England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT at Manchester
IN THE MATTER OF THE CHILDREN ACT 1989

		Manchester Civil Justice Centre 1 Bridge Street West, Manchester. WC2A 2LL
		19th February 2017

Introduction

1. I am concerned with the interests of three children the eldest of whom is a girl to whom I will refer as A1 for purposes of anonymity who was born on the 15^th May 2000 and is 16 years old; the next two children are boys who are A2 born on the 26^th June 2001 who is 15 years and 7 months old and A3 born on the 17^th July 2002 who is 14 years and 6 months old. I will refer to the parents and other family members by their initials. Their mother is NG and their father is AAC and to whom I will refer for convenience where appropriate as the 'mother' and the 'father' without intending any disrespect to either. The mother and father were married but were separated during the civil war in Somalia in 2002. The father was believed by the family to be dead. In 2002 the mother married SAO in Somalia after her youngest child, A3 was born. In 2006 the mother came to the UK leaving her children in Somalia in the care of SAO.
2. The children came to the UK in January 2008 and joined the mother who was then living in Bristol. She and the children moved to Manchester in 2009. They were then joined by SAO. The mother and SAO divorced in 2010 and SAO moved to London since when neither the mother nor the children have had any contact with him.
3. The mother has three other older children of whom AAC is also the father. Her first child is a girl, FAA, who is 21 years old, the second child is a boy, MAA, who is 19 and the third is also a boy, AAA, who is 18 years old.
4. In 2013 the mother discovered that AAC was in fact alive as he contacted her by telephone. They have remained in contact by telephone since and she asserts that they re-married over the telephone in January 2015. They are not living together since the father lives in Kenya although the mother has asserted that he will be joining her here in the UK in the near future. It is believed that the father has parental responsibility for all six of the mother's children as she says he is named on their birth certificates. He has played no effective part in these proceedings and has not been present or represented throughout this hearing.
5. The mother says that the older children met their father in Somalia and may have some memory of him but that the younger ones have never met him and have no memories of him. They have occasional telephone contact with him.
6. The applications before the court made by the applicant local authority, Manchester City Council, are for care orders in respect of the children, A2 and A3, pursuant to section 31 of the Children Act 1989 in an application issued on the 27^th May 2016. Although A1 was joined in the application at a hearing on the 22^nd June 2016 no order is being sought by the local authority in respect of her.
7. The principal issue with which the court is concerned in relation to these proceedings is whether the 'threshold criteria' required by section 31 (2) of the Children Act 1989 has been established so as to permit the court to consider A1, A2 and A3's welfare in accordance with the checklist of factors set out in section 1 (3) of the Children Act 1989 and, if the threshold is found to be established, then what, if any, order should be made in respect of each of them.

Circumstances leading to the proceedings

8. A1, A2 and A3 have been subject to a Child Protection Plan since June 2015 under the category of neglect and physical abuse. Despite Child Protection Planning and support from services, the local authority maintains that the mother has consistently failed to acknowledge the issues raised by professionals who are working with the family, resulting in minimum progress being made within the Child Protection Plan.
9. A2 has alleged physical abuse by his mother and his older brother and these allegations are set out in the local authority's grounds for the application at B10-B11. In summary, A2 has disclosed:

(i) On 11 April 2015, he disclosed to his school nurse that his older brother, AAA, was right about the abuse within in the home [AAA had attended Youth Court on 25 March 16 stating that his mother and brother beat him with sticks and belts];

(ii) On 11 June 2015 he disclosed in school that he had been whipped by the mother and showed marks on the back and front of his chest;

(iii) On 16 November 2015 he disclosed in school that his eldest brother, MAA, had bitten him.

(iv) On 25 January 2016, he disclosed in school that on the 23^rd January 2016, MAA head-butted and punched him in the face and made threats to hurt him further if he left the room or told professionals; and

(v) On 28 February 2016 there was a verbal domestic incident between MAA and A2 and the police were called.

10. The precipitating event which led to proceedings being issued was that A1, A2 and A3 were all made subject to police protection on the 4^th March 2016 as a result of an incident of what the local authority describes as physical chastisement within the home. On the 4^th March 2016, A1 disclosed that the mother forcibly pulled out two chunks of her hair following an argument. A1 had a child protection medical on the 7^th March 2016 by Dr McArdle whereby the following was noted: 'On the scalp, several centimetres back from the hairline to the right of the midline of scalp was a bald area approximately 5cm by 5cm. There were 1 or 2 short hairs within this area. Several centimetres behind this area and also to the right side of the midline of the scalp was another smaller bald area approximately 1cm by 1cm'. Dr McArdle concluded that "in my opinion the 2 bald areas on the scalp have been caused by another person and are non-accidental in origin."
11. All three children were placed together in foster care on the 4^th March 2016 and the mother signed a section 20 agreement for the three children to remain in foster care on the 7^th March 2016. A1 turned 16 years old on the 15^th May 2016 and provided her own consent to be accommodated on the 12^th July 2016.
12. There are also concerns that the mother has neglected the children's health needs, as set out in the application at B11.
13. The children's two older brothers, MAA and AAA are alleged to be involved in criminal activities which the local authority says puts the children at risk of emotional and physical harm. AAA's offences are for robbery, possession of cannabis with intent to supply and possession of a bladed article. MAA also has offences for possession of cannabis with intent to supply, as well as possession of an offensive weapon in a public place and robbery. Both are said to be involved in a local gang and MAA is said to be described by the police to be a key member. On the 14^th May 2016, a male from the gang was stabbed and run over by a vehicle and later died as result of his injuries. MAA was subsequently served with a Threat to Life Notice which was rated a 12 (medium risk) and, as a result, it is said that he is not permitted to have any contact with children due to the risk of him being targeted by the rival gang members. A2 has openly discussed that MAA has been arrested at home for selling drugs, which he described as 'scary'. The local authority contends that the mother has little parental control over AAA and MAA and minimises their involvement in criminal activity.
14. The application for the care orders was issued on the 27^th May 2016 and on the 22^nd June 2016 interim care orders were made in respect of A2 an A3 until the finalisation of the proceedings.

Progress of proceedings

15. The proceedings were allocated to Her Honour Judge Kushner QC for case management and hearing. There was a Case Management Hearing on the 22^nd June 2016 when interim care orders which were not opposed by the mother were made in respect of A2 and A3. A1 was joined in the proceedings as a respondent although no interim order in respect of her was made given her age since she remained accommodated by the local authority in placement with her two brothers, A2 and A3 where she was said to be content. On behalf of the mother it was indicated that she did not accept the threshold was appropriate and raised for consideration the need for the children to give evidence. It was also contended that the local authority had not complied with its guidance for Culturally Appropriate Practice and she might seek an assessment by AFRUCA (Africans Unite Against Child Abuse). The mother identified a cousin, an uncle and another cousin and his wife as persons to be assessed as potential carers for the children and screening assessments of the two considered most suitable at a Family Group Conference to be held in the next week were to be completed by the 15^th July 2016. Time was given to the local authority to seek advice regarding Somali heritage and culture, and to explore other resources at Somali Community Centres or elsewhere to provide parenting or other support services to the mother as well as obtaining information from criminal justice agencies in relation to MAA and AAA. The proceedings were listed for a Further Case Management Conference on the 9^th August 2016.
16. At the FCMH on the 9^th August 2016 the local authority had referred the mother to a parenting course which was to start in September. The boys A2 and A3 had informed the guardian of their wish to return home to the care of the mother while A1 was happy to remain in foster care. The mother sought information from the local authority as to the housing options available for her two older boys, MAA and AAA, both of whom were now subject to Threat to Life Notices from the police. The court was informed that all the persons put forward by the mother for consideration as potential carers for the children had withdrawn from the assessment process. Permission was given for the mother's solicitor to instruct AFRUCA to provide an initial assessment of the mother which was to be filed and served by the 9^th September 2016. The proceedings were listed for a Further Case Management Conference Hearing on the 29^th September 2016.
17. On the 29^th September 2016 the court was informed that the boys A2 and A3 had returned home to live on the 8^th September 2016. The court refused the local authority's application to substitute interim supervision orders in place of the interim care orders for the boys. The court was informed that AAA was in custody on remand and no longer living in the family home and MAA was said by the mother to be living with a friend. The AFRUCA assessment concluded that the mother did not accept the safeguarding concerns of the local authority. This was confirmed by the mother who did not accept that the threshold was crossed. The local authority proposed no further assessment of the mother. The proceedings were listed for a directions hearing on the 6^th October 2016.
18. The directions hearing actually took place on the 11^th October 2016 since the judge had not been available on the 6^th. The boys A2 and A3 remained living at home. Concerns were raised as to A2's behaviour at school deteriorating since he had returned home. It was confirmed that AAA remained in custody on remand until the 17^th February 2017 and that MAA was not residing in the family home. The mother did not accept that physical chastisement has occurred in the family home. She accepted that the children had made such allegations but asserted that the children have not been truthful. She accepted the medical evidence within the bundle and confirmed that the only witnesses required for the final hearing were the social worker, the guardian and herself. The proceedings were listed for a three-day final hearing listed before Her Honour Judge Kushner QC to start on the 7^th December 2016.
19. Her Honour Judge Kushner QC was not available to hear the case on the 7^th December 2016. The matter went before His Honour Judge Allweis who gave directions for updating information to be filed and served and adjourned the final hearing which he then provisionally listed before Her Honour Judge Newton on the 24^th, 25^th and 27^th January 2017. The court was informed that the local authority was originally intending to seek supervision orders in respect of the boys, A2 and A3, on the basis of them remaining living at home with their mother but had now changed its care plan with a view to seeking care orders to support long term foster care placements since A2 had returned to foster care at his own request on the 21^st November 2016. This was said to be due to an incident with MAA on the 13^th November 2016 following MAA's return home on the 6^th November 2016. The mother denied that MAA had returned home and asserted that A2 had returned to foster care because he had wanted a new mobile phone which she had refused to buy for him immediately. The guardian supported the making of care orders for the boys but considered that A3 should remain at home with the mother unless he indicated his agreement to return to foster care. The mother had intended to take A3 to Holland for a niece's wedding between the 23^rd December 2016 and the 6^th January 2017. The court ordered that A3 could not attend and should remain in the jurisdiction.
20. On the 20^th December 2016 the proceedings were allocated to me to hear the final hearing as a Deputy Circuit Judge commencing on the 25^th January 2017 with a 3-day time estimate.

The parties' positions

21. The local authority position is that it seeks care orders for A2 and A3 based on its care plans on the basis that they should be placed in long term foster care in the placement where A1 and A2 are currently living and with whom A3 was also placed for the 6-month period before he returned to his mother in September. The local authority proposes that there should be supervised community based contact between A2 and A3 and their mother each week for one and a half hours. So far as A1 is concerned the local authority does not seek any order given her age. It is now understood that A1 has recently been saying that she is intending to return home to live with her mother.
22. The children's guardian supports the local authority's proposal for no order to be made in respect of A1 and its plan for A2 to remain in long term foster care under a care order. So far as A3 is concerned, he supports the making of a care order but considers that in view of his wishes in light of his age he should not be removed from home unless the current risks deteriorate further.
23. The mother is content with the proposal in respect of A1. She opposes the local authority's plan for A2 and A3. She disputes that the 'threshold criteria' are established and wants A2 returned to her care and for A3 to remain living at home with her. She considers there is no reason why A2 should not be returned to her care although she is aware that is not his wish.
24. I heard evidence from the key social worker, Ms S, the mother and the children's guardian. At the conclusion of the evidence on day three, I gave directions for the filing and service of written submissions by the 6^th February 2017. I indicated to the parties that I would take time to prepare a judgment which I would hand down in type script by no later than the 17^th February 2017. The proceedings are listed for hearing for judgment and any consequent directions or orders to be made at 2.15pm on the 24^th February 2017.
25. On the 10^th February 2017 the local authority made an application for permission to adduce further evidence in view of further information which had come to light. I listed that application to be heard on the 17^th February. I have dealt with the issues relating to this application at paragraphs 124 to 137 below. Although the dissemination of the judgment has been slightly delayed the hearing listed on the 24^th February for it to be considered and orders made consequent upon it still stands. This is the judgment.

Legal Framework

26. A care order or supervision order may only be made on the application of a local authority if the Court is satisfied that the "threshold criteria" under Section 31(2) Children Act 1989 are established. Section 31(2) provides that:

"A court may only make a care order or supervision order if it is satisfied – (a) that the child concerned is suffering or is likely to suffer significant harm; and (b) that the harm or likelihood of harm is attributable to the care given to the child or likely to be given him if the order were not made, not being what it would be reasonable to expect a parent to give him; ……..."

27. Section 31(9) defines "harm" as meaning ill-treatment or the impairment of health or development and "development" as meaning physical, intellectual, emotional, social or behavioural development and "health" includes both physical and mental health.
28. If the threshold is established, the court then has to pass on to the 'welfare' stage with a view to considering what, if any, order is to be made. Consideration of this requires me to have regard to section 1 of the Children Act 1989 and to treat the child's welfare as paramount and to apply the 'welfare checklist' or relevant parts of it in arriving at my decision.
29. The "welfare checklist" is set out in section 1(3) of the Act and requires the court to particular regard to:

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(c) the likely effect on him of any change in his circumstances;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable are each of his parents, and any other person or relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the range of powers available to the court under this Act in the proceedings in question."

30. An order should only be made if I consider that making an order is better for the child than making no order at all. If the court considers that an order is necessary it should go on to consider the range of options available to it, which include where appropriate private law orders under section 8, Special Guardianship Orders under section 14A as well as supervision or care orders under section 31. Before making a care order the court has to consider the local authority's permanence provisions in its S31A care plan for the child and its proposals for contact between the child and any relevant person.
31. The court should only make such order as the facts require, and only then in compliance with the principles of necessity and proportionality set out in Article 8 (2) of The European Convention on Human Rights and Fundamental Freedoms 1950.
32. Given the issues as to the 'threshold criteria' which arise in this case, I make these further observations in relation to the law which must be applied. Firstly, in order to establish that a child has actually suffered significant harm, the court must be satisfied on the balance of probabilities that the child was actually harmed. Second, if the case is based on the likelihood of future harm, the court must be satisfied on the balance of possibilities, that the facts upon which that prediction is based did actually occur; it is not enough that they may have done or that there was a real possibility that they did. Re S-B (Children) [2009] UKSC 17, [2010] 1 FLR 1161
33. The applicant must satisfy the court that there is a risk that the child is likely to suffer significant harm in the future. In this sense 'likely' means a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in a particular case. Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563
34. The relevant date for determining whether a child is 'likely to suffer' significant harm is the date upon which the local authority initiated arrangements to protect the child, provided such arrangements have been continuously in place until the court's decision on the 'threshold criteria'. Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 FLR 577
35. The Supreme Court considered issues in relation to the 'threshold criteria' in the cases of In the matter of J (Children) [2013] UKSC 9 and In the matter of B (A child) (FC) [2013] UKSC 33 and provided helpful guidance in the task that judges are required to undertake. At paragraph 192 of In the matter of B (A child) Lady Hale sets out the following –

"…. where the threshold is in dispute, courts might find it helpful to bear the following in mind:

[1] The court's task is not to improve on nature or even to secure that every child has a happy and fulfilled life, but to be satisfied that the statutory threshold has been crossed.

[2] When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development.

[3] Significant harm is harm which is "considerable, noteworthy or important". The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened.

[4] The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect.

[5] Finally, where harm has not yet been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents' future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a "risk" is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely: see In re J [2013] 2 WLR 649.

36. In the matter of J (Children) at paragraph 44 Lady Hale reminds judges and others that –

"Time and again, the cases have stressed that the threshold conditions are
there to protect both the child and his family from unwarranted interference by the state. There must be a clearly established objective basis for such interference. Without it, there would be no "pressing social need" for the state to interfere in the family life enjoyed by the child and his parents which is protected by article 8 of the ECHR. Reasonable suspicion is a sufficient basis for the authorities to investigate and even to take interim protective measures, but it cannot be a sufficient basis for the long term intervention, frequently involving permanent placement outside the family, which is entailed in a care order."

37. Pertinent to the issues under consideration are some of the observations made by Black LJ in Re P (A Child) [2013] EWCA Civ 963 at paragraph 112 where she said

"Care cases involve "professional evaluation, assessment, analysis and opinion" (ibid) brought to bear on facts. As the President said, we need to distinguish clearly between what is fact and what falls into the other category which, for the sake of argument, we might loosely call the processing of the facts. The assessment and opinions of social workers and those of other professionals will only hold water if the facts upon which they proceed are properly identified and turn out actually to be facts."

And paragraph 115 –

"Where a parent does not accept what is asserted in the threshold statement, or only accepts it in part, as here, it will be necessary for the parties to consider what to do about this. Allegations which are denied are not facts. If the local authority need to rely upon them as part of their case, they will have to produce the evidence to establish them."

38. I have also given consideration to the more recent decision of the President in Re A (A Child) [2015] EWFC 11 in relation to his discussion of issues raised in connection with the threshold in which he emphasises the above. At paragraph 9 of his judgment he says

"…the local authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove. Much material to be found in local authority case records or social work chronologies is hearsay, often second- or third-hand hearsay. Hearsay evidence is, of course, admissible in family proceedings. But………a local authority which is unwilling or unable to produce witnesses who can speak to such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness box to deny it."

39. If the court finds the threshold criteria are satisfied and that an order is in the child's interests, it is for the court to decide whether a care or supervision order is the more appropriate order to make. When determining which of a care order or a supervision order is appropriate the court should make an assessment of the likelihood of future harm to the child and then weigh that harm against the harm that would follow the child being removed from the care of his parent. Re S (Care or Supervision Order) [1996] 1 FLR 753 A care order rather than a supervision order should only be made if the stronger order is necessary for the protection of the child. Re B (Care or Supervision Order) [1996] 2 FLR 693 In a case where the balance between a care order and a supervision order is equal, the court should adopt the least interventionist approach. Re D (Care or Supervision Order) [2000] Fam Law

The Evidence

Threshold Criteria

40. The Amended Final Threshold Statement is to be found at page A28 of the bundle There is an issue as to the threshold being crossed and the mother takes issue with the facts relied on by the local authority at paragraphs 4 to 9 inclusive. I will come back to review the threshold in due course following consideration of the evidence as set out below.

Reports and Assessments

41. A number of medical, school and other reports in respect of the children have been filed in the proceedings along with an assessment of the mother undertaken in the proceedings by AFRUCA in addition to the statements of the social worker, the mother and the two Case Analysis Reports from the guardian. The reports which I have read and considered along with the rest of the evidence in the bundle are the following: -

1) Medical report in respect of A3 by Dr Caroline Willey, Associate Specialist Community Paediatrician, dated the 15^th June 2015. [C1-10]

2) Medical report in respect of A2 by Dr Caroline Willey, Associate Specialist Community Paediatrician, dated the 15^th June 2015. [C11-20]

3) Medical report in respect of A2 by Dr Jane Hardy, Consultant Paediatrician, dated the 18^th November 2015. [C21-32]

4) Medical report in respect of A2 by Dr Elizabeth Dierckx, Consultant Paediatrician, dated the 2^nd February 2016. [C33-43]

5) Medical report in respect of A1 by Dr Maureen McArdle, Consultant in Paediatrics and Community Child Health, dated the 16^th March 2016. [C45-55]

6) Report from Safeguarding Co-ordinator at XX High School dated the 20^th June 2016. [C97-C105]

7) Report from JB, School Nurse, dated the 11^th July 2016. [C113-C130]

8) Report from Probation in respect of MAA dated the 3^rd August 2016. [C140-141]

9) Youth Justice Service Report in respect of AAA dated the 3^rd August 2016. [C142-C146]

10) Report from Safeguarding Co-ordinator at XX High School dated the 4^th November 2016. [C186-C189]

11) AFRUCA Assessment Report in respect of the mother by Tom Stephenson, social worker, dated the 8^th September 2016. [E13-E49]

12) Cafcass Case Analysis Report by children's guardian, SH, dated the 21^st June 2016. [E1-E12]

13) Updated Cafcass Case Analysis Report by children's guardian, SH, dated the 6^th December 2016. [E50-E60]

Medical Reports

42. The first report of Dr Willey in respect of A3 concludes that none of the marks seen on A3 were suggestive of physical chastisement. He showed signs of poor dental hygiene and needed a diphtheria, tetanus and polio vaccination. In her report on A2 although she describes some 18 marks seen on A2's body in examination she describes a mark on the back of the neck as being 'unexplained but concerning'. She confirmed that 'there was nothing definitely seen that was caused by a belt or cable' but said the 'whole history regarding this family is quite concerning particularly history of different stories being given and changed at times'. He too needed an update on his vaccination and dental assessment.
43. Dr Hardy saw A2 following a disclosure that MAA had bitten him. She records the mother as saying that 'A2 is a liar and he says what he wants to say. No one did anything to him. He is very loved.' A2 had said he had been bitten on the shoulder by MAA and two days later had been punched and slapped by him. The doctor observed most of the injuries which had been seen by Dr Willey in the earlier medical in June but also saw 'a series of scabbed marks in a semi-circular/arched orientation' on the right shoulder. The marks were consistent with the history of A2 being bitten.
44. Dr Dierckx saw A2 after he alleged he had been assaulted by MAA while his mother was out at a wedding on Saturday, 23^rd January 2016. Although A2 had initially said he was punched that was changed to being slapped but also said he had been head-butted and his nose bled. He said he was punched a second time by MAA and had discharge from his right ear. On examination she identified 'no new marks or injuries' around the face and there were no areas of swelling.
45. Dr McArdle saw A1 on the 7^th March 2016 following the allegation that the mother had pulled some of her hair out on the 3^rd March 2016. She described A1 as being quiet and subdued and reluctant to talk in any detail about what had happened. The doctor described two bald areas on A2's scalp one which measured 5cm x 5cm and the second 1cm x 1cm which represented areas where the hair had been forcibly pulled out. Her opinion was that they had been caused by another person and were non-accidental in origin.

AFRUCA Assessment

46. AFRUCA completed an initial assessment dated 8^th September 2016 as indicated above. The focus of the assessment was to explore the mother's insight of the local authority's concerns and her understanding of physical chastisement and cultural ideas around this. The report highlights that the mother paints a very different picture of family life at home which is at odds with evidence filed in these proceedings. The mother reports that 'both MAA and AAA are respectful and pleasant' [E19] and 'everyone in the family is very good to each other' [E21]. The mother does not accept that her older sons are in a gang [E30], and maintained her position that there is no physical chastisement within the home, by either the older brothers or herself as she does not believe in physical disciplining [E31].
47. When asked to describe in her own words why she felt the local authority was concerned and why the children were in foster care, 'she said that it was social services' doing' [E33]. The mother does not accept that she is not in control of her house [E36] and 'is fully confident in her own ability and doesn't see the need for outside support' [E36].
48. The assessment identifies that, 'In the context of these Proceedings, the difficulty is that (the mother's) minimisation leaves a lot of unanswered questions and leaves professionals attempting to manage a lot of risk to the three younger children. It also presents a further risk in that if (she) does not accept the safeguarding concerns presented to her, then the younger children's behaviour difficulties (as observed by school) could continue and subsequently escalate, as has happened with MAA and AAA' [E43].
49. Furthermore, '(The mother) has clearly stated within this assessment that she understands that physical chastisement is not acceptable within the UK context…. [E44], (she) seemed to downplay the use of physical chastisement as a means of discipline within the Somali context…. [E45] I understand that there may need to be findings made on this issue given that (she) does not agree with the evidence presented by the Local Authority, based on the disclosures of her children, but in the Somali context, it would not be at all strange for (her) to use it when challenged by her children or when she experiences particularly difficult behaviour. Beyond these general comments about the cultural use of physical chastisement, there is little further to add on this issue because (the mother) did not accept the accounts of the children' [E45].

Ms S, social worker

50. The first witness from whom I heard was Ms S who has been the allocated key social worker for the children from October 2015 when she started working for the local authority. She has been responsible for writing a total of six statements in the proceedings which are the initial SWET dated the 25^th May 2016 at C58-96, updating statements at C148-158 and C159-171; the final SWET dated the 2^nd November 2016 at C172-185; an updated final SWET dated the 24^th November 2016 at C190-201 and a statement at C206-209 which is dated the 12^th January 2017.
51. In her initial SWET, Ms S set out the detailed social work chronology between April 2014 and May 2016 including referrals from the police in respect of MAA and AAA and the Young Offender Service and the NSPCC regarding A1 together with the history of the local authority involvement since the Child Protection Plan was implemented in June 2015. She records in some detail A2's disclosures of physical chastisement by his mother in June 2015 when he said he had been whipped by her although this was not supported by the medical evidence and the police found his account to be to be disjointed and inconsistent and a decision was made that it would be safe for him to return to his mother's care. She sets out the detail of a number of incidents where A2 was assaulted by MAA including being bitten on the shoulder in November 2015 when trying to break up a fight between MAA and his older sister which the medical evidence confirms; a further incident in January 2016 when MAA had head-butted him and hit him in the face and made other threats of harm against him at a time when his mother was at a wedding; an incident on the 28^th February 2016 when the police were called by the mother who was not able to deal with MAA. She also details the events of the assault on A1 by the mother on the 3^rd March 2016 when she had two clumps of her hair pulled out in the course of an argument about not wearing a head scarf outside the home which was confirmed by the medical undertaken by Dr McArdle on the 7^th March 2016.
52. She dealt with the criminal history of the two older boys, MAA and AAA, including the police intention to serve a Threat to Life notice on MAA as a result of his gang involvement. In addition, she outlined details of the circumstances where the mother had failed to meet the health needs of the children during the period since June 2015 when the Child Protection Plan was implemented.
53. Although there are significant issues in relation to overcrowding, the home conditions are described as being generally to a good enough standard in terms of cleanliness and tidiness. The mother was considered to demonstrate warmth to the children in contact and they all have the support and love of their eldest sibling, FAA. The children are generally healthy and had a good school attendance. Ms S addressed the welfare checklist issues in relation to the boys in considerable depth as well as undertaking a detailed analysis of the mother's parenting capacity as a basis for supporting the local authority plan for the boys, A2 and A3, to remain in foster care while the proceedings progressed.
54. In her second statement Ms S addressed issues in relation to A1's needs and considerations in respect of support services which had been identified for the mother and her engagement with those. She also described the joint visit she made to the mother with a police officer on the 28^th June 2016 to discuss the Threat to Life notice in respect of MAA and observed that the mother did not appear to take on board the seriousness of the issue.
55. The third statement was to deal with steps or services which could be offered to help both MAA and AAA move out of the family home. This was a difficult issue for both MAA and AAA and they were both defensive and argumentative and refused to leave home unless the court told them the reasons why this was required. The mother gave MAA and AAA support and encouragement as a result of which they both went presented themselves as homeless the following day.
56. In addition, this statement deals with the steps taken by A2 and A3 to leave their foster placement and return home on the 8^th September 2016 and the strength of their views about not returning to their foster carers even though their sister, A1, remained living there. Although the local authority considered that the boys remained at risk of significant harm, it decided to take no action to seek to remove the boys and return them to foster care.
57. In her final SWET dated the 2^nd November 2016 Ms S confirmed that the local authority S31A plan for the boys, A2 and A3, was that they should remain living at home with their mother under a supervision order. This statement describes the difficulties being experienced by school with A2's behaviour which was becoming completely unmanageable and a decision made for him to be part of a 'step out' process involving a two-week period at a different partner school, YY High School, where his behaviour could be closely monitored.
58. Concern is expressed about continuing risk to A2 and A3 based on evidence which Ms S said suggested that the mother had encouraged the children to lie in the past to professionals about family disputes. While acknowledging that the risks MAA and AAA posed to A2 and A3 since they had moved out of the family home had diminished, continuing concern was expressed that the mother demonstrated no insight as to why it was in their best interest and did not accept the risks associated with MAA and AAA being issued with Threats to Life notices.
59. So far as A1 was concerned she remained adamant in her view that she did not want to return home and wished to stay in foster care until she could achieve independence. Her relationship with her mother was described as fractious and the contact between them was very inconsistent. She continued to have a positive relationship with her elder sister, FAA, who she saw regularly and was motivated in terms of her education.
60. A3 at age 14 described positive relationships with his mother, A2 and his two older sisters and considered his relationship with MAA and AAA as being 'just right' and would like them to be able to return home in the future. A3 had not raised any worries in respect of his home life and expressed a consistent wish to remain in the care of his mother. He is described as having well developed social skills and a strong sense of self-worth and being confident with positive peer relationships.
61. Concern is expressed about A2 now showing signs of rebelling and being disrespectful to professionals. He is said to have very limited resilience and describes feeling alone in the family due to being scapegoated for disclosing information about his family life leading to all the professional involvement.
62. A2 and A3 strongly expressed their wish to remain living at home with their mother and would continue to vote with their feet regardless of the local authority's recommendation. It was acknowledged that there had been an overall improvement in the engagement of the mother with the local authority especially since the boys had returned home.
63. In her updated final SWET dated the 24^th November 2016 Ms S confirms that the local authority is no longer pursuing the plan of seeking supervision orders for the boys and intended to seek care orders on the basis of the boys being placed in long term foster care. The change in plan related to the allegations made by A2 in a telephone call to Ms S on the 18^th November 2016 to the effect that MAA had been allowed to return home to live for the last few days and had been aggressive towards him although he had not been hurt.
64. On the 21^st November 2016 A2 alleged that during an argument with MAA on the 13^th November 2016 his laptop had been closed in his face by MAA causing him to suffer a mark under his eye. When A3 was spoken to by Ms S, he denied that MAA had been living back at home as did his mother and eldest sister, FAA, when they were spoken to by Ms S at home later the same day. A2 had expressed a strong wish to return to the foster carers and on the 21^st November 2016 he did so. At C196 Ms S asserts that the mother had not responded appropriately to MAA returning to the property to live which provided further evidence that she does not accept the concerns of the local authority and had not acted in the best interests of her younger children by responding appropriately when MAA had returned home. I make the observation that other than the word of A2 there is no other evidence to support the assertion that MAA had returned home to live.
65. In her final statement dated the 12^th January 2017 Ms S confirmed that A1 had had no contact with her mother since the 24^th November 2016 when she had gone to collect A2's belongings. When she saw A2 on the 12^th December 2016 he had told her he had not spoken to his mother since he had returned to the foster carers in November. A1 did tell her she was having occasional telephone contact with her mother.
66. Ms S said the housing management officer had served the mother with a Notice to Quit which would be effective from the 23^rd December 2016. The rent arrears were over £1500 and Ms S indicated that the housing management officer would review the mother's progress in taking steps to discharge the arrears.
67. Although A3 was upset he had not been able to go to Holland with his mother and had some feelings of guilt because he had told the social worker about the trip (which the court had effectively forbidden at the hearing on the 7^th December) which his mother blamed him for, he had no worries in respect of his home life. His school attendance remained good and his behaviour consistent since he returned to his mother's care.
68. In her oral evidence, Ms S confirmed that she had seen A1 on the 12^th and the 19^th January 2017 when she was indicating that she was thinking about going home as her relationship with her mother was much better. Ms S had told A1 that her current placement may not be available for her in the future if she went home. When she had last spoken to the foster carer Ms S said she had told her that A1 was doubting her decision to return home.
69. She had seen A2 on the 17^th January 2017 and he was aware of A1's wish to go back home but he still remained clear that he wanted to remain in care. He said he would prefer A3 to be with him in care. He had not had any direct contact with his mother since he had returned to foster care. He said he would like some telephone contact with his mother. This had been discussed at the recent LAC review on the 16^th but the mother had said she would not make contact unless A2 contacted her first.
70. She had visited A3 on the 17^th January 2017 and said he had told her he would be okay if the decision made by the court was that he should go into care. Ms S is aware that his loyalty to his mother is important but believed he would go to the foster placement if a care order was made. He had settled well when he was in the placement for the 6 months until September. Ms S was recommending weekly supervised contact between the mother and the boys.
71. She believes the children have said what is true about events at home and have not simply said things because they want to be in foster care because of the mother's rules etc. She says the risks to the children remain very high with the disputes between the siblings being of concern to professionals coupled with the concern that the mother will not act appropriately if MAA returns. She added that there was the risk to health care. Although A3 had remained at home on an interim care order she considered that the risks to him had not diminished because of the mother's denial in relation to the local authority concerns.
72. Under cross-examination by Ms Riley for the mother, Ms S confirmed that despite the family living in overcrowded conditions there had never been any complaint about the standard of cleanliness etc. within the home. She did not criticise the mother for having called the police for help when she could not deal with MAA in January 2016. She had agreed to MAA and AAA moving out in September 2016 but had not understood why it was necessary. She considered MAA had overstepped the mark in his role as head of the household and said she had breached a working agreement when she had left the other children with MAA when he was unsupervised.
73. She said the mother had only agreed to go on a parenting for teenagers group course because she had been told to go. She had so far attended two sessions and had accepted advice. There are 11 sessions on the course. She said the mother had engaged so far and the feedback of her involvement had been good.
74. Ms S said that the mother loved the children but had not been there consistently for them. FAA is a positive role model and has a good relationship with all the children. She has never made any allegations against her mother. She agreed that A3 had never accepted there had been any violence in the home but said she considers he has a lot of loyalty to his mother and has therefore held back.
75. She said that the mother had not tried to force the issue of contact with A2 but that he had spoken to her on the telephone on her birthday. She agreed that A3 had voted with his feet when he returned home in September but had done so with support from A2. She agreed that no one had seen the boys' return home coming when they decided to leave foster and return home in September.
76. In response to Mr Mountain for the children, Ms S confirmed that the foster carer was committed to the future care of the boys and that A3's placement remained open to him. Her concern was that the mother's continued denial of the local authority's concerns meant that the local authority could not manage the risk to A3 if he was living at home. She supported the idea of making a joint visit with the guardian to see A3 if the court decided to make a care order. She felt that A3 would return to care if that was the court's order but conceded that if he did not accept that the local authority would have to manage the risk as best it can. She said the risks have been manageable but considered in February the position may be difficult if AAA is no longer in custody.
77. She expressed concern about the mother not acknowledging the need for support which housing had tried to give her. Any help or support such as from Families First was unlikely to be effective because the mother did not acknowledge the need and did not accept that change was needed. For all that, she confirmed that the children were delightful, articulate young people with no behavioural issues in respect of whom school had noticed improvement.

NG (the mother)

78. In her evidence the mother confirmed that she had filed three statements dated the 22^nd June 2016 [C106], 18^th July 2016 [C131] and the 6^th December 2016 [C202]. Her first statement was a response to the proposed findings set out in section 6 of the local authority's application [B10-B12]. In reply to paragraph 1 She denied that she had physically abused the children or had allowed anyone to hurt them. She accepted there had been some arguments and conflict between the children but said that was normal and likely to happen in every household. She did not know if MAA had been abusive towards his younger brothers and denied that she was unable to manage sibling conflict. The children did what they were told and listened to her.
79. In reply to paragraph 2 concerning allegations of physical harm suffered by A2 from both her and MAA, she denied A2's allegations that he had been whipped by her and other allegations he made. While aware there had been a fight between the children in November 2015 she did not know MAA had bitten A2 as he did not tell her it had happened. She accepted the doctor's conclusion following the examination. She acknowledged that she confronted MAA about shouting at A2 while she was out at a family wedding in January 2016 but said that A2 never told her that MAA had hit him. She denied that MAA had pushed her down the stairs in an argument between him and A2 as A2 alleged had happened in February 2016. Her explanation for her fall was that being diabetic she had felt dizzy and lost her footing. She said MAA had not been in the house at the time as he was outside being spoken to by the police. MAA and FAA had gone to hospital with her when the ambulance came. She agreed that the three children A1, A2 and A3 had been made the subject of police protection on the 4^th March 2016 but denied that she had harmed her daughter, A1, by pulling out her hair. She accepted the conclusion of Dr McArdle.
80. In respect of paragraph 3 she denied that she had told her children to lie to professionals. She also said she had never called A2 a liar.
81. In reply to paragraph 4 in respect of the neglect of the children's health needs she denied that she had failed to make appointments to have the children's immunisations brought up to date. She understood social services were to make the appointments but said she never heard from the social worker about any appointments being arranged. She accepted A2 had missed appointments to see the dentist but gave explanations as to why. She said she sometimes did not understand information which was, she said, being miscommunicated to her because she did not speak English and did not always understand interpreters who spoke different dialects to her. She denied that she had not made appointments to take the children to the doctor when they complained of itchy skin. She said she used the cream prescribed by the doctor and not a cream prescribed for A1 in respect of scabies. She denied the allegation that she had failed to provide the school with a spare Ventolin inhaler for A2. So far as A2's admission for emergency testicular surgery on the 5^th January 2016 was concerned, she accepted that the school had been unable to contact her. This arose because her phone was disconnected. When she returned from shopping that day she found a letter waiting for her which she was unable to read and had to wait for FAA to return home to translate for her. She had to collect A3 from school but after dropping him at home with FAA she immediately went to the hospital but was delayed in traffic. The language barrier prevented her from asking why A2 was having surgery. She denied not being unduly concerned about A2. She denied the suggestion that when A3 had banged his head on the 14^th January 2016 and was being sick when the social worker arrived that she had failed to seek appropriate medical attention for him. She was in the process of taking him to hospital she said but the social worker misunderstood what she was saying as she did not have an interpreter with her.
82. She refuted the suggestions made in paragraph 5 that she had demonstrated little capacity to change and limited insight throughout the Child Protection process. She contends that she has cooperated and worked with social services. She signed the section 20 agreement in March 2016. She contends that some of the difficulties with the social worker arose because the interpreter used did not speak the same Somali dialect as her. She also considered that the social worker did not have insight into her cultural background and religion.
83. In respect of paragraph 6 relating to the concerns about the mother minimising the involvement of MAA and AAA in criminal activity and being members of a gang, she said she accepted that but did not know that MAA was part of a gang and regarded as a key member. She said she did not know the details of offences they had committed because she did not read or write English.
84. She was committed to contact with the children. She did not oppose the interim care orders being sought by the local authority. She said she would welcome going on a parenting course and attending English classes. She loved her children very much and said she wanted them returned to her care.
85. In her second statement the mother sets out some of the background of the family and how she came to the UK and was subsequently joined by the children. She says that contact is going well and says she is now getting along with the social worker. In respect of her housing she said she had no outstanding rent arrears and was now able to bid for a new house. In respect of the allegations which had been made by the children she acknowledged that she had given MAA the authority to be the father figure in the house but had never given him the authority to beat the other children. She acknowledged that MAA and AAA had arguments and have been in trouble with the police but had not been violent towards the younger children. She acknowledged the need to prioritise the younger children and accepted that MAA and AAA need to move out of the house. She repeated her denial of hurting A1 and explained that after an argument about A1 wanting to go out with her friends at 10.00pm she had locked the doors. A1 was angry with her for embarrassing her in front of her friends and threatened her by saying 'You will see what I will do to you.' She explained that her status within the Somali community had gone down because her children were in care.
86. In her third statement filed in December the mother deals with some behavioural issues in respect of A2 at school and how she had spoken to him about his behaviour. She said she did not accept that there were ongoing issues within the house and said 'everyone in the house gets on and it is very peaceful.' She said A2 had been trying to sell his laptop on the 20^th November 2016 because he wanted a new phone. She told him she would buy him a new phone but that he could not sell his laptop because it belonged to the school. He would not listen to her.
87. On the 21^st November 2016 she went to buy A2 a new phone. When A3 came home from school he told her that A2 had gone back to foster care. When the social worker came round to ask for his belongings some two hours later, the mother told her that A2 should come and get them himself. She had not had any contact with A2 since then.
88. She said it was not true that MAA had returned home and stayed overnight. Her contact with MAA who was now staying in a hostel in Wythenshawe was outside the home. She did not know why A2 was saying that MAA had been aggressive to him when he had not been in the family home. She thought she had a close relationship with A2 but thought he had changed since he went into foster care. He did not listen to her or accept any of her advice.
89. Contrary to what she said in her previous statement, she accepted that she needed to pay £1000 rent arrears. She said she would be arranging an appointment to agree a payment plan so that she would not be evicted. Returning to the threshold and the facts relied on by the local authority, she denied all the allegations made against her. She said she had never physically chastised the children or been abusive towards them. She believed that they were making false allegations because they wanted to stay in foster care because they had the freedom to do as they please and go out late at night. She said that both A1 and A2 had started smoking cigarettes and cannabis since they went into foster care. She wanted all the children returned to her care as she loved them and they belonged to her and not with foster carers who were not Muslim.
90. In her evidence-in-chief the mother who was assisted by an interpreter broadly repeated what she had said in her written statements. Their accommodation was temporary accommodation in which they had been for nearly four years since 2013. FAA was now looking for work as the council considered she should be making a contribution to the rent. The house was too small and with 7 people living in it had been overcrowded. The heating system was poor and it was damp and they had mice.
91. She had attended three sessions in the AFRUCA assessment and said she had learnt a lot. She was now doing the parenting course and had attended twice so far. She thought it was helpful to hear other people's experience. She wanted to continue the course which was for a total of 11 weeks.
92. She said AAA was currently in prison and MAA was living in a hostel. He had not been staying at the house and she usually met him in Piccadilly Gardens at a restaurant to see him. A1 had come to see her on Tuesday and had stayed over with her last night. She had taken A1 to school by taxi and then made her way to court. A1 had told her on a number of occasions that she was intending to come home. So far as A3 was concerned he had been at home since September and she had no problems with him. She takes him to school. In his spare time, he plays basketball and is a member of a club and also spends time at the library. He said he wanted to stay and live with her. She would like A2 to come back and live with her. He had spoken to her on her birthday. She was sure he still loved her. She would like social services to help her to see him again.
93. When asked by Ms Porter for the local authority about Dr Hardy recording that the mother had said that A2 was a liar, she said she did not accept Dr Hardy was correct and asserted that she was not present as Dr Hardy had recorded. Although she accepted that A2 had a bite mark she did not believe what A2 said about how it happened. In respect of the incident on the 23^rd January 2016, she did not accept that she was in breach of the working agreement because she had left the children in the care of FAA not MAA.
94. When Ms Porter explored issues which were discussed with the mother within the AFRUCA assessment, it was clear that the mother did not accept or believe that MAA and AAA were in a gang. She did not accept the suggestion that AAA had been fearful for his own safety and clearly minimised issues in relation to both MAA and AAA's offending although, when pressed, acknowledged that they were not positive role models.
95. She asserted that she had never refused support from the school in relation to issues concerning the boys' behaviour. She repeated her denial that she had pulled A1's hair out and maintained that she had never done any harm to A2. She did concede that she had sometimes called him a liar but said she had never blamed the children for social services being involved. In respect of the health issues she said she had never missed any appointments and did not accept the school nurse's opinion that she had failed to prioritise the children's health needs.
96. When cross-examined by Mr Mountain the mother asserted that she was a good mum who would do anything for her children and did not consider that she had done anything wrong in her parenting of her children. She would not do anything different. She said there had only been problems since the social services were involved and they had not helped her in any way.
97. She believed that school attendance was important for the children. She had taught them that telling the truth was important but agreed that sometimes they did not tell the truth. She said A1 had lied about what happened to her hair and that A2 had lied about being bitten by MAA. In respect of what A2 said about being punched or slapped and head-butted by MAA, she said she did not believe it had happened as A2 had described it.
98. She said overall things had been fine at home during the past four years. However, she conceded that she had struggled dealing with MAA and AAA's behaviour and accepted that their criminal activity was on a different scale of seriousness to the usual sort of teenage problems most parents faced. She was reluctant to concede what or how much she knew of their criminal activity despite acknowledging that she had had to attend at police stations and courts with AAA in particular. She denied knowing anything about their involvement in gangs. She did not accept that she had provided a misleading account within the AFRUCA assessment about family life or her descriptions of AAA at E18 and MAA which omitted any reference to their criminal activities.
99. At the conclusion of her evidence the mother addressed the court at some length making an emotional request for the children to be returned to her care and to stop the involvement of the local authority. She asked for kindness saying that she was a single mother who had been trying her best. What she wanted for her children was for them to have a good life.

SH, children's guardian

100. The children's guardian, Mr SH, has prepared two Case Analysis Reports dated the 21^st June 2016 [E1-12] and 6^th December 2016 [E50-60]. At the time of his first case Analysis he had not seen any statement from the mother and had not been able to interview her. He had been able to speak to the boys, A2 and A3. A2 told him he did not want to stay in foster care until he was 18 and "I miss my mum and sister". He went on to say at E7 "(MAA and AAA) are adults and no one can control them, what they do can affect other people…………. I want to go back home but I want some change at home, I want it to be like a normal family." However, when the guardian spoke to A3 about difficulties at home, A3 replied "My mum never hit us, all she did was look after us, I never saw anything wrong." He said "…the house is already safe" when the guardian told him the judge may not allow him home at present because of concerns about his safety. The guardian supported the local authority's position of seeking interim care orders in relation to the boys. Having had the opportunity to speak to A1 when he visited the boys, he recommended that she should be joined in the local authority application so that she could have the benefit of representation and legal advice.
101. In his final Case Analysis Report the guardian recommended that the local authority needed to share parental responsibility for the two boys whether they are living with their mother or in foster care and care orders should be made for them. He supported the current arrangements for the boys' placements which was A2 remaining in foster care and A3 remaining at home with his mother. However, in respect of A3 he recommended at E59 "that the situation with regard to the level of risk to A2 is regularly reviewed and in the event of the risk to him of remaining at home increases, consideration is given to placing him in foster care, even if this is against his wishes." In respect of A1 he supported no order being made.
102. In his analysis of the mother's parenting capacity he reported on his discussion with her in November 2016 when she told him she did not think she had done anything wrong as a parent and had never had any concerns about the safety of her children. The mother maintained that MAA was not involved in the situation (whereby A2 had returned to foster care) and that "It is not true (MAA) is living here." In considering the AFRUCA assessment which highlighted why culturally it would be difficult for the mother to hear of her children's involvement in criminal activity with gangs and drugs and of having social services involvement which might affect the mother's ability to be open with the local authority, the guardian confirmed that it offered no solution as to how to overcome that.
103. A3 had confirmed to the guardian that he just wanted to stay at home with his mother and did not think the social worker could do anything to help him. Although the guardian considered that A3 would be better off in foster care, he acknowledged that if he remained strongly opposed to that he would be unlikely to benefit from such a placement and the safety and stability it would provide if he were to repeatedly abscond. His view was that it would not be in A3's interests to remove him from his mother's care if he was strongly opposed to that.
104. A2 had only returned to foster care a week before the guardian spoke to him but told him "I want to stay here with my sister now. I don't want to say anything about what happened at home – I just want to forgive everything – I don't have to say anything more about it. I want to stay here now...." [E57]
105. In his oral evidence he confirmed that his recommendations remained the same after hearing the evidence. He had seen the boys five times in the proceedings and had also seen and spoken to A1. He described them all as being polite, well-mannered and friendly young people. While A1 was clear she would rather be at home because she found foster care strange, she did not want to be at home because of the ways things were at home. The boys' wishes were as set out in his report. He acknowledged that the social worker had a good knowledge of the children and the family and accepted her view that A3 was not strongly opposed to being in foster care and would accept the decision of the court. If that decision was made, he said he would be willing to make a joint visit to A3 with the social worker to explain the decision.
106. He considered that the consequences of the older siblings, MAA and AAA, returning to the family home were serious. He expressed his concern over the fact that the mother appears to be facing eviction.
107. In response to cross-examination by Ms Riley, the guardian, while acknowledging that she struggled with her understanding of the language, said all the key issues had been repeated to her time after time, and he did not consider that her failure to accept the issues arose from any language difficulties. While he accepted that the home was overcrowded and "not ideal", he did not consider their situation to be different to many families.
108. He acknowledged that there was emotional warmth between the mother and the children. The home was clean and the mother placed importance on the value of school. The support from FAA was very positive. He was unsure of how things would go if A1 returned home but considered that A3 would be influenced by her if she did. He said that A3 had never made any allegations of being harmed by anyone in the family. His behaviour at school had not changed since he had been back at home from September 2016. The guardian suggested that he may be more resilient than A2 and as the baby of the family had different experiences to the others but also had outside interests and friends. He did not think the current level of risk was sufficient to justify the removal of A3 from home if the mother kept to her promise of keeping MAA and AAA away from the home.
109. He concluded his evidence by referring to the mother's oral evidence when she said she wanted to stop social services interfering with her life and expressed some concern that it seemed likely that she would not cooperate with social services once the proceedings had been concluded.

Discussion

Threshold Criteria

110. At paragraph 40 above I said I would return to consider the threshold following consideration of the evidence. The local authority's amended threshold document which is before the court at A28 is dated the 23^rd January 2017. From the outset of the proceedings the mother has taken issue with the threshold which she dealt with in detail in her first statement filed. In her Opening Submissions on behalf of the local authority Ms Porter sets out in detail the facts on which the local authority relies to establish each of the aspects of the threshold. In my consideration of the threshold, I have borne in mind the guidance and observations set out above within the Legal Framework. I will take each of the relevant paragraphs from the threshold in turn and deal with the facts on which the local authority relies to substantiate its contentions.
111. Paragraph 4 of the threshold reads"The children have witnessed physical chastisement and verbal arguments within the family home. The mother is unable to manage sibling conflict from escalating out of control which has resulted in police call outs to the family home. This has caused the children emotional harm by witnessing such incidents between family members and also living in an unpredictable environment that is filled with tension and anxiety and fear of being hit themselves. The children are also at risk of accidental physical harm by being caught in physical altercations." Ms Porter recites the detail of four separate allegations made by A2 about his treatment by MAA from November 2015 to November 2016. With the exception of the incidents on Saturday, 14^th November 2015 involving the 'bite' and the 28^th February 2016 when the mother called the police to assist her there is no corroborative or supporting evidence to substantiate what A2 has alleged. The mere recital by the social worker of an alleged disclosure made by A2 to a third party on some previous occasion is not of itself sufficient evidence upon which a court can find a fact when there is no other evidence in support especially in the face of denials by the mother. In essence it is the hearsay reports of what A2 alleged which is relied on in respect of these four allegations which is not proper or quality evidence in respect of serious allegations. Accordingly, on consideration of all the evidence before me, I find that the local authority has not therefore established as facts the incidents referred to at paragraphs 31, 32, 34, 35 and 36 respectively on the 16^th November 2015, 23^rd January 2016, 13^th November 2016 and in January 2015. So far as the incident involving the 'bite' on the 14^th November 2015 is concerned, that is supported by the independent evidence of Dr Hardy who examined A2 and found the mark to be consistent with the history. I find that MAA did bite A2 on that occasion when it appears that A2 sought to intervene in a fight between MAA and FAA although there is no clear or reliable evidence as to the actual circumstances. The mother acknowledged that A2 had the bite mark but did not know how it happened. She was not told about the bite at the time it apparently happened. She did not believe what A2 said about how it happened. So far as the incident on the 28^th February 2016 which is recorded in the FWINs at F31 is concerned, I am satisfied and find that the mother called the police because she could not control MAA on that occasion. However, the social worker conceded that the mother should not be criticised for taking that action. The facts which I have found do not realistically substantiate the contentions made in paragraph 4. There is no evidence of 'physical chastisement' or 'verbal arguments' before the court. There is only evidence of one police call out by the mother. The fact found in respect of the bite demonstrates that there was some sort of physical confrontation between MAA and A2 in circumstances where it is not known exactly what happened or who was present. The contention that the children have been caused 'emotional harm by witnessing such incidents' or that they are 'living in an unpredictable environment filled with tension etc' is not made out and is entirely speculative based on assumptions made by the social worker rather than evidence as is the suggestion that they are 'at risk of accidental physical harm by being caught in physical altercations.' In the circumstances paragraph 4 of the threshold should be struck out.
112. Paragraph 5 of the threshold reads "The mother has inappropriately physically chastised A2 and A1." The facts cited in support of this at paragraphs 38 and 39 of Ms Porter's submissions relate again to recitals of alleged disclosures made by A2 to third parties when there is no other evidence in support and specifically no medical evidence of any injury. Applying the same standard as above to the evidence, I find that these are not therefore facts which can be relied on and, accordingly, there is no evidence that the mother "physically chastised" A2. That part of the paragraph should therefore be struck out. The position so far as A1 is concerned in respect of the incident on the 4^th March 2016 involving her hair being pulled out is that the allegation made by A1 is supported by the medical evidence of Dr McArdle. Having listened to the mother's explanation and taking into account what is known about A1's relationship with her mother coupled with the medical evidence, I am satisfied as to the truth of A1's allegation. Accordingly, I find that the mother did assault A1 by pulling out two clumps of her hair during the course of an argument between them relating to A1 not wearing a headscarf outside the home. However, I do not find the allegation that A1 had been whipped with a phone charger by the mother to be substantiated for the same reasons as set out above in respect of A2's allegations.
113. Paragraph 6 of the threshold reads "The mother has encouraged the children to lie to professionals about physical chastisement within the home. This causes the children emotional harm as they are made to feel blamed for professional involvement with the family." Again the facts cited in support of this at paragraphs 41 and 42 of Ms Porter's submissions relate again to recitals of alleged disclosures made by A2 to third parties when there is no evidence in support. Given the mother's denials and, in light of what I have already said about the mere recital of allegations made without more, I find that the facts cannot be relied on. There is of course evidence that the mother has called A2 a liar on a number of occasions as stated in paragraph 43 but that does not go to substantiate what is asserted in this paragraph of the threshold. This paragraph 6 should therefore be struck out.
114. Paragraph 7 of the threshold reads "The mother has neglected the children's health needs, thus placing the children's physical health needs at risk." The School Nurse report of JB at C113-130 which I assume is taken from records clearly goes to substantiate the contention that the mother has neglected the children's health needs because of a failure to access health appointments in a timely manner despite support and prompts provided to her by the school nurse. It is evident that she failed to access appointments for the children's immunisations and appears to have delayed accessing both dental and opticians' appointments. The extent to which the failures can be said to have placed "the children's physical health needs at risk" is questionable and there is no evidence that the children have actually suffered harm as a result. At best the evidence shows that, as JB observed, the mother "has failed in her ability to prioritise the children's health needs." Given the mother's language difficulties, I can accept her contentions that there have been difficulties in communications which have caused misunderstanding as to what has been expected of her from time to time. I am satisfied with the mother's explanation of her delay in attending at hospital when A2 had been admitted for urgent surgery on the 5^th January 2016 and do not consider it to be a significant issue. So far as the issue of not seeking appropriate medical attention for A3 on the 14^th January 2016 is concerned, I do not find that fact to be made out. The mother was waiting for the social worker with whom she had an appointment but asserts she intended to take A3 to hospital. I entirely accept there may have been a misunderstanding of communication between the two women. Whatever the right and wrong of that, the fact is that the mother took A3 to hospital and cannot in the circumstances be said to have failed to seek medical attention.
115. Paragraph 8 of the threshold reads "The children's two older brothers, MAA and AAA are involved in criminal activities and both have numerous convictions. Due to their gang affiliations which are linked to two murders, they are both subject to a threat to life notice and are not permitted to have contact with anyone under the age of 18. The mother has minimised this criminal activity and does not accept any gang involvement. The children are at risk of physical harm due to the criminal activity of MAA and AAA and also emotional harm due to feeling unsafe at home." For their ages both MAA and AAA have substantial criminal records for offences of robbery, possession and supply of cannabis and possession of knives in public places the full details of which appear at F1-17. AAA has served two custodial sentences one of which was imposed for breaching the terms of the community orders earlier imposed on him. The contention that MAA and AAA are involved in gang activity stems from police intelligence provided to the local authority which has not been provided to the court. Both are subject to Threat to Life Notices which I understand to be medium risk and which result from their said gang affiliations. It is said that these Notices mean that they are not permitted to have any contact with anyone under the age of 18. The court is not clear that there is any proper legally enforceable basis for that assertion and no authority for it has been provided by any of the parties. Copies of the Notices have not been filed nor any other supporting evidence from the police. The court has no way of assessing how reliable or otherwise the police intelligence is. In view of my past experience of sitting as a Crown Court judge for 14 years and the time I spent as the Designated Family Judge here in Manchester until 2014, I have learnt to be very circumspect about the reliability of police intelligence without more to support it. It is clear that the mother does minimise her two older boys' criminal activity and finds it difficult to believe that they are or even might be involved with gangs. However, despite that and with some encouragement she took steps to ensure when A2 and A3 returned home of their own volition in September that MAA found alternative accommodation. She has consistently denied that MAA has returned home to live since then. Despite the assertions made by the social worker based on what A2 has said that MAA has been at home there is no other evidence to substantiate that or the assertion that the mother has breached the written agreement. It is not clear how the local authority contends that "the children are at risk of physical harm due to the criminal activity of MAA and AAA" but, if it stems from the Threat to Life Notices, the questions to be asked are: What does that mean? How reliable is the police intelligence? Can the risk of physical harm be said to be a "real possibility" sufficient to found the threshold? If it does, then it seems to me that must beg the question of why the local authority failed to seek the return of the boys to foster care back in September and why there is no opposition to A1 being allowed to return home now without any order. The fact that A1 is planning to return home undermines the assertion that the children are at risk of "emotional harm due to feeling unsafe at home" which cannot now, on any view, be said to apply to A1 and clearly has never applied to A3. While the issue of the Threat to Life Notices to the two older boys in this family must be a matter of concern to all, the evidence available to this court is not sufficient to justify substantiating this part of the threshold.
116. Paragraph 9 of the threshold reads "The mother has demonstrated very little capacity to change and has limited insight with regards to the concerns of the local authority. The mother does not accept any responsibility for the local authority being involved with her family and instead blames professionals. This leaves the children at risk of harm as the mother is unwilling to accept that any risks exist, and is therefore unable to effect any meaningful change in her parenting in order to reduce those risks." The facts cited in support of this paragraph commence with the mother failing to acknowledge issues raised by professionals within the Child Protection Plan in 2015 and subsequently refusing to work with the Family Intervention Team. In addition, there are numerous examples quoted at paragraphs 61 to 66 inclusive of the Opening Submissions which demonstrate the mother's refusal of support with regard to parenting issues but none of which can properly be said to substantiate the contentions made as part of the threshold. At paragraphs 59 and 60 reference is made to the alleged breaches of the working agreements between the local authority and the mother. So far as the 23^rd January 2016 is concerned the evidence is that the mother left the children in the care of FAA and not MAA and, if right, as I find to be the case as the local authority has not been able to prove otherwise, that cannot have been a breach of the agreement. So far as paragraph 60 is concerned the breach is said to have occurred because the local authority asserts that the mother allowed MAA to return home but, as I said above, there is no evidence to substantiate that.
117. Having gone through the local authority's threshold in some detail and found that most of the allegations cannot be substantiated what is left? Given what I have said in relation to paragraphs 4, 6, 8 and 9 that leaves only two of the facts cited in support of the threshold at A28 as live considerations which are as follows: -

(a) The first can be summarised as "The mother has inappropriately physically chastised A1." Realistically this does not take things very far in view of the fact that the local authority does not wish to seek an order in respect of A1. It does not help in relation to threshold so far as A2 and A3 are concerned.

(b) The second is that "The mother has failed in her ability to prioritise the children's health needs." The evidence shows that this applies to all three of the children but the question is then what does it actually amount to? Does it suffice to establish a real possibility that they will suffer significant harm. The answer to that, it seems to me must be No.

118. I have of course read and considered the written Closing Submissions of the three advocates. I observe that none of the advocates has undertaken a detailed forensic analysis of the threshold although in fairness to Mr Mountain I should say that he explicitly indicated that the guardian associated himself with the submissions made by the local authority in its Opening Submissions. The local authority considered that the totality of the evidence "leads strongly to the assertion that the threshold criteria are crossed". The contention of the guardian was that there is "overwhelming evidence to support the local authority case that the children's welfare has been significantly compromised by either witnessing or being the victim of physical chastisement and verbal arguments in the home."
119. For the reasons I have explained in my analysis concerning the quality of the evidence which the local authority has sought to rely on, my conclusion is that the threshold is not made out in relation to either A2 or A3. Had the case been prepared and presented differently by the local authority and consideration given to the possibility of requiring A2 to give evidence so that his allegations could be subjected to proper scrutiny and challenge the outcome might have been different. That is not a criticism of the social worker, Ms S, who has worked assiduously in what has undoubtedly been quite a challenging and worrying case to deal with. It is a matter on which the local authority's legal team will need to reflect on so as to avoid this sort of difficulty arising in the future.

Other considerations

120. Both the local authority and the guardian will be disappointed in the conclusions which I have reached which may well be regarded as being unsatisfactory especially given the way in which the mother gave some of her evidence. There were times when she was being cross-examined by both Ms Porter and Mr Mountain particularly in relation to the criminal activities of MAA and AAA when she appeared, as I noted, to be "living in her own version of reality." Despite that there was a strong degree of consistency between her written statements and her oral evidence. I do not accept the local authority contention that she was "simply not a credible witness" albeit that she was neither open nor forthright on the issues about the criminal activity of her two older boys. She came to this country as a refugee some 10 years ago and has been a single parent to her six children for the last eight. She is handicapped by speaking virtually no English and not being able to read and write the language. She has been dependent on her older children to help and support her doing all sorts of chores including reading and translating documents. The culture differences for her living in this country as a single parent must have been challenging and I am unclear as to how well she has integrated. She is a proud woman who has encouraged her children's education but who, for reasons identified in the AFRUCA assessment, has clearly found it difficult to face up to the reality of the difficulties caused by MAA and AAA's involvement in criminal activities.
121. The family have lived in overcrowded conditions for the past four years with home conditions which the social worker described as being generally to a good enough standard in terms of cleanliness and tidiness. Both the social worker and the guardian say that the mother demonstrated warmth to the children who also have the love and support of their eldest sister, FAA, who the social worker identifies as playing an important role in helping and supporting them with their education and health needs. The children are generally healthy and have good school attendance. The social worker described the three children as being delightful, articulate young people.
122. I am fortified in my conclusions on threshold when I consider what is known about the children. A1 at 16 is a young woman who, it appears, knows her own mind and has steadfastly remained in foster care throughout the proceedings even when her two brothers decided to return home in September. She attends college and is doing well on a carpentry course. She is a likeable and polite young woman. She has been rebuilding her relationship with her mother and I was told she was intending to return home in the near future. She has good relationships with her siblings.
123. A2 is by all accounts a vulnerable young person who appears to have had difficult times within the family because he has felt scapegoated. He appears to have a difficult relationship with his older brother, MAA. I am unclear on how his relationships are with his other siblings. He is described by the guardian as being polite, well-mannered and friendly. His school attendance is good although his behaviour has given cause for concern. Given what he has said about his wish to remain with the foster carers he is likely to be the one most adversely affected by my determination in relation to threshold. He will need help and support to reintegrate in the family which I hope can be provided by the local authority. He should be reassured that the court's findings do not mean that he has not been believed but that the evidence to substantiate his allegations was simply not properly put before the court.
124. A3 at the age of 14 is a resilient boy who has been happily living back at home since he left foster care of his own accord back in September. There has never been any suggestion that he has suffered any harm from his mother or any of his siblings. He loves his mother and has been loyal to her. He too has been described by the guardian as being polite, well-mannered and friendly. His school attendance is good and there has been no issue about his behaviour at school since he returned home in September. He has friends with whom he spends time outside of the home. He has sporting interests outside the school and home and is a member of a basketball club which is supported and encouraged by his mother. He will be pleased at the outcome of these proceedings.
125. Despite the difficulties which she has encountered with her two older boys because of their criminal activity, the mother deserves considerable credit for the care and upbringing she has been able to provide for her four other children who, I accept, she loves and clearly wants the best for. She has had the handicap of struggling with language and cultural difficulties as a refugee. She has had to cope as a single mother of a family living in very overcrowded and quite poor accommodation. She is a proud woman who considers that she does not need help or support but who said that she had benefitted from the Parenting Course which she found helpful and wanted to continue. I hope that she will do so and will be supported by the local authority to do so.
126. As I was preparing this judgment the local authority issued an application for permission to adduce further evidence as a result of what it said was concerning information which had come to light and which the local authority and the guardian considered might impact on the court's judgment and final determination. The application which was made to the court on the 10^th February 2017 was supported by a statement from the social worker.
127. In her statement, Ms S said that on a joint visit she made to see the mother with a Housing Officer on the 31^st January the mother was unwilling to set up a payment plan in respect of the rent arrears and said she did not care if she was taken to court. She is also alleged to have told the social worker that she is no longer willing to work with her and not to visit the house again. Ms S records having a telephone contact with the foster carer on the 3^rd February who raised concerns that A1 had disclosed to a respite foster carer concerns about her brother MAA who had been attacked with a hammer. The respite carer is said to have reported seeing MAA in the garden of A1's house and had a conversation with him when he dropped A1 off on the 27^th January. Ms S goes on to say she had a conversation with A1 on the same day and that A1 confirmed that she has contact with MAA and goes out for meals with him. She is also reported to have said that MAA comes round to the family home before going out to spend time with the family in the community. Ms S contacted a police officer to inform him that MAA had been seen at the house. The police officer replied some three days later and informed her that he would visit the family later in the week to reinforce the police stance in relation to the restrictions within the Threat to Life Notice.
128. Ms S reported a conversation she had with A3 on the 8^th February when he said he had contact with MAA. He had seen him the previous evening and they had gone to kick boxing together. She also mentioned A3 having to get money from MAA "due to someone knocking on the door before he went to school, asking his mother to pay some money or they would take some of their belongings away". A3 had also told her that MAA did not stay overnight at the house and when he visits to spend time with the family in the community he does not come in but waits outside.
129. Ms S reports a telephone conversation with the mother on the 9^th February when she said that what the respite carer had said about MAA on the 27^th January was not true and that none of the children had contact with MAA. She also describes what the mother told her about the men visiting the house and demanding money which was apparently due to some wrong doing of AAA who had been ordered to pay something. The mother was not clear about what it was. The statement concluded with Ms S confirming that the mother had attended the parenting course on that day and had contributed positively within the session.
130. On considering the application, I directed that the mother should file and serve a statement in response and that the guardian should file and serve a Position Statement and listed the application for hearing on the 17^th February 2017.
131. In her statement the mother said she had not refused to pay the rent arrears and denied saying that she did not care if the matter went to court. The social worker had suggested she should sell her car to pay off the rent arrears but she needed that to take the children to school and for work. She said she felt the social worker did not want to help her and did not understand her but again denied saying that she could not visit the house.
132. In respect of the 27^th January, the mother said she had been at work and was told by A1 and FAA when she got home that they had met up with MAA and gone out for a meal together. She said that she has telephone contact with MAA and that they meet outside the house and go for meals together. She does not allow MAA to come to the house as she has signed a working agreement that she will not allow that. MAA has contact with A1, FAA and A3 on Facebook and over Whatsapp.
133. In respect of the man coming to the house for money was concerned she believed he was a bailiff collecting a debt owed by AAA. She had to borrow money from a neighbour and she paid £435. The receipt appended to her statement shows that that enforcement agent's client was HMCTS Gtr Manchester. She also explained that she had had to pay the sum of £550 in 2015 in similar circumstances and provided confirmation that had been paid in full on the 19^th March 2015.
134. She confirmed that she had attended the parenting course and had missed only two sessions. When she cannot attend she has always let the parenting course worker know in advance. She finished by reaffirming her commitment to her children and confirmed her willingness to work with the social worker and all other professionals.
135. The guardian confirmed that he was able to speak to A1 on the 14^th February. She told him she was intending to return home on a full time basis in about a week's time. She told him she spoke to her brother, MAA, on most days. She said she had not said anything about him being attacked with a hammer and did not know why anyone would say that. She said she had met with MAA and they had been out together but was adamant that he had not been to the family home. The guardian said he "gained the impression that A1 was choosing her words very carefully" and was "left concerned by the way in which A1 spoke about MAA".
136. The guardian was unable to speak to A3. No reference was made to the mother's statement but the guardian said he was aware of the "enhanced concerns" outlined by the local authority. He said the "balance of the scales had tipped towards A3's removal from the family home".
137. When I considered this further information in the light of the conclusions at which I had already arrived in respect of the threshold, I concluded that it did not take things any further. Rather what it did was to reinforce the views I had already formed. Again the local authority was seeking to rely on a hearsay report with nothing more to support it in circumstances where the allegation was disputed both by the mother and also A1. I also sensed that, whether intentionally or not, the social worker had described the situation of the man calling to collect money in a sinister way to provoke concern when it has been clearly shown not to be the case. At the hearing I was informed that the police had not been round to visit the mother to discuss the issue which the social worker had raised with the officer in question two weeks previously. That I take as a reflection of how much of a priority matter the police consider it to be. In addition, I was also told that the social worker had seen A1 again only two days ago and she had confirmed her intention to return home to live with her family.
138. I found the guardian's response of some concern since his reaction was entirely based on his impression of A1 rather than on an objective consideration of the evidence. For him to suggest that the "balance of the scales had tipped towards A3's removal from home" because of the local authority's "enhanced concerns" which he has not specified was quite remarkable. I say that because in my judgment there is no logical basis to treat A1 and A3 differently in relation to any alleged risk arising from the Threat to Life Notices since both are children under 18.
139. When I heard the application I gave permission for the further evidence filed in response to the local authority's application to stand as evidence. However, I explained to the parties in broad terms the conclusions at which I had arrived in respect of the threshold and that the further evidence had not impacted on my determination. I indicated that I would disseminate the judgment electronically to the parties by 12 noon on the 20^th February.

Conclusion

140. Having reached the conclusion, as set out at paragraph 117 above, that the threshold is not made out in relation to either A2 or A3, I have no option, subject to any representations from the parties, but to direct that the proceedings in relation to them are dismissed forthwith at the hearing on the 24^th February 2017. So far as A1 is concerned there is a threshold based on the finding I made. However, given that everyone is agreed that there should be no order made in respect of A1 it seems proper to order that there be "No order" made on the application in respect of her.
141. Clearly arrangements will have to be made to enable A2 to return home. I express the hope that the mother and the local authority can find a way to agree how that can best be done with the help and support of FAA and A1 if that is appropriate.
142. The position of MAA and AAA will be a matter of ongoing concern for so long as the Threats to Life Notices remain operative. That is a matter for the police to manage in accordance with their procedures and guidelines and not the local authority. My understanding is that the police have a duty to review the risks to those in respect of whom the Notices are issued on a regular basis. They have an obligation to advise and assist the subjects of steps to minimise the risk as well as providing advice to their families. I express the hope that the mother will act on the advice of the police whose obligation is to try and protect her family.
143. This judgment is one which in accordance with the President's Guidance on Publication of Judgments would normally fall to be published and especially as it may be considered in the public interest given the issues which have arisen in relation to the threshold. I will listen to any representations in respect of the publication of this judgment and, if it is to be published, whether any further anonymisation of this transcript would be required for that purpose.
144. This concludes the judgment.