England and Wales Family Court Decisions (other Judges)

THE FAMILY COURT

		The Law Courts Islington Street Swindon
		2nd September 2016

1. I have before me proceedings which are care proceedings brought by the Local Authority (LA), to whom I shall refer in this judgment as the "local authority", in relation to four children, who are:-

(i) A, who is aged thirteen;

(ii) B, who is aged eleven;

(iii) C, who is aged ten; and

(iv) D, who is aged nine.

2. The respondents to this application are: First M, to whom I shall refer in this judgment as the "mother", and is aged now thirty-four. Secondly F1, who is the father to A, and although he is aware of these proceedings and of a dispute in relation to A, he has taken no interest, and has not become engaged at all in the proceedings nor attended nor been represented at any stage, including the final hearing. Thirdly F, to whom I shall refer in this judgment as the "father", because he is the father of the three children with whom I am most concerned at this stage, that is B, C and D - and is aged forty-three. G & H, who are the paternal grandparents of A, the parents of F1, and they have become involved in the case solely in relation to A. Finally the children, parties via their guardian, G.
3. The application has proceeded to a final hearing over three days on 31^st August and 1^st and 2^nd September 2016. The legal representatives before me during this hearing have been:-

(i) for the local authority Miss Pine-Coffin of counsel;

(ii) for the mother Miss Ephgrave of counsel;

(iii) for the father Mr Vatcher of counsel;

(iv) for the paternal grandparents Miss Young, solicitor; and

(v) for the guardian Miss Reed of counsel.

I want to express my gratitude to all of the advocates for the help that they have given to the court - all the parties have been well represented before me.

4. For the purpose of this hearing I have been provided with a bundle which includes but is not limited to the following material:-

• I have seen some material from the local authority social worker made up of three statements of 13^th April 2016, 4^th April 2016 and 4^th May 2016, her parenting assessment of 15^th March 2016 and her interim and then final care plans for all of the children

• I have seen a report from the FASS, the family assessment and safeguarding service, dated 24^th March 2016.

• I have seen mother's statement of 7^th June 2016.

• I have seen father's statement, undated on its face but provided, he told me, in early August 2016.

• I have seen a report from Dr Budd, a psychologist, on mother dated 26^th January 2016.

• I have seen the guardian's analysis of 9^th June 2016.

• I have seen various position statements relevant for various hearings.

• I have seen a threshold document provided by the local authority upon which are added father's responses, mother's responses having been included in the body of her narrative statement.

I have carefully looked at all of this material and I have also heard oral evidence tested in cross-examination from the social worker, from mother, from father and from the guardian.

5. I make two preliminary observations:-

(i) Although I was told on the first day of this hearing on Wednesday that there might be an application for the court to hear some evidence from one or more persons, friends or family members of the mother and father, no application has been forthcoming.

(ii) Secondly, I invited the advocates to indicate what time they expected to take on their various cross-examinations and they all gave me their times, all of which were acceptable to the court, and all of the cross-examinations were carried out within the given time limits. I am satisfied that full and adequate time has been given to the advocates both to present their own case and to challenge the cases of the other parties and I have a clear picture of what all of the parties are saying about the relevant matters.

6. I heard oral submissions from all the advocates this morning on 2^nd September 2016 and I am delivering this judgment on the afternoon of 2^nd September 2016.
7. The background to this case is as follows. The mother, whom I have already said is aged thirty-four, had a troubled childhood. I have read of parental separation, sexual and other abuse, serious misbehaviour by her and her being placed in a residential boarding school at the age of ten. Plainly from what she said it was not a happy childhood. At the age of fourteen it appears that she was involved in a serious road traffic accident and it appears, although I have not seen the medical documentation, that this left her with significant physical and mental impairments and frailties. Her mobility has been permanently affected and she told me a number of times poignantly in her evidence that after that accident she had had to learn everything again and had little memory of her life before the accident. This has some echoes of Dr Budd's report when he said: "Mother is of broadly low average intelligence, while her overall memory functioning was found to fall within the average range, she evidenced a specific impairment in her working memory, i.e. the ability to hold information in memory for a brief time by actively rehearsing this and in her verbal learning recall. A current assessment further suggested that whilst it is likely that mother will take longer than most of her peers to learn new verbal material, once she has learnt this she will be no less likely to forget it following a short delay than most of her peers. Whilst this pattern of results is consistent with acquired cognitive impairment resulting from a head injury, such a diagnosis can only be confirmed by a detailed neuropsychological assessment." In addition to that Dr Budd made some recommendations about the way in which she should be dealt with in the course of the proceedings in order to ensure that she was properly engaged in these proceedings, one example of that is that the matters should be explained to her in a straightforward and direct way avoiding the use of low frequency words and technical language. I am satisfied that in the course of these proceedings, certainly in the hearing before me, that all of those involved have followed those recommendations, for example in cross-examination of mother the issues were explained, in particular by counsel for the local authority, in a straightforward and clear way which she was able to understand.
8. At the age of fifteen not long after this accident, the mother met F1. They had a relationship of some eight years, which produced two children: E, who is now aged sixteen, and A is therefore aged thirteen. Her relationship with F1 came to an end not long after A was born and as a result of that F1 left the family home, leaving the mother looking after two very young children, as they were then, E and A.
9. Shortly after that the mother began a relationship with the father, as I have said he is now forty-three, nearly a decade or so older than the mother. The relationship between the mother and the father is ongoing and is now of some thirteen years duration. That relationship has produced three children: B who is eleven, C who is ten and D who is nine.
10. The local authority have had anxieties about this family for a very long time. I have read carefully the local authority chronology which shows reports on a very regular basis from 2006 right up to this year, some of which are of a very serious nature. Indeed, as the guardian commented, it is in one sense remarkable that no proceedings were brought before this year. In 2013 E, as a result of various matters, went to live with his father F1 in Wales; but this placement appears to have broken down quite quickly and he went off then into local authority foster care.
11. In the same year, 2013, there were seriously escalating concerns, particularly about the behaviour of both A and D. In 2014 the problems with A led to some private law proceedings in which both mother and the paternal grandparents of A, that is G & H, were involved. Those appear to have culminated in the making of a residence order in favour of the paternal grandparents but expressed to be a shared order with the mother. I am told that order was made on 15^th December 2014 by Deputy District Judge Brown, although I have not actually seen the order itself. As a result of that order I am told that for a while A lived with the paternal grandparents but that this did not last long and that the placement quickly broke down and A returned to the family home, notwithstanding the court order which remained in place.
12. In 2014 and 2015 and early 2016 there were a very large number of incidents reported to the local authority, again many of them featured the behaviour of A and D. By late 2015 and early 2016 the local authority were very seriously troubled by what was going on in the family, hence the commissioning of the FASS report in early 2016 and the parenting assessment by the social worker in March 2016. The results of these assessments, and a number of incidents which took place then or shortly thereafter in late March and early April 2016, finally convinced the local authority to issue proceedings, which were duly issued on 20^th April 2016. Very shortly after that there was a preliminary case management hearing and an interim care hearing before District Judge Cooper in this court on 22^nd April 2016. At that hearing he made a number of orders which included interim Care Orders in relation to the younger three children, B, C and D, with a care plan for B and C to be placed with foster carers local to the family, and for D to be placed in a residential placement which turned out to be some way away from the family but which eventually culminated with his being moved to a foster care placement. District Judge Cooper also recorded an agreement under section 20 that A was to attend a residential school and that was agreed. (I note in passing that the Care Order actually drafted for that hearing seems to have A named amongst the children subject to the interim Care Order. I am not sure that that is right, perhaps it does not really matter now, but I do not think she was in fact subject to an interim Care Order at that stage). District Judge Cooper also ordered that there should be an issues resolution hearing which took place before District Judge Cronin on 9^th June 2016. That hearing proved unfruitful in terms of settling the case, although it was hoped that A's situation would, with a number of clarifications, be sorted out. Accordingly Judge Cronin listed the case for a three day hearing on 31^st August and 1^st and 2^nd September 2016 and retained a listing on 20^th July 2016 for herself in the hope that that would lead to a settlement of the case in relation to A. As it happened it did not have that effect and A's situation remained unresolved and so the August/September hearing was extended to cover all four children.
13. I note that on the face of the order made by District Judge Cronin on that day, 20^th July 2016, there were some concessions in relation to threshold made by the parents and I shall return to them a number of times in the course of this judgement but I shall read them out now for the record. The parents made the following concessions: "The parents accept that the conditions at the family home have fallen below an acceptable standard and that this has had a significant impact on the children which has amounted to the neglect of their needs. The parents accept that A has displayed violent behaviour towards them and her siblings and they have not been able to control her as she is beyond their parental control, this has had a significant impact on the physical and emotional well being of the children." The parents were prepared to concede threshold on that basis but the local authority wanted a wider consideration of some other issues and that is one of the tasks for me to deal with in the course of this hearing.
14. So the final hearing came before me on the last three days as I have said. I mention in passing that there was originally some confusion about whether or not the case was to proceed or whether the court was not able to provide a judge for the listing, though I was available, and although we did not actually manage to get the case started on the first day, I am pleased to say that we managed to get the case back on track and complete the case within the originally allocated three days.
15. The positions of the parties in this part of the hearing have been as follows:-

(i) As far as A is concerned it was eventually agreed by all parties (I say in parenthesis that the paternal grandparents did not attend so strictly speaking Miss Young did not consent but did not oppose the final arrangement) but for all practical purposes there was a concession of the threshold, which I have already read out, and there was an agreement that the care plan would be approved which involved a Care Order in relation to A, that is a final Care Order, and that she would be found a residential place with her schooling and her living and that there would also be contact between her and her parents, that is to say the mother and stepfather, which would, subject to review, start out at seven times per year. As a result of Miss Young's requests, recitals were agreed to be included in the final order and I shall obviously include those in the final order and, therefore, on the second day of this hearing when Miss Young was present I was able to make a final Care Order in relation to A which will now be incorporated in my final overall order.

(ii) There was, however, no agreement in relation to the other three children. As far as the rival positions in relation to the other three children are concerned the local authority, fully supported by the guardian, seek a final Care Order in relation to all of the children with approval of the care plan which broadly speaking is that B and C will remain in their current foster care placement for the foreseeable future, that D will remain in his current foster care placement for the foreseeable future, although in due course a review will take place to see whether D can join B and C in their placement to reunite the three younger children, although that may be some way down the line. All three children should have contact with their parents starting off, again subject to review, at seven times per annum and to have sibling contact on a more regular basis, something like every three weeks direct sibling contact and some indirect contact by Skype or by letters on top of that as well. That was the position of the local authority, as I say supported by the guardian. The position of the mother and the father, and they speak from the same hymn sheet in this respect, is that I should reject all of that, I should reject the applications for Care Orders and that I should return B, C and D to their family home with immediate effect with an appropriate support package from the local authority, which might be supported by a supervision order.

16. So given that there is a dispute between the parties the first matter that I have to decide is whether or not the threshold criteria under section 1 of the Children Act 1989 are made out. Section 31 of course reads: "A court may only make a Care Order if it is satisfied that the child concerned is suffering or is likely to suffer significant harm and the harm or likelihood of harm is attributable to the care given to the child or likely to be given to him if the order were not made not being what it would be reasonable to expect a parent to give him or the child being beyond parental control." Section 31(9) defines harm as being: "ill-treatment or the impairment of health or development", and development means: "physical, intellectual, emotional, social or behavioural development". I remind myself that the burden of proof lies on the party who makes the allegation, in this case the local authority, and the standard of proof is on the balance of probabilities.
17. I have already indicated that the parents have made the concession on 20^th July 2016, which I have already read out, but the local authority wish me to canvass a wider picture, make some wider findings, in relation to threshold. In order to make decisions of the nature sought I will need to make some findings of fact. In so doing I have firmly in mind the words of Baker J Re: IB and EB [2014] EWHC 369, in particular a number of principles which emerge from that judgment:-

(i) Insofar as I am finding facts at the request of the local authority, which I largely am, the burden of proof rests on the local authority.

(ii) The standard of proof is on the balance of probabilities. If the local authority fails to establish facts to this level of probability then I shall disregard the allegation completely. The authority for that proposition comes from Re: B [2008] UKHL 35.

(iii) Findings of fact in these cases must be based on evidence, the court must be careful to avoid speculation, particularly in situations where there is a gap in the evidence. Authority for that proposition comes from Re: A [2011] EWCA Civ 12.

(iv) In deciding what facts to find the court must invariably survey a wide canvass. As Dame Butler-Sloss then President said in Re: U [2015] EWCA Civ 567: "Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the local authority has been made out to the appropriate standard of proof."

(v) The evidence of the parents and any other carers is of the utmost importance, it is essential that the court forms a clear assessment of their credibility and reliability, they must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them. The authority for that proposition comes from Re: W [2003] FCR 346.

(vi) I remind myself of the Lucas direction. It is not uncommon for witnesses in these cases to tell lies in the course of the investigation or at the hearing and the court must be careful to bear in mind that the witness may lie for many reasons such as shame, misplaced loyalty, panic, fear or distress and the fact that a witness has lied about some matter does not mean that he or she has lied about everything. The authority for that proposition to be found in R v Lucas [1981] QB 720.

18. So in carrying out the exercise that I do I want to say a number of things. It is the position of both the mother and the father that insofar as there are allegations against the father that he either physically assaulted or sexually assaulted any of the children then those allegations are denied. It would I think be fair to say that the local authority, whilst not abandoning those allegations, has not pursued them with any enthusiasm. For example there was no cross-examination of the father on these matters and no direct evidence such as an ABE interview, which I was told existed, was led to support the allegations. In so observing I am not criticising the local authority because there were many other points to pursue, but in forensic terms it does mean that I cannot be satisfied that the allegations of physical or sexual assault have actually happened so I propose to proceed on the basis that neither the father, nor for that fact the mother, has physically or sexually assaulted any of the children. This, forensically, it seems to me, should be treated as eliminating paragraph 1 of the threshold document. In fairness, Miss Pine-Coffin on behalf of the local authority has not sought to persuade me against that conclusion.
19. In my view similar considerations apply to paragraph 6 of the threshold document, which relates to the parents' treatment of A's diabetes, and I propose to proceed on the basis that the parents have made reasonable efforts to treat A for her problems with diabetes. I shall, therefore, focus my attention on the other issues which appear in the threshold document.
20. Before I turn to that I want to give my impression of the four live witnesses that I have heard in the course of this hearing:-

(i) First of all the social worker. She has been allocated to the case for just over a year so has had a good amount of time to familiarise herself with the facts of the case and the parents. I found her to be an impressive and reliable witness and somebody to whose evidence and views I can attach considerable weight. She has plainly devoted many hours of her time in the last year to this family and I am satisfied that she has not in any way prejudged them and that she has given proper and full attention to the case. On factual matters I found no example of her saying anything which was unreliable and on matters of judgment I found her to be an intelligent, considered, well-balanced and fair witness.

(ii) Second the mother. I have already referred to her cognitive and physical limitations. I fear that they play a significant part in her life. I have no doubt, and want to give her credit for the fact, that she is plainly a loving and caring person; but I think her limitations have made it really quite difficult for her to provide an adequate, stable and functioning home and upbringing for her children. Her evidence before me shows that she finds confronting difficult situations very difficult. She broke down in tears quite a number of times during her evidence and on a number of occasions we had to stop in order to allow her to recover. I do not hold that against her but it does seem to me to have echoes of what I have heard elsewhere about her character. On factual matters, whilst I would not regard her as a dishonest witness, I would regard her as unreliable, perhaps mostly by reason of limitations on her cognitive functioning. Insofar as factual matters are concerned she often, having heard what the local authority were saying, disputed what they said but was unable to give any credible reasoning why she disputed what they said as a matter of fact and in that sense was somebody whose evidence was difficult to place reliability upon.

(iii) Next the father. The father's presentation was a curious one. On the one hand he appeared, prima facie anyway, to have an intelligent and persuasive manner, yet on a closer analysis I am afraid I had real doubts about his reliability and his insight. In answering questions, for example, about the smell of urine identified in his home on 31^st August 2016 by the guardian he gave a sequence of contradictory improbable answers: (i) that they had bladder problems which they have not mentioned before; (ii) that there was a leather jacket which he had inherited from an uncle who liked to store urine in bottles near his leather jacket; or (iii) because of bleach used in relation to mother's skin difficulties. He was not, in my view, able to give a cogent answer to that question and his various different answers showed, in my view, him to be an unreliable witness. It is also right that whilst his evidence was given with a superficial certainty, it quickly became apparent that that certainty was not justified and that led me to have real doubts about his insight and understanding of the many things which have arisen in this case. He displayed in some instances a startling lack of insight into how the care given by himself and the mother could have contributed to the very serious problems experienced by these children, particularly A and D. Overall I found him to be a very unimpressive and unreliable witness.

(iv) Finally the guardian G. My assessment of her is that she fell into the same category as the social worker. She was impressive and reliable and someone to whose evidence and views that I can attach real weight. Her analyses of the situation seemed to me to be appropriately well balanced and fair and it seemed to me that she gave appropriate weight to the relevant factors.

21. I shall now turn to the particular allegations sought to be proved by the local authority and their threshold criteria. I have already eliminated paragraph 1 and am now on page A14 for those wishing to follow it. The second allegation is that: "The mother and the father have not displayed insight or been attuned to their children's emotional needs which has resulted in self-harming behaviours, emotional harm and has impacted on their social development." A number of examples are given in relation to that, I will read them out for the record: "1) During the single assessment completed on 20^th March 2015 the mother and father lacked insight into A's behaviours instead attributing it to a medical issue. 2) On 13^th January 2016 A bit herself and stated to her class she might as well kill herself now. 3) D does not sleep in his own bed. 4) On 22^nd March 2015 A disclosed that she wanted to kill herself and that no one would care if she died." These are only examples there could be other ones but I accept that all of those are made out. Allegation number 3: "D and A had displayed violent behaviour towards their siblings, peers, parents and other individuals which mother and father have not acted protectively in avoiding/reducing, this has exposed B and C to harm and violent behaviours." Then thirteen examples are given, again for the record I give them: "(i) on 31^st January 2015 A disclosed that she was going to stab at people at drama club, punch the producer and put a metal rod in the spine of a pupil; (ii) on 10^th July 2015 A threw stones at a pupil; (iii) on 18^th July 2015 A tried to push her mother down the stairs and hit father; (iv) on 5^th August 2015 A smashed the family's television; (v) on 30^th September D punched B in the face; (vi) on 9^th November 2015 B disclosed that A had bitten him; (vii) on about 30^th November 2015 A bit C; (viii) on 2^nd December 2015 A kicked C; (ix) on around 2^nd January 2016 A placed another child in a headlock, punches the child's father to the face and bit another child; (x) on 5^th January 2016 A punched mother and bit and punched a police officer; (xi) on 27^th January 2016 A pushed, kicked and bit pupils at her school; (xii) on 20^th February 2016 A pushed her foster carer causing her to fall into a door frame; and (xiii) on 19^th March 2016 and 21^st March 2016 D bit, punched and strangled a member of staff at his school."
22. Because of the proximity to the issue of care proceedings and the seriousness of it I want us to elaborate on what happened on 19^th March 2016 and this is the social worker's statement and it says this: "On 19^th March 2016 D was excluded from school for three days. D went to the toilet and when he left the toilets his genitals were exposed and he told the teaching assistant: 'Have some of this bitch'. D was told to go back into the toilets and put his genitals away. He did this but when he returned to the classroom he removed his clothing and exposed his genitals again swinging his penis at his fellow pupils. It was reported that D was growling and acting in an aggressive manner whilst doing this, he then proceeded to bite and hit his teacher. The other children were removed from the classroom for their own safety, some children were crying because they were upset by the explosive situation and fear of what D may do next. D was removed from the classroom and sent to the head teacher's office to calm down but he kept trying to get to adults to hurt them. D had bitten two other members of staff and punched two other members of staff. Throughout this incident D used a range of inappropriate language which was directed at all the adults. D ran outside into the play yard, jumped onto his class teacher's back and put his hands round her neck making it very difficult for her to breathe. D ran off the school property and ran home. On 21^st March 2016 D was excluded from primary school for five days. D was extremely angry and aggressive, he was given 20 minutes calming down time in the head's office during which time he had punched the three members of staff that were supervising him, he then bit one member of staff. During the whole time he again used a wide range of inappropriate language. B told the teachers that it is not easy seeing his brother so angry and upset but it is fine because he sees it all of the time."
23. In my view these incidents, particularly those on the 19^th and 21^st March, were serious incidents. I consider that it is highly probable that the reports are true and reliable. When questioned about them the mother and the father seemed to have little knowledge or interest in them. I was struck by their neutral absence of concern as to what had happened or interest in doing anything to sort it out, despite the very serious significance of these events. This was a stark illustration of two parents simply not equipped to provide proper care or boundaries for their children. I accept all of the allegations as set out by the local authority.
24. Paragraph number 4 says this: "Mother and father have not implemented appropriate boundaries which has exposed the children to a lack of understanding of appropriate behaviours and socially acceptable boundaries exposing them to the risk of sexual exploitation and emotional harm", and again a number of examples are given (i) to (ix) and I will just read them out for the record: "(i) on 13^th March 2015 A placed her hand on top of a male teacher's hand; (ii) on 13^th May 2015 the social worker reported A displaying inappropriate behaviours; (iii) on 4^th June 2015 A's school raised concerns that A was not respecting personal space and that this has been an ongoing issue; (iv) on 11^th November 2015 A exposed her top half to a female teacher when showing her a rash; (v) on 18^th November 2015 A disclosed that her siblings had entered the bathroom when she was having a bath on a number of occasions displaying a lack of boundaries and privacy within the home; (vi) around 15^th December 2015 indecent images of D were found on B's phone; (vii) on 19^th June 2016 D exposed his penis to a teaching assistant and stated: 'Have some of this bitch', D also exposed his penis to his class and acted in an aggressive manner; (viii) on 20^th February 2016 mother and father allowed the children to have contact with E despite a safety plan to the contrary; (ix) the parents have allowed the children to have contact with other adults, in contravention of the safety plan." I find all of those matters are made out.
25. I just want to enlarge a little bit on one of them which is what happened on 15^th December 2015 where the fuller report of that incident is this: "Children's services received a police report following a report from Primary School as they had found indecent images on B's mobile phone. The reported pictures are of an erect male's penis believed to be a child, which the school suspected was B, and images of a child being naked, the school identified the naked child as D. The school reported there to be videos of the same images and reported that C's voice could be overheard." Again I regard these as serious incidents and when questioned about them, again the parents showed to me an absence of real concern or interest in either acknowledging that those incidents had taken place or of wanting to do anything significant about it.
26. Paragraph 5: "The home conditions are poor and expose the children to a risk of injury", and again two particular incidents are cited but I do not think in this case that I need to go beyond the concession which has already been made which I have already read out. Although I have been told that since the children left on 22^nd April 2016 to be taken into care the home conditions have improved, even as recently as 31^st August 2016 the guardian identified very strong smells of urine in the house and that would suggest that the problems identified have certainly not gone away and so far as they have gone away one has to observe that the children have not been in the parents' care since April so they have had all of that time, some four months, to sort out those home conditions without any impediment from having children in the house.
27. Finally paragraph 7: "The children have been exposed to neglect", again two examples are given here which I shall read out for the record: "(i) on 10^th November 2015 A's school noticed a strong personal odour and she was having crisps for breakfast; (ii) on 9^th January 2016 C's shoes seemed to be hanging off, she had head lice and was observed to have greasy hair." Those examples are, in my view, made out but they are only examples, there are many examples in the papers which one could have relied upon. Overall these children have been exposed to a high level of neglect over a long period of time which has had a significant effect on them.
28. So having gone through all of those matters I unequivocally and clearly reach the conclusion that all those matters are made out and all of those matters take this case beyond, indeed well beyond, the threshold criteria necessary for the court to go any further and I therefore turn to the question of disposal.
29. I remind myself in considering the children's welfare that I need to take into account all of the matters set out in section 1 of the Children Act 1989 which are as follows: 1) That when a court determines any question with respect to the upbringing of the child, the child's welfare should be the court's paramount consideration. 2) That in any proceedings in which any question arises the court should have regard to the general principle that delay in determining the question is likely to prejudice the welfare of a child. 3) The court should have regard in particular to the welfare checklist which includes the following: "(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 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 are 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; and (g) the range of powers available to the court under the Act in the proceedings in question."
30. Further I remind myself I need to give careful consideration to the care plans that have been put forward by the local authority.
31. I also remind myself of the provisions of Article 8 of the European Convention on Human Rights which says: "Everyone has a right to respect for his private and family life his home and his correspondence. There should be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or economic well-being of the country for the prevention of this order or crime, for the protection of health or morals or for the protection of the rights and freedoms of others."
32. I also remind myself of the well known words of Hedley J in Re: L [2007] 1 FLR 2050 where he said: "Society must be willing to tolerate very diverse standards of parenting including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event it simply could not be done."
33. I also have in mind a number of other well established principles, most of which were underlined by the judgment of the President of the Family Division in the case of Re: BS [2013] EWCA Civ 1146, they are as follows:-

(i) The court should begin with a preference for the less interventionist rather than the more interventionist approach, this should be considered to be in the better interests of the children unless there are cogent reasons to the contrary.

(ii) Although the child's interests are paramount the court must never lose sight of the fact that his interests include being brought up by the natural family, ideally by the natural parents or at least one of them unless the overriding requirements of the child's welfare make that not possible.

(iii) The court's assessment of the parents' ability to discharge their responsibilities towards the child must take into account the assistance and support which the authorities would offer, so before making any order the court must be satisfied that there was no practical way of the authorities providing the requisite assistance and support to support a lesser order.

(iv) In most child care cases a choice will fall to be made between two or more options, the judicial exercise should not be a linear process where each option other than the most draconian is looked at in isolation and then rejected because of the internal deficits that may be identified with the result that at the end of line the only option left standing is the most draconian and that is, therefore, chosen without any particular consideration of whether there are internal deficits within that option. The linear approach is not apt when the judicial task is to undertake the global holistic evaluation of each of the options available for the children's future upbringing before deciding which of these options best meets the duty to afford paramount consideration to the child's welfare.

34. So with all of those words and principles firmly in my mind I turn back to the facts of this case.
35. There are essentially two options put before me:-

(i) Option 1, the local authority and guardian's option, is that these children should be subject to Care Orders and placed for long-term foster care initially with B and C together and D separately, with a possibility that they will all be reunited at some point but in any event with a level of family and sibling contact.

(ii) Option 2 is an immediate return to the parents.

The local authority have not put forward any other option such as placement orders or adoption and there are no other family members who are put forward as being possible carers for the children at this time. So how should I view these options? Before conducting a BS analysis, I want to make some wider points.

36. First of all I need to note the ascertainable wishes and feelings of the children considered in the light of their respective age and understanding. It is correct to note here that each of B, C and D have, on the face of it, expressed a view that they wish to return to their parents' care. But that expression or view must, I think, be treated with some caution. First of all because there are very real doubts as to whether these children are of an age and understanding to be able in reality to take a view to which I should attach weight on their parents' ability to provide care for them and to promote their best interests educationally, socially and otherwise in the future. And secondly because of the way these views were expressed. In this context I particularly note the evidence of the guardian who, whilst noting that they had said that they wished to return to their parents, she felt that perhaps that was something of skin deep loyalty and love for their parents and not something which was deep inside these children. For example, D, when pressed by her to say well what is it that he missed about his parents' care was unable to identify any feature of his parents' care which he missed or would like to return to but at the same time was able spontaneously and quickly to identify some very real advantages of living with his foster carers. Similarly in relation to B, the guardian, who saw him both in the context of his foster carers and in the context of a family contact visit as recently as 31^st August, drew a very real distinction between the happy, contented smiling child with his foster carers to the tense and quiet child apparently on the periphery of the family whilst at a family contact session. For these reasons I do not think it is appropriate for me to attach very significant weight to those expressed views of the children; but nonetheless I note that they are as they are.
37. The next part of my assessment I shall take into account a number of welfare checklist factors: the parents' ability to meet the children's needs, the risk of harm in either their staying where they are or returning to their parents' care, and the characteristics of the children respectively. In relation to those matters I have the following things to say. First of all I do note what was identified by the FASS report, which has not really been challenged in the context of this case. They are an experienced body dealing with situations similar to this and they said the following things: "Overall these four children present as not only very vulnerable to the risk of future harm but also with a range of emotional, behavioural and learning difficulties that raises concern that they have been suffering chronic, significant harm whilst in the care of their parents. They present as withdrawn or hostile and struggle to express their worries to others, they are described as appearing guarded if asked questions directly by professionals. They have already exhibited behaviour that places them at risk of sexual exploitation, they have experienced high levels of stress, it is likely that they have felt frightened and insecure on a regular basis. In common with all young children they need to be protected from exposure to harmful experiences, they need a high standard of care and attention from adults who will respond sensitively and consistently to their emotional needs and feelings. They need to live in a home environment where there are positive stable relationships. Inevitably children manifesting this level of disturbance are now in need of specialist parental care that is over and above ordinary good enough parenting. We appreciate that mother and father have sought professional advice and assessment from medical professional and if appropriate we can review any written information, however it is unlikely that a single medical diagnosis would fully explain the range of emotional difficulties that these children present with." A little further on: "The parents have indicated to us that they are very willing to engage with our service and think it would be beneficial to have advice regarding D's emotional difficulties. However, there are also a number of significant risks across the domains, those relate to long-standing concerns regarding the family's acceptance of professionals' concerns and their willingness to make appropriate changes that will have a positive impact on the children's physical and emotional well-being. There is concern that this may indicate disguised compliance when families meet with professionals but fail to act on advice. The risk associated with this is that this may cause delay, postpone decision making whilst the family are given time to take action, it may also indicate a lack of acceptance of difficulties which is a negative indicator of capacity to change. I have discussed this with mother and father, it is important that they demonstrate that they are able to accept professionals' concerns so as to not do so will raise questions about their level of insight and ability to judge risk. Mother and father are the parents of vulnerable young children and must share an awareness of how to safeguard them placing the children's safety above their own wish for the siblings to be reunited."
38. In my view the parents have amply demonstrated to me that they have an almost total absence of insight into the position. The father in particular explicitly stated that he did not think there was any problem with his parenting. The mother really could do no more than say that she was determined to put things right in the future but, I am afraid, not in a very convincing way. I am afraid that the problems identified by FASS in March 2016 are all too evident today, matters have really not progressed since that report and the anxieties expressed by FASS are very much present today as they were in March 2016.
39. Secondly, I have the views of the social worker who carried out the parenting assessment. In March she said this: "After careful consideration of all the information it is evident that mother and father love their children deeply, however children need more than just love, they deserve and require parents who are able to meet their basic care needs. It is apparent from the significant history of children's service involvement that positive outcomes for the children are not being achieved despite a high level of services over the years, for whatever reason mother and father are not putting into practice the support and guidance. I am at a loss in terms of recommending any other support service that they have not yet received or worked with which would have a positive impact on the children. It is my professional opinion that A, B, C and D have been exposed to a neglectful environment and parenting for a significant period. What we know is that the impact of neglect to the children can be far reaching in terms of a child's mental health, their social function, emotional well-being and create developmental delay and emotional and behavioural problems. In terms of A and D they are displaying extreme behaviours, they are children who have clearly exhausted all their coping mechanisms and seem to be crying out for help. The situation with C and B does present as different because they are not overtly displaying the same sorts of behaviours which would cause concern, however this does not mean the level of risk or concern is any less because we know children respond and manage situations differently." Those are her words in March 2016 and her words a little later in her statement to the court were as follows: "The children have been subjected to child protection planning over the last two years and seven months without any positive outcomes being achieved for them. Mother and father have received significant input from children's services since 2006 and yet the same issues with home conditions, the children's behaviour and the lack of parental guidance and support remains a persistent concern. It is evident that mother and father have been unable to demonstrate that they can make necessary changes within the children's timescales, they are in complete denial in respect of local authority concerns and are resistant in thinking that there are any deficits to their parenting which has prevented them from moving the plans forward." I wholly agree with that assessment.
40. Thirdly, it is right to note that Miss Ephgrave has perfectly appropriately made the point which arises from the words of Hedley J that the court does not require a counsel of perfection and that good enough parenting can be considered by the court as appropriate for children and thus a justification for not making Care Orders. In my view, the parenting offered in this case falls well below even the low standard of good enough parenting.
41. Fourthly, it has been said by the parents that now A has gone, as she has from the family home, all will be well and that really all the problems were caused by her. That seems to me to disregard many of the other matters which are included in this case, including D's behaviour, and it is my judgment that the problems go very much deeper than simply those which can be attributed to A, albeit it must be acknowledged that she must have been a very difficult factor in the family home.
42. Fifthly, it is a very noticeable and striking feature of this case that both in relation to B and C, but particularly in relation to D, that the move into foster care has made a substantial difference to their performance and all of the children have made very significant strides since going into care. C and B seem to be happier, making educational progress, are clean and well presented showing none of the problems which they exhibited before. But in particular D has demonstrated, by some of the matters I have already mentioned, that as of March/April this year he was a very, very seriously damaged child. As well as exhibiting the behaviour to which I have already referred, he would not speak to professionals and he behaved in a very difficult way in lots of different scenarios. What has happened since he has been, first of all in residential care, and then in foster care, has radically changed his behaviour. It is to be hoped that that will have long-term consequences but it is yet to be seen whether that is the case and he has not crossed the threshold of going back to school yet. I wholly agree with, in particular the social worker's assessment, that this change is perhaps surprising but is a remarkable one and is really only explicable in the context of this case by the move from the very poor parenting he was experiencing before April to a much better quality of parenting after April. I agree with the social worker that the notion of returning him to the previous parenting and risking a regress on this very considerable progress that he has made would be risking his future in a very significant way.
43. Sixthly, the parents have drawn our attention to the fact that the contact sessions have generally speaking been happy. Up to a point that is a perfectly good point to make but those are only small and brief snapshots of an overall situation and do not involve the parents having to confront the very real problem that they have failed to confront over many years of providing proper boundaries for these children. It is all very well achieving something within a short period of contact, very different providing those boundaries when all three children or two children, or whatever number of children, are at home. But even within the contact session as observed by the guardian on 31^st August there are some concerns: such as D's apparently distracting behaviour, such as B's reverting to his former quiet and timid self and not evincing the happiness which evolved in foster care. Although overall there is no serious criticism to be made of the contact, it is not sufficiently good to provide the persuasive argument that the parents invite me to treat it as.
44. Seventhly the clear view of both the social worker and the guardian in their reliable and persuasive oral evidence was that these parents are simply unable to meet the children's physical, emotional and other needs. The fact is that over many years they have failed to do that and there is nothing in the course of the evidence has shown me that there is any likelihood that they have changed to get to a position where they are likely to be able to bring this about. I agree with the social worker and the guardian that to send them back to their parents at this stage would be involving a serious risk of regression.
45. So I turn to the BS analysis, there is a helpful one amongst the papers but in broad terms it is this. Of the two options the foster caring option certainly has some negative sides. It is right for me to identify that these children will be in the care system for the remainder of their childhoods, subject to reunification they will be separate from each other certainly for a period, as well as that they will not be with their natural families. It is also right to note that foster caring arrangements do sometimes breakdown if the foster carers themselves decide for whatever reason to change their commitments. Those are all the negatives which I need to have in my mind. But there are it seems to me some very considerable positives. First of all the fact that the children have so well settled in their foster care parents since April is very much a positive. The homes which are being provided currently by the foster carers, and there is no real reason to believe that that is not going to carry on for at least the foreseeable future and possibly for the remainder of their childhoods, are stable and supportive households offering much of the security and support which the parents have been unable to give. As well as that, with the local authority keeping matters under review it may be that the children will be able to be reunited under one roof in due course and if that is not possible the local authority have made provision for a good amount of sibling contact in the months and years ahead. It seems to me that analysing this possible placement the positives of it dramatically outweigh the negatives.
46. The second option is a return to the parents. In many ways the advantages and disadvantages are simply a flip side of the other arrangement but setting them out, plainly there is a positive side of return to the parents in that the children will be together and that the children will be with their natural parents, one must never forget that. But the negative, and it is a very real negative, is that there is a very real risk of the harm which I have already identified of a return to all the difficulties which the children have had in years gone by until they were taken into care reimposing themselves, that is a very real negative indeed in my judgment. I need to note that, of course, if the children were to return to their parents' care that could be supported by local authority provision which might include a supervision order, as Miss Ephgrave has suggested, to involve a degree of monitoring and supervision and support and help. But I agree with the social worker and the guardian that the level of support required to provide adequate care in this case is so large that it is really not practical and the social worker suggested or the guardian suggested it would have to be twenty-four hours a day, seven days a week, and really when you are getting near that level of care it is not something that is practical or could seriously be contemplated. These parents I am afraid have had many, many chances over many, many years to improve and to prove themselves. I am afraid they have not been able to do that and whilst they love their children I am afraid that is not enough, they have been unable to provide an adequate home for them.
47. So for all of those reasons I have reached the clear conclusion that the best interests of these children, B, C and D, is for me to agree with the local authority and guardian that they should be made subject of Care Orders in favour of the local authority and that I should approve the care plans that have been put forward with the one or two amendments that have been made in the course of the hearing.
48. It is appropriate for me to consider the level of contact, whether that is adequate, and I have heard and read of what is proposed in relation to that. It seems to me in the context of the long-term fostering arrangements the level of contact proposed by the local authority is appropriate and correct. Plainly it needs to be kept under review, it could go up or it could go down depending on how things develop over the years ahead. It is not appropriate I think for me to make any order, it seems to me that a Care Order with regular looked after children reviews will ensure that the appropriate level of contact is kept with the parents.
49. I am satisfied for all of the above reasons that the local authority proposals are proportionate and appropriate in the context of Article 8 of the European Convention on Human Rights and I am satisfied that the orders suggested are in the best interests of all the children and, therefore, I propose to make final Care Orders in relation to all of the three younger children and to approve the care plans.
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