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.
THE FAMILY COURT AT BLACKBURN Case No. PR16C00029
64 Victoria Street
Blackburn
Tuesday, 4thOctober 2016
Before:
HIS HONOUR JUDGE BOOTH
In the matter of:
Re: G (A CHILD)(No.2)
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Transcribed from the Official Recording by
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Counsel for the Local Authority: MISS HOBSON |
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Counsel for the Mother: MISS WOODWARD |
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Counsel for the Father: MISS FOSTER |
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Solicitor for the Child: MISS BLAND |
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JUDGMENT
HIS HONOUR JUDGE BOOTH:
1. This is the final hearing in care proceedings brought in respect of G (born 14thOctober 2015) so he will very shortly have his first birthday. In July of 2016, I conducted a fact finding hearing in respect of the circumstances that led to G being taken into the care of the Local Authority.
2. I need to start this welfare Judgment by incorporating into it some paragraphs from my previous Judgment:
“1. In the early minutes of 22ndNovember 2015, G sustained injuries to his head of the most severe nature resulting in him sustaining life-threatening injuries and permanent brain damage. He will never be the boy or the man that he might otherwise have been. He sustained those injuries whilst in the care of his parents at his home. He was five weeks old, helpless, defenceless and utterly dependent on his parents to look after him and keep him safe. Whatever more detailed findings I make there can be no argument that in those basic obligations to their son, his parents failed him totally. …
21. G’s parents and his uncle have, during the course of the investigations, by medical practitioners treating G, by the police in their investigation, by social workers investigating G’s circumstances and in documents filed with this court, set out a whole variety of explanations as to what happened in G’s home. I am not going to recite all of those explanations. By the time of this hearing, albeit only after mother had given her evidence, the evidence of the three witnesses had coalesced into a single version of events and it was this: That whilst G was being cradled by his mother in her left arm, so that his head was in the crook of her elbow, she was pushed from behind by G’s father against the kitchen door from the kitchen leading to the hallway and, having banged against the door, she fell to the floor. Throughout that process G remained in her arms.
22. Doctor Stivaros [the single joint expert medical witness] was asked whether that explanation or, indeed, any of the other explanations given by the adults might explain G’s injuries. He was crystal clear that neither that explanation nor any of the others could account for the damage he saw to G’s head. Indeed, on the account that was given to me it was difficult to see how G’s head came into contact with anything hard at all. If the left side of his head had hit the door or the floor that would not have explained a ‘ping-pong’ fracture and there was no explanation at all as to how the right side of his head might have come into contact with anything at all.
23. Dr Stivaros’ explanation for the right sided injury is of particular significance. In order for a fragment of bone to have been driven into G’s brain as far as 2 centimetres in, there would have to be a mechanism to drive it in. In his view, the most likely explanation was that G’s skull came into contact with a hard edged surface. That might have been, for example, a right angled edge to a worktop surface, a right angled edge to a door or something similar. Nevertheless, in order to create a fracture of the size that he saw, extending as it did over the sagittal suture, means that that would also have required very considerable force. The literature on head injuries is extensive. A large number of children are presented at hospital with head injuries. Rarely are children presented alive with the injuries of the type sustained by G. It was Dr Stivaros’ view that the right sided injury sustained by G was consistent not with a domestic fall but with the forces generated in a road traffic accident or some other serious collision. He was able to provide one other example of a young child sustaining a similar type of injury who had been hit by an old style cathode ray television dropped down the stairs accidentally but colliding with the head of the child at the bottom of the stairs. …
28. G’s mother has accepted that she had lied to authorities before G was born about the circumstances in which he was conceived and the circumstances in which she was living whilst pregnant, that she failed to disclose the identity of the father on his birth certificate, that she had lied to the health visitor and the midwife who visited her following G’s birth and she accepts that she has told lies to those treating G following his injuries and to the police in their investigation. She wishes me to believe that when she gave her evidence before this court she was telling the truth. There is no doubt that she loves G. There has been no doubt about her devotion to him since these catastrophic events. She is plainly wracked with guilt. Her dearest wish is to turn back the clock and undo what happened to her baby. Sadly, that cannot happen. …
30. It is clear to me that in the period immediately following G’s injuries, high on her list of priorities was enabling G’s father to remain anonymous and to effect an escape from the scene to avoid him being apprehended. I struggle to understand why that should feature in her thinking at all at that traumatic time. It is clear that she and her brother have given me evidence about which they are agreed. It is clear that they have both altered their evidence to meet what they understood to be the evidence of the other. …
37. I am satisfied that the accounts I have been given by those who were there when G sustained his injuries are untruthful, are deliberately untruthful and are designed to mislead. I have no doubt that G’s uncle loves G and cares for him. I have no doubt that he desperately wishes to see G restored to the care of his sister. He has not helped his sister’s cause.
40. I am left in the position that as between his parents I cannot say which of them caused which of the injuries that G sustained. Both are responsible for all of his injuries. The Local Authority does not seek a finding against G’s uncle. Indeed, that evidence would make it difficult for me to reach such a conclusion in any event. Sadly, whatever happened, G’s uncle was unable to intervene to prevent it happening.”
3. The Local Authority’s case is that G should remain in their care subject to a care order; that he should live with long-term foster carers which will necessitate a move away from his current foster carers and that he should maintain his relationship with his mother through contact both her visiting him in his placement and attending with him at hospital appointments and the like.
4. The Local Authority is supported by G’s guardian, Miss Makinson, whose report and analysis for the purposes of this hearing was completed on 29thSeptember 2016.
5. G’s mother wishes to have G returned to her care. If that cannot be, then she would wish to maintain contact with G with as greater frequency as can be managed so that she can maintain her relationship with him.
6. At this hearing today the Local Authority has been represented by Miss Hobson, the mother by Miss Woodward, the father by Miss Foster and G by Miss Bland. I am again grateful to the advocates for the careful way in which they have presented this case. On this occasion I heard evidence from G’s social worker, Abigail Evans, who was the author of the final Local Authority evidence and the author of G’s care plan. I also heard evidence from Miss Makinson, G’s guardian. I did not hear evidence from G’s mother, none of the other parties wished to put any questions to her and she had filed a very recent statement setting out her position.
7. Let me remind myself of the law applicable to this stage of this case. I must decide what is in G’s best interests. Section 1 of the Children Act 1989 tells me that when I am determining any question with respect to the upbringing of a child, the child’s welfare should be the court’s paramount consideration. In deciding what is in his best interests and in his welfare I must apply the welfare checklist set out in Section 1(3) of the Children Act 1989:
“(a) The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) His physical, emotional and educational needs;
(c) The likely effect on him of any change in his circumstances;
(d) His age, sex, background and any characteristics of his which the court considers relevant;
(e) Any harm which he has suffered or is at risk of suffering;
(f) How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) The range of powers available to the court under this Act in the proceedings in question.”
- As the court is being asked by an arm of the State (namely a Local Authority) to interfere in the right to family life of both G and his parents, it is necessary for the court to carry out a proportionality test. I must stand back from the detail of the case and consider whether the interference proposed to his family life is necessary and proportionate and by proportionate that means that which is necessary to alleviate the risk of harm that might be identified from which G needs protecting.
- I remind myself that the fact that a parent has injured a child or in some other way failed in their responsibilities to a child, that does not necessarily mean that they are not capable and able to bring up that child. I must look at what support can be given to allow a child to be returned to his family, I must look at any other protective factors that can be put in place and I must consider all the options.
- I have come to the conclusion that G cannot be returned to the care of his mother. At the heart of the fact finding exercise was the failure by the mother to tell the truth, not only about the circumstances in which G came by his injuries but also her failure to tell the truth throughout her dealings with authorities. I have not been able to understand why it is that G’s mother has such a grave difficulty telling the truth. She has lied about matters in the past for which there is no reason why she should lie. Perhaps the most telling phrase appears in the assessment from the Safeguarding Children with Complex Needs Team prepared by Sylvia Roberts and dated 11thAugust 2016. At paragraph 12.4 Miss Roberts states this:
“Miss G has been untruthful and she has even stated that she ‘does not know why she lies, but the lies just came on their own.’
- The fact is that Miss G has lied to professionals, the court, police and medical professionals. It is impossible to rely on any of the self reported information that was gathered for the purpose of the parenting assessment in relation to lifestyle choices and relationship history which would enable me to form any kind of opinion when the true facts are unknown.
- G has very particular needs as a result of his brain injury. He is fed through a tube into his stomach. He has no sight in any conventional sense although it appears he reacts to shapes, light and dark and, more particularly, to the colour red. He has very limited muscular control and he cannot control the muscles in his throat which is why he cannot swallow. Although he has started to make some noises the medical evidence is that he will never speak. He has limited control over his arms and his legs. Although he is capable of moving himself when lying down, whether he will ever crawl or stand is thought unlikely but ultimately unknown. I saw photographs of him in July and a short video. I have seen another short video taken by his mother of his current condition. He is able to respond to those who care for him. He clearly recognises his primary carer (his current foster carer) and he clearly recognises his mother. His mother is a source of comfort to him. She is able to settle him and she is clearly an important part of his life.
13. As I stated in my Judgment in July, there is no doubt whatsoever about her devotion to her son and her commitment to him. She has never missed an opportunity to have contact with him and she has never missed a hospital appointment. She attends to him and she washes his clothes. I am satisfied that although she cannot be his primary carer, she has a vital and important role to play in his life.
14. Miss Woodward has directed some of her argument to the question of the risk that is relied on by the Local Authority as justifying G’s permanent removal from his mother’s care. The incident that led to G’s catastrophic injuries was an incident fuelled by alcohol with both G’s mother and father being drunk and of G’s parents arguing.
15. G’s father is in prison. One development on from the fact finding exercise is that he pleaded guilty to an offence under Section 20 of the Offences against the Person Act. There was no written basis of plea and it appears from the sentencing remarks as reported in the press that he was sentenced on the basis that his criminal actions were responsible for the whole of G’s injuries. Again, it appeared that he pleaded guilty on the factual basis that he asserted in evidence before me at the fact finding exercise, which I found to be untruthful. Nothing that has happened in the criminal case has explained the injuries that I alluded to when I quoted from my previous Judgment. G’s father was sentenced to three years and two months imprisonment. He had been held for a considerable period on remand. That will count towards the time he serves. It is expected that at the conclusion of his sentence he will be deported to Poland where he is wanted by the authorities and is subject to a European arrest warrant.
16. All that G’s father seeks is to have some information about the progress of his son by being allowed to see copies of the Looked after Child Review Meetings and to have photographs. The Local Authority has agreed that and has agreed a mechanism for how that is to be achieved whilst he remains incarcerated.
17. There is no evidence that mother has been drinking since but there would have been no evidence that she had been drinking prior to the evening when G was injured. Indeed, all the evidence was that drinking for her was unusual. She is plainly no longer in a relationship with G’s father whilst he remains incarcerated. She says that she wants nothing more to do with him. She tells me in her statement that she is not in a relationship with anybody else and has no wish to be in a relationship with anybody else.
18. It is right that, to that extent, some of the matters that were in play on the night that G was injured are no longer necessarily applicable but they only represent a small part of the risk to G. G is utterly vulnerable. He will always remain so. There is no way at all that he can protect himself or will ever be able to protect himself from the actions of others. He will never be able to communicate. Whilst the mother remains untruthful nothing can be done to alleviate the risk to G of something going wrong whilst he is in her care. The Local Authority can have no confidence that she would tell them everything they needed to know or that she would tell them what was going on in her life. There is no sign that she has yet recognised the need to be truthful and to stop telling lies.
19. As I go through the welfare checklist, G’s needs become clear. I am, first of all, directed to consider his wishes and feelings. G will, inevitably, have minimal understanding and he will have no knowledge of what happened to him when he sustained his injuries. However, in considering his wishes and feelings, it seems to me important that I impute to him some knowledge that he has been injured and consider his wishes and feelings in the light of that fact. If he were to have knowledge, I have no doubt that his first priority would be a wish to be kept safe. In addition, he would want to be loved, cared for and provided with the best quality of life available to him.
20. That feeds into his physical, emotional and educational needs. Every aspect of his physical care has to be provided for him. At what level he functions emotionally is very difficult to determine. As I have indicated he responds to the attentions of both his mother and his current foster carer. I have no doubt that all his senses are engaged in that process and he has some emotional functioning which comes into play. As was said to me in evidence by Miss Evans, mother has a potentially significant role to play and he has a need to maintain a relationship with his mother. The current contact he has with his mother is a positive experience and Miss Evans told me that he is happy in contact.
21. What is difficult to predict is the effect on him of the change that will be inevitable to a long-term foster carer and he has shown that he is capable of forming bonds and attaching to both his current foster carer and to his mother and I have no reason to think that he will not attach to his long-term foster carer. There will be a period of transition which may be difficult for him because he will have no understanding of what is going on and he can be offered no meaningful explanation. Continuity of contact with his mother whilst that transition takes place may be an important factor. Too much contact with his mother during that period may disrupt the process of attaching to his new foster carer. That is a matter of social work and is for the social workers to resolve.
22. I have already dealt with his age, sex, background and characteristics. I have dealt with the harm he has suffered and is at risk of suffering and I have dealt with the capacity of his mother to provide what he needs. Plainly, his father has no capacity to provide anything that he needs whilst he is incarcerated and then when sent to Poland. The question of mother’s contact with G has been the subject of a large proportion of the evidence and the arguments. Miss Bland, on behalf of the guardian, makes the very valid point that the guardian has very considerable faith in the social worker in this case and in the Local Authority for the way that they have conducted G’s case thus far. Miss Makinson’s view was that contact needed to be flexible so that it could be adjusted, increased or decreased as appropriate, both during the period of transition for G to his new long-term foster carers and in the long-term as he settles there and as he develops.
23. The care plan by Miss Evans provided that in the longer term G should have contact with his mother once a month. The question of where that figure of once a month came from was the subject of investigation and Miss Evans conceded that it was an arbitrary figure and not necessarily appropriate in this case. Although formal sessions of contact were proposed at once a month there was to be additional time that G had with his mother with her continuing to attend all his hospital appointments, for medical consultations and for physiotherapy. Those occur with considerable frequency, the hospital appointments and check-ups being a frequency of once every six months with three different teams of medics and his physiotherapy occurring with much greater frequency.
24. Miss Woodward, on behalf of G’s mother, was very anxious to establish a baseline beyond which contact would not reduce, that argument being on the basis of a number of factors including the quality of the existing contact between G and his mother and the opportunity for that contact to assist in the transition process and in G’s long-term settling with his foster carers. Next, that contact as it developed and perhaps when mother was able to take G into the community for perhaps half a day at a time might give the foster carer a degree of respite so helping her look after G but also giving guidance to the Local Authority as to where contact should be in terms of frequency, guidance to the independent reviewing officer when there were review meetings of the arrangements for G and to give mother reassurance that her contact would maintain at a frequency that she could monitor herself. To that end, I invited Miss Hobson, given the concessions made by Miss Evans and Miss Woodward, to both draft amended paragraphs to the care plan to reflect the evidence I have heard. Needless to say they have come up with slightly different versions.
25. I am not persuaded that I should fix any figure for long-term contact frequency. I say that simply for this reason: I cannot know how G will settle, how he will be in his long-term foster placement as he negotiates that transition and as he matures. There is evidence that his physical and mental state is not static and, indeed, I was told of him making what were described as “gurgling sounds” that being a very new development. The principle that should be applied, of which I have no doubt, is that his mother is a significant figure in his life. He gets emotional support from her; he reacts positively to her and, given his limited functioning, to remove that positive feature from his life to any significant degree would be to his detriment. I am clear that long-term contact once a month, as things currently stand, would not meet his needs. Whether once a week or more than once a week or once a fortnight or once every three weeks is appropriate I simply cannot say.
26. Within the documents prepared by both Miss Hobson and Miss Woodward was a list of matters that mother should work on in the future. Included in that list was disclosure of how G sustained his injuries. Miss Woodward accepted that that was a proper factor to be in the list but was concerned that it achieved a special status as a pre-cursor of any other work being done with G’s mother. It is something that she needs to work on. It needs to be in that list but it should not be a pre-condition for other work done with mother. Subject to the care plan being amended to reflect what I have just said, I can approve it.
(End of Judgment)
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