England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT PRESTON


In the matter of the Children Act 1989
In the matter of K (born [a date in] 2000)

		4th May 2016

Introduction

1. The Court is concerned with K (born [a date in] 2000) now aged 16 years old. K's parents are the Mother, M aged 54 years and the Father, F aged 43 years. The parents were married when K was born but separated when he was 2 years of age, later obtaining a divorce. As a consequence of their marriage, both share Parental Responsibility for K.
2. This matter comes before the Court for a Final Hearing in public law proceedings. The matter was last before me on 1^st April 2016 as an IRH/ Final Hearing when it could not be finalised due to the absence of a Guardian's report during a period of time when the Guardian was on leave due to planned illness. K unexpectedly attended that hearing, accompanied by his carer, BP which left the children's team in some difficulty without having a Guardian or a Guardian's report in order to assess whether K's wishes and feelings put him in conflict with his Guardian and whether he required separate representation. All parties invited me to adjourn the matter so that the Guardian could report and I invited the Guardian to include within his report his welfare analysis in respect of the question of how K might best participate in a final hearing.

Background

3. Both parents accept that during K's early years their relationship was characterised by frequent separations and reconciliations, regular alcohol consumption and domestic abuse. K's parents finally permanently separated in 2004. Between 2002 and 2007, aged two to seven years, K lived with M and had regular overnight contact on weekends with F.
4. For a period of time, F shared accommodation with K's paternal step grandfather PGF, a schedule 1 offender with a series of convictions for the sexual abuse of young boys. K had overnight contact with F whilst PGF resided in the property. In 2008 each parent agreed to strict supervision requirements preventing K having unsupervised contact with PGF. Between September 2008 and October 2009 K was exposed to domestic abuse, which occurred between M and her partner. When K was aged 9 years, he went to live with F and has had sporadic contact with M since that time.
5. Between May 2010 and September 2011 K was regularly reported as missing from F's home. Concerns were expressed that he was attending PGF's home.
6. Between 2013 and 2015 K's behaviour was noted to include: self harm, substance misuse, fire setting and absconding from home. During the time that he lived with F, various services were deployed to assist him and F to manage these behaviours and provide educative work in respect of sexual exploitation. These included: the Families in Need team, HUB (in respect of cannabis use), AWAKEN and WISH (in respect of sexual exploitation), the Phoenix project (in respect of self harm) and CAMHS. A number of assessments were carried out by the local authority during this time. K is a vulnerable young person who suffers from a moderate learning difficulty.
7. K disclosed that he was sexually abused by at least three different adults whilst in F's care. The first of these occasions occurred when he was aged 7 years, when he was sexually assaulted by KG, a friend of PGF's. KG was convicted and sentenced in respect of offences connected with this abuse. The second occasion occurred in 2014 whilst K was under the influence of alcohol and cannabis. Again the alleged abuser was a friend of PGF's and criminal offences were brought in respect of this matter.
8. The third episode of abuse occurred whilst K was within the family home and in Bournemouth during 2014-2015. The Father was present in the home, but in another room, when the alleged abuse occurred. The alleged abuser was a former partner of PGF and friend of F.
9. K has not seen M since October 2014. He has maintained regular contact with his half brother, MB and BP, MB's partner, since 2012.
10. In September 2014 K was made the subject of a Child Protection Plan under the categories of sexual exploitation and neglect.

Precipitating event

11. On 2^nd September 2015 K made disclosures that he had been sexually assaulted by a family friend, who was a former partner of PGF. He disclosed that F was made aware of this abuse but failed to report it.
12. K gave an Achieving Best Evidence interview to the Police about these matters on 9^th September 2015. He reported that the sexual abuse he had endured at the hands of this perpetrator had continued over approximately a 12 month period. He reported that this abuse included: masturbation, oral rape, sexual assault and anal rape and that the perpetrator had recorded some of the abuse on a mobile phone. He stated that he had reported this abuse to F and that F had permitted the perpetrator to sleep in K's bed. F had taken no steps to protect K from this abuse or report the matter to the Police or social services. The alleged perpetrator is currently on Police bail for offences arising out of K's disclosures.
13. On 9^th September 2015, F agreed to K being voluntarily accommodated in the care of MB, K's maternal half brother and MB's partner BP. K has remained in their care to date. He settled well into this placement.
14. On 30^th September 2015 the local authority issued these proceedings, seeking a Care Order in respect of K.
15. On 22^nd October 2015 K was made the subject of an Interim Care Order until the conclusion of these proceedings.

Threshold Criteria

16. When the matter was last before me on 1^st April 2016, I was informed that the threshold criteria for the purposes of making orders pursuant to s.31 Children Act 1989 was conceded by F and that, in particular, he accepted that K had been sexually abused whilst in his care and that he failed to protect K from suffering that abuse.
17. The local authority invited me to make specific findings against K's alleged abuser, a third party who had not been joined as an Intervener for this purpose. I was invited to deem that the alleged perpetrator had been effectively served on the basis of postal service to a bail address. I was informed that no acknowledgment to the local authority's letters had been received save for on the evening before the last hearing when an individual purporting to be the alleged perpetrator's mother telephoned the local authority to say that he did not live there. I declined to deem good service or make the specific findings sought against the third party. I indicated that I would require the local authority to effect personal service before I could go on to consider making specific findings. I indicated that at this late stage in proceedings I did not consider such a course to be necessary or proportionate in light of the parent's positions and F's concessions and that the threshold criteria could simply be reworded to state that K had been sexually abused by a number of adults whilst in F's care and that those adults were friends of F and PGF. K's alleged abuser is not a family member and it is agreed that he has no role to play in K's life going forward.
18. The local authority accordingly redrafted its threshold criteria document and an agreed amended document was put before me which I approved in the following terms:

"K has suffered sexual harm and exploitation. K has been subjected to a number of sexual assaults and rape whilst in the case of his father, by different adults that were known to F and step grandfather PGF.

F failed to protect K from sexual abuse and sexual exploitation.

F has supplied cannabis to K on one occasion."

19. On the basis of these factual concessions, I am satisfied that the threshold criteria for the making of orders pursuant to s.31 Children Act 1989 is crossed.

Positions of the parties

20. The local authority seeks a Care Order in respect of K and advances a care plan, which provides for him to remain in the care of MB and BP who have been approved as long term kinship carers for him. The local authority care plan, as amended, provides for K's contact with F to reduce from its current level of three occasions each week to twice per week for around 2 hours per session, such contact to be supervised. Such contact is in line with the Guardian's recommendation and will be kept under review. The local authority undertakes to funding therapy for K.
21. M has failed to engage with these proceedings or her solicitors for a considerable period of time. She has failed to attend today's hearing and the last hearing before me. The Mother has given no instructions and so consent is not given on her behalf to the making of a Care Order.
22. F concedes that he is unable to meet K's needs and supports K's current placement. He consents to the making of a Care Order. I commend F for adopting this realistic position.
23. The Guardian is newly appointed, having taken over from the previous Guardian two weeks ago, he has managed to carry out his enquiries in such a way so as not to jeopardise this hearing and supports the local authority's care plan.
24. K has attended Court today, he has expressed a wish to live with F but is accepting of his current placement and does not actively oppose the making of a Care Order. He agrees to attending therapy.

Legal Framework in respect of welfare decisions

25. I remind myself that K's welfare is my paramount consideration. That is section 1(1) of the Children Act 1989. In considering what orders to make I have regard to the Welfare Check List found in section 1(3) of the 1989 Act.
26. In relation to the threshold criteria of section 31(2) Children Act 1989 I have regard to whether I am satisfied that K has or is at risk of suffering significant harm. As a consequence of the conceded facts set out and the other matters set out within the unchallenged assessments and statements I am satisfied that K has suffered significant harm and is at risk of suffering significant harm if he were to be placed in either of his parent's care.
27. I now turn to consider what orders if any are in the best interests of K. I start very clearly from the position that, wherever possible, children should be brought up by their natural parents and if not by other members of their family. The state should not interfere in family life so as to separate children from their families unless it has been demonstrated to be both necessary and proportionate and that no other less radical form of order would achieve the essential aim of promoting their welfare. In Re B [2013] UKSC 33 the Supreme Court emphasised this, reminding us such orders are "very extreme", and should only be made when "necessary" for the protection of the child's interests, "when nothing else will do". The court "must never lose sight of the fact that (the child's) interests include being brought up by her natural family, ideally her parents, or at least one of them".
28. It is not for the court to look for a better placement for a child; social engineering is not permitted. In YC v United Kingdom [2012] 55 EHRR 967 it was said: "Family ties may only be severed in very exceptional circumstances and….everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing."
29. I have looked again at the words of the President in Re B-S (Children) [2013] EWCA Civ 1146 as well as the judgments in Re B (supra) and reminded myself of the importance of addressing my mind to all the realistic options for K, taking into account the assistance and support which the authorities or others would offer.
30. In considering making a Care Order I have had close regard to the Article 6 ECHR and Article 8 ECHR rights of M, F and of K, but I remind myself that where there is tension between the Article 8 rights of the parent, on the one hand, and of the child, on the other, the rights of the child prevail; Yousef v The Netherlands [2003] 1 FLR 210.

Evidence

31. During this hearing, I have heard from counsel for each party. I have read the bundle of documents filed for these proceedings. In addition to this, I have been able to watch the DVD recordings of the ABE interviews conducted by the Police with K. I am grateful to the Children's Guardian who inherited this matter at short notice and has completed his enquiries on time for this hearing to prevent any further delay, his report is dated 27^th April 2016.
32. I have the benefit of two expert assessments: the first of F conducted by Dr Gresswell, Consultant Clinical and Forensic Psychologist dated 9^th February 2016 who concludes, "The overwhelming evidence is that F is unable to protect K from sexual exploitation or indeed other risks posed to vulnerable young men… From a psychological perspective the overwhelming evidence points to F being unable to protect K, encourage appropriate boundaries or create an emotionally safe environment for him in the foreseeable future…I am not convinced that F could be relied upon to keep K safe during anything but the shortest periods of unsupervised contact… I am unable to identify a specific problem area that could be addressed with F it follows that I am unable to recommend treatment, intervention or resources (other than supervision) that could be relied upon to effect behaviour change."
33. The second is a psychological assessment of K by Mr Gary Ramsden dated 19^th February 2016. He concludes, "K's inconsistent, neglectful and abusive environment has facilitated the development of a confused and emotionally unstable adolescent. K has been negatively affected by his father's inability to assess risk and keep him safe from harm; his inconsistent boundary implementation; drug misuse; and access/ exposure to pornography. K has also been negatively affected by his mother's inability to assess risk and keep him safe from harm; inconsistent boundaries; inconsistent emotional availability; exposure to domestic violence; alcohol misuse and erratic contact… In my opinion K will benefit from 20-26 sessions of weekly psychotherapy by a suitably qualified therapist… Without such intervention K is likely to continue to misuse substances, have significant mood state shifts, have an unclear sexual identity and relationship template, and be at risk of depression and self harm. He is also at risk of physically harming others, although this would be more likely to be non-sexual than sexual… In my opinion for K to fully benefit from the intervention he would need to have a stable, safe, boundaried and consistent placement. Presently these requirements appear to be met within the placement with his brother and partner… The current arrangements for contact with his father are working well, with no obvious benefits of increasing this frequency… K has no current desire to have contact with his mother. It would not be recommended that he have any contact at all during the therapeutic intervention, as this could interfere with the efficiacy."
34. These assessments are unchallenged by any of the parties.

Welfare analysis

35. On the basis of the unchallenged expert and professional evidence in this matter, I am satisfied that the only realistic placement option within the family for K is with MB and BP. I have read the local authority's unchallenged assessment of them and am satisfied that they are appropriate carers for him. Neither of K's parents is willing or able to meet his significant needs during the rest of his minority. I am satisfied that K's current placement not only meets his individual and high level of need, it also keeps him safe and provides him with the requisite level of stability for him to embark upon the therapeutic process. I bear in mind K's stated wish to reside with F but in circumstances in which I find that such a placement is not safe for him and bearing in mind that F no longer contends to care for him, that is not a realistic placement option.
36. In circumstances in which K is unable to be placed in the care of his birth parents, a placement with his brother is the next best option. It is by far the better option than a placement outside the family in local authority foster care and will provide him with the consistent, stable and committed care that he desperately needs over the course of the next couple of years and hopefully beyond that.
37. Having considered the most suitable legal framework for this placement, I am satisfied that only a Care Order will provide the required level of support for this placement. I agree with the Guardian's analysis that any lesser form of order, including a Special Guardianship Order, is simply not robust enough to protect and meet the needs of K. K's carers are to be commended for the care that they have provided and will continue to provide to K. Theirs is a considerable task with many predictable challenges to come. They require the full statutory support of the local authority to ensure that K has access to all of the professional services and support he needs. They also require the local authority to monitor and manage contact arrangements to K's parents in a way that removes them from having to make decisions in this regard. The local authority will need to provide a buffer to ensure that the carers do not bear the brunt of K's frustrations should contact not progress in the way he wishes. Decision making and management of contact can only lawfully and effectively be carried out by the local authority if they share Parental Responsibility for K with the parents, and I am satisfied in these circumstances that it is both necessary and proportionate for it to do so. As the Guardian puts it, this is a case in which the local authority needs to retain control.
38. I am satisfied that K's care plan is the appropriate one for him and I approve it and make a care order in favour of Blackpool Borough Council. I am satisfied with the contact arrangements for K with F which are provided for within that plan which will be kept under review during the life of the Care Order, I am also content that no contact between K and M should take place unless and until M engages with the local authority, is assessed and is able to demonstrate commitment to attending such contact. I accept the expert evidence that K should complete his therapeutic work prior to any contact with M commencing as otherwise this therapeutic process could be undermined.