England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT STOKE-ON-TRENT
IN THE MATTER OF THE CHILDREN ACT 1989
AND THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF: RE: D & ORS (CHILDREN)

		Bethesda Street Hanley Stoke-on-Trent ST1 3BP
		6th April 2017

JUDGMENT

HIS HONOUR JUDGE GRENVILLE PERRY:

1. I am concerned with the children:

R, who is now aged 9,

J, who is rising 18 months, and

T, who is 4 months old.

2. They have a guardian, Michelle Hume, represented by her counsel, Mr Redmond. The mother of the children is L. She is aged 28 and is represented by Mr Calway of counsel. The father of R is S. He is aged 34 and has throughout the hearing been represented by Mr Cooper of counsel, although I see that Miss Birchall of Mr Cooper's instructing solicitors is here today for the purposes of the judgment. The father of J and T is P. He is aged 36 and he is represented by Miss Meachin of counsel leading Miss Lucy Clayton. The local authority in the matter before me is Staffordshire County Council, represented by Miss Brown of counsel.
3. The matter comes before the court on the local authority's applications for care orders and placement orders, and indeed a child arrangements order and supervision order. I should say at the outset that there was a further child of the family, C, who was aged 5 in the summer of last year. Sadly he drowned in tragic circumstances in the Blue Lagoon at [name of water park] on 23^rd July last year, during a family outing. It has been necessary as part of this hearing to consider the circumstances of his death in the context of the local authority alleging that it evidenced a lack of supervision by the mother and P.
4. However, the local authority's initial involvement with the family began as long ago as April 2012. The concerns that were then raised included poor home conditions, a lack of food in the house and heating and hot water, poor hygiene, and poor presentation of the children together with a lack of supervision. The local authority then implemented a package of support. It included Home Start support services and practical support from social workers and family support workers. That included one to one support and modelled tasks to seek to ensure that the mother understood, for example, how to clean a bathroom. That support was backed up with pictorial charts, rotas and prompts.
5. Despite that, the mother was unable to sustain and maintain the home environment to an acceptable standard and by October 2012 conditions had deteriorated again. That led to the children being made subject to a child protection plan on 15^th November 2012. The home conditions continued to vary and the mother continued to need prompts and support. However, by July 2013 the child protection plan was able to conclude on the basis of continuing support from Home Start.
6. The local authority however had cause to re-engage with the family a year later in July 2014. The mother had entered into what was then a new relationship with P and he had status as a person posing a risk to children, what is referred to as PPRC status. There were also concerns that home conditions had deteriorated again, so a similar package of support was implemented, again including some one to one support with regard to household routines. Nevertheless, concerns about home conditions continued and there were also concerns that the mother and P were socialising with other adults who also posed a risk to children.
7. Cumulatively these matters led to a further child protection plan being put into place in June 2015, by which time the mother was pregnant with P's child. It was also felt necessary to put into effect a written agreement under which P was not permitted to undertake any personal care tasks for the children in view of the fact that he had previous sexual offences recorded against him, albeit many years previously. There were some concerns as to whether that agreement was being complied with and it was also known that P continued to drive regularly with no licence and no insurance, despite having previously been disqualified from driving.
8. J was born in October 2015 and a parenting assessment was carried out by the family support worker, R Simpson, in late 2015. It is dated November but it is quite clear from the content that some matters relate to events in December. In fact the document is not as helpful as it could be as it bears all the hallmarks of a document added to over a period of time without proper editing. For example, it refers to the mother being in a positive relationship with a Ro and the support being provided by Ro's mother. We know however that by July 2014 the mother was in her relationship with P. So that was clearly not accurate by November/December 2015.
9. It also contains some internal inconsistencies. By way of illustration, internal page 7 [F442] in my bundle in the final unnumbered paragraph on that page says "the house smelt clean." A few lines later it refers to the "odious smell in the property." Nevertheless, what we can glean from that parenting assessment is that home conditions had continued to be of concern to the local authority with some short term improvements and then deterioration. There had been recorded concerns about lack of food or poor quality food and struggling finances. It also recorded that the presentation of R and C was often poor and unkempt.
10. However, it also recorded that the children were attending school and nursery. There was emotional warmth and appropriate stimulation within the house. The children had attended GP appointments when required and there were no concerns about the care of the new baby, J, who appeared well looked after.
11. The summary to that parenting assessment, internal page 14 [F449], reported that the mother had shown that she was fully capable of carrying out chores to maintain the home, but it cautioned that although she had the knowledge and awareness, she required a level of prompt and supervision to ensure she carried out chores and tasks. Indeed, in its final paragraph, internal page 16 [F451], the assessor said: "It appears that without constant prompts and supervision by children's services, there are no meaningful long term changes."
12. In view of the concerns that had been identified about P's history, a risk assessment was carried out in July 2016. It appears at [F466] and it is right to record that during the course of this hearing there has been some criticism directed at that assessment. Having said that, it records P's conviction of a sexual offence in 1999 and also a conviction more recently in late 2014 for a section 39 assault. In addition, it makes reference to his convictions for a number of driving offences. The author of the risk assessment, Joanne Turner, and I shall turn to her evidence again later, considered that all three children were at risk of sexual abuse while P lived in the family home. In assessing the risk, the author made reference to both his and the mother's lack of insight and their continued association with persons posing a risk to children. The author recommended that P needed to engage in some direct work and also to stop his association with risky adults.
13. However, such matters were then to some extent overtaken by the precipitating event of the tragedy on 23^rd July. On that day, the mother, P, R, C and J had all gone to visit [name of water park] for a family day out. Sadly, C drowned in circumstances where the local authority says the mother and P can be criticised for a lack of supervision. Following the tragedy, R and J were immediately placed with Sh and her husband, Pa, where they have remained since. Sh is P's mother and so J's paternal grandmother. Sh was made an intervenor on the first day of this hearing and she acts in person.
14. The care proceedings were commenced on 2^nd August 2016. On 3^rd December the mother gave birth to her and P's son, T. Separate care proceedings were commenced with regard to T on 6^th December 2016. I am not clear whether those proceedings were consolidated with the existing proceedings or it was simply directed that they should be heard together, but in any event they have both been dealt with in this hearing.
15. There were concerns about the capacity of the mother, S, and P to instruct and engage in the process, so cognitive functioning assessments were obtained on all three from Dr David Allen, clinical psychologist. In respect of S, his assessment is dated 23^rd August 2016. He reported that S is a man of extremely low intellectual ability, performing below 99 percent of aged-matched peers. He had learning difficulties. Dr Allen drew attention to the fact that it would be necessary for those working with S to take into account his very limited intellectual ability.
16. Dr Allen's report on P is of the same date. He identified that P is a man of low average intelligence, performing below approximately 91 percent of an age-matched population. However, his opinion was that P was of sufficient intellectual capacity to understand, retain and weigh information, and that no special measures were required with regard to him.
17. In respect of the mother, his report also of 23^rd August identified her as a woman of extremely low/borderline intellectual ability. She was, he said, performing below 98 percent of an age-matched population. Across all areas of formally assessed cognition she performed at an extremely low level and had learning difficulties. Again, he advised that her very limited intellectual ability would have to be taken into account.
18. In the light of those assessments, registered intermediaries were engaged to assist the mother and S with their understanding of the case and the presentation of their evidence. They have been either present or at least available to assist and advise throughout this final hearing. However, S has been unwell and has only made a limited attendance at this final hearing. In fairness to him, there were a limited number of issues relating to him. That means that his intermediary has not been present throughout. Not in any way seeking to diminish his importance as R's father, nevertheless in view of his limited role for the sake of convenience if henceforth in this judgment I refer to 'the father' I am referring to P.
19. All are agreed that R and J have been exceptionally well cared for by Sh and Pa, now for over eight months. Sh and Pa want to continue to care for them, and they were the subject of both a friends and family fostering assessment and a special guardianship assessment. The family assessment is dated 25^th October 2016. It records the good progress the children have made in the care of Sh and Pa. It reports significant improvements in their physical presentation and describes them as having thrived in Sh and Pa's household. The report said in respect of them that they understood the needs of the children, positive attachments had been formed between Sh and Pa and the children, and to move the children would undoubtedly have an adverse impact on their emotional development.
20. It is right to record that risks were identified in respect of the continuing placement of R and J with Sh and Pa. They had experienced matrimonial difficulties. Might that happen again? Pa had in 2015 been diagnosed with anxiety and depression, although he was currently well. There were historical concerns about the care of P in the 1980s and in particular whether Pa might have caused him physical harm. The author of the assessment was also concerned as to whether Sh would be able to withstand in the future any challenges from P. Again, a historical matter but nevertheless a matter of record, that P had at the age of 17 sexually assaulted his half-siblings. Finally, that assessment drew attention to the fact that Sh and Pa were older carers and weighing up those matters, the assessment was not able to approve them as family foster carers.
21. The special guardianship assessment of them is more recent, that is dated 25^th January 2017. It identifies similar positives and negatives. It is I think though important that I should quote the penultimate paragraph which appears at internal page 25 [C337] in the bundle:

"R and J were placed with Sh and Pa following the tragic drowning of their sibling, C. Since their placement, Sh and Pa have provided the children with stability. They have implemented boundaries which the children have responded well to, and indeed it was evident from records that boundaries were absent from their lives prior to placement. Sh and Pa have adhered to local authority stipulations pertaining to contact and in doing so have ensured the children's welfare is paramount. Sh and Pa have evidenced their capacity to care for children through successfully raising their grandson, Ja. They have developed a current understanding of the needs of the children and have replicated this parenting template in their care of R and J."

22. I should say that Sh and Pa have also raised their grandson, Ja, since the age of 2. He is now aged 11. The author of the report continued by saying: "Sh and Pa have evidenced their capacity as parents in the positive way they have raised Ja. Ja has thrived in the care of Sh and Pa."
23. The concerns though, the risks, remained as they were reported in the foster care assessment. The special guardianship assessment, being a little more specific on this point, also raised a concern as to whether Sh and Pa would be able to meet the needs of J over the longer term. Pa is 61 and Sh is 55. Ultimately that assessment was unable to support their application for a special guardianship order. It is specifically to allow challenge to those conclusions that all agreed that it was appropriate to make Sh an intervenor.
24. A further document that was prepared was a psychological report by Professor Daniel Wilcox on both the mother and the father, P. That is dated 20^th January 2017. He was instructed to provide a full psychological profile of the mother and the father. He reported that the mother is a naïve and submissive individual with a poor capacity for independent decision-making. P was said to be cognitively rigid and a very self-involved man who displayed no notable inclination to change his highly egocentric orientation. Professor Wilcox reported that the mother's dependent personality features would make successful treatment very difficult to achieve whilst she remained in a relationship with P, as she would likely continue to defer to his judgment about most if not all aspects of their daily lives. Even if she ended the relationship, she would be drawn to further relationships where she would be controlled and decisions in her life made by others.
25. At paragraph 16.2.2 of his report which is internal page 31 [E154] in the bundle, Professor Wilcox said this about P:

"P presents with indications of a mixed personality disorder with pervasive indications of entrenched features impacting upon cognition, affect, interpersonal functioning and impulsivity in his thoughts and actions. In my judgment there are prominent anti-social, narcissistic and histrionic features that are highly resistant to change, as P shows no indications of a wish to engage in treatment or indeed modify his approach to his life, his world and his future. Whilst I consider that P is not amenable to treatment, L, the mother, presents with marked barriers to successful therapeutic intervention owing to her dependency upon P, together with her assessed psychological character. In conclusion, I do not consider that successful psychological engagement can be achieved with either of these individuals as they currently present."

26. Professor Wilcox was also asked to consider what risk might be posed by P. In that regard he drew attention to the father's disregard for the law, his impulsivity, his sensation-seeking, his self-serving orientation, and what Professor Wilcox reported as limited anger management abilities. At paragraph 16.4.2, he said this in the latter part of that paragraph:

"P can readily excuse his past offences and social transgressions, such that physical, emotional and sexual harm will be easier for him to engage in than for the great majority of his peers. P does not acknowledge risk or a need to change his behaviour and as such, whilst a wide variety of circumstantial issues could trigger such responding, he will in my opinion almost invariably externalise the blame and excuse his actions."

27. Professor Wilcox was also asked to consider the ability of the mother to protect her children. At paragraph 16.6.1 he expressed the opinion that she did not have the ability to protect her children, that she was altogether accepting of P's opinions, would habitually seek approval and guidance from him, and was very vulnerable, naïve and limited. She did not, he said at paragraph 16.12.1, have the ability to enforce boundaries, even where this may be necessary to protect the children.
28. At internal page 34 [E157] of the bundle, Professor Wilcox was asked to explore with the mother and father their understanding of the local authority's concerns. Paragraph 16.14.1 is instructive in that regard. Professor Wilcox expressed the opinion that they greatly minimised the local authority's concerns. In the latter part of that paragraph, he said this:

"P asserted that he has always provided adequate supervision to the children and cared for them, whilst L passively agrees with this position. They considered that C's death was the result of a momentary supervision oversight, and that in all other respects since they have been a couple and have moved to their new property, her parenting has been good and at a level that does not require any need for change."

29. Professor Wilcox went on to say that he did not consider that they would be amenable to treatment in timescales that would meet the needs of their children because P denied problems and the mother accepted his perspective. They did not recognise the need for change. It is of course a matter for the court but Professor Wilcox stated at paragraph 16.18.1: "In my judgment, the prognosis is poor for this couple to safely care for their children, together or individually." At paragraph 16.20.1, he said that they displayed an enormous lack of insight about their shortcomings.
30. A further report prepared during the progress of these proceedings was a PAMS assessment on both parents. That was prepared by Emma Shaw and it is dated 24^th January 2017. In her summary, which appears at section 8 and onwards, Miss Shaw recorded that across the total 256 worksheet skills, 9 percent were identified as high priority rating 3. I will return when I consider her oral evidence to the significance of the ratings, but for the moment the skills which fell within that high priority rating 3 were said to be household routines, hygiene in the kitchen/living room, hygiene in the bedroom, hygiene in the bathroom, general safety, safety in the kitchen/living room, safety outside the home, relationships and support. Thirty-two percent of the skills were identified as medium priority rating 2, and 17 percent of the skills as low priority rating 1. Forty-two percent of the skills were assessed as criterion reached.
31. Miss Shaw made a number of recommendations. Noticeably she recorded at internal page 20 that the household environment continued to be of concern despite the parents' attempts to clean up. In paragraph 10 under the heading "Recommendations", she said that the mother and father would benefit from widening their support network. They should also discuss with their GPs any available support and therapy to help with their emotional wellbeing, mental health and impulsivity. Miss Shaw said that for R, J, and T to be placed with the mother and father, they would need to complete all the teaching recommendations prior to the children being placed. Once the teaching had been delivered, there would need to be a reassessment. Miss Shaw remained concerned about their capacity to implement their learning and sustain changes.
32. Finally in terms of documents prepared during the course of the proceedings, I also had the benefit of a sibling assessment dated 14^th February 2017. That sibling assessment recorded that there were no concerns highlighted with regard to R and J's relationship which would indicate the need for sibling separation. It also said that by virtue of the significant age gap and with consideration for T, the siblings may require differing care plans to ensure their individual needs are met.
33. So against the background of that documentary evidence and the background to the case, the positions of the parties at the start of this hearing were these: The local authority sought orders providing for R to remain placed with Sh and Pa under a child arrangements order with a prohibited steps order restricting the parents' parental responsibility and a supervision order to provide further support. For J they sought a care order and a placement order to provide for an adoptive placement together with her full sibling, T. For T, they sought a care order and a placement order for an adoptive placement for him with his full sibling, J.
34. The mother opposes the local authority plans. She seeks the return of all three children to her care. If that cannot be achieved, but very much as a fallback position, then she would like R and J to remain in the care of Sh and Pa . P also opposes the local authority plan. His position is the same as the mother's. S agrees with the local authority plan for R but he wants to be sure that arrangements are in place for R to have contact with him.
35. The guardian does not support any of the children returning to the care of their parents. She agrees with the local authority plans for care and placement orders in respect of J and T. She agrees with the local authority plan for R to stay with Sh and Pa, but she says that that should not be by way of a child arrangements order but by way of a special guardianship order, albeit also supported with a supervision order. It is right to say that she did not reach her recommendation on the appropriate placement for J without very detailed thought and analysis, and I shall be returning to that in detail later.
36. I remind myself that under section 31(2) of the Children Act 1989, a court can only make a care or a supervision order if it is satisfied that the child concerned is suffering or is likely to suffer significant harm, and that the harm or likelihood of harm is attributable to the care given to the child or likely to be given to him or her if the order were not made not being what it would be reasonable to expect a parent to give him or her. The burden of proof on those matters lies on the local authority and they must prove them on a balance of probabilities. I also remind myself that where a number of children are encompassed within an application, the criteria must be satisfied in respect of each child.
37. The basis on which the local authority says that section 31(2) is made out is set out in an amended schedule of allegations. A copy of that appears at [A67] of the bundle and indeed that copy encompasses some of the responses. Before I address that though, it is instructive to bear in mind the observations of Lord Justice Aikens in the case of Re J [2015] EWCA Civ 222. At paragraph 56 of his judgment he summarised some of the fundamental principles to be applied and I start my reference to that paragraph at sub-paragraph (iv) where he said this:

"(iv) The formulation of 'Threshold' issues and proposed findings of fact must be done with the utmost care and precision.   The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised.   The document must identify the relevant facts which are sought to be proved.   It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations ('he appears to have lied' etc.)

(v) It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold.   The local authority must demonstrate why certain facts, if proved, 'justify the conclusion that the child has suffered or is at the risk of suffering significant harm' of the type asserted by the local authority.   'The local authority's evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]'.

(vi) It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of 'those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs' simply because those facts are established.   It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm.   Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that 'nothing else will do' when having regard to the overriding requirements of the child's welfare.     The court must guard against 'social engineering'.

(vii) When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall."

38. I also remind myself of the wise words of Mr Justice Hedley in the case of Re L [2007] 1 FLR 2050. At paragraph 50 Mr Justice Hedley said this:

"Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done."

39. When I then look to the amended schedule of allegations and I bear in mind the observations in Re J [2015] EWCA Civ 222, I do not consider that the allegations numbered 2, 3, or 4(e) can be said to be such that a conclusion that the children have suffered or are at risk of suffering significant harm could follow from those facts, if proved. I therefore concentrate on the remaining allegations which are, put shortly, in paragraph 1 that C sadly died as a result of lack of supervision by either or both of the mother and father; in paragraph 4(a) that neither the mother nor the father was able to provide appropriate basic care or supervision on a consistent basis, I shall return to that in due course; in paragraph 4(b) that home conditions were poor; in paragraph 4(c) that the respondent has convictions for a sexual offence and that he and the mother associate with PPRC; and finally that the respondent drives with neither licence nor insurance. I shall explain in due course why those allegations remain relevant to the issue of section 31.
40. Let me now turn to the evidence and I start with the evidence of the events at the water park on 23^rd July last year. I heard from RH. She was an off duty police officer at the park with her husband, CH, and her two children aged 3 and 6. She is a regular visitor to the park. She told us the park was very busy, the busiest she had seen it, with many people and cars and a lot of people on both the beach area and in the water. She was aware of the signage which made it clear that there was no lifeguard at the park and she understood that visitors had to take responsibility for their own children. She described how there were three areas of water, a lake for windsurfing and such activities, another larger area of water, and then the Blue Lagoon where the events occurred and which she understood to be up to a depth of about 1.4 metres.
41. She made a witness statement the very same afternoon the accident occurred when she was back on duty, although at that time to record her knowledge of the tragic events rather than in anticipation of criminal or public law proceedings. She and her family arrived about midday and spent the first hour or so after their arrival playing in the water. She noticed a young boy who looked not much older than 4 wandering about in the water up to chest height looking lonely and lost. He did not appear to be with anyone. He did not approach anyone. It caused her concern because she knew that the bottom of the lagoon was uneven and in some places dropped down unexpectedly. He was not wearing any armbands.
42. She observed him over ten minutes looking lost. She was sufficiently concerned to go over to where he was in the water and ask other children whether he was with them. She was able to indicate on one of the aerial photographs the route he took through the water during the ten minutes she had him under observation. It tracked him along one side of the lagoon and then doubling back before leaving the water. RH described how she then saw him walk over the beach area and through a gap in the fence where he spoke to a man facing the Blue Lagoon before reappearing with a woman wrapping a towel around him.
43. Her concerns had been such that she discussed with her husband going over to the adults to speak to them, but her husband dissuaded her on the basis that the child appeared to be back safe with his family. It was some time later, perhaps an hour and a half later, when she saw the young boy being pulled out of the water. As a responsible police officer, she became involved in the immediate aftermath before colleagues arrived on the scene. At one point she was standing next to the boy as CPR was carried out on him. She said she had no doubt and was absolutely clear and 100 percent sure that the boy pulled out of the water, who sadly proved to be dead, was the same boy she had seen wandering unaccompanied earlier.
44. It is right to say that RH's recollection of where precisely the child walked through the gap in the fence appeared to be not consistent with some of the photographic evidence. It is also right to say that her evidence as to who was involved in the immediate aftermath of the boy being removed from the water was at odds with some of the other evidence, although that is perhaps hardly surprising in such dramatic circumstances. Nevertheless, I have to say that I found RH an impressive witness. She was willing to make sensible concessions, conceding that it could have been that unknown to her, someone was watching the boy whilst he appeared alone in the water, and that perhaps other people than she had described had been involved in tending to the boy when he was pulled from the water, contrary to her recollection.
45. She was calm and measured in her delivery. Hers was not a fleeting glimpse identification. She had the boy under close observation for ten minutes and she subsequently saw him again closely in the sad circumstances where he was drawn from the water. I am confident that I can rely on her as an accurate historian of the central events on which she gave evidence.
46. Her evidence was supported by the evidence of RHa. She was also at the water park on that day with her partner, her sons aged 15 and 6, and her niece aged 13. She was also a regular visitor. It was a very hot day and busy, accurately reflected in the photos she was shown of the lagoon and the surrounding area. She had been aware of a tragedy by the time she and her family left the park at about 3.30pm, but not of the details until she saw a Facebook post a couple of days later, which led her to contact the police. It was not until a month later that the police took her witness statement, but nevertheless she believed that she had been accurate in her recollection and in what she told them she had seen.
47. Her evidence was that she and her family arrived quite early at the Blue Lagoon, about 10.30am, and were then in and out of the water. At about 1.30pm she was in the water with her two sons when she had cause to speak to a boy in green and blue shorts bearing the Minion cartoon character about splashing her younger son in the face with water. The boy she spoke to was wearing glasses or goggles. She was clear about the time because she and her family had originally been planning to leave at 2.30 and she recollected having observed that they would have to leave in an hour. She said she had watched the boy on and off for about five minutes, wandering up and down the lagoon. She thought he was on his own. She did not see him speaking to anyone.
48. Noticeably, RHa had cause to speak to him again because he went to walk out to a deeper part of the lagoon and she cautioned him against doing so. He was not wearing armbands. In her police witness statement, which she confirmed before me as true, she stated that the surface under the water was quite slippery and the water was at his waist. In any event, he took notice and moved back to the shallower part. So again, hers was not a fleeting glimpse identification. She observed the boy over five minutes and she had cause to speak directly to him twice. Furthermore, she identified the boy she spoke to as wearing the very same style of shorts that C was wearing. RHa said that she left the water about 1.50pm and in the event she and her family did not leave the park until about 3.30pm, by which time she knew there had been an incident but thought it concerned a young girl.
49. When she saw the Facebook post a couple of days later she was "almost sure" that the boy she saw in the Facebook post was the boy she had seen and spoken to wearing the Minion shorts. She also was willing to make proper concessions. She acknowledged that there were a lot of little boys in shorts and goggles that day. There may have been others wearing similar shorts. According to the mother, they were commonly available in Primark or Asda. RHa conceded that she could not have known if someone was watching the boy from the surrounding fence. She accepted that her use of the phrase "almost sure" allowed for the possibility that she might be wrong. Nevertheless, she also said to me at one point that she was "more certain than not" that the boy who drowned was the boy in the Minion shorts that she had seen and spoken to. That of course is relevant in the context of the standard of proof in these proceedings. She also gave evidence in a straightforward way.
50. What did the mother say about events at the water park? She gave evidence accompanied by her intermediary with the court and the advocates being mindful of her particular difficulties, the need to phrase questions in a simple way and allow for regular breaks. She described how she had told the children to put on their swimmers when they got up that morning in case they decided to go anywhere where there was swimming. They did decide to go to the water park and they drove there in the car. The family had armbands but she decided not to take them because she knew C would not want to go in the water. She drove either most of the way there or half the way there before the father took over. She knew that he had no driving licence although she did not seem to realise that this meant that she and the children were travelling in an uninsured car.
51. In any event, she said that she, the father, P, R, J and C arrived at the water park about twelve noon. There were too many cars for the car park so cars were parking on the grass as well. It is right to acknowledge that she is not very good on times, but she accepted that they were there about three hours. They all went into the water soon after arriving. She knew there was no lifeguard. C at that time was wearing his Minion shorts and also a T-shirt bearing a picture of Woody of Toy Story. The mother was adamant that C only went up to his ankles because he hated water, and indeed he had to be led by her by the hand to even enter the water. There were lots of people and excited children and it was busy and a bit noisy. The mother was not clear when, but at some point C's T-shirt got wet and was put on the fence to dry. Initially she said he had put it back on but then it was clear that she could not really say when or indeed whether he had put the T-shirt back on.
52. After some time in the water the family had lunch, sandwiches, and then there was a time when R and C went off to the play area, which seems most easily to be referred to as a park. The mother said that she watched them go to the park. She watched them at least halfway there. She also said that she saw them playing in the park with C on a slide. I am not at all sure that some of this is consistent with what the mother said in her police interviews, but in view of the mother's difficulties this is perhaps not an appropriate case in which to focus unduly on inconsistencies in her evidence.
53. I understood her to say that in the park the children were "sort of" out of sight, but she said they had been very precise, that was her choice of word, as to where they were going, and she was confident C would not go in the water because he hated it. In any event, at some point R and C came back from the park. The mother thought this may perhaps have been to have a drink. R and C then went back to the park, with the mother again saying she had watched them go there. She said she knew they would stay there because she could always trust them to do what they said they would do, and she liked to give them some freedom. She and the father and J then stayed at the car, listened to some music although it was not on loudly. She described P as being seated, perched on the edge of the boot of the car. She identified him in one of the photos at [N257] next to a pink tent.
54. The mother was unable to say how long they had stayed there, but she was not feeling too good so after a certain time she said it was time to go. The father went to get R and C from the park and it was then that it came to light that C was not there and was sadly subsequently pulled from the water. She was shocked to hear that he had been in the water. She could not imagine that he might have gone in the water himself. She wonders whether he was chased or pushed by two boys who she had heard were pulling children down in the water. There was though no evidence before me to support this hypothesis.
55. In some ways it was quite sad listening to the mother's evidence about the day at the water park. It is inexplicable that she positively chose not to take the armbands that day, despite knowing that the children were going to be at a water park where there are three large areas of water and C could not swim. She showed no understanding that children as young as 5 cannot be relied on to always do what they say they are doing. She said that if she found that one of her children had not done what they said they would do, then she would speak to them about it. She did not seem to realise that reacting after an event, rather than proactively seeking to prevent it, might mean that it was too late by then to prevent the harm.
56. She had an unrealistic faith in C's supposed hatred of water, without factoring in the fascination that a lake full of families and children having fun might present for a child known to be cheeky and willing to approach strangers. She did not show any concern that C was out of her sight for indeterminate lengths of time in an area replete with potential hazards, not just the water but traffic and a large number of people, some of whom could have presented a risk to an unaccompanied child.
57. What about P, what did he tell me about the event? He confirmed that they went to the water park on 23^rd July and indeed accepted that he drove part of the way despite being a disqualified driver. He said that they had arrived some time between 11.30 and 12.30. I acknowledge that there was no reason at the time why he should have taken particular notice of the time of their arrival, although in his initial police interview soon after the tragedy he was remarkably precise, timing their arrival at 11.58am.
58. In any event, he described a sequence of events whereby they all went into the water for a splash about before all returning to the car which was parked backed up to the fence. He recollected they had something to eat and then R and C went off to the play area, the park. They came back after perhaps 10 or 15 minutes and stayed at the car for a bit before then both going off to the sandy area that fronts the Blue Lagoon where P said he could see them from where the car was parked. They then both came back and R complained that she was uncomfortable with sand in her swimwear, so he took her to the toilets where she was able to attend to herself in the Ladies. He and R then returned from the toilets to the car where C was with the mother and J.
59. R and C then asked if they could go to the park area again, and P agreed they could. On his recollection, this was now shortly before they were planning to leave the water park for the day. He said in evidence this was perhaps 15 minutes before they were planning to go. In his police interview he said rather less, but nothing turns on that. He then said that R came back alone so he set off to look for C, with R accompanying him half the way there before he sent her back to the car. It was very busy, there were many people about, and he could not see C, so he thought perhaps he had gone round the other way but there was no sign of him.
60. He was then returning to the park for a fuller search when he saw someone being pulled out of the water. He saw the Minion shorts and realised it was C, and so rushed over to start, sadly ultimately unsuccessfully, administering CPR. P did not accept the evidence of RH or RHa, to the extent that they believed that they had seen C wandering unsupervised waist deep in the Blue Lagoon on two different occasions over some five or ten minutes. He challenged this. He doubted that the child RH had seen was C and he believed that if RHa had seen C in the water about 1.30pm, then this would have been at a time he was keeping an eye on him from his position by the fence at the car.
61. A number of aspects of P's evidence were troubling. There were clearly at least three occasions when C was out of his sight for significant periods of time whilst P and indeed the mother thought he was at the park. P acknowledged that he could not see R and C when they were in the park, as did the mother. P accepted that it was easy to access the water on the way to or from the park, and C could then have had access to the water at any time. His firm belief that C would not voluntarily have entered the water was based, as indeed was the mother's, on an unrealistic understanding that a 5 year old child would only ever do what he said he would do and would not do something he said he would not do.
62. This would seem to be quite inconsistent with P's description of C as "into everything and anything", "a menace", "boisterous", "lively", and "a cheeky little boy." This naïve belief held by both the mother and P was again bolstered by saying that C hated the water, yet he was wearing his swimmers in case he went in the water. He was acknowledged by the mother and P to be at least paddling with them, and in his first police interview at 23.56 on the tape counter, P said "C doesn't mind the water." Indeed it has to be noted that this assertion that both parents now advance that C hated the water is not consistent with some of the things they said in their police interviews.
63. In her first interview, the mother at tape counter 29.09 said she had told C and R not to go into the water "further than it comes up to your private pieces." In his first police interview at 23.47 on the tape counter, the father acknowledged telling the children "not to go in too deep." Both of those instructions clearly countenance the fact that C would go in the water and needed warning as to how far in he should go. I ask myself also, why would P tell him, as he accepts he did, that if he got into difficulty in the water he should lie on his back and float? On the parents' evidence, that could never arise. He would not go into the water because he hated it and he would never do anything he had been told not to do.
64. I acknowledge that one should be wary of reading too much into the manner in which a witness gives evidence, particularly one who has some cognitive limitations. However, in addition to those inconsistencies and discrepancies I do have some regard to P's demeanour. Many times in his evidence he was evasive. One example is his attempts to minimise and explain away his cannabis use. Many times in his evidence he was self-exculpatory. There were several examples of that. His explanation for regularly driving whilst disqualified was that it was soothing to relieve his stress. His sexual assaults on his half-siblings were, he said, contributed to because at the age of 17 he had a mental age of 10 or 11, although one has to say that no evidence has been produced to support that. Being unable to exercise contact with his son Ha by a former partner, was due to his former partner and Social Services. C's drowning, he said, was due to two unidentified older children who must have pulled him under in some way.
65. I did think at one point that P was about to accept some responsibility for what happened to C when he said he still felt it was his fault. It turned out though that this had nothing to do with the events at the water park but was because, if he had not turned down his friend, DS's, request to borrow the car that morning, they would not have been able to go to the water park and so the tragedy would not have occurred. I did not find P to be a witness who I could rely on to tell me the truth about what happened at the water park on the afternoon of 23^rd July. I do not accept his evidence that whenever C was in the water, he was watching him from the area of the fence no more than "a hop, skip and a jump" away. Sadly but evidently that cannot be right because had he been doing so, he would have seen C at some point in the Blue Lagoon, would have come to his aid, and C would not have drowned.
66. Accordingly, whatever reservations there may be about exactly where C went through a gap in the fence after leaving the Blue Lagoon, I prefer the evidence of RH. I accept her evidence as accurate and I find that the boy RH saw wandering unaccompanied in the Blue Lagoon for at least ten minutes some time between noon and 1 pm on 23^rd July was the same boy she saw pulled from the water much later in the afternoon, who we now know was C. I also accept the evidence of RHa, that she saw C again unaccompanied in the Blue Lagoon, sometime about 1.30pm. I therefore find that C, who could not swim, was wandering unaccompanied and unsupervised in the Blue Lagoon up to his chest height in water on at least two occasions without armbands on the afternoon of 23^rd July 2016 between 12 noon and 1.30pm.
67. I turn then to the other allegations made in the Amended schedule of allegations and I consider next the evidence of Joanne Turner. She was the allocated social worker from May until July 2016, during which, with the exception of the last three weeks, she visited weekly and sometimes frequently. Her involvement largely coincided with the family's move to a new address which was seen as a fresh start. With regard to home conditions, she was willing to allow for some clutter arising from moving house, but she said that it was more than that and conditions deteriorated over the time of her involvement.
68. She gave examples of an overflowing rubbish bin adjacent to where the children sat to eat, a dirty sink and pots and pans waiting to be washed, dirty work surfaces, bird faeces on the living room floor where J would commonly sit, and the adults' bedroom floor totally covered in clothes. Photographs were taken by a police officer's body cam on the day of the tragedy. She acknowledged that they showed a cluttered and untidy home but not a noticeably dirty home. Indeed the children's bedrooms seemed in reasonable order.
69. Miss Turner was strangely reluctant to accept that the home conditions could fairly be described as fluctuating, although the local authority's own evidence strongly suggests that that was an appropriate description. She did acknowledge that there was never a time when the home conditions were such that she thought the children would have to be moved out there and then. Her evidence is perhaps best understood in the context of her expecting much greater improvement, bearing in mind the length of time that home conditions had been an issue.
70. Aside from the home conditions, she had a number of other concerns. It might now be an historical matter that gave rise to the father's status as a person posing a risk to children, but he was dismissive of the risks that arose from associating with others of a similar status. When she raised it with him, he said it was of no concern as long as an individual did not harm his children. What was in the past was in the past. She also said that a facet of his engagement with her was to have a ready excuse or explanation for any behaviour that exposed him to criticism. He showed no understanding of the concern that he was at risk of a custodial sentence and being removed from the family, and so no longer around to support the mother, because of his repeated disqualified driving.
71. I do have to say that some aspects of Joanne Turner's evidence did cause me to wonder whether she was approaching the case in an entirely balanced and measured way. She was reluctant to accept that some aspects of that 2015 parenting assessment I have referred to clearly had been positive. Her observation that the only time she saw the mother smile was after C's death was I think perhaps clumsily expressed, which can happen to any witness when giving evidence, but it did come across as heartless and unkind. Aside from acknowledging that the health visitor had been positive about the mother's care of J, she was unwilling to accept that other professionals had at least identified some positive aspects to the parents' presentation.
72. P's probation officer, for example, had been somewhat more measured in her assessment of P, whilst not ignoring his deficits. When pressed, Joanne Turner was prepared to accept that there had been no concerns about J's basic care, the children were all happy and chatty in their presentation, they were not in any way subdued or cowed, and with the exception of some modest reading delay on the part of C they had all been meeting their appropriate milestones. It might be that what Joanne Turner described as her zero tolerance approach, whilst understandable in terms of giving absolute priority to the children's care, did not sit happily with the parents' abilities. The mother complained that Joanne Turner was bullying and the father thought that she intimidated the mother.
73. It is unfortunate that it was not until P had been part of the family for two years that any risk assessment of him was undertaken. He had been informed in 2014 that he was not to be engaged in any personal care of the children, yet it was not until July 2016 that a formal risk assessment was carried out. His probation officer pointed out that the overall passage of time since his offending meant that records were no longer available, and she questioned whether an informed assessment would in fact require the engagement of a forensic psychologist.
74. It is also unfortunate that it was not until after several years of local authority involvement with the mother that a cognitive assessment established her limitations, and that PAMS assessments were then completed which had then to be carried out after the children had been removed. Even allowing though for those reservations, I do accept Joanne Turner's evidence that as a matter of fact home conditions were at times worse than those shown by the police photographs. That is supported by a number of sources: the evidence of the 2015 parenting assessment; the evidence of Emma Shaw who carried out the PAMS assessment, who says at one point in her report that the house needed a deep cleanse; and the evidence of the mother and P themselves.
75. P said that when he first met the mother and saw the condition of the home, which would have been in the summer of 2014, if he was a social worker he would have removed the children. The mother herself accepted that home conditions did go up and down and it did get, as she described it, "a little bit messy". She acknowledged there had been times when there had been bird faeces on the floor where children, particularly a crawling baby or toddler, might come into contact with it. She accepted that the police photos did show a lot of dirty crockery and there was limited food in the fridge freezer, although she said they had run out of dishwasher tablets and washing-up liquid and she was due to go shopping that very day. She recognised she had a problem with hoarding but this she said had now been addressed. Things had been taken to the tip. She was tackling her problem and determined not to fall back. It remains to be seen whether she can maintain this.
76. In her final analysis the guardian, who has attended the premises recently, accepted that they had improved significantly but described the police photos from last July, having reflected on her choice of words, as then "unsuitable" for children to live in. Therefore I have no reason to believe that the zero tolerance approach, or the death of C, has caused Joanne Turner to exaggerate her evidence as to the condition of the home over a period. Nor do I believe she overstated her evidence of the dismissive approach of P to concerns about the children's exposure to risky associates. That is supported by the evidence of Professor Wilcox and P himself.
77. I now turn to the evidence of Professor Wilcox. Professor Daniel Wilcox is an experienced psychologist. He told us that he had prepared over a thousand assessments. He stood by the conclusions in his report. He was challenged on a number of areas, some of which applied to both the mother and P, some of which applied to P alone.
78. Firstly he was challenged as to whether he had taken into account the cognitive difficulties of the mother and the difficulties perhaps that P also faced although to a lesser extent. He confirmed that he had seen and taken into account Dr Allen's cognitive assessments and that he had had due regard to the parties' disadvantages. He was challenged also as to the extent to which he personally had carried out aspects of the assessment or had otherwise relied on his assistant, a trainee psychologist with a Bachelor's degree pursuing a Master's qualification under his direction. The division of responsibility had basically been that Professor Wilcox had conducted the interviews with both the mother and the father, and his assistant administered the standardised psychometric tests which form part of the assessment process.
79. He said that measures were taken to explain the process to the mother and father by way of an introductory interview, and when the tests were undertaken care was taken to see that the questions were read out to the mother to assist her engagement. I see nothing untoward in the fact that the tests were supervised by an assistant. Professor Wilcox explained that he himself would exercise an element of checking and most importantly it was him who interpreted the tests, which in any event form only part of his overall assessment. Indeed, he said at one point that the tests were of lesser importance in the process.
80. He was also challenged as to the extent to which he could be confident that the test results were valid. He drew attention to two sections of his report which particularly highlighted concerns about the validity of the father's responses. In his opinion, the very fact that the father had sought to fake some of his responses showed that he understood the tests, otherwise he would not have sought to manipulate the results in those areas. The mother said she did not really understand the tests but did acknowledge that they had been read out to her. Professor Wilcox had no reservations that the test results could be relied on. They were, he said, consistent with what he had read in the documentation and indeed with the mother's presentation in interview.
81. The issue was also raised as to the time he spent in interview with the mother and father. His records showed that the process involved three sessions, one on 16^th November, another on 22^nd November, and a final session on 13^th January, time having been allowed for the mother to recover from T's birth. A breakdown of the time spent showed that Professor Wilcox personally spent two hours and 45 minutes in interview with the father, on my calculation two and a quarter hours in interview with the mother, and a further one and a quarter hours in interviewing them jointly. He was confident that this was sufficient time to prepare a report and draw informed conclusions.
82. He was also challenged as to those conclusions, in particular in respect of his opinions regarding P. He readily admitted that he had not diagnosed that P had a personality disorder. That would require a longitudinal assessment stretching over several weeks and perhaps months to facilitate an accurate differential diagnosis. Even if someone did have a personality disorder, that would not disqualify them from caring for their children. Professor Wilcox did however identify personality traits in the father which were indicative of personality disorder. Those features which particularly concerned him were the anti-social, narcissistic and histrionic traits and he expanded on how these had been manifest.
83. So far as the anti-social trait was concerned, Professor Wilcox said that the father had a willingness to behave in a self-serving way with no regard to others. For example, he appeared to like the buzz of driving whilst disqualified or driving "on the sly", as P described it. P even willingly disclosed that he drove whilst disqualified to the assessment. It was unusual, Professor Wilcox said, for someone to so openly and willingly break the law with no sense of accountability.
84. So far as the narcissistic trait was concerned, Professor Wilcox said the father had a sense of self-importance and entitlement. He thought he was above reproach. He projected the sense that he could control everything. He lacked empathy. He had an overriding focus on his own needs. With regard to the histrionic trait, he said he was attention-seeking and liked to be the centre of attention. Professor Wilcox also expressed the opinion that P could be said to be amoral, meaning in a psychological context that he was not impacted on by feelings of conscience and did not care what other people thought. His ability to safeguard and protect was compromised because he would prioritise his own needs over the needs of others.
85. In respect of the mother, he confirmed the opinion in his report. She was low in self-esteem and had a need to be accepted. She had a fear of rejection. She had an enormous level of reliance on P and she did not have the capacity to protect the children from the risks in P's presentation because she accepted all his opinions and was very largely under his control.
86. Professor Wilcox gave his evidence in a measured and balanced way. He made those proper concessions about the distinction between having a personality disorder and having traits of one. He readily acknowledged that the father had completed all aspects of the assessment process without exhibiting any hostility towards him. Professor Wilcox was properly challenged quite forcefully, but he maintained his opinions. Some of his opinions can be very readily supported without having special expertise. It is quite remarkable that someone being assessed in the context of their ability to care safely and responsibly for children should brazenly have driven whilst disqualified to the assessment.
87. Some of Professor Wilcox's opinions were supported by P's own evidence and the manner in which he presented when giving evidence. He admitted he liked to take risks. He sought to justify the frequent driving whilst disqualified by saying he found it soothing, putting his needs above the law and those of other road users. His demeanour when answering fair but difficult questions from Miss Brown for the local authority was at times one that came across as controlled aggression. He admitted he had behaved towards the social worker in the house in what could be seen as an overly assertive way, demanding that she get out of the house.
88. His evidence in respect of his friends who were persons posing a risk to children (PPRC) was, and I say this advisedly, nothing short of remarkable. "I will get friendly with anybody" he told the court. "If you don't feel a danger to me, I'll welcome you in." He seemed untroubled by an association with LH, who he knew had an unsavoury past including he understood a conviction for rape, apparently minimising any concerns by seeking to reassure that the children only saw him on family outings. The most worrying example was in respect of DS, the man he regretted not having lent his car to on the morning of 23^rd July. He described DS in his evidence as being "a very violent man who would not think twice about stabbing you with a knife in the back." I was astonished to hear that this same man is J's godfather, and so regardless of any religious connotations someone the father apparently saw as suitable to play a recognised role in his daughter's life.
89. The mother also acknowledged that the father had some friends who were PPRC and that DS was one such individual. Nevertheless, she said he was a friend of both of them. She did not know why DS was said to be PPRC but as P thought it was "okay" to let him come to the home, so she thought it was "okay" too. A clear example of her reliance on him and deference to him.
90. When I take those matters into account, which were entirely consistent with Professor Wilcox's evidence, nothing causes me to have any reservations about his expertise, the manner in which his assessments were carried out or the opinions that he formed. I accept that his opinions are evidence on which I can safely rely, although I remind myself that they are but part of the evidence and I must consider all the evidence before making my own conclusions.
91. To take stock at that point, where do that body of evidence and my findings take us in terms of the threshold under section 31? On behalf of the mother, Mr Calway urged that even if there was a lack of supervision, the court should consider carefully whether that fell below an acceptable standard in the light of all the evidence, and in the light of the fact that the local authority did not put evidence before the court in respect of any other specific instances of alleged lack of supervision. Within section 31, the question the court must consider is whether the most significant possible form of harm that C could suffer, sadly death, was attributable to the care given by the mother and P not being what it would be reasonable to expect a parent to give. I have no doubt whatsoever that it was.
92. C's death on my findings on the evidence was not the result of a moment's inattention such as can befall any parent. There were significant periods where he was left to his own devices in an area where there were many dangers lurking for a young child. Furthermore, the evidence firmly established that the mother and P did not recognise at the time that their lack of supervision exposed C to the risk of harm nor do they do so now, continuing to attribute his death to some unidentified youths causing him to drown rather than their failure to keep a close eye on him near dangerous water for a child of his age, unable to swim and with no buoyancy aids. It follows that in the light of that I find that allegation number 1 in the amended schedule of allegations is proved on a balance of probabilities and indeed beyond.
93. In the light of the contents of the parenting assessment from 2015, my acceptance of the central elements of the evidence of Joanne Turner and others as to the home conditions over a period of time, I find that allegations 4(a) and (b) are proved on a balance of probabilities as to the failure to provide basic care consistently and the poor home conditions. No evidence was called, or perhaps I should more properly say allowed to be called, on the issue of a consistent failure to provide appropriate supervision, except in the context of the afternoon at the water park. It can be said that that allegation in respect of supervision at paragraph 4(a) is made out, but on that basis.
94. The fact that P has an historical conviction for sexually abusing his half-siblings when he was aged 17 has less significance as time passes. However, there is clear evidence that he and the mother associate with persons posing a risk to children in circumstances which pose a risk to their own children and so allegation 4(c) is proved on a balance of probabilities.
95. I acknowledge the argument made by Miss Meachin on behalf of P that the social use of cannabis by the father does not relate to the care provided by him. There is no suggestion that he has been emotionally unavailable to the children or has physically put them at risk of harm through its use. Nevertheless, I take a different view in respect of the driving whilst disqualified which it seems he has no intention of stopping. Why, might it be said, do I take that different view? For two reasons.
96. Firstly, the father, P, must be clearly in line for a custodial sentence when he is next arrested, as no doubt he will be, for this offence. The mother's own limitations as a parent, which are very significant, mean that she relies heavily on P in caring for children. By putting himself knowingly and repeatedly in a position where he will likely soon be removed from the family, he increases the risk of harm being suffered by the children because she cannot cope on her own and he will not be there to assist. His own evidence of the poor state of the home when he took up a relationship with her confirms how she struggles on her own.
97. The second reason is because his disqualified driving is by definition uninsured driving. If he crashes and causes injury to his children, his passengers, they are not covered by insurance. It may be that they would have some recourse under a motor insurer's uninsured passengers' agreement, I know not, but they would not be able to look for immediate and full compensation from the mother's car insurers, as she mistakenly believes. The father accepts this allegation in part and I am satisfied that it is proved on a balance of probabilities.
98. Having considered the evidence relevant to section 31 and my findings on that, let me then turn to the further evidence which contributes to deciding how best to give paramount consideration to the welfare of the children, now and throughout their lives. I said I would return to the evidence of Emma Shaw and I do so now. It will be remembered that she is the PAMS trained assessor who carried out the PAMS assessment in January 2017.
99. She had no reason to believe that the mother's engagement had in any way been adversely affected by the tragedy in July. The mother was animated about engaging. Emma Shaw acknowledged that both she and the father had fully engaged in the programme and she had a good working relationship with them. They had shown good enough parenting in respect of 42 percent of the skills. As I highlighted before, however, in respect of 32 percent of the skills a need for teaching or other action had been identified. One was child healthcare hygiene with particular reference to the back garden being inaccessible due to a build-up of dog faeces and litter. Another was parent healthcare where a need for significant therapeutic input was identified with particular reference to the mental health needs of both mother and father.
100. Other areas which would best be addressed by an intensive parenting course which would normally take about three months, followed by an eight week assessment, included parental responsiveness to the competing needs of the children, child guidance and control, and child responsibility and independence. Of most concern were the priority 3 rating areas which I have already referred to where 9 percent of the skills were assessed as needing immediate intervention necessary for child protection, areas which included home care hygiene, home care safety, and concerns about the recognition of risky adults.
101. Emma Shaw gave her evidence in a clear, confident manner. She is clearly knowledgeable about PAMS assessments and I am satisfied I can rely on her report with confidence.
102. I then turn to the evidence of Sh, as P's mother the parental grandmother of J, and as I have indicated earlier an intervenor acting in person but with the benefit of a witness statement prepared with the assistance of a solicitor dated 20^th March. She is 55 years old, she has a wealth of experience as a parent, and she has been caring for R and J since the mother and father were arrested last July.
103. It is right to say that not all of her history as a parent has been positive. Her son, P, has that conviction when aged 18 for sexual offences. However, he was not living with Sh at the time, he was living with her ex-partner and his family. In the mid to late 1980s Sh's own children were made the subject of child protection procedures. That is now 30 or more years ago. It seems to have arisen because Pa behaved aggressively to P, but the details are sketchy. Terry McDermott, the social worker who was the author of the foster carer and special guardianship assessments, acknowledged that that was so long ago it would not have come to light had Sh and Pa not volunteered the information. That might then be said to be an illustration of their openness and honesty.
104. More recently, Sh has raised her own family and in addition to caring for R and J, she has cared for Ja, who is agreed to be a credit to her. There are no criticisms of her care of R and J. They are acknowledged to have thrived in her care, and Terry McDermott agreed that Sh and Pa have provided excellent care. They had been required to sign up to a written agreement that required compliance with a number of terms, including keeping the mother and the father at arm's length. There is no suggestion that they have failed to comply with these terms.
105. Sh was clearly very disappointed at the local authority's plans for the children, both in terms of them seeking to separate R and J and in terms of her care of R with her husband being secured only by a child arrangements order rather than a special guardianship order. She was clearly distressed at the thought that J might be removed from hers and her husband's care. She was anxious to stress the negative effect that would have. She told the court of the close bond between R and J and how, having already lost C, the loss of someone else who R saw as a sibling would be devastating. Indeed, she became quite emotional trying to explain the depth of her concern.
106. Terry McDermott acknowledged in his evidence that removing J from Sh and Pa would have an adverse effect on both R and J. Sh acknowledged that the local authority plan would give J the opportunity of a lifelong family with T, but she urged that the strong bond that already existed with R should be preferred in circumstances where J had no real relationship with T beyond of course the blood one, in view of T's infancy and separation at birth, since when he had had only limited contact with J.
107. One consistent feature is that nobody questions that Sh and Pa have been providing R and J with a warm and loving household and a happy family life with Jamie. Sh's evidence however showed rather more than that. She was someone who had been so nervous about giving evidence that it affected her physically both before and after giving evidence, yet when talking of the children she was animated, spontaneous and wanted us all to hear about them and how well they were progressing.
108. When describing the children and life at home, her evidence was infused with great affection and pride at the achievements of the children. Small details created a clear picture of a child-focused home. We heard of the small work bench that Pa has made for J so she can help him in the kitchen. We heard of R's attempts to perhaps bend the household rules a little in her efforts to advance her rewards for reading. We heard of how the child benefit is paid into individual savings accounts in the name of each child.
109. Sh and Pa were to attend a parents' evening at R's school the day she gave evidence, and her pride in the fact that R was to receive an award for achievement was evident for all to see. She and Pa were to be attending the assembly at the end of the week to witness it. She also told us how J is developing. She told of us her increasing skills with pen and paper, how she sees others pick up books and so does so herself. She has a keen interest in tablets and similar technology, and she is now climbing on the chairs. She wanted to get involved in whatever R was doing and similarly she was a comfort to R, who would regularly engage her in her play with her dolls, sometimes take a bath with her. There was interaction too with Ja. Weekends might involve visits to play facilities or parks or shopping.
110. Listening to her, one was able to gain a genuine understanding of the children's life in the home, a life that was happy and caring. I was also impressed with her honesty in not seeking to paper over the difficulties it will cause for R, for her, and for the whole family, if they have to cope with the bitter disappointment of not continuing to care for J. R would need counselling and support. Sh acknowledged that she herself would be so distressed, it would be difficult to then focus on still meeting R's needs. I did not however see that as detrimental to her case but rather her showing the sort of insight which is so often lacking in others who appear in this court. She struck me as a woman with a strong core who would overcome her disappointment. It may not have been the word that best expressed what she meant, but I understood what she wanted to convey when she said she would "overpower" herself and focus on R.
111. What of Pa though? We did not hear from him. Sh did not seek to disguise that there had been difficulties in their relationship in January 2016 when he had struggled to come to terms with losing his job. He would then have been 60 or 61. However, she explained that these difficulties had been overcome as he found a new role, playing a full part in the care of his children. There had been that concern raised about his temperament. There was a reported incident of assertive behaviour towards a health visitor. Sh put this into a context where the behaviour of the health visitor was equally assertive. The incident seemed to have been limited to raised voices, and noticeably Sh did the right thing, immediately telephoning the social worker.
112. Terry McDermott said he had spent seven or eight hours, maybe more, in their company. He had found Pa to be always cooperative, welcoming, hospitable and willing to engage. Sh accepted he could be the stricter disciplinarian, but that is nothing unusual where the approach of one of those in a parental role is either more or less relaxed than the other, provided the difference is not too marked. It was said that Pa's bark was worse than his bite and there is no suggestion of any incidents of inappropriate chastisement or similar over the nine years they have been caring for Ja. Indeed, if there were any doubts as to their ability to care, they can be assuaged by looking at the development of Ja, their grandson aged 11, with them since he was aged 2, and described as well-mannered, well-liked and doing well at school. Terry McDermott was able to confirm that when he saw him he was happy, confident and well looked after.
113. It was also noticeable that Sh was quite willing to be critical of the care her son, P, and the mother had failed to provide to the children. She did not think the children should go back to their care. I have no doubt having heard her that if she continues to care for the children she will have no difficulty preventing inappropriate approaches by the mother or her son. Her spontaneous reaction when asked about this, that she would call the police and the local authority, seemed genuine to me, as did her immediate assertion that if the relationship between her and her husband were to break down, the children would be her priority.
114. I have said something about the evidence of Terry McDermott, let me just say a little bit more about that. As I said at the time and I repeat, he gave his evidence very fairly. He acknowledged that there had never been concerns such as to justify the removal of R and J from the care of Sh and Pa, and indeed that many of the concerns that he had identified in the foster care and special guardianship assessments had lessened since he had heard Sh giving evidence. It was positive that their relationship was stable again. His previous concerns that Sh may have minimised P's historic sexual abuse had also lessened. There were no real concerns about the health of Sh and Pa. Terry McDermott was willing to accept that Pa's reaction to losing his job could well have contributed to depression and matrimonial difficulties.
115. Sh and Pa were providing excellent care. Nevertheless, he remained of the view that long term, J's welfare was best met by an adoptive placement with her brother, T. She was much younger than R, and one had to project forward to when say J was 10, Sh would be in her mid-sixties, and Pa in his late sixties, early seventies. Arguably, J had suffered less emotionally from the death of C than R and the support she might need could therefore be of a different nature. I acknowledge that that is a supportable view and the court will have to weight that in the balance.
116. However, I have to say that I cannot see the logic in maintaining that if one or more children is placed with Sh and Pa, it should be by way of a child arrangements order rather than a special guardianship order. I say that because the child or children to whom that placement might apply have been settled there for some time. Giving Sh and Pa the enhanced parental responsibility that special guardianship provides will support them in keeping the parents at arm's length, and the parents should not be encouraged to think that they can readily apply to vary the placement arrangement. I ask how, against that background, a child arrangement order can best serve the welfare of the child or children in preference to the greater security of a special guardianship order. In my view, no persuasive reasoning was forthcoming.
117. I also heard from Louise Parry. She is a senior social work practitioner and the author of the local authority's final evidence. I have to say that in respect of her I also thought that she gave her evidence very fairly and in an informed way. She has been involved in this case since August last year. She was ready to acknowledge that there have been some more recent improvements in the home conditions and that the mother and P clearly love the children. There was warmth and love shown at contact sessions. She was able to tell me that both parents engaged in the assessment process and they had behaved pleasantly and appropriately towards her.
118. She accepted that a cognitive assessment should have been obtained earlier, although she pointed out that the local authority support had in any event been pitched over a number of years now at a level which was appropriate for those who benefited from a PAMS type approach: one to one support, pictorial aids, prompts, rotas. Indeed, in her view the fact that there had been periods of improvement did illustrate that the methods of teaching and support employed were effective, yet over four years nothing had really changed.
119. She had nothing but praise for the manner in which Sh and Pa had cared for R and J. She acknowledged they thrived in their care. She was particularly complimentary about the very child-focused manner in which Pa had helped R with her questions and worries about C's death. He had shown much insight, she said, in approaching this. Like Terry McDermott, her concerns had been assuaged by hearing the evidence of Sh. She had no concerns of sufficient weight to militate against placing R in Sh and Pa's long term care, although again she sought to support the child arrangements order approach, in fairness to her making it quite clear that this was due to what she called rigid regulations. I formed the clear impression that that was a view governed by the failure to satisfy those regulations rather than a decision based on a current assessment of their ability to care.
120. I also understood from Louise Parry that when considering placing J with them, it was quite right that historical concerns about the respondents' parenting and the more recent concerns about their relationship could not be ignored, but her real concern was the longevity of such a placement and there were a number of factors that contributed to that. There were Sh and P's ages of 55 and 61. Any placement would be looking to in excess of 16 years to adulthood. That is quite right, although one might also observe that the physical demands of caring for a child arise largely in their younger years. By the time they are say 10 and embarking or about to embark on secondary education, the parental duties become less physical and move more to setting boundaries, giving guidance and providing a taxi service.
121. Another factor which contributed to her concern was that although R has proved remarkably resilient to the traumas in her life so far, there may be others facing her. She has now embarked on bereavement counselling and she will soon have to face the fact, if that is the decision of the court, that she will not be returning to the care of the mother and P. There may yet be criminal proceedings concerning C, in which she may have to play a role. It may well be that the demands of caring for her will increase such that devoting the necessary attention to her needs may dilute Sh and Pa's ability to care for J, when they are already caring for Ja. Those are points that have to be considered. On the other hand, all are agreed that R sees J as her sister. Removing her from the family where R has already lost C, and in a sense her mother and P who she sees as her father, would only add to her distress. It would be a significant loss for R and break a number of significant attachments.
122. However, there is also the issue of T. He is only 4 months old. He has been in foster care since birth. He has formed no real bonds with other family members. As Louise Parry quite realistically said, if a return to his parents is ruled out there are no family members willing or able to care for him, no option other than adoption. J is his full sibling. There is only a small age gap between them. The local authority has not yet formally matched adopters but they have no doubt that there are suitable adopters available able to take the siblings together. T and J could therefore both have a lifelong permanent placement together in a household not overshadowed by the tragedy that occurred to C. Louise Parry did acknowledge though that such a plan would probably mean a move for J from Sh and Pa's to foster care before moving to an adoptive placement and so be additionally disruptive for her. At some point life story work would be carried out with both J and T, so they could not be totally shielded from the circumstances that led to them being adopted.
123. Louise Parry gave her evidence in a thoughtful and considered way. She readily admitted that she had agonised over her recommendation for J because, she said, it was a very, very difficult decision. Nevertheless her conclusion was that J and T should be made subject to care and placement orders and placed for adoption together.
124. What did the mother say about these matters that relate more to welfare? She accepted that home conditions had gone up and down, got a bit messy. She accepted that the police photos had shown a lot of dirty crockery and limited food, and she had recognised her problem with hoarding, but her love for her children was clear in giving her evidence, as was her grief at what had happened to C. She glowed with pleasure telling us something of the character of her children, about the games they enjoyed playing such as horsey rides with their father. Evidently she had not got on with Joanne Turner, but she had with other professionals.
125. She told us now how she had completed a parenting course over three weeks. Unfortunately she had missed the start because it clashed with contact with T. She had tried to source bereavement counselling but without success. She would willingly undergo any training and accept any support to have her children returned to her. Her final remarks through her counsel were how much she wanted her children back and how much she clearly loved them. Regarding P, for all my reservations as to aspects of his character, one could not doubt also his love for his children. He talked about a happy, lived-in home, a loud house, where fun seems to have been spontaneous. His description of the children being into anything and everything suggested a boisterous and lively household.
126. Finally, on the issue of welfare, what did the guardian have to say? She accepted that home conditions were not currently raising any significant concerns. There was no visible evidence of hoarding. There had been no problems when the children were at home about matters such as school attendance or immunisation. There was though a recorded history of the children being unkempt, sometimes not being provided with reading glasses, suffering from head lice, R being unhappy, being described by her peers as smelly. She understood the need for urgent change when problems had been so long-standing. It was right that a cognitive assessment should have been carried out earlier and that a PAMS assessment whilst the children were living with the carers might provide the best evidence, but like Louise Parry she was satisfied that the strategies adopted with the family had incorporated a PAMS-type approach in any event.
127. She was, as one would expect, fair enough to acknowledge that not only were the children loved by the mother and P, but at times they had received good enough parenting. They were happy children, there was a definite attachment and bond. Nevertheless, in her view the mother and P could not care for all three children and there were very clear risks of significant harm if the mother and P cared for any of the children. It was not safe for the children to return home even if support was provided. So far as T was concerned, the realistic options were limited. She agreed with Louise Parry, that long term foster care is clearly not appropriate for a very young baby. Nothing else but adoption would do. So far as R and J were concerned, like all the other professionals she was very complimentary about the care provided by Sh and Pa, an exceptional standard of care. She was whole-heartedly supportive of R remaining with them under a special guardianship order. She was settled, she had stability and security, and family was very important to R.
128. Whilst there were those concerns in the assessments, the detriment to R of long term foster care outweighed the risks in her being placed with Sh and Pa under a special guardianship order. That would have the advantage of passporting benefits such as the pupil premium, she would have available the services of SUSTAIN, and the enhanced parental responsibility with special guardianship would assist in resisting any challenges that the parents might make. A 12 months supervision order which might be extended would ensure ongoing local authority support.
129. One might then ask why, if the guardian is so supportive of R remaining with the Rs under a special guardianship order, did she not recommend the same outcome for J but instead supported her removal and placement for adoption with T? Noticeably the guardian said it was the hardest decision she had had to make as a professional, and that chimed with the observation in her report that the decision was finely balanced. The factors that influenced her were very similar to those that informed Louise Parry's evidence.
130. Her primary concern was the length of time the placement would need to be secure for J. If it was to be maintained to adulthood and beyond, there were many ways it could be destabilised. It had to take into account both R and J's needs. R had suffered loss and trauma and bullying by her peers. There were concerns that she still blamed herself for the tragedy. She had shown herself to be resilient but she might still have to cope with the inquest, the funeral which has still not taken place, potential criminal proceedings and the renewed media interest that this would bring. In the guardian's view, the true impact on R of C's death had not yet fully fallen on her and this would need professional and family support.
131. Some of those difficulties would surface at different times in the future. Carers would need to be able to focus on R's needs when they did arise. There would also be the need to manage ongoing contact and the difficulties that might cause in the light of the parents' personalities. It was right that J had strong attachments to Sh and Pa and R and was thriving, but it was not her role to provide emotional support for the family. There was no reason why she could not successfully transfer attachments to new carers. She now had the opportunity to develop a close bond with her brother T free from, or at least distanced from, the trauma of last summer and the continued fallout there is likely to be from that.
132. Although it was not expressed in quite this way, I gained the understanding that the guardian's view was that the risks involved in R being placed with Sh and Pa were outweighed by the advantages of taking into account that she was 9, but that the balance fell just the other way when considering that J's placement would be for another 16 years to adulthood. The guardian did say that post-adoption contact would be important and creative ways of maintaining that should be explored such as video, acknowledging that social media often provided ready availability for tracing, and that needed to be catered for.
133. As ever with an experienced guardian, she gave her evidence in a thoughtful and considered way. I acknowledge that her final analysis was an impressive, comprehensive and balanced piece of work. Nevertheless, she accepted the ultimate decision was finely balanced. I should say in respect of the guardian's evidence that she also, very generously I thought, addressed the mother direct, assuring her that she recognised the love that the mother had for her children.
134. I then turn to the application of that evidence to the law. I will just very briefly remind myself of the relevant authorities so all can be assured that they have not been overlooked. Once the threshold criteria under section 31 is established as it has been here, the court of course has to then consider whether an order should be made at all, and if so, what type of order. In Re G [2013] EWCA Civ 965, Lord Justice McFarlane said at paragraph 49:

"In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option."

135. He said in paragraph 54:

"What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options."

136. In the very familiar words of the President in Re B-S [2013] EWCA Civ 1146 at paragraph 44, Sir James Munby said:

"The judicial task is to evaluate all the options, undertaking a global, holistic and multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option."

137. This case is quite complex, so the realistic options before me are several. It seems to me that they are these: First of all, return of one or more of the children to the care of the mother and P. Secondly, placement of R with Sh and Pa. Thirdly, placement of J with Sh and Pa. Fourthly, placement of J with T in an adoptive placement. Fifthly, placement of T in an adoptive placement on his own. Sixthly, long term foster care for all or any of the children. I should say that placement of T with Sh and Pa is not an option because they do not seek to say that they could care as well for him and no one criticises them for that.
138. In carrying out that balancing exercise, the court has to apply the principles in section 1 of the Children Act 1989 that the children's welfare is the paramount consideration, and the benefits and detriments of each option have to be considered, having regard in particular to the matters set out in section 1(3) of the Children Act 1989. However where, as here, the care plan is one of adoption and so the local authority also seeks a placement order, the court must also have regard to the matters set out in the Adoption and Children Act 2002. To do otherwise would be to adopt the linear approach rather than the holistic one.
139. By virtue of section 52 of the Adoption and Children Act 2002, a placement order can only be made without the parents' consent if that consent is dispensed with. That consent can only be dispensed with where the welfare of the child or children requires it to be dispensed with, which has the connotation of the imperative, and in that regard section 1 of the Adoption and Children Act 2002 requires the court to give paramount consideration to the welfare of the child throughout its life, having particular regard also to those matters set out in section 1(4) of that Act. So let me then consider where those factors take us to.
140. If I take as my starting point under section 1(3) of the 1989 Act the wishes and feelings of the children. There is no doubt that R wants to return to live with the mother and P. J and T are too young to express views, but one might reasonably assume that like most children they would wish to be brought up by their parents or those they understand to be their parents if they could be. If that cannot be achieved, we know that R wants to stay with Sh and Pa. She is settled there. If J were able to express a view that might well be her view as well. T at 4 months of course has not known any family life other than with his foster carers.
141. The next matter I consider is the children's physical, emotional and educational needs, having regard to their age and sex, background, and the capability of the mother and P or others of meeting those needs both now and in the future. All the children have the usual needs of children of their varying ages, consistent features of which include love, warmth, shelter, sustenance and stimulation. The mother and father have shown that they can provide those basic features of good enough parenting, although they would need further teaching and then assessment to ensure that they consistently provided some elements such as good enough home conditions.
142. However, all children also require safety and security. The mother and P simply cannot provide this. That conclusion does not arise only because they suffered the tragedy of C drowning on their watch. It arises because even with the benefit of hindsight, they cannot recognise that C was at risk by the nature of their parenting that day. As they have no insight into what they did wrong, there is no sound basis on which to have confidence that they would recognise another risky situation and take proper steps to safeguard their children. That conclusion can be drawn from their own evidence without recourse to the expert opinion of Professor Wilcox, although his opinion confirms that conclusion.
143. Even now the father, P, sees their mistake on the day as not lending the car to DS, not what was done or not done at the water park. There was also his completely cavalier attitude towards the children in his care being exposed to persons posing a risk to children. The mother can provide no moderating influence on his risk-taking personality because she simply goes along with what he says. The risks of the children suffering significant harm in the care of the mother and P are too great to countenance them continuing to care for any of their children.
144. Looking then to the individual children: R is 9. She has experienced that considerable trauma and upset. She has lost her brother in tragic circumstances where there is reason to believe that she may blame herself to some extent. She will also have some memories of violence from her mother's relationship with S. She has the usual needs of a 9 year old moving to some measure of independence, but still heavily dependent on her carers. Her needs may become more acute, more demanding, as challenging events have to be faced, such as the inquest into C's death, the funeral, and potentially criminal proceedings with inevitable renewed media interest. Adoption for her would be out of the question because of her age and the strong bonds and attachments that she has to her family and which could not be transferred securely. Long term foster care would not be a sensible option when she has family carers, Sh and Pa, who have proved how well they can meet her needs over the last eight months.
145. J is now nearly 18 months old, so she is still totally dependent on her carers for all her needs, again the usual ones of a child of her age. She was present at the tragedy but in some ways perhaps fortunately too young to register the shock and trauma in the same way as others. Long term foster care is not realistic for such a young child. She would spend over 16 years subject to local authority involvement which inevitably would be seen as intrusive as she grew older, and would mark her out from her peers. She would have very little security in her placement as foster care can be terminated at any time by either the local authority or the foster carers.
146. Adopters could have been expected to be carefully matched with J, able to meet all her needs including a need for a lifelong family. Adoption would also contribute to her need for a family life by placing her with her full brother, T. Sibling relationships can be amongst the most enduring in a family. On the other hand, as T has been placed separately since birth the relationship between J and T is currently little more than mutual curiosity shown on contact visits. It would also be wrong to ignore the fact that not all adoptions are successful, although the rate of breakdown is less than with foster care because of the enhanced emotional commitment which adopters make.
147. What of placement with Sh and Pa ? They have shown they can meet all of J's needs because they have done so over the last eight months. Can they meet her needs throughout her childhood and beyond as adopters would be expected to do? There are those risks identified in their assessments, but a proportionate view has to be taken of them. Shortcomings in their parenting 30 years ago or more have little relevance now and it would be wrong when comparing them with potential adopters to take too idealistic a view of adopters. Realistically, some of them must have their share of rocky patches in a marriage, as many couples do.
148. It is right to say that Sh and Pa would have to meet the physical challenges of caring for a young child at a time when they are or are about to move into their more advanced years, but as I said previously most of the physical challenges will arise over the next few years. A greater challenge might be providing the enhanced care that R might need in the coming months and years at the same time as meeting J's needs and in circumstances where they are also raising Ja.
149. However, we really cannot know what the future will bring for R and how she will cope with it. There will clearly be some stressful events like C's funeral, but we do not yet know how other matters like criminal proceedings will pan out. The likely impact of those matters on R, or such of them as materialise, and their potential to raise additional challenges for her carers, have to be considered in the light of what we know about how R has responded in the past. She has had to cope with the trauma of the death and being intimately involved in that, being abruptly removed from the care of those she considers mum and dad, and being constrained in the contact she can have with them.
150. She has had to cope with giving an ABE interview to the police which, for all the attempts that are now made to put a child at ease, is still inevitably a disturbing and unsettling event, particularly if the child harbours some feelings of guilt. There has already been intense media interest and it is likely that when she returned to school after last summer holidays she did face the curiosity of some of her peers. Yet despite all these matters we are told that she has remained resilient and thrived in the care of Sh and Pa at the same time as they have been providing exceptional care to J and to Ja. So the evidence, such as it is, supports the view that Sh and Pa can provide for the needs of both children, even at times of high stress for both them and R.
151. The next factor I have to consider under the statutory provisions is any harm which the children have suffered or are at risk of suffering. I have already dealt with that insofar as it relates to the mother and P. The court can be confident that whether placed with long-term foster carers, adopters, or Sh and Pa , the children would be kept safe from physical harm. Emotional harm could arise if any one of such placements broke down after the child had made such an emotional commitment that it could not cope with the termination of that placement. Indeed, one might see that as a risk now if R were to be moved in view of the strength of her commitment to her family and Sh and Pa.
152. What of the future? Long term foster care provides the least security and the greatest risk of breakdown. It is not the best option for any of these children. Adoption provides much less risk of this occurring. A concern of Louise Parry and the guardian is that the placement of both R and J with Sh and Pa increases the risk of the placement failing because of the dual demands. If it did fail, it could well cause emotional harm because of the emotional investment that R and J have already made in that placement. That risk cannot be ignored, but as I have already indicated when looking at needs, the court has to do its best to assess how likely that risk is of breakdown on the evidence currently available.
153. That takes me to the next statutory matter I should consider, which is the likely effect on the children of any change in their circumstances. All are agreed that moving either R or J from the care of Sh and Pa will be extremely upsetting for both of them because of the close bond they have as sisters and their very settled roles as part of that family. The amount of distress it will cause did cause me to wonder whether such separation might itself amount to inflicting emotional harm, but on reflection it perhaps does not seem likely that it would go as far as impairing the health or development of either of them. The professionals are confident that J could transfer those attachments and that with help and support R can be nurtured through a further loss. Nevertheless, the likely effect on them of the change in their circumstances is detrimental. Changing the family circumstances would effectively mean another loss for R, who has already lost her brother C and her life with her mum and the person she sees as her dad.
154. Of course, there is another side to the coin and that perhaps leads into the next factor I have to consider, this one arising under the Adoption and Children Act. There are a number of matters in section 1(4) that replicate the factors in section 1(3) of the Children Act, but there are two additional factors. The first of those is the likely effect on the children throughout their lives of ceasing to be a member of the original family and becoming an adopted person. The legal effect as we know is that the parental responsibility of the birth parents will be extinguished, all legal ties severed. The court does have to have regard to the loss of a child's sense of identity and the risk of damage to the child's self-esteem and psychological wellbeing.
155. In the case of T, only 4 months old, those risks are limited and they can be addressed by life story work and the imaginative and creative approaches to ongoing contact as the guardian suggested. If J is placed with T, then some element of the birth family is retained for both of them as siblings placed together. It is also right to say that by becoming an adopted person a child is provided with a permanent substitute family and a family life with parents who will have been through a rigorous and thorough assessment process and who are making a lifelong commitment to the child. On the other hand, J will be removed from the care of her paternal grandmother and her partner in circumstances that will cause her much distress and where she has been well-cared for. She will permanently cease to be a member of a family where she has forged strong attachments, not only Sh and Pa but to R and Ja.
156. That then leads me on to the final statutory factor I should consider which is section 1(4)(f) of the Adoption and Children Act 2002, and that requires the court to consider the relationship which the child or children has or have with relatives, including the likelihood of that relationship continuing and the value to the child of it doing so, the ability and the willingness of any of the child's relatives to provide the child with a secure environment in which they can develop and have their needs met, and the wishes and feelings of the relatives.
157. The position with regard to T is quite straightforward. Sadly, the mother and P, the father, do not have the capability to care safely for T and there are no other relatives able and willing to do so. He has not lived with any of his birth family. The position is much more complex for J. Sh and Pa want to care for her. Her mother and father want them to care for her in circumstances where they cannot. There is clear value to J in her relationship with Sh and Pa. That is evidenced by the progress that she has made in their care and the universal assessment of their care of her by professionals as exceptional. There is no doubt about the ability and willingness of Sh and Pa to continue to provide that care. The only reservation under that statutory provision is the security of that environment in the sense of the long term stability of the placement. There are reservations, but the weight to be attached to future risk must in my view be measured against the weight to be given to established fact, the fact being that Sh and Pa have maintained the placement so far very successfully and in the face of some adversity.
158. Having considered the statutory provisions in that way, I then turn briefly to again some familiar case law. In Re B [2013] UKSC 33, the Supreme Court restated the importance of the court having in mind article 8 of the European Convention on Human Rights and the right of a child and its parents to a family life. Intervention in the family has to be necessary and proportionate. There are now those oft quoted words of Lord Neuberger at paragraph 77, when he was speaking of a care order with a view to adoption. He said:

"It seems to me to be inherent in section 1(1) that a care order should be a last resort, because the interests of a child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests."

159. Of course, it is not quite that simple. One has to bear in mind what Lady Justice Black said in Re M [2014] EWCA Civ 1406 at paragraph 32:

"I emphasise the last phrase of that passage ('in her interests') because it is an important reminder that what has to be determined is not simply whether any other course is possible but whether there is another course which is possible and in the child's interests. This will inevitably be a much more sophisticated question and entirely dependent on the facts of the particular case. Certain options will be readily discarded as not realistically possible, others may be just about possible but not in the child's interests, for instance because the chances of them working out are far too remote, others may in fact be possible but it may be contrary to the interests of the child to pursue them."

160. There are also the familiar words of Lady Hale in Re B [2013] UKSC 33 where at paragraph 198 she said:

"It is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do."

161. I also bear in mind the observations of Lord Justice Ryder in Surrey County Council v S [2014] EWCA Civ 601, where he reminded us of the need for a proportionality evaluation which necessitates a comparison of the welfare analysis for each placement or welfare option and a consideration of whether having regard to the benefits and detriments of each option, the proportionality of interference proposed by the local authority is justified.
162. If we condense that to a balance sheet, in my view we end up with this in respect of J: If J is placed for adoption, she will be provided with what will confidently be expected to be a lifelong family providing good care for her. She will be sheltered from the turmoil her birth family may yet face in view of the circumstances of C's death. She would be placed with her brother, albeit someone with whom she has no real bond. She will undoubtedly suffer much distress at the separation from her birth family, as will her sister R.
163. If she is placed with Sh and Pa, she remains in her family in the only home she is likely to have any real memory of. She remains with her big sister R, with whom she is very bonded. She has received high quality care from Sh and Pa . The evidence accumulated over the eight months she has been with them provides a factual basis on which to have confidence she will continue to receive high quality care. There are risks in her remaining in the care of Sh and Pa , but they are risks which may not materialise. T is deprived of the benefit of being brought up with his sister, but his relationship with her is not currently developed in any way.
164. In those circumstances, balancing up the benefits and the detriments, I cannot find that the welfare of J throughout her life requires me to dispense with the consent of her parents to the making of a placement order. Therefore the application for a placement order in respect of J is dismissed. Her continued placement with Sh and Pa will be secured in the same way as it will for R.
165. I indicated during submissions and in this judgment that I did not find the local authority arguments for a child arrangements order for R persuasive, and whilst not able to concede the point I understood the local authority to be willing to accept my steer on that. For the avoidance of doubt, I believe that a special guardianship order will better secure R's placement with Sh and Pa because it gives them the right to exercise parental responsibility over almost all matters relating to R's welfare without having to consult her parents. It prevents the parents seeking to disturb the placement by a simple application to vary.
166. Whilst the support of a special guardianship order by a supervision order is not normally to be encouraged, in these particular circumstances it will benefit Sh and Pa to have the ready support of the local authority in managing any challenges that may arise from contact or the children's ongoing needs. The same points in my view are equally validly made in respect of J and both she and R, giving paramount consideration to their welfare and throughout their lives, will be made subject to special guardianship orders in favour of Sh and Pa in accordance with the special guardianship plans which have now been provided and supported by supervision orders of 12 months. I will expect the local authority to respond sympathetically to any request by Sh and Pa to apply to extend those supervision orders.
167. The welfare of T throughout his life does require me to dispense with his parents' consent to the making of a placement order and I make a care order and a placement order in respect of him. Ongoing contact with the children with their parents, including for R with S, will be in accordance with the local authority plans as amended during the course of this hearing.
168. I finally say this: I am very conscious that I have reached a decision in respect of the future of J contrary to the recommendations of an experienced guardian and an experienced senior social worker. However, I have set out my reasons in this judgment. Put simply, I have attached different weight to the same relevant factors that they have identified but attached different weight to. I have not done so without very careful thought and I gain some reassurance from the fact that both the guardian and Louise Parry saw this as a very finely balanced decision in respect of J. I agree that it is, but I have found for the reasons given that the balance tips marginally in a different way to them. That is my judgment.
[Judgment ends]