England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
(Sitting at Peterborough)

		Rivergate Peterborough PE1 1EJ
		11th May 2016

JUDGE GREENE:

1. These proceedings concern a little girl, T, born in April 2015. The application was brought by Cambridgeshire County Council for a care order and placement order. The Local Authority was represented by Miss Gold. Those applications were supported by TL's guardian, Jenny Beechey, who was represented by Miss Shackleford. The applications are both opposed by the mother, P, who was represented during the hearing of evidence and submissions by Mr. Pearce. T's father, R, has played no part in these proceedings.
2. T is P's fifth child. She was the subject of care proceedings last year before me, which concluded on 12^th October 2015, when I found that the threshold criteria was met but I refused the applications for a care order and
   a placement order, and instead made a supervision order. My judgment is set out in the bundle at F51 to 64 so I do not think it is necessary for me to say much more about that at this point. Two years earlier, His Honour Judge O'Brien had also found the threshold criteria met in respect of P's older children,
   J, B and H. J had been placed with his father under a residence order at an earlier stage of the proceedings. His Honour Judge O'Brien found that there was no realistic alternative to care and placement orders for B and H, and he made those orders, and I understand they have subsequently been adopted. ER, P's older daughter, remained with her father in Malta when they separated in 2011 and was not the subject of those proceedings before Judge O'Brien.
3. P has had a long history of involvement with men who abuse alcohol or drugs or both and who are violent. A fuller history of her background is set out in the judgment of His Honour Judge O'Brien. He concluded at the point when he gave judgment in August 2013 that P was not capable of independent living and that the probability of her forming another undesirable relationship amounted almost to a certainty. He based that on the evidence of the guardian and Dr. Mayer, the consultant psychiatrist. Sadly he was proved correct. Following the conclusion of the proceedings before him P lived with and associated with men who abused alcohol and drugs, some had mental health problems, all had histories of violence. T's father, Mr. C, had a history of very serious violence, including an attack on the man P had previously associated with. Unsurprisingly, the Local Authority brought care proceedings when T was born, and applied for a care order and a placement order.
4. Dr. Mayer reassessed Miss P in 2015. His report indicated that by then in his view her mental health had improved, that she had the ability to protect her daughter from harm, but in his view her progress was fragile and untested. It also became clear that Miss P had not been open and honest with the social workers pre-proceedings, and an interim care order was made placing T in foster care. By the time of the final hearing, however, I found during three days of evidence that the threshold criteria was clearly met, that in 2013 and 2014 she had continued her previous unsatisfactory lifestyle. I said then that she had dredged the depths of society and then lied about it. When I went on, however, to consider T's welfare throughout her life I concluded that on the evidence before me Miss P had made significant changes since those earlier dark days leading up to the proceedings. I found that she had engaged with ante-natal services, she had engaged with mental health services, she had referred herself to her GP for counselling and attended all of the sessions. She had enrolled on the Freedom Project. She had reconciled with her mother and stepfather, who in many respects were considered to be protective. She had referred herself for cognitive behavioural therapy, and in doing so provided the report of Dr. Mayer, and she had obtained and moved into suitable accommodation. I felt then that she had demonstrated the awakening of insight and there were no indications in the evidence I heard of her having engaged in any relationships, unsuitable or otherwise, nor in any other inappropriate behaviour. On a full consideration therefore of T's welfare, I found it not appropriate to approve the care plan and
   I refused the care order and placement order and instead made a supervision order under which T returned to her mother on 2^nd November 2015, when she was then seven months old. I acknowledged that that order was made despite the genuine and reasonable concerns of the Local Authority and the guardian, and
   I gave my reasons for departing from their recommendations.
5. The Local Authority began work with Miss P with frequent visits, in particular by engaging the services of the Family Support Service, and P seems to have formed a good relationship with those workers. There is evidence that she had discussed things openly with a Miss Hunt of that Service, including a friendship with a man who had visited her with his children. She disclosed that friendship; she asked for information and on receipt of that information she distanced herself from him.
6. By the end of January at the Child Protection Review Conference, the report for that conference said that there were no concerns about the basic care provided, nor the home environment, which was clean and tidy with lots of age appropriate toys. It reported that T was relaxed and content, there were no concerns about her emotional or behavioural development, and it was said that she benefitted from mother's generally undivided attention. It added that: "P has worked really well with SSFS", but concluded by saying: "This work is due to end in the next two to three weeks." Although that decision to end the work was defended by the social worker, Miss Macfarlane, a very senior and experienced social worker, who said that a very intense amount of support had been put in, it did appear to me, admittedly with the benefit of hindsight, that the SSFS support had been ended too soon, and I will return to that later.
7. Its ending coincided unfortunately with P's stepfather deciding to undertake some work on their property that resulted in his visits to her not taking place in early February. That is relevant because the allegations upon which these proceedings are based in terms of the threshold all centre upon what occurred in a period of about two weeks in early to mid-February 2016, and in considering them I found it helpful to look back at how the alleged threshold criteria was stated to be met when the Local Authority first issued its application. It appears in the bundle at B6, and is dated 29^th February 2016. The relevant parts read as follows:

"It is likely that T will suffer significant harm in a like manner to that suffered by her previous children" – who were named – "namely, exposure to domestic violence, failure to prioritise the children's needs above her own and relationships with individuals who pose a risk. The children were exposed to risky adults, drug and alcohol users, domestic violence and chaotic conditions."

The question arises as to why that was being said such a short time after such
a glowing report which I referred to a moment ago presented to the Review Conference. The answer follows in the application form where it says:

"Mother is currently believed to have formed a relationship with MH without notifying social care, thereby breaching the child protection plan and supervision plan and written agreement. Mr. H is believed to be homeless with a criminal history. P allowed him to stay at her property with his four year-old daughter and one or more dogs between 12^th and 24^th February. Therefore P is unable to work openly and honestly with professionals and engage in a meaningful way."

Finally it adds:

"T was exposed to mother being angry and abusive whilst on the telephone on 23^rd February."

I have of course reminded myself that the threshold criteria has to be proved for these proceedings and is only met if the Local Authority is able to show that T is likely to suffer significant harm attributable to the care given or likely to be given if an order were not made, not being what it would be reasonable to expect a parent to give, and the test is judged at the date when proceedings or protective measures begun. The Local Authority says in its case summary that the relevant date for these proceedings is 29^th February 2016.

8. I have also reminded myself that my conclusions must be based on evidence not suspicion or innuendo and that the burden of proof rests upon the Local Authority throughout to the civil standard of the balance of probabilities. Where facts are disputed the Local Authority is under an obligation to place before the court the best evidence of those matters. Although hearsay evidence is admissible under the rules of court, the weight I attach to it is a matter for me to judge in all the circumstances. The Local Authority must not only prove the facts it alleges but also then link those facts to the assertion that T is likely to suffer significant harm in consequence, and authority for that is the case of Re: A [2015] EWFC 11.
9. The threshold findings sought were updated in a document prepared by Miss Gold for the purposes of the final hearing dated 3^rd April. In it the revised way in which the threshold was presented was to the effect that mother had formed
   a romantic and/or sexual relationship or friendship with MH, and had invited or allowed him to stay or spend extensive periods of time in her home with his daughter and dog, that he stayed, or spent extensive periods of time, in the home between at least 11^th to 24^th February and only left following the intervention of Children's Services. The document goes onto say that mother was aware that
   Mr. H was homeless or lacked stable accommodation suitable for his daughter and that he had been in trouble. Paragraph 5 reads that mother failed to tell Children's Services about Mr. H and her relationship or association, or a regular visitor spending long periods of time in the property in breach of the supervision plan, that increased the risk as no checks could be made, and that mother failed to ask police or Children's Services to obtain information about Mr. H. Paragraph 6 reads that mother's relationship/association with MH and/or his presence in the family home posed a direct risk of physical and emotional harm to T. There are other matters then pleaded in the document relating to a neighbour, and about an argument on the telephone on 23^rd February and an argument on 12^th February in the home, and I will turn to those matters later in my judgment.
10. Turning to the evidence therefore, the Local Authority was aware that mother contested the allegations that she had a relationship with Mr. H and that he had stayed overnight, and she had given her explanations in her statement dated
    3^rd March at pages 6 to 9, at C25 in the bundle. It was therefore incumbent upon the Local Authority to bring the best direct evidence available in order to discharge the burden of proof to the necessary standard. The evidence I heard was firstly from Ruth Mann, the Housing Neighbourhood Manager. Her evidence dealt in general terms with issues concerning the housing block that mother lived in, the problems that P had reported. She commented that four of the other residents in the block, P's immediate neighbours, had either mental illness or learning disability. The evidence she then went onto give consisted of hearsay evidence of what Residents A and B were reported to have said about seeing a man and child going to and from P's flat, and hearing noises that were variously interpreted. There was also evidence of what an unknown alleged support worker of Resident C had reported to her.
11. I had no doubt that Miss Mann herself was a well-intentioned honest witness doing her best to give honest evidence in terms of what she had seen and been told, but I have to treat with some caution the various aspects of her evidence that were hearsay, and some second-hand hearsay, particularly having been made aware that the people whose alleged observations were relied upon have difficulties of their own. They were not available for their evidence to be tested. There are indications that some aspects of that evidence was unreliable. I do take of course into account that some aspects of Miss Mann's evidence was first-hand and some was corroborated by P's own account of the situation.
12. I heard next from Jenna Yardy, Neighbourhood Officer for the Housing Association. She said that she had visited on 23^rd February, heard P having an angry conversation on the telephone, observed some mess made by a dog outside her flat, and she went in and saw a dog which P said she was looking after for a friend. In her evidence she conceded that on at least one aspect it was clear that one of the neighbours who had reported matters to her had not been telling the truth. She said that 'Debbie is not reliable', which rather confirms the impression that I had had in hearing Ruth Mann's evidence of the caution with which I had to treat the reports from third parties by way of hearsay evidence.
13. I then heard from the social worker, Sally Macfarlane. Her evidence impressed me as honest and fair. She was understandably concerned by the situation that had been reported to her and presented to her in late February. Her professional instincts from the information she was given and the less than helpful responses that mother made were aroused, and rightly so. There is a difference, however, between what might justifiably arouse the concerns and suspicions of an experienced consultant social worker and that which can properly be accepted by a court as a sufficient basis for findings on evidence. I have of course taken the evidence of Mrs. Macfarlane very carefully into account. She is a senior and rightly respected consultant social worker who approaches her work in a very professional manner.
14. I then considered the evidence of P and could understand some of the concerns about whether she has been completely open and frank even now. It was clear that there were some contradictions in the account given by her in her interview with Mrs. Macfarlane set out in the document which appears at F147 to 149, dated 24^th February. Mrs. Macfarlane's evidence was sufficiently impressive to satisfy me that I should exercise great caution in considering the veracity and reliability of what Miss W has said in evidence.
15. Nevertheless I remind myself that the burden of proof rests on the Local Authority. So taking all of that factual evidence into account, I have reached the conclusion that the following findings are the only findings that I am able to make on the evidence that I have heard:

a. Firstly, I cannot be satisfied that P's friendship with MH was anything more than what she admits, namely, that she had been asked by her neighbour to look after Mr. H's daughter and dog so that the neighbour and Mr. H could go out for a day.

b. That thereafter P looked after the little girl, K, and the dog on several occasions for several hours.

c. Thirdly, that on several of those occasions Mr. H returned to see K at Miss P's home.

d. The evidence does not satisfy me that there was a romantic or sexual relationship between Mr. H and P. She asserts that the relationship was between Mr. H and her neighbour. That may have been so, but I cannot make a finding to that effect in relation to third parties who did not give evidence before me.

e. P was aware that Mr. H did not have adequate accommodation for his daughter, but on the other hand I am satisfied that it was reasonable for her to take into account the fact that he did have his daughter in his care for extended periods on a regular basis as being an indication that, whatever his past,, any current concerns were not of the highest order because it was apparent that police and social services may well have been aware of his circumstances with K.

f. I am satisfied on the evidence that K and the dog did not stay overnight. I am not satisfied that Mr. H stayed overnight. There is insufficient evidence to support that contention.

g. In view of the limitations on the type of relationship or involvement that I have been able to find on the evidence presented, I am also not able to find that Mr. H's visits to drop off or collect or check on his daughter or dog posed any risk of harm to T.

h. Whilst it is true that P did not inform Children's Services about the visits of Mr. H or his four year-old daughter, I have to view that in context, firstly, of the limited nature of the relationship I have been able to find, secondly that the period in question was a very short period of some two weeks; thirdly, that P was seen during that period by an employee of the Local Authority Children's Services in her home with T and Mr. H's daughter, and that there were no concerns reported about the care of either.

i. That in itself tends to corroborate P's evidence that this was a relationship based upon her providing occasional child care for the little girl rather than any closer involvement with Mr. H himself. I also take into account that when informed of Mr. H's background she terminated any relationship that she did have with him.

16. I also take into account that these events all occurred after the Local Authority had withdrawn the SSFS support. With hindsight, as I have said, it seems to me that that was demonstrably too soon. There had been a very lengthy period of time during which P had suffered from her well documented variety of deep problems. There are, it seems to me, good grounds for believing that if SFSS had continued to visit during the period in question that P would almost certainly have disclosed about Mr. H, in the same way that she had about the other man earlier. Although Mrs. Macfarlane said that her Department's view was that adequate support had been put in and that mother herself did not ask for any more support that has to be viewed against the very stark, serious entrenched problems of the past. In her evidence Mrs. Macfarlane said that changes had not taken place in the short term, and that changes by early February were superficial, but that was when SSFS ended. Mrs. Macfarlane said that P knew the triggers for removal, but taking into account the long term nature of her problems it should have been clear that a few courses and a few weeks of support could not have been expected to be sufficient to remove all traces of her previous responses and attitudes.
17. In my judgment in October of last year I said the following:

"The Local Authority should devote sufficient resources to meet the level of concern that they assert."

The level of concern that they had asserted in those proceedings was so severe that they had said that nothing other than adoption would do. I went onto say in that judgment that:

"as the Local Authority considers that they cannot rely on mother to be open and to tell them everything that is going on, they should ensure that the supervision is appropriately intense and they should put in support services to help Miss W and the visits should be frequent until the trust is built up."

It was implicit that those visits should continue for a sufficient period until the trust was built up and until the Local Authority could be satisfied that mother's level of openness and co-operation would not reduce when the visits were ended or reduced. It seems to me hardly credible that from a position of saying in October that the position was so hopeless and the inability to be honest so profound that adoption was the only course, and yet barely three months later it was felt that that support could safely be reduced as radically as it was. It would hardly be an exaggeration to say that with such a drastic reduction it must have been, or should have been, foreseeable that problems would result. Indeed,
Miss Yardy had said that mother had told her that she found it difficult to be
a hundred per cent honest with the social worker. It had been clear that she had found it easier at that stage to be open and honest with the SFSS worker.

18. The level of support provided by a Local Authority must be tailored to what is required in each case to enable the child to be safely cared for within its own family, otherwise the tests in Re: B and Re: BS cannot be met. I acknowledge that there is a crossover here between threshold considerations and welfare considerations but it does seem to me that it would be wrong for me to find the threshold criteria met in circumstances which I find in large part have been contributed to by the premature withdrawal of an adequate and reasonable level of support.
19. The threshold criteria pleaded in Miss Gold's document goes onto allege in paragraph 7 that mother formed an unsuitable relationship with DG, her neighbour; however, the Local Authority knew that DG was her neighbour, they or their colleagues in the core group were aware that Miss W had some involvement with her. On the evidence before me, however, it appears that none of them told P that Miss G was unsuitable in any way. P did end her relationship with that person when problems arose. So it seems to me that that would not be an appropriate threshold finding to make in the circumstances.
20. Turning to paragraph 8 and the argument on 11^th or 12^th February, I am only able to find that an argument took place at P's doorstep. Equally I am only able to find on the evidence that she acted appropriately, that she asked Mr. H and DG to leave, and it seems to me that no mother can reasonably be expected to foresee arguments between third parties, and the expectation can reasonably only be that a parent will act appropriately when a situation arises. The evidence before me does not satisfy me that P acted anything other than appropriately from
    a child protection point of view in asking them to leave and I am not able to make any threshold findings in respect of that issue.
21. The final allegation in paragraph 9 is that there was a loud argument on 23^rd that T was exposed to mother's anger and anxiety about the breakdown in the relationship and that T was present when mother had a loud and angry argument. The evidence on this matter is that mother was upset to discover that her son, J, was being taken, or had been taken, to Malta to see his sister. I make no comment about whether she was reasonable to be upset about that, but it is clear that she did have a loud and angry argument on the telephone with J's father, and that was going on when Miss Yardy arrived to visit on 23^rd February. There was no evidence that this sort of behaviour had occurred on other occasions. There was no evidence that T was adversely affected or anxious. The evidence seemed to indicate only that she was tired and crotchety. I have to ask myself whether being present in a room whilst a parent has an argument over the telephone with an unseen or unheard third party amounts in itself to conduct that could meet the threshold criteria. It seems to me that that would be a step too far and lowers the threshold to such a level that a very high percentage of children would be at risk of removal from a very high percentage of families, including those of child care professionals and foster carers. There is nothing about this event which takes it out of the ordinary. That is not to say that it was not unsatisfactory and unpleasant, but that is an entirely different matter to saying that it reaches such a level that it meets the threshold test in Section 31 of exposing a child to significant harm.
22. So in view of the above findings on the evidence before me I find that the Section 31 threshold is not met in these proceedings.
23. I do not condone the way that P has acted. There is still clearly work to be done, which is one of the reasons I said that support should not have been withdrawn as soon as it was. She needs a high level of support for an extended period. She needs to work harder at being a hundred per cent open and honest and devote her energies to T if she is to keep her, rather than letting her attention be diverted to finding fault in others or indeed helping others. She needs to concentrate on T and herself and putting the past firmly in the past.
24. I can accept the genuine concerns of the Local Authority and the guardian, but of course I can only proceed on the basis of the evidence presented. Some of the circumstances which I have dealt with in considering the threshold have clearly been matters in which P has not been blameless. I accept the possibility it may have been more serious than that which the available evidence has enabled me to find, but I cannot proceed on the basis of suspicion or conjecture unsupported by adequate evidence.
25. Clearly there have been breaches of the written agreement and supervision plan. That should not have happened, but those breaches in themselves do not meet the threshold criteria. Unless separately they reach the Section 31 test there is no ground for making a care order based purely on failing to comply with a written agreement or supervision order unless the Section 31 test is also met.
26. I have said that there were some borderline features or aspects that spanned both threshold criteria and welfare, in particular whether mother's failure to be honest and open about the visits of Mr. H during that two week period should fail to meet the threshold criteria because of my view that the Local Authority's premature withdrawal of support contributed significantly to the situation. So, having said that, I should make it very clear that I viewed the situation holistically and considered carefully what order I might have made had I come to the conclusion that those matters did meet the threshold criteria. I gave full consideration to the welfare check lists of both the Children Act and the Adoption and Children Act and the Article 8 rights. In doing so I was left in no doubt that the situation would not in any event have enabled me to say that the care plan was appropriate and that nothing other than adoption would do for very similar reasons to those given in my judgment last October. The Local Authority's premature withdrawal of support and the very short period in which these problems arose, viewed alongside the very positive and glowing reports of T's progress in her mother's care until that point, would all have led me still to dismiss the Local Authority's application for a placement order because I would have concluded that a care plan of adoption could not have been justified in the circumstances and I would in those circumstances, if I had found threshold met, have gone on to make a further supervision order for one year to enable support to continue.
27. Of course having not found threshold met, I cannot now make any order at all.
    I would, however, invite the Local Authority to consider making an oral request for an extension of the existing supervision order and I would invite mother to consider agreeing to that. If that can be done today then I will deem an application to have been made in the face of the court and it can be dealt with today to avoid further costs and expense and delay, but of course that depends entirely upon the Local Authority taking that view.

(The Local Authority agreed with that course of action as did the mother and the Supervision Order was extended to 3 years in total)