England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT NEWCASTLE-UPON-TYNE


IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: T (A CHILD)

		The Law Courts The Quayside Newcastle-upon-Tyne NE1 3LA
		30th September 2016

JUDGMENT

HIS HONOUR JUDGE SIMON WOOD:

Introduction

1. The court is concerned with the welfare of Y, a girl born on 19^th February 2010. She is the daughter of M and F, respectively mother and father. Gateshead Council, on 8^th February 2016, issued proceedings seeking a care order in respect of Y. They now present to the court a plan for a special guardianship order to MGF and MGM, the maternal grandparents, with whom Y has been residing since February 2016, a placement supported by the children's guardian, Sheila Hodgson, but a plan that is opposed by the mother and by the father, whose preference would be for Y to live with her mother although, in the absence of her being available, and I will come to the reasons why I mention that in a moment, would seek to care for Y himself.
2. Y's parents are presently de facto separated at least, subject to matters I will mention, they ought to be separated by virtue of bail conditions under which the father currently has his liberty, albeit each additionally say that they are now separated emotionally as well. There is evidence before the court that has been drawn to the court's attention today that would tend to suggest that that latter position may well not be correct and there certainly is more than a suggestion that the mother has been visiting the father's address, to which is bailed in Peterlee, and may have been seen with him recently on CCTV footage of him cashing an order that enabled him to obtain money sent to him to attend this hearing.
3. In seeking a care order, the local authority had, of course, to set out the reasons why Y was suffering or likely to suffer significant harm, the likelihood of which being attributable to Y not receiving the care reasonably to be expected of a parent. Although the plan is for a private law order, namely a special guardianship order as I will come to, the threshold that the local authority alleges is nevertheless highly relevant and does need to be determined within these proceedings, not least because they are the second set of public law proceedings that Y has had to endure and there is, therefore, a significant background which can be summarised as follows.

Background

4. The mother was born in 1989 and has recently had her 27^th birthday. The father was born in 1976 and has recently had his 40^th birthday. Y only came to local authority attention once, and briefly, in 2012, before December 2014, when an allegation of historic sexual abuse was made against the father by a younger member of his extended family. The father was asked to leave the family home and an agreement was signed whereby the mother was to supervise all of Y's contact with her father pending assessment. It rapidly became apparent that the mother either would not or could not safeguard Y, who became the subject of a child protection plan.
5. Additionally, concerns arose as to the father's drug and alcohol misuse. He was referred to Evolve, an organisation that was designed to address those issues, but did not engage. Whilst the mother was observed to be loving and appropriate with Y, her relationship with the local authority was said to be confrontational and difficult. Concerns persisted regarding the father whose behaviour at times showed signs of paranoia. There is a history of mental health issues and a chaotic presentation was a feature of the run-up to those proceedings. They were issued on 22^nd March 2015 with Y, at that stage, being placed for the first time with the MGPs.
6. Within that litigation, Mr Kennington, formerly of the Sexual Behaviour Unit, carried out an assessment on F in July 2015 and he concluded, on the basis of the information that he received as well as the limited capacity of the parents to cooperate with interviews, that there was no evidence of active risk in relation to sexual abuse of Y. Separately, Dr Ince, a psychiatrist, carried out an assessment of the father in August 2015 and concluded that he presented with a degree of paranoia which was exacerbated by acute intoxication or drug misuse in the context of high levels of stress or expressed emotion, or a combination of the two, the records confirming that when agitated, irritated or stressed, the father used cannabis, alcohol or amphetamines as a maladaptive strategy to cope and thereby worsening his symptoms and presentation.
7. The local authority carried out a further risk assessment of the mother to assess her ability to prioritise and protect her daughter. It was the local authority's view at that stage that she had made progress and was able to demonstrate that she would protect Y from any harm that may arise from risk from the father's mental health or substance misuse and, against that background, a plan of rehabilitation of Y back to the care of her parents was formulated on the basis that the mother would be the primary carer, holding responsibility to ensure that she was protected from inappropriate behaviour. She signed a final written agreement and in October 2015 a supervision order was made for 12 months and Y returned home.

Precipitating events

8. That is the background and then, on 20^th January 2016, an allegation of rape and aggravated burglary was made against F. The allegation was that he had met an unknown female at a garage and went back to her home where he is alleged to have rendered her unconscious by hitting her. She subsequently awoke to find herself naked, believed that she had been raped and had had her money and television stolen from her. He was arrested. He admitted to taking her money but denied raping her, suggesting that the limit of any sexual involvement was consensual. As a result of that incident, it was concluded that he would need to leave M's address and that contact with Y would again have to be supervised.
9. Matters moved on fairly rapidly. On 2^nd February, the mother alleged that she had been assaulted by the father and, as a consequence, was removing herself from the family home to a refuge with Y. She said he was agitated and there was concern expressed that he might go to school to collect Y. The day after, on the mother returning to the family home to collect necessary belongings in company with the place, F was there. He was shouting and swearing and he came out of the house in possession of a weightlifting bar. The social worker was also present and witnessed it. He was arrested. He admitted that he had used threatening or abusive words and behaviour or engaged in disorderly behaviour likely to cause harassment, alarm or distress and was summonsed in respect of it.
10. Just four days later, on 7^th February, the mother announced she was returning to the family home and the local authority expressed concern that she was minimising the father's behaviour, hence these proceedings were issued on 8^th February, and the following day the court made a child arrangements order on an interim basis that Y should reside with her MGPs, this was for the second time, until the final hearing or further order and F's contact to be supervised by the local authority.
11. A couple of weeks later, it was announced that the parents' relationship had ended, that father had thrown mother out of the house under the apprehension that she had had an affair and she returned to the home of her parents. The trouble continued because, a couple of days after that, MGF advised the local authority that whilst the mother was in Gateshead she had been attacked by the father. She returned home with a gash to her forehead and two missing teeth and it was alleged that he had strangled her to the point where she had passed out and she was expressing concern that he might have killed her. She was expressing clear concerns about his deteriorating mental health and suggested that no contact should take place at the present time.
12. Equally, the grandparents were very concerned about their daughter and the local authority formed the view that there should be no contact at that time because of the father's presentation, the thinking being that the ending of the relationship between mother and father had removed what had, in effect, been a protective factor which caused F to calm down. Accordingly, the local authority wanted to embark upon assessment and encouraged the mother to undertake a Freedom programme in order to reduce the risk of her re-engaging in that or a similar relationship, as well as monitoring whether this separation was permanent.
13. In April, a risk assessment of the mother was completed by the key social worker, SW. She has been Y's social worker since November 2014 in the previous proceedings and so has the huge advantage of a long knowledge of this family. Having lived with her parents and Y for the previous two months, the mother was found to have demonstrated her commitment to Y as well as motivation to change. She had applied for housing, she had engaged well with the local authority, she had accepted professional concerns and the grandparents gave no indication to the contrary, although they made it clear that, were the mother's position to change, they would remove Y from her care.
14. In what was billed as, and intended to be, the social worker's final evidence, notwithstanding by then the completion of positive special guardianship assessments of the MGPs with whom good relationships existed, the local authority felt able to support Y's wishes and feelings to return to live in her mother's care. The only worrying part of the evidence at that stage related to the father. An attempt to carry out a risk assessment of him had essentially failed. He had attended two out of nine sessions. At the first he was said to be, "Irate throughout, making threats to the mother and Y," resulting in it being terminated early. In the second session he attended, he was more appropriate in his behaviour but arrived late and no meaningful assessment could be carried out. He did not attend any of the other seven sessions.
15. The local authority had made provision for Y to have indirect telephone contact with F. That was arranged through the school but it had been problematic with F making promises that he could not, or would not, keep, for example, to get Y a puppy or to move near to where Y was living, and the local authority was naturally concerned that this contact was exposing Y to the risk of emotional harm and distress, albeit Y appears to have enough understanding and insight to be able to say very clearly that when her father said he was going to get her a puppy, she frankly did not believe him.
16. Attempts to discuss various allegations with him were thwarted by his being confrontational and aggressive. He denied assaulting M in February or damaging her property. The social worker had in fact, as I say, witnessed the incident with the metal bar. He denied any responsibility for that, blaming it entirely on the police and M. She had also observed a visit to the Civic Centre where he made threats to M, for example, to tell drug dealers where she lived, and he told M that he would not protect her any more. When the social worker pointed out that Y lived with M too, he said that was not his problem, it was hers.
17. It was her analysis therefore, in short, that he had refused to engage with the local authority, he had been unable to demonstrate his commitment to ensuring Y's safety and that his lack of engagement with assessments and inability to accept any responsibility for his actions really demonstrated no capacity for change. The social worker said he has showed complete disregard for professional support and intervention and previously agreed plans. So that was the position. All was set fair for Y to return home.
18. The landscape changed completely, however, at the end of May. An argument between M and her parents about her plans to go away for the weekend at what was a difficult time for them resulted in a falling out that has never been mended. M did not return to the home. She went away and simply did not come back. Save for one contact in June, she has not seen Y since May albeit she has spoken to her intermittently on the telephone. In addition to cutting ties with her parents, she disengaged from the local authority and the litigation and only resurfaced last week for the hearing on the guardian finally managing to make telephone contact with her.
19. The extent of the breach with her parents is laid bare in her report to the guardian that she would rather that Y go into foster care than live with them. F, likewise, ceased all contact with the local authority in June and, in the circumstances, the local authority simply could not recommend that Y return to M and they had no reason to revise their view of F, hence the plan for the special guardianship order kicked back in with contact issues to be managed on the basis that Y remains a child in need.
20. Despite M having filed no evidence and F only filed one statement in June, the text of which pre-dated this major change saying that he wanted Y to live with him and M, both did attend the hearing. At its outset M, through counsel, indicated that reluctantly she conceded that Y would have to live with her parents, asking for the local authority to convene a family group conference in order to help mend relations with a view to Y returning to her care at some point in the future.
21. That position changed on the second day of the hearing to a request for Y's return to her care in which she proposed that she and Y should go and live in a refuge. F's position had been that Y should live with M. On her indicating that she reluctantly accepted the plan, he then said if she could not live with M, then Y should live with him and he asked to give evidence in support of that case. Indeed, at the point when he gave evidence, M's position was that Y should live with her parents.
22. I required him to reduce his issues to writing before he gave evidence so uncertain were his instructions as they emerged through the medium of counsel. Pointing out the support that he said he had from family members, he challenged the evidence on the basis that the local authority should never have removed Y from his care, that it had threatened M and essentially conspired to deny him any assessment. So against that background I heard from him, from the social worker and the children's guardian in that order.

The hearing

23. It was quite the most chaotic public law case I can recall trying. Quite apart from the disengagement for a significant period of the litigation, certainly since the end of June, the parents struggled to manage their behaviour appropriately. The court is well aware of the enormous stress and pressure of such proceedings. It has the warning of Lady Justice Macur in Re M (Children) [2013] EWCA Civ 1147 very well in mind. Parents do not fall to be judged solely on their performance in the witness box and, in this case, I would extend that to their performance in court more generally but having disengaged, having failed to comply with orders, having failed to give instructions, in M's case through counsel, she indicated her reluctant acceptance of the plan but declined to give evidence, by day two, counsel's position appeared to be precarious and, at the very least, he was either not able to obtain clear instructions or wondering if he was still instructed on M telling him that if he entered court his services would not be required.
24. By the second day, M had handwritten a statement denying that Y had been exposed to any harm, refuting the local authority case in its entirety, questioning why Y had been removed from her care, and I just say parenthetically Y was not removed from her care at any point, and blaming the local authority for all her woes. Although her statement did not say so, she then asked for Y to be returned to her care and came up with the plan of living in refuge. Despite advice, I am satisfied, as well as clear warnings from the court as to the consequences, she refused absolutely to give any oral evidence in support of her case, complaining about the questions that she rightly anticipated would be asked were she to do so.
25. Throughout the case, she and F provided a running commentary on the evidence, calling out, contradicting things they did not agree with and this continued despite many warnings. Fortunately, it did not ultimately become necessary to exclude them from the hearing but it came very close to that and, with one exception, I was gratified at least that they were able to stay in court throughout the substantive hearing. The only exception was when F seemingly stormed out of court at the end of the Wednesday afternoon whilst proceedings were ongoing. When that was mentioned in the course of submissions on the third day, he maintained he was going to the lavatory. I will give him the benefit of any doubt about that.
26. Notwithstanding that, his interventions were often in abusive terms, accusing the social work of intimidation, harassment and mental torture. He dismissed his counsel on the morning of the second day. By then, he had given evidence in support of his case that Y live with him. On M's position changing, he was then able to advance his primary case that Y live with her. Concerningly, before she withdrew, Miss Webster, counsel, informed the court that F had instructed her that he had recorded the whole of the first day's proceedings on his mobile telephone in order, ostensibly, to obtain proof that the social worker had lied.
27. Asked if that was correct, he confirmed that he had indeed recorded the proceedings but, on being asked to hand them over, said that he had left it at home and appeared to suggest that the recording had happened in some way accidentally. He said that he had not copied the recording, downloaded it or published it in any form. Being unable to read, he said he had not seen the notice setting out the prohibition on recording at the entrance of the court and, as I say, contrary to what Miss Webster told me, he suggested that it had been accidental.
28. I would have sent him to obtain the telephone there and then had it not been for the distance involved. Given that he was living in Peterlee, that that was not a practical option and so, warning him in the clearest terms, I indicated that I would not give this judgment until he had returned it to the court on the Friday. He did not attend court on Friday and, in the circumstances, I did not feel it appropriate to give judgment whilst the recording was at large.
29. Before the court today there is a great deal of information about the attempts that have been made to make contact with F, to attend his address to seize the phone. Suffice it to say, the court is quite satisfied that he has done everything in his power to evade detection, service and cooperation with the authorities. The court is unclear as to whether he recorded the proceedings but takes the view that ten days after the event, all efforts having failed to secure this telephone, it is unlikely that the court will be successful in gaining possession of it now and that measures to avoid the harm that would arise from this apparent contempt of court are the appropriate ones to consider. At the conclusion of this judgment I will certainly endorse the orders that I made on previous occasions, making it abundantly clear that no form of publication was acceptable and will have to remain indefinitely.
30. Meanwhile, to revert to the hearing, MGF and MGM adopted a very dignified low profile, sitting at the back of the court, their counsel, Miss Harmer, approaching the case with the lightest possible touch. Each had filed statements setting out their commitment to Y, despite some very difficult personal circumstances. As I say, they behaved entirely appropriately and as one would have expected from what the court has been able to read of them in the special guardianship assessment that the local authority has prepared. I did on the last occasion, 23^rd September, indicate to them my intention to make an order in their favour, with the reasons to be given later, and excused their attendance today.

The evidence

31. So to turn to the evidence, the social worker has had very extensive involvement since 2014, completing all care plans, risk assessments and assessments, such as she could, as well as the special guardian assessment. For the reasons already outlined, she could not recommend reunification of Y with her mother because of her removing herself so completely from Y's life in May as well as the lack of any commitment to put Y's needs before her own. Likewise, the concerns regarding the father's ability to meet Y's needs and the inability of the local authority to assess him ruled him out. By contrast, the grandparents had twice stepped into the breach and cared for Y entirely appropriately, meeting her needs.
32. Y is happy, settled and very well cared for. She was quite satisfied that the grandparents could meet her needs and ensure that she remains in a family placement, an infinitely preferable option over foster care as her comprehensive B-S analysis identified. She told me about the lack of contact for Y and her mother since May despite the efforts that she had made to put that in place. Going forwards, she proposes monthly contact supervised by the grandparents and for them thereafter to build it up on their own judgment. She saw merit in a family group conference to allow the family, together with professionals, to put together agreements.
33. She proposed that some expectations be imposed on the mother to ensure that contact is appropriately managed, such as telephoning 24 hours ahead and, if missing on two occasions, a meeting to be held. She was firmly of the view that these matters could all be managed under Y's child in need status. She was clear that the position so far as the father was concerned would have to await further assessment to look at drug and alcohol use and so on, and so there was no commitment other than to do that work if the father engages because at the present time he simply does not.
34. Cross-examined on behalf of the mother, she accepted that there had been a supervision order made previously on the basis that the mother could provide good care but the position now was that twice Y has had to be accommodated because she is not a reliable protective factor. Despite engaging well when she does engage and seemingly understanding risk, as the social worker put it, once she moves away from the local authority, they get non-engagement and she had not been able to engage with her since May. Indeed, the only time that they had spoken she had been extremely irate.
35. Cross-examined by Miss Webster, who was then still engaged by the father, she confirmed that she had not visited the father in his home in Peterlee. She said there was no reason to go and, indeed, would not have gone without police or security, having observed the incident at the family home when the metal bar was used. It was suggested to her that the local authority had deliberately arranged appointments when they knew he had no money but she explained the steps that they had taken to resolve that. She said this:

"The difficulty in speaking to the father is that it depends on his mood. He is very unpredictable. Sometimes he can be pleasant and engaging but in these proceedings he has made threats to M, shouting about historical things, and getting him to focus on the agenda is very difficult."

36. She said that she refuted the suggestion that Y had been removed from his care without consultation. She accepted that there had been no local authority involvement, at least before 2014 or, indeed, with the father's older children, but significant concerns had arisen over the last two years and what she said was that the worry is that when allegations are made against him, as they have been, from a variety of sources, it changes his behaviour significantly and, indeed, even the mother conceded that it had made his presentation very different to that which it had been previously.
37. She said that they had attempted to promote contact but at the present time it was Y's wish not to be constantly asked if she wanted to speak to her father by the telephone. At the present time, she does not want to do that. She believes that her father hurt her mother. She may need some work doing in respect of that but at the present time Y is not in the position to undergo work and so the proposal is for letters and photographs at intervals via the school.
38. As I say, I heard from the father. In fact, at first he told me that he wanted Y to go and live with him which was then the only other option. He described the support that was available from family members nearby. He challenged everyone about the local authority case. He said that they had threatened the mother. He denied that he was using alcohol or drugs. He said that there had only been disagreements but nothing that should be concerning, albeit he did appear to say that Y had witnessed that once between him and the mother. He said he would comply with any assessments as long as he was not intimidated or harassed.
39. Cross-examined, he denied that there had been violent disagreements and denied there had been any violence with the mother, albeit he conceded there had been some episode when, as he put it, he "jumped off the settee and a big tin ashtray fell and may have hit" the mother. He denied assaulting M in the town centre on 24^th February. He said that, "Nowt happened," there had not been an argument. He said he was not a violent person at all. He had not engaged with Evolve because he did not have a problem.
40. He said he did have difficulty cooperating with people in authority if they were not doing to do their job. He denied having any mental health problems. He said he had sectioned himself in 2012 but was discharged because it was just due to drink and drugs and he had taken himself off each of them. Asked if he would accept local authority visits if Y was in his care, he said, "Nae bother. Any social worker can come in my house," and, asked to explain why M made complaints about his behaviour, particularly in February, he said the only explanation he could offer was that she was then blaming him for Y being taken off her. That was his evidence. As I have said, M declined absolutely to give any evidence.
41. The guardian had made considerable efforts to contact M and finally did the day before the hearing, having met with Y shortly before that and found her to be happy and relaxed, willing to speak to her alone. She described her as an open child who was not in any way guarded and spoke freely. She was very anxious to tell the guardian that M's belief that her grandmother was telling her what to say was untrue. She told the guardian that she had no worries. She did not want to talk about F.
42. Identifying Y's need for stability, consistency and safety in circumstances where Y has a reasonable awareness of her current situation, she said she could not support M's proposal because of the lack of evidence of engagement or willingness to work with the grandparents in the future. By contrast, MGF and MGM were tried, tested, committed and well able to meet her needs. Given Y's urgent need for a permanent decision, she recommended that the court accept the local authority plan.
43. She told me that, having heard M's change of position, there was nothing she wanted to alter and that she thought monthly contact for Y with M was a reasonable plan. She was satisfied it met Y's needs. She, like the court, had wondered whether a supervision order might be merited but was satisfied that the child in need arrangements would be sufficient. Cross-examined on behalf of M, she was asked about the family group conference and she thought that it should take place but only sometime after matters had been allowed to settle and the parents' reaction to the decision monitored, not least because their positions keep changing. I should record the fact that when her counsel asked the guardian about the family group conference, M in a loud stage whisper said to the court, "I'm not doing it."
44. She said that M would need to evidence over time that she was not undermining the placement, particularly in telephone contact, and avoid asking questions that were inappropriate. She was quite clear, on being challenged, that Y was not a guarded child. The complete opposite was the case. She said had there been worries about the way the grandparents were perhaps not promoting M, she felt it would have been very clear from Y, if not to her, the guardian, but to the social worker.
45. M's proposal that foster care would be better than care by the grandparents was characterised by the guardian as completely inappropriate. Asked some questions by F, she made it clear again that at the present time Y does not want to talk about her father. She recognises that Y has some knowledge that it would be better that she should not have, namely a belief that F had hurt M, but she said that what needed to happen was for her happy and secure position to be built upon. That was the evidence.

The law

46. Care proceedings involve two principal questions. First, are the threshold criteria for making the care order under section 31 of the Children Act satisfied? Secondly, if so, what order should the court make? In this case, it is disputed that the threshold criteria are satisfied. The local authority invited the court to make the following four findings of fact, namely:

(i) that F has a chaotic presentation and lifestyle and misuses illicit drugs and alcohol;

(ii) the parents have a volatile relationship;

(iii) that Y is likely to suffer impairment to her social behaviour and psychological development if exposed to this presentation and lifestyle; and

(iv) M does not demonstrate recognition of the likely harm to Y as a result of F's behaviour and lifestyle and is therefore unlikely to protect Y from harm.

47. Mr Thornton, in closing on behalf of M, argued that none of those factors were made out because there was no evidence of volatility, but the local authority has twice sanctioned the return of Y to M's care and therefore there is insufficient evidence to meet the threshold. I have therefore considered the very extensive evidence presented to the court, including that particularly from F and such evidence as I can from the M. She, of course, declined to give oral evidence so has not been cross-examined on what is really a very short, very late and incomplete statement and so the weight that can be attached to her evidence is really very limited indeed.

Findings

48. The first of the findings concerns F: there is considerable evidence in support of his chaotic presentation. I refer to the evidence of Dr Ince in the previous proceedings already quoted and the chaotic presentation that was evident throughout the litigation as well as up to and including the final hearing. He was unable or unwilling to engage in assessment. Although raising practical issues regarding travel and cost, his own evidence to me was that he did not see the necessity for a risk assessment. "Why should the social worker sit in the room and intimidate me and harasses me?"
49. His hostility towards the local authority has not just been apparent in court. It was vocalised at very frequent intervals but it mirrored exactly what the social worker told me. Although he could be pleasant at times, he is unpredictable, he becomes irate and finds it impossible to focus on the issue in hand or engaged on the agenda. I accept the social worker's evidence in that regard as it was wholly consistent with what the court itself observed.
50. He is unwilling to accept responsibility for anything himself and focuses all blame on to others, notably the police and the local authority, but in the course of the history, despite what he now says, on M as well. There is no current evidence of drug or drink. It was, I found, in the past a significant problem. He did not engage with Evolve. If he is clear of drugs now and he is drinking responsibly as he indicates, that is good, but it remains an unassessed risk and the court cannot accept an assertion of self-abstinence alone as a sufficient basis for a finding that he no longer misuses either.
51. The second matter, the volatility of the relationship, emerges from the history as well. Whilst it was very difficult to get a clear view of what actually happened in February, M was either assaulted by F and reported it or she made a false allegation of assault. F is being prosecuted for this. It looks as if M may well be in the process of withdrawing the complaint that was set out in considerable detail in a six-page witness statement that she made to police on 24^th February which the court has seen.
52. I can make no finding on the evidence I heard as to whether there was an assault or not. I simply heard no evidence other than F's denial that it had happened but the history of this complaint alone points to a dysfunctional, unstable relationship which is a hallmark of volatility. There is other evidence of arguments, an assault in Gateshead, of M being too scared to attend the Civic Centre, of the occasion witnessed by the social worker when F came out of the house brandishing an iron bar which, I accept, was threatening, as well as Y's exposure to argument. The court has witnessed at first hand a complete lack of self-regulation that it has found very alarming indeed. Accordingly, this finding is overwhelmingly made out.
53. These findings feed directly into the risk of harm to Y. It is considerable. Children who are exposed to chaotic lifestyles, to drug or alcohol abuse and volatility, domestic abuse, are harmed. They are frightened by it, they are confused by it, they have no reliably safe, consistent or stable base and it is well known that it harms their social, behavioural and psychological development affecting them into their teens and adulthood with the significant risk that it damages their own relations with others, including intimate partners, because they play out what has been normal within their childhood in their own lives but with serious consequences for themselves and their own families.
54. Finally, M's failure to recognise harm. I have really struggled to understand M's behaviour in so many ways. Specifically, there is only intermittent recognition of the risk of harm to Y from F. At present there appears to be no such recognition and so the court cannot have any confidence in her ability to protect Y going forwards.

Welfare – the law

55. So having made each of the findings that the local authority asks me to make, which I have made on consideration of the evidence on the balance of probabilities, the question for the court is what order should it make? In answering that question, I apply well established legal principles. I bear in mind the rights of the parents and Y under Article 8 of the Convention to a respect for family and private life. Under section 1 of the Children Act, Y's welfare is my paramount consideration in the proceedings. Any delay under section 1(2) in making decisions is likely to prejudice her welfare and under section 1(3) there is a checklist of factors to be taken into account to which the court has regard determining where her welfare lies and what order should be made.
56. In this particular case the particularly important elements are Y's needs, the capacity of the parents to meet those needs, Y's background and the harm which she is at risk of suffering. I am satisfied that there is before the court proper evidence from both the local authority and the children's guardian addressing all the realistic options. I do, of course, approach this in a global, holistic manner in order to determine which of the options best meets the court's duty to afford the paramount consideration to Y's welfare.

Discussion

57. In the case of both carers, it is true that prior to 2014 their parenting did not cause any concern. The events of 2014, however, were of concern and whilst it is clear that M impressed the local authority with her understanding of risk and the need to cooperate, that was misplaced to the extent that it was neither consistent nor durable, the events of 2016 plunging Y into the second set of public law proceedings. Unfortunately, M's good progress thereafter abruptly ended because of the argument with her parents.
58. All families have fallings out from time to time but few could be quite as catastrophic for the child concerned as that in May because the consequences have quite simply been that M has substantially removed herself from Y's life. The bewilderment that Y must feel seeking to process the disappearance of her mother can only be guessed at. However strongly M feels about her parents, and the local authority for that matter, it is, since the social worker was so supportive of M at that stage, a strength of feeling that is not really readily explicable. That is particularly so when M has within these proceedings had available to her the ideal vehicle to try and put matters right by, for example, seeking the help of the local authority regarding contact, seeking ultimately the help of the court, if necessary. Instead her response has been to disengage, as I have described, thereby denying herself the remedy that she needed.
59. The court has struggled to understand this at any level. There is, I accept, more than a hint that the relationship with F is not over, that F's statement in June seeking the return of Y to the joint care of her parents is some evidence in support and indeed there is more evidence today, the possible sightings of the parents just in recent times. But M's stance since May has really defied logic and, although desperately sad for a mother who plainly is loved very much indeed by Y, who has the good qualities that the local authority has from time to time identified, her behaviour would not give any confidence that she can reliably and consistently meet Y's needs. There is simply no evidence of appropriate insight into Y's needs at the present time and her proposal to live in a refuge is perhaps as good an example, along with her preference for Y to go into foster care rather than live with her grandparents.
60. Likewise the findings and F's refusal to engage, in particular, means that he remains an unassessed risk who cannot be considered at the present time as an appropriate carer with or without M. So in the final analysis, I accept the guardian's and the local authority's submission, supported by Miss Harmer, that Y desperately needs a decision which is a durable one. It is bad enough for a child to go through care proceedings. It is so much worse for it to have happened twice. The risk of any further proceedings, so far as Y is concerned, must be reduced to the absolute minimum.
61. MGF and MGM have, as I say, stepped up to the plate in a way that gives great confidence that Y's needs will be met and it is fortunate for Y that this so and I have considerable confidence in their ability to work with professionals through the very difficult issues that will lie ahead. At the present time, I accept that with a child in need plan, there is sufficient formal support available for there to be no need to make a supervision order and, since the court must consider the least interventionist approach, I do not make such an order.
62. So far as contact is concerned, I approve the plan as it has been advanced as being the only realistic one in respect of each mother and father. I accept the merits of a family group conference although agree entirely with the children's guardian that the dust will have to settle. As I said when Mr Thornton asked the guardian about a family group conference, M was muttering that she would not engage. I very much hope that she will revisit that view in the fullness of time. Likewise, the local authority proposal for M to confirm contact ahead of it taking place and for the grandparents to suspend contact if two are missed are necessary and appropriate precautions to ensure that Y is not let down, disappointed and thereby harmed. M does seem to have some understanding of the need for that as the guardian was able to report directly from her own experience.
63. F needs to do work of his own and to undergo assessment by the local authority to determine its efficacy. He is presently not in a place where he shows any indication of doing that. Y is equally resistant to direct contact or indeed indirect contact and her reasons are very clear. So there can only be indirect contact by means of letters and the like until such a time as some work has been done and it is proper to either reinstate telephone contact or to consider direct contact.
64. In all of the circumstances therefore, having regard to the factors that I have referred to, I make a special guardianship order in favour of MGF and MGM which will confer on them the enhanced parental responsibility to make the important decisions that will need to be made for Y as she grows up, including decisions with which F and M may from time to time disagree. That is a necessary power to be afforded to them to ensure that Y's needs are met. This is an order that is less permanent and immutable than adoption but is more so than a simple child arrangements order. It is, I stress, a long-term order intended to endure to Y's minority to enable a relationship between Y and her grandparents as her primary carers to develop, ensuring at the same time that Y remains within her family and it is earnestly to be hoped that relations with her parents can be promoted but whether they will be will depend very much on how they behave going forwards.
65. I had previously indicated that the audio recording is to be seized. Should it come to the attention of anyone I still hope that that is the case but regardless, if contrary to the contention that there was certainly ten days ago no copy, its publication or dissemination in any form is prohibited and will amount to a contempt of court which on proof will carry with it the sanction of imprisonment and the final order must reflect the seriousness with which the court views that particular issue.
66. I wish Y and her grandparents well. I very much hope that with time these parents or at least one of them can reflect on what has happened to their daughter and that they can take some measures with help for fences to be mended but that is the order that the court makes.
[Hearing ends]