult circumstances, and I highlight here the long delay before proper financial assistance was put in place, the inadequacy of the housing (I understand that they finally moved just this last weekend), and the sheer disruption to what was his then family unit. He has really done remarkably well to meet G’s needs and in a way that G, to her credit, herself acknowledges.

28. The welfare decision for G is therefore a very straightforward one and not controversial. It is plainly in her interests that her position within her father’s home be secured by a child arrangements order and, as I say, that is not in dispute. That for the other children is much less straightforward. They were the subject of a sibling assessment by Dr Roth which concluded that despite their present separation, the optimum placement for each of them would be for all four to be reunited in one home. All four and G were found to have primary attachments to their mother and ideally all four younger ones would live together as a sibling group hopefully, as Dr Roth at that time suggested, with their mother should she be able to make the progress necessary.

29. The local authority has also undertaken a sibling assessment and commendably, accepting Dr Roth’s view as well at face value, sought to devise a plan that will keep all four together. Sibling relations are, of course, usually the most enduring, lifelong. The needs of these children are of course different. The age range is significant. Ever present is the risk that the younger ones, especially L, but also to an extent K, will be prejudiced by a plan that may maintain the sibling relationship but deny them prospects of permanence.

30. That said, the local authority is primarily optimistic of finding a long-term adoptive placement for all four children, despite their dreadful experiences. Thus the plan is to move the younger two to join the older two in a foster-to-adopt placement which is to be tested out over a period of four months in the hope that all four can be adopted together, failing which the plan will be to seek an adoptive placement for K and L together and ultimately, if even that cannot be found, a placement for L alone. As I say, the local authority expresses strong optimism that those contingency plans will not need to be brought into effect but that is the proposal. In the event that the primary plan is not to be brought about, then the fallback for H and J will be long-term foster care.

31. Care proceedings involve two principal questions. First, are the threshold criteria for making a care order under section 31 of the Act satisfied; secondly, if so, what order should the court make. It is not necessary for me to set out section 31 again. I referred to it in asking the question that I did at the beginning of this judgment, as to why the local authority had intervened. Furthermore, it is not disputed that the threshold criteria under section 31 in this case are satisfied. The findings that are now conceded would lead inexorably to the conclusion that, on the date when proceedings were issued, given the serious nature of the neglect that it has accepted, there was a likelihood the children were then suffering harm and there was a likelihood they would continue to suffer harm were they to remain in the care of their mother and F2.

32. That then brings me to the second question: What order should the court make? In answering that question, the court must apply well-established legal principles. It must bear in mind the rights of the mother and F2, as well as the four children, under article 8 of the European Convention to respect for family and private life, under section 1 of the Children Act 1989 the children’s welfare is the court’s paramount consideration in the care proceedings, under subsection two, any delay concerning their future is likely to prejudice their welfare and, of course, subsection three provides the checklist and factors to be taken into account when determining where welfare lies and what order should be made, the particularly important elements being the needs of these children, the capacity of the parents to meet those needs, the children’s background and the harm that they are at risk of suffering.

33. On the application for the placement order, the court must apply section 1 of the Adoption & Children Act 2002. Again, the paramount consideration of the court is the children’s welfare throughout their lives. Delay is, of course, another factor that must be taken into account that is likely to prejudice welfare, and there is a separate checklist of factors to be taken into account, the important ones being the children’s needs, the likely effect on them throughout their lives of having ceased to be members of their birth family and becoming adopted persons, their background, the harm that they have suffered and are at risk of suffering, their relationship with their birth relatives, in particular in this case their mother, and the value of that relationship continuing.

34. The statutory provisions have, of course, been the subject of extensive jurisprudence from the Supreme Court and the Court of Appeal in recent years. In Re B (a Child) [2013] UKSC 33 the Supreme Court, having referred to the European jurisprudence, reiterated that the test for severing a relationship between parent and child is very strict. Adopting the words of Baroness Hale, it should only occur “in exceptional circumstances and when motivated by overriding requirements pertaining to the child’s welfare. In short, where nothing else will do”.

35. In the same case, Lord Neuberger said that making a child a subject to a care order with a plan for adoption should be a last resort, where no other course was possible in the child’s interests, and that was, of course, adopted by the President in Re B-S (Children) [2013] EWCA Civ 1146 where he emphasised the stringency of the test set by the statutory language, observing that what must be shown is that the child’s welfare requires parental consent to adoption to be dispensed with.

36. In addition, the President identified two essential matters required where the court was being asked to approve such a care plan, first of all the need for proper evidence, both from the local authority and from the guardian, addressing all the options realistically possible and containing an analysis of the arguments for and against each option; and secondly, the need for an adequately reasoned judgment which undertook a global holistic evaluation of each of the options available for the children’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the children’s welfare.

37. This is a desperately sad case. I have sat in court and seen the grief etched on this mother’s face and read her painfully frank statement in which, in her own words, she said that she has now accepted: “that another family or families could provide for them better than I can, even though I love them very much”. That utterly selfless but heartfelt concession is the clearest evidence of her putting her children first. I do not think that she is a woman who has ever prioritised anyone in particular over and above her children. It is her overwhelming passivity commented upon by the local authority, by Dr Roth and, although not in evidence, her adoptive father that has so grievously let the children down.

38. Whatever its cause, these children can no longer wait for her to address that issue in a way that reliably and durably ensures that it will not recur. Indeed, it may not unfairly be said that these children have already had to wait far too long because one of the serious mischiefs of chronic neglect is that improvements are made. The local authority backed off on that basis, but only for it to recur again. Thus, whilst without the children in her care, without F2 in her household, improvements have already been noted but there is no or no sufficient evidence that sustainable change has now been achieved. The risk that it is not durable is a risk that none of the children can again be exposed to as the mother herself recognises.

39. As I have indicated, the mother does not, in the circumstances, argue against adoption. Appropriately supported by her father and stepmother, her father’s insightful, frank letter to Ms Lamond shown to the court at his request, whilst not necessarily revealing anything new nevertheless describes the utter anguish that these circumstances have caused and underlines the intention and purpose that the mother has demonstrated by her decision.

40. The decision in respect of G is of course, in the circumstances, not a difficult one. G is happy and settled with her father and his partner. Again, I found MGF’s letter wholly reassuring in his appraisal of that placement and the more remarkable for the generosity of his praise for F1 and his partner despite the wholly negative view that he had taken of him some 15 years ago. It is the outcome that G wants. Her needs are very well met. It is uncontroversial but, that said, despite G’s wholly appealing, seemingly open and confident presentation, I do not doubt that there are significant underlying issues that will require sensitive support in the months and years ahead.

41. G is currently engaging with Mosaic. As the guardian points out, she has had no proper closure of the serious allegations she made against F2. The Crown is not prosecuting for want of sufficient evidence, and this court has not made findings. Looking at the potentially beneficial effect of her not suffering the ordeal of giving evidence and cross-examination, the extent to which that that will offset the lack of findings is impossible to say.

42. Quite apart from the de facto separation that she now has from her mother, whom she loves as her mother loves her, and one knows not what the consequences of separation from F2 in practice means to her but one suspects that there may have been at least some conflicting emotions, there is likely to be a significant reduction in her contact with her half-siblings with no certainty of a future relationship unless and until the local authority plan is brought to fruition. It is characteristic of this very appealing young person that, in her distress at her mother’s decision not to contest along with her concern as to her continued contact with her mother, her concern was for the education of her half-siblings and contact with them, particularly around their birthdays.

43. Turning to those siblings, it is difficult to avoid the conclusion that they need permanent alternative carers. As the jurisprudence makes clear, there has to be an holistic evaluation of all the alternatives but, in the circumstances where the alternatives are stark in the paucity, the local authority has rightly on the evidence identified the need to prioritise their relationship in considering, for example, the relationship that they have with continuing relationships with their birth family. That is plainly a powerful factor to weigh in the balance with the relationships that are lost.

44. Of course, long-term foster care would preserve all of those key relationships. It would preserve links with their birth family and support a positive sense of identity. Their mother’s love and affection is not an issue but set against that, whilst it may yet have to be considered for some or even all of them as a fallback, there are plain disadvantages. Children in foster care, however good the carers, are not claimed in a way that gives them the certainty of a family forever. Foster carers’ circumstances change in a way that exposes children in their care to a lack of stability as well as a certainty that I have referred to.

45. It is an intrusive form of care. The statutory parent in the form of the local authority, regularly visits. It checks up. It summons meetings and restricts what would otherwise be normal family life and so, with the best will in the world, it also comes with a stigma. Adoption brings with it known advantages and an assurance that emotional and physical needs would be fully met – placement with carers assessed as having the capacity to meet their very particular needs. The certainty that the children would not suffer significant harm in their care, that the ability to lead a normal life in a stable and consistent environment, if achievable as planned, it will ensure the maintenance of the most important relationship between these four siblings.

46. It of course also has disadvantages. There is primarily the loss of a relationship with their mother who loves them, whom they love and who ideally would have wanted to resume her care of them and, in the case of really each of them, would like to have returned to her care. There is the loss of the relationship with the extended family (and I have the maternal grandparents, who today are in court, particularly in mind) but there is also the risk of the loss of the relationship with their sister, G. There is the loss of the sense of identity which is an important aspect of a child’s development, growing up and, although most adoptions succeed, a not insignificant number of adoptions do break down.