BEFORE HER HONOUR JUDGE OWENS
B e f o r e :
|OCC v L|
Ms Pepper, Counsel, for the First Respondent Mother, M
Ms Kotilaine, Counsel, for the Second Respondent Father, F
Ms Gray, Counsel, for the Third and Fourth Respondents, acting through their Children's Guardian
19TH FEBRUARY 2018 TO 23RD FEBRUARY 2018
Crown Copyright ©
This judgment is being handed down [in private] on 23rd February 2018. It consists of 33 pages and has been signed and dated by the judge. The Judge has given permission for the judgment (and any of the facts and matters contained in it) to be published on condition that in any report, no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name, current address or location [including school or work place]. In particular the anonymity of the children and the adult members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court. For the avoidance of doubt, the strict prohibition on publishing the names and current addresses of the parties and the child will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain.
I am dealing with applications for Care Orders in respect of J and W. J is aged 14 and W is aged 9. M and F are the parents of W. J's father is MC who has been notified of these proceedings (he does not have parental responsibility) by the allocated social worker and informed of his right to seek to participate in the proceedings. He has confirmed to the allocated social worker that, although he would like to have contact with J at her pace, he was not putting himself forward as a potential carer for J and did not want to participate in these proceedings. Both children view F as their de facto father in any event.
This hearing has been effective as the final hearing and I have read the Bundle and heard from the allocated social worker, Dr Bailham and the Guardian. The parents, having had proper legal advice and several opportunities to consider the implications of not giving evidence through the course of this hearing, chose not to give any evidence and no party wished to seek to have them compelled to give evidence in light of the fact that this would be unlikely to achieve much by way of good quality evidence for the Court.
Background and evidential summary
There is a considerable history of LA involvement with this family, stretching back to 2010. There have been numerous referrals from different services raising concerns about almost all aspects of the care given to the children. It is the Local Authority case that, despite a very high level of support given to the parents over the years, the concerns have not reduced and in fact the Local Authority have accepted that they should have brought proceedings far earlier in relation to W and J who now present as deeply damaged and with significant additional needs.
The parents have been subject to a PAMS model parenting assessment (C78-99). That assessment was by Jill Edge and she identified seven areas of work that the parents would have to undertake to enable them to parent to a good enough standard.
Mr Keene, a clinical psychologist, conducted psychological assessments of both parents' cognitive functioning and ability to participate in assessments and the proceedings in October 2017 (E16-23 for F and E24-32). The report in respect of M made some recommendations with regard to adaptations to processes that would be required to help her in light of her difficulties.
A further clinical psychologist, Dr Bailham, was instructed to fully assess the psychological functioning of the parents and the children in this case. This assessment was specifically to look at the parents' functioning, their relationship and their capacity to improve on the deficiencies identified in the parenting assessment. Her report (E34-60) had to be prepared without the parents, who did not attend two pre-arranged appointments. As a result, Dr Bailham simply assessed the two children and made recommendations based on the parents' history as evidenced in the papers and the presentation of the children. Dr Bailham identified a range of concerns in relation to W and J's behaviours and that both children have a heightened level of need from their caregivers. She recommended that the children should be placed separately but with sibling contact.
The Local Authority seek threshold findings as set out in the interim threshold document at A1-2 (it appears that no direction was made by the Court for a final threshold document to be filed). The final care plans (D15-30) are for the children to remain in long term foster care and it is hoped that, if the Court makes final care orders and approves those care plans, the current foster carers will be approved as long term foster carers for the children. The current foster carers have confirmed that they would wish to care for the children in the long term.
The parents have made limited acceptances in relation to threshold. The responses of F are at A23-25 and he accepts that even his limited acceptances are sufficient for the purposes of s.31. However he does dispute the majority of the threshold allegations. The responses of M are at A35-37. She does not accept that threshold is crossed for the purposes of section 31. Both parents seek to have the children returned to their care. As part of Ms Kotilaine's closing submissions, F applied to adjourn the proceedings for a full kinship assessment to be carried out in respect of A and B whose initial viability assessment appears at C72-77. This application to adjourn was opposed by the Local Authority and Guardian.
The Guardian supports the Local Authority plans for the children to be placed in long term foster care as set out in the final care plans. The only issue between the Guardian and the Local Authority relates to contact, specifically arrangements for some form of combined inter-sibling and family contact. The Guardian has suggested that the welfare of the children is better met by a plan for contact which allows for there to be two sessions of contact per year between the siblings and their parents, with the remaining four sessions of contact per child being as set out by the Local Authority in their final care plans. The Local Authority have produced amended final care plans which seek to address the concerns of the Guardian.
Relevant legal considerations
In addition to considering section 31 (2) of the Children Act 1989 with regard to threshold, I have had regard to the welfare checklist contained in section 1, and have also borne in mind the principles outlined in the case of Re B-S. I have been mindful of the President's reiteration of the basic principles governing these types of proceedings in Re A (A Child)  EWFC 11 which re-stated that it is for the local authority to prove, on a balance of probabilities, the facts upon which it seeks to rely. In addition, I have considered the words of Hedley J in Re L (Care: Threshold Criteria)  1 FLR 2050.
The first stage of my decision making in this case has to be whether threshold is met for the purposes of section 31. Both parents dispute the factual basis on which the Local Authority seek to establish threshold, though as I have noted they have made some limited concessions in respect of threshold.
The first set of threshold criteria relate to neglect of the children's basic needs (A1-2 items 1(i) to (vi)). Item 1(i) is that on 26th June 2015 the parents removed W from school in order to educate him at home. Since that date, they have failed to provide him with an adequate education such that W has fallen significantly behind in his attainment and development. There is no factual dispute from either parent that W was removed from school on the 26th June 2015. However F states that this was because W was unhappy at school and both deny that they failed to provide W with adequate education (A24 and A36). As was noted by Mr Sampson for the Local Authority in closing, the date that W was taken out of school is the very same date that a referral was received from the school due to concerns about W which included poor attendance, lack of varied diet and W being underweight (DM2). W's absence record was 59% in September 2014 (DM1) and his attendance under 50% in January 2015 (DM1) as the social work chronology shows. Concerns around school attendance for J also continued through into 2016 (C6 chronology initial social work statement). There is no evidence of any illness that would explain the poor school attendance record for either child but particularly in relation to W. In fact, the evidence contained in the reports of Dr Gada at ED1-13 reinforces the conclusion that there was no medical reason for W's failure to attend school regularly. W's unhappiness is recorded within many of the Local Authority evidential documents, but I find is part of a wider picture about his presentation which I will consider in more detail in relation to the detailed welfare checklist analysis as there is no evidence that his simply being unhappy justified his removal from school. I do find that it is significant that since W has been in foster care, as Mr Sampson submitted, the problems identified by his parents as reasons for their not being able to get W to school regularly and on time have not been replicated.
In terms of the allegation that the parents' have failed to provide W with adequate education after they removed him from school in June 2015, there is ample evidence within the Local Authority documentation and in fact within the parents' own written evidence to support this conclusion, I find. M set out her written evidence about the home education they provided at C51 paragraph 2. There is also the evidence of what they told the Guardian about their home education at para 18 of her Initial Analysis and Recommendations (E7). The evidence from when W returned to full time education also supports a conclusion that his educational needs were not met during the period that he was educated at home as it clearly shows that he was functioning a level well below that which would be expected for him – school report C59. His level of educational attainment and development has, in fact, improved significantly since he was placed in foster care and he is now noted to be reading at a level which is above that of his chronological age and this is not disputed by the parents as F's statement at C121 shows. There appears to be some acceptance on the part of M when she spoke to the Guardian for her final report that "the home education they provided to W was not good enough … She now feels that W should be in school full time" (E66). I am therefore satisfied on balance of probabilities that this threshold criterion is made out.
Item 1(ii) on the threshold document is that the parents have consistently failed to engage with Health Care professionals in respect of W's health and developmental needs and have missed numerous appointments. The parents' responses to this seems to accept that some appointments were missed (albeit with the explanation that this was due to W's ill-health or refusal to leave the house) but denies that they have failed to engage with health care professionals. F in particular takes issue with the diagnosis of Dr Gada at ED3 that W appeared to be functioning at least 3 years, or slightly more, behind his age appropriate peers. There is a wealth of evidence within the Local Authority checklist documents and chronology to show that W missed numerous health care appointments over a protracted period and especially in the two year period from 2015 when the Local Authority were consistently involved with the family. The fact that W had to have numerous dental extractions due to poor hygiene and decay (see for example the Child and Family Assessment in 2016 at DM18) despite the parents being repeatedly advised to supervise his tooth brushing regime and ensure that he regularly followed a routine of brushing his teeth, speaks volumes about the parent's inability to consistently engage with the advice of health professionals, I find. In addition it is noted throughout the decision making documentation that W required regular reviews for his asthma yet appointments were not made for this (see for example DM29). As a consequence of failure to ensure that W had regular asthma reviews, it is clear that it was not picked up sufficiently early that W did not in fact have asthma (DM274). This must have resulted in W using his prescribed inhalers for longer than would be advisable, I find.
There is also the extremely troubling evidence about F's failure to accept the opinion of Dr Gada. I have heard no oral evidence from F about this but he did set out in his first statement at C42 that he did not accept Dr Gada's diagnosis and then immediately followed this by saying that he accepted that W is behind. He went on to say that they had issues about Dr Gada and made a complaint but their complaint was not upheld. As was submitted by Mr Sampson, it seems more likely than not that the complaint against Dr Gada was driven more by the fact that Dr Gada had made a referral to social services as a result of his concerns for W's welfare, than any legitimate reason not to fully accept his diagnosis. As set out in the social work evidence at C17-20 and C110-11 I am satisfied that there is a pattern of the parents consistently failing to engage with health care professionals in respect of W's health and developmental needs. I therefore find this threshold criterion proved on balance of probabilities.
Item 1(iii) on the threshold document is that the parents fail to provide W with appropriate routines; he often stays up late into the night and consequently is tired and often sleeps during the day. There is a limited acceptance of this criterion on the basis that it has happened in the past but both parents say that the issue was resolved by the relevant date. The relevant date for the purposes of considering threshold in this case is when proceedings were issued on 30th August 2017 so I have looked at the evidence addressing that period. Lack of consistent routines was still noted as a concern at the Review Child Protection Conference held on 3rd July 2017 (DM245). The initial social work statement at C24 summarised the position when proceedings commenced as one where the parents were frequently commenting that they did not know what time W went to bed "and records would indicate that he is awake most the night and then sleeps throughout the day". Ms Lacey, the Early Help Practitioner, working with the family from March 2017, has also detailed in her statement at C64 the support that she gave the parents with regard to encouraging positive routines and her observation that the tools she provided were not used and the parents did not model positive routines in her opinion (C64). The PAMS assessment, dated January 2018, records that the parents have poor skills in respect of child guidance and control based in no small part on what the parents told Jill Edge, the assessor, about their difficulties in setting and maintaining boundaries and routines (C90). The conclusion of that assessment was that this was one of a number of high priority areas as a result (C95). The evidence (in particular in the chronology at DM1-15 and the social work statements in section C), which is not disputed, that W was often observed to be very tired when in the care of his parents also corroborates the conclusion that he was not being provided with a suitable routine around going to bed so as to enable him to get up earlier in the morning, I find. There is the undisputed fact that W fell asleep during a paediatric appointment on 4th May 2017 (DM9) because he was so tired. There is no medical evidence of any underlying organic cause for W's being so tired. Again, the fact that his chronic tiredness is no longer an issue now that he is following appropriate routines in his foster care placement is good evidence that this issue is one that was solely due to the lack of regular and appropriate routines from his parents. On any reading of the facts, W's routines were so poor that he was chronically fatigued, and this includes as at the relevant date and therefore I am satisfied that this threshold criterion is made out.
Item 1(iv) is that the parents failed to provide W with a balanced and nutritious diet and as a result he has recently been diagnosed with a number of vitamin deficiencies requiring the use of supplements. M appears to accept this threshold criterion though says that it was due to W being a fussy eater. F says that they did try to provide a balanced and nutritious diet but that W was a fussy eater. The initial social work statement details this at C24 and in particular is it striking that the lack of regular routine is given by M as a reason for W only having one meal a day sometimes "because he only got up at 3pm". The statement goes on to note that M has admitted only feeding W if he asked for food. The Early Help Practitioner assigned to the case, Ms Lacey, has also detailed issues around the parents failure to ensure that W was provided with a balanced and nutritious diet (C64). I am therefore satisfied that this threshold criterion is also made out on balance of probabilities.
Item 1(v) is that the home environment is unsanitary, infested with fleas and often smells strongly of urine and animals. W suffers from repeated flea bites as a result of the infestations in the home. This appears to be accepted by M, but F's response indicates that he does not accept that the house was unsanitary or smelt strongly (A24). He does accept the flea infestation. The evidence with regard to the unsanitary conditions in the home is, I am afraid, simply overwhelming. It was a concern first noted in the chronology in October 2016 as a result of a referral from the Housing Association and this led to input from Thriving Families in part to provide support around the home conditions. Dr Gada in his report at ED1-4 noted concerns about the home conditions. C23 in the initial social work statement records J saying that the home environment was poor and that she did not want to go into her room as it was full of cat faeces. The evidence about the smelliness of the home environment is perhaps best captured in the social worker's statement at C24 "W is frequently found asleep in his parents' bedroom, in their bed, dressed only in his pants, surrounded by a strong smell of urine which on occasions is so strong that it burns your eyes. It is never clear whether the smell of urine is coming from the bed itself or the bedsheets lying on the floor. During one visit to the family home Ms Lacey witnessed M heaving, as she tried not to be sick, as she cleared out the rubbish and dirty clothes from under the bed in their bedroom. The home environment is poor, not clean, with furnishings that are broken and infested with fleas and a lack of food. The floor in the lounge frequently has plates of left over food, empty crisp packets and glasses of fizzy drinks. The house has a permanent stale smell of animals and urine and the carpets are covered in layers of what looks like dog hair and dirt". It is unclear on what basis F disputes that the house was smelly and unsanitary as he has not addressed this in either of his written statements and no questions were put to the social worker about this. I am satisfied on balance of probabilities that this threshold criterion is made out.
Item 1(vi) is that the parents have failed to provide for J's basic physical needs at home to such an extent that she chooses to spend the majority of her time living with her grandmother. Interestingly F accepts that he has failed to provide for J's physical needs and that J had spent time with her grandmother as it was closer to the bus stop for her school (A24), whereas M does not accept that she has failed to provide for J's physical needs and accepts that J has spent time with her grandmother because she enjoyed being there (A36). Again, the ample documentary evidence from the Local Authority demonstrates that J's physical needs have not been met over a significant period of time, I find. It also supports a conclusion, based on what J has told various professionals over the years that J did not like being at home because it was dirty and smelly and that is why she preferred to live with her grandmother. My findings with regard to the inadequate home conditions alone supports a conclusion that J's physical needs were not being met whilst the house was in the state that it was. It is also likely, as submitted by Mr Sampson in closing, that to a greater extent than W, J developed some resilience in response to her parents' inability to meet her physical needs and that her choosing to stay with her grandmother is evidence of this, I find. I find this threshold criterion proved on balance of probabilities.
The second set of threshold criteria relate to emotional abuse. In considering this aspect of threshold I have taken into account the photographs produced by F which everyone accepts show the children having some happy times with their parents. However, as Dr Bailham pointed out, these are just snapshots (literally) and it is not part of the Local Authority case that the children have never had some happy times with their parents. The allegations are more complex and subtle than that. Item 2(i) is that the parents routinely use sickness as an excuse for W not attending important appointments such as health care, dental and school meetings and will do so in front of W. There is no evidence to suggest that he genuinely is unwell. In the alternative, if it is found that W is genuinely regularly unwell, the parents have failed to seek appropriate advice from the family GP about this. This ground is denied entirely by both parents.
As I have found above, there is no evidence that W's health was so bad that it provided a reason for his extremely low school attendance. This therefore also supports a finding that there is no evidence that his health was so bad that it meant he was routinely unable to attend important appointments. In fact, what the detailed checklist documentation demonstrates is that time and again there is a noted failure to attend necessary paediatric, dental and school appointments (see particularly the chronology at DM1-15). The response from M (A36-37) refers to W having been diagnosed with asthma. As I have noted earlier, there was a failure to take W to regular asthma reviews and it has subsequently transpired that he does not in fact have asthma. Nothing in the written evidence of either parent addresses how this meant he was unable to attend important appointments. It is deeply concerning that the parents seem to have categorised W as a sickly child when the medical evidence and the reports of him since he has been in foster care do not replicate a level of illness that would prevent W from attending important appointments. The Local Authority evidence, in particular that of Dr Gada and also the evidence of the allocated social worker since W has been in foster care, demonstrates that the failures by the parents to provide W with a balanced and nutritious diet, to ensure that his hygiene improved and that he was provided with the right parental support to enable his social and educational developmental needs to be met, are likely to be the cause of W appearing pale and listless as is noted numerous times by various professionals when W was in the care of M and F. I have no doubt that M and F genuinely believed that W was a sickly child from everything I have read. In a way this is almost more concerning than parents who have sought to exaggerate or pretend that a child is ill because it suggests that the need for change on the part of the parents is going to require them to alter their belief system in relation to this. On balance of probabilities, I am satisfied that this threshold criterion is made out.
Item 2(ii) is that the parents have regularly engaged in discussion of inappropriate subjects in front of the children and do not shield them from adult topics. For example, the father has told both children that they are going to be removed and placed in care and that they will not see their parents again until they are 18 years of age. J in particular has been distressed by this. The evidence in support of this criterion commences in the initial social work statement at C21. However, there is also evidence from the Guardian about this at E5 and E68. In particular at E68 M told the Guardian that she had asked J "if she is anorexic and told her that the foster carer and other professionals think she is as she makes herself sick". A more stark example of a parent engaging a child not only in an inappropriate topic but in a wholly insensitive way is hard to imagine, I find.
Ms Lacey also details an inappropriate conversation between J and her mother which took place shortly before the children were removed in October 2017 (C128): "she told me that her mother had said to her before removal that if they (the children) were taken into foster care she would leave her father. J told me that she had said to her mum that they would need to get a car to get somewhere safe away from her father. I later spoke with M about this (in or about December 2017) and she confirmed that she and J had indeed had this discussion".
Concerns about inappropriate comments or discussions by the parents have continued despite contact being supervised. Whilst contact is overall noted to be generally positive by all concerned with instances of the parents responding perfectly appropriately to questions from the children such as at CN14, there are instances right up to mid-January of inappropriate comments being made. At CN45 during contact on 6th December 2017 there is a conversation with W about why he is in care, prompted by W asking questions. Whilst M is reassuring at the end of this brief conversation, there is no reassurance offered by F at the end and M asks W who has told him something about why he is in care. At CN51 at the end of contact on 19th December 2017 F "called W over to the window and pointed to the car and informed W his car seat is still in the car for when they can take him home". Ms Lacey has also provided written evidence about this at C128-129, describing what happened as wholly inappropriate in her view and noting that "it was not said in passing but was specifically raised by F. He knows, as the contact notes bear out, that the farewells with W are particularly difficult and that this was bound to make it worse. Fortunately, W had just got his Christmas presents and so was excited and I was able to distract him with the Spiderman webbing he had been playing with". During contact on 16th January 2018 with J the contact note from the supervisor "I went to use the facilities and when I came back dad was talking to J about the interim court case on 28th Jan. He said to me, 'I'm just telling J about the court case at the end of Jan and how we're trying to get them home early". This is clearly a highly inappropriate conversation to have had with J and it is very concerning that it started when the contact supervisor was out of earshot briefly. In addition, there is the evidence of Ms Lacey at C128 about M sending J photos of things that she was buying for J's room via Snapchat. J told Ms Lacey that the photos were of things that "her mum had told her she would buy for her bedroom for when she returned home". What is concerning about this is that it seems more likely than not that this was prompted by M rather than questions from J and to say something to J that assumes she is coming home is creating a level of expectation in J that cannot be in her best interests if the decision is not to return the children to the care of their parents. I am satisfied on balance of probabilities that this threshold criterion is also made out.
The third set of threshold criteria relate to parental disengagement with support. Item 3(i) is that the parents have routinely been evasive of professionals over a number of years and have not engaged with Child Protection Planning. Given my findings above in relation to missed important appointments and failure to engage with health care professionals, I have already found the first part of this criterion to be made out. The second aspect of this criterion is the alleged lack of engagement with Child Protection Planning.
It is clear in this case that there have been some professionals with whom the parents have been able to work. Ms Lacey and REOC are good examples of this. However, what is also apparent is that the extent to which the parents have been prepared to work with them in order to make lasting changes has been very limited. REOC, as is noted in the chronology at DM13-14, wanted to work with W in school alone but F prevented this. Despite the intensive support provided by Ms Lacey while the children were at home, as she notes in her statement at C127-128, the issues around lack of boundaries and poor diet continued and both children had very worrying presentations.
The children were first registered for Child Protection on 25th February 2016 when the Initial Child Protection Conference was held following the recommendation of a Child and Family Assessment that Child Protection Planning should be implemented (DM33). The notes of the first Core Group meeting are at DM35-49 and sets out clearly the plans for each child and the expectations of the parents under those plans. Both parents were present for this meeting. A review of the plan was scheduled for April and that review Core Group meeting took place on 20th April 2016 (DM50-64). Again, both parents were present for this meeting. The updates provided for that meeting record that there had been some limited progress around improving J's school attendance and some more variety to W's diet (crispy chicken and garlic bread). However the record shows that the children had only been seen once since the last meeting and there had been two failed visits (DM59-60). A pattern of missed visits continued throughout the Child Protection Planning process up to the issue of these proceedings and as recorded in the documents in the DM section and on the chronology. A quick count of missed visits or meetings from the chronology in this period shows at least 24 visits or core group meetings which were either missed entirely (despite core group meeting dates being announced in advance, and there being evidence of people in the house when the social worker visited on announced or unannounced visits) or where it was not possible to see either or both of the children. In addition a high number of visits in this period record that W was still asleep during the day and therefore all the social worker was able to see was W asleep. Based on this evidence, which is not disputed by the parents, I am satisfied that the high number of missed child protection visits alone supports a conclusion that the parents were being evasive and there was a failure to engage with Child Protection Planning and that therefore on balance of probabilities this threshold criterion is made out.
Threshold item 3(ii) is that the parents regularly miss important appointments in respect of the children. Given my earlier findings above, this criterion is clearly made out but the question is whether this proves that there was parental disengagement with Professional Support. It is my view that this falls to be considered together with the final item on the threshold document at 3(iii) – despite extensive support being offered over a lengthy period from a variety of agencies, the parents have effected little to no meaningful change in their parenting of the children. Neither parent's response to this accepts this last aspect though both accept that some appointments were missed but only because of illness. As I have found earlier, illness is not the reason for the numerous missed appointments. In terms of the support that has been put in, that is not disputed by the parents and included Thriving Families from July 2015, Team Around the Child in 2015, Witney Hub Family Support from September 2015, Educational Welfare in three phases which comprised support while W was still in school in 2015, then a home education support worker then prosecution when W failed to regularly attend school after his reintegration to mainstream schooling in 2017, Child Protection Framework from 25th February 2016 to the commencement of proceedings in August last year, direct support in the home by Ms Lacey from March 2017 and support from the REOC (Residential and Edge of Care) service from May 2017. In terms of the latter, it is deeply concerning that upon receipt of the request for REOC to work with the family, REOC queried whether it was appropriate to commence proceedings "We are especially concerned that presenting matters such as parental disengagement with services, child from school and are currently being prosecuted, neglect, physical and emotional abuse are concerning components of serious abuse. We question if these children should be in the 'edge of care' or if these safeguarding concerns are above the 'edge of care' threshold and warrant them being taken into care for their own safety" (DM10 and C20). I will return to the issue of when the Local Authority should have commenced proceedings later in this judgment, but I am satisfied on balance of probabilities at the relevant date a very significant level of support had been offered to these parents over a number of years and yet little to no meaningful change in their parenting had been achieved. I therefore find this threshold criterion proved on balance of probabilities.
F had accepted that his limited admissions in relation to the threshold criterion meant that threshold was crossed for the purposes of section 31. M, as I have noted earlier, had not made such a concession in light of her inability to understand the abstract concepts involved, though she did accept that she had made mistakes. In light of my findings on each individual threshold criterion, I am satisfied that at the time that protective measures were taken in relation to J and W (namely 29th August 2017), there were reasonable grounds to believe that J and W were suffering and likely to suffer significant harm, and that the harm, or likelihood of harm, was attributable to the care given to them, or likely to be given to them if the order were not made, not being what it would be reasonable to expect a parent to give them.
The next stage of my consideration of this case has to be the welfare checklist in section 1 of the Children Act 1989. The first relevant heading is the wishes and feelings of the children concerned, taking into account their age and understanding. All parties agree that the children have clearly expressed a desire to be back at home with their parents. It is also abundantly clear that the children love their parents very much and no party disputes this. Both children are old enough to be able to articulate their views clearly and independently as they are 14 and 9 years old. J has written a letter to me for this final hearing in which she pleads to be allowed to go home (C125). For me, the most heart breaking aspect of that letter is that J says that she will "try and eat healthy and help keep the house tidy" and "I will help with housework". As both the social worker and Guardian told me, they were concerned that J was demonstrating a level of feeling responsible for sorting things out in this letter. Dr Bailham also told me that in her opinion J felt responsible for her mother. I also have the evidence of the social worker at C106 of a recent telephone contact between W and his father where W became so emotional when talking about school that the call had to be ended. W told the foster carer that he felt guilty about liking school. Similarly, I heard from the Guardian about J liking school more than she lets on. The Guardian and social worker also told me that both children are thriving in foster care and have experienced many firsts there, such as birthday parties and in W's case doing PE at school. It seems more likely than not that the children's wishes and feelings are more nuanced than simply wanting to go home, I find. They clearly do love their parents and want to go home but neither wants to go back to the same parenting that they experienced before, I find.
The next relevant heading is the physical, emotional and educational needs of the children. Dr Bailham has assessed both children as having enhanced emotional needs as a direct consequence of the parental neglect and abuse that they have suffered. She was challenged on this opinion by counsel for both parents who sought to criticise her assessment process as superficial. However, Dr Bailham was very clear in her report and in evidence to me that she had considered the totality of the evidence, used her clinical expertise and experience and based her conclusions on that as well as her interviews with each child. She was also clear that the reason she only conducted brief psychological tests with each child was due to the fact that they were children and the duration of the interviews with each child was due to the same consideration. She was a very impressive witness who repeatedly emphasised how deep is the level of need for both J and W, I find.
Ms Kotilaine submitted that the comments recorded by the foster carer for J to Dr Bailham were judgmental. However, as Dr Bailham has clearly reviewed all of the evidence as well as seen the children herself, I am satisfied that had there been anything in those remarks that contradicted the overall picture painted by the evidence she would have taken that into account. As Dr Bailham clearly told me, the significance of what the foster carers had to say was that they were the people seeing the children every day. Ms Kotilaine sought to make much of the concerns expressed by the foster carer about the way in which J sometimes chose to dress and Dr Bailham's conclusion that J was at increased risk of child sexual exploitation. What Dr Bailham in fact told me in answer to this line of questioning was that it was not the way in which J dressed alone which caused the concern but rather more the fact that J is very vulnerable to abuse as a result of her childhood and the harmful parenting which she has experienced and which has led to her having very low self-esteem and potentially negative thoughts about herself. What Dr Bailham was therefore saying is that if this is combined with dressing in a way that is designed to attract attention (as is normal for many teenagers) it may expose J to a risk of sexual exploitation and needs to therefore be handled extremely carefully and sensitively, I find.
Dr Bailham was questioned a lot by Ms Kotilaine about the possible issue of whether or not J has some form of eating disorder and dissociates at times. Dr Bailham was clear that what was described by the foster carer and what Dr Bailham herself observed in relation to J's presentation went beyond what would be normal body image anxiety or sulkiness in a teenager. The Guardian and social worker told me that what J does when she disengages when they have seen her goes beyond normal teenage withdrawal or sulkiness in their professional experience.
The social worker was also clear in her evidence about J being sick that what the foster carer has observed is more than J possibly coughing up phlegm as the parents suggest. Similarly the Guardian's evidence was equally clear that what the foster carer has observed suggests that J has at times been sick and this is not explained by general illness. I think I can take judicial notice of the fact that it is extremely difficult to identify an eating disorder if it is in the very early stages where there are not obvious physical symptoms such as eroded enamel or drastic weight loss. By their very nature, the conditions concerned often involve suffers concealing what they are doing and may wax and wane (as Dr Bailham pointed out to me). The social worker very fairly conceded that the foster carer had not provided her with any additional information which would suggest that the issues have continued and the advice as a result of the LAC medical conducted recently is that the situation should simply be monitored. At its highest, therefore, it seems clear to me on the evidence that there is sufficient to justify noting that J may be at increased risk of developing an eating disorder and this is going to need careful monitoring as Dr Bailham in fact said to me.
Ms Kotilaine was very critical of the foster carer calling her 'judgmental' in her comments to Dr Bailham. However, I have noted that Dr Bailham told me that she felt the comments from the foster carer were made from a desire to provide her with as much information as possible. In light of J's vulnerabilities, I do find that it is reasonable for the foster carer to have mentioned the potential impact of the way that J sometimes chose to dress if that exposed her to potential risk of abuse. Equally, expressing concern that J was bought an advent calendar by someone she did not really know (which is actually what Dr Bailham said in her evidence to me) seems a reasonable comment in a full psychological assessment of J, I find.
I find that Dr Bailham has conducted a very careful and comprehensive assessment of these children and that her conclusions that they have an enhanced level of need as a result of the neglect and abuse they have suffered at the hands of their parents are valid. She has also concluded that both children will need therapeutic input. Those conclusions are set out at E44-49 and clearly support a finding that the children will need better than good enough parenting to address the level of need that they have.
Any change of circumstances for the children is the next checklist heading. They have been in foster care for some months now and the hope if care orders are granted is that they would be able to remain in their current placements long term. If they were to return to the care of their parents they would be returning to live with the family with whom they have lived since they were born. In essence therefore, the issue of where they should be placed would not result in any significant change of circumstances save for the plan to reduce contact if they were placed in long term foster care. They currently see their parents twice a week each and the amended care plans would see a staged reduction of this to six times per year, two of which would be family contacts as the Guardian suggested. The impact of a reduction in contact is one that has to be factored into the balance as W in particular clearly enjoys contact with his parents and all the professionals have acknowledged that the children would initially be upset by a reduction in contact.
The next relevant heading relates to harm which W and J have suffered or are at risk of suffering. As a result of my findings in relation to threshold, I have found that both children have suffered significant harm as a result of the parenting they have received over a significant number of years. In terms of future risk of harm I will consider this in more detail under the heading of parenting capability as the two are inextricably linked in this case in my view.
Parenting capability or ability is the next significant aspect of the checklist. As I have also noted above, this links directly to risk of future harm. A parenting assessment was conducted of both parents by Jill Edge and her report is at C78-99 in the Bundle. Her conclusions are set out at C95 and identified seven key recommendations for work that needed to be undertaken, most of it urgently, to address the deficits in the parents' parenting capabilities. The assessment identified three key areas where the parents needed support – child feeding, child guidance and control, and child responsibility and independence. This evidence with regard to parenting capability is augmented by the evidence from the allocated social worker at C100-112. The conclusion of the allocated social worker is that considerable support to address these areas has been put in to the family over a significant number of years (as I have earlier found in relation to threshold) and it is her opinion that "a large variety of support has been offered to the family to address the identified deficits and concerns for the children. This support has not been accepted nor changed anything for the children over a considerable period of time and I fail to see how the parents would be able to make those changes, beginning now, within the children's timescales. Ms Edge identified an extensive list of recommendations that need to be completed before M and F's parenting could be considered good enough for them to safely parent their children and protect them. Given M and F's history of non-engagement with professionals I find it very difficult to see how these recommendations will be achieved" (C112).
The Guardian is of the same opinion "I do not feel confident that M and F understand the individual needs of their children, and the harm they have experienced in their care. Sadly, I also do not believe that input, advice or guidance from professionals would be taken on board and actioned in the future, as recommended within the PAMS assessment. Whilst F indicates at times that he is willing to work with professionals, in practice he continues to be resistant to this. There appears to be very little in the way of acceptance regarding the need for professional input, and little respect for the views held by those who have tried to work with the family. It is quite likely that in this case, the past is indeed a good indicator of the future. M indicated that F would be prepared to separate from her if it meant that the children could be returned to her care. M appeared uncertain as to how she would feel about this. I have considered whether this is a realistic option that ensure the safety of the children and enable them to remain within their family. However, at this time, particularly with the absence of a full psychological assessment, there is little evidence that M alone could successfully meet the individual, high level of need, of one or both of the children. Even if it had been established that she might be in a position to do so, a sufficient period of time would realistically be needed for further assessment, and for her to demonstrate that she could maintain a separation from F. Unfortunately, this option is now outside of the children's timescales given their immediate need for stability within permanent placements. In any event, I note that neither of the parents have made any mention of the possibility of separation in their final evidence" (E69).
It is not disputed that the parents have made efforts to improve the home conditions and I have seen photographs of the house to confirm this. They have also told the social worker and Guardian that they have put in place routines. However, the evidence from them about this is contradictory as F says that they now have a better routine of regular bedtimes, but M very clearly told Jill Edge that they did not (C91). M also told the Guardian that she had a better routine going to bed earlier and waking up earlier. However she also told the Guardian that F was still regularly staying up late and often getting into bed not long before she woke up (E66). It therefore seems more likely than not that any improvements to their routines are relatively new and probably only apply to M at best.
The overwhelming weight of the professional evidence in this case is that the parents not only still lack the capability to parent these children in a way that meets the enhanced needs of those children, but also that there is no reasonable prospect of change to that lack of capability within timescales that are appropriate to these children. Given how long the children have been exposed to neglect and abuse in the care of their parents and the enhanced level of need that they have as a result, it is reasonable to conclude that this adds to the urgency of resolving permanent placements for them, I find.
It is deeply disappointing that neither parent co-operated with the psychological assessment of Dr Bailham. On the evidence presented to me, I am quite clear that the parents did not give that assessment the priority which they needed to if they were genuine about engaging with all professionals and trying to make changes to their parenting. As neither parent has given evidence about this, the evidence about this came primarily from the allocated social worker, Dr Bailham and the Guardian. Crucially it appears that the parents were offered two appointments with Dr Bailham, only raising issues with those appointments after they had failed to attend. Whilst it might possibly be accepted as a reason that they missed the first appointment due to having to take a family member to a medical appointment, they could and should have given their solicitors instructions to try to either re-arrange the next appointment or the contact with which it clashed before the appointment. That they did neither of those things is further evidence which persuades me that they really did not see the value of engaging in the assessment. This conclusion is further supported by what F told the Guardian at E67 about not seeing the point of the assessment as he had already been assessed by Mr Keene. Of course, that assessment was addressing a much more limited aspect of the parents' cognitive functioning and the work which Dr Bailham was directed to complete would have helped to understand the parents' capacity to make sustained changes to the way in which they parent. Sadly, even without that psychological evidence, the evidence in this case satisfies me that neither parent is able to parent the children in a way that meets their enhanced level of need and that neither parent has demonstrated that they are able to make changes in a timescale that is short enough for the children.
This welfare checklist heading is also concerned with the parenting capabilities of others and not just the parents. I have therefore also looked at the viability assessment of A and B in this respect. That assessment was cautiously positive so supports a conclusion that A and B may be capable of meeting the children's needs. However, a full assessment would be required over a period of some months and the impact of that delay upon the children is something that I will consider later in this judgment when analysing the realistic options for these children.
Given my conclusions above, the realistic options in this case are as follows:
1.. Placement with M and F.
2.. Placement in long term foster care
The first option has the advantages, as all professionals acknowledge, that this is in line with what the children have said they want. As I have found earlier, though, these views are more nuanced than the children simply wanting to go home without significant changes to the way they are parented. Returning to live with their parents would enable them to remain in their family and would see them reunited with the parents they undoubtedly love. It would also meet the children's identity needs as the social worker acknowledges in her balancing exercise at C114.
However, the disadvantages of this placement option are that it would expose both W and J to further significant harm given my findings above and a Supervision Order (as proposed by F) would not be sufficient to protect them from that harm. I have reached that conclusion based on the fact that there is such a significant history of failure to fully engage with professionals and services and no evidence of real change in either parents' ability to engage. In no small part I find that this is as a direct result of their inability to understand both the concerns of the Local Authority and others about their parenting, but it is also due to what appears to be a very entrenched pattern of inability to accept what professionals are telling them is required. I also find that the parents' history of inability to properly engage with professionals to ensure that the physical and emotional needs of the children are met supports a finding that they would be very unlikely to ensure that both children would receive the necessary therapeutic input which Dr Bailham has assessed that they need. This in turn means that a significant negative aspect of placing the children back in the care of their parents would not just be the risk of further significant harm from inadequate parenting generally but also the risk of significant harm as a result of the children not receiving the therapy that they need to address the harm they have suffered historically.
The advantages of placement in foster care would be that they would be cared for by people who are capable of meeting their enhanced level of need as well as their basic needs. They would still be able to have direct contact with their parents and each other. Work with the Attach team for each child would help them in terms of improving their sibling relationship as the allocated social worker told me in her evidence. The children and their carers would have access to ongoing support and the care plans would be regularly reviewed through the LAC process. In this particular case it is also likely that the children may be able to remain in their existing placements where they have been thriving (as the social worker and Guardian told me).
The disadvantages are that there is a risk with long term foster care that foster carers may not be able to continue to care for the children for the full remainder of the children's minorities. The children would experience a high level of intrusion into their lives as a result of remaining subject to the LAC process (though given the level of professional support which has been tried with this family in the past it may well be that this would unusually represent less professional contact than they had had overall when in the care of their parents). Of course the other negative aspect of foster care for children is that it only operates whilst they are children and once they are adults they are then subject to a different regime. They would be supported during the transition from care, however. Placement in foster care will mean that the children are placed separately and would have less contact with their parents and each other as a result. The assessment of Dr Bailham was very clear that the children needed to be placed separately but with sibling contact. The social worker and Guardian both agree with this conclusion and I find that in light of the professional evidence it would not be in the best interests of the children to be placed together.
The other potential negative of placement in foster care in this case is that the amended care plans have a reduction in contact, through a phased downward transition. Dr Bailham was asked about this and her evidence initially expressed some concern about the impact upon the children of such a reduction. However, she was later re-examined by Ms Gray for the Guardian who pointed out that there is a phased downward transition envisaged in the care plans. Dr Bailham then confirmed that such a transition was appropriate and it appeared to me that her concern was more related to a sudden reduction in contact therefore. I think she was also clear that ideally the children should have as much contact with their parents and each other as possible. However, in relation to contact I have also been mindful of the evidence of the social worker and Guardian. The social worker was quite clear that the reduction was necessary to ensure that the children had time to settle in their foster placements as permanent placements and also to establish a baseline which would be kept under regular review and could be increased if it was in the interests of the children. Dr Bailham, the social worker and the Guardian all acknowledged that the children will experience a sense of loss if they are not able to return to live with their parents and if there is a reduction in contact. However, each was also very clear that would only be a short-term sense of loss and was to be balanced against the potential advantages to the children of being allowed to settle in placements that met their needs. I am therefore satisfied that the children will need a period to settle into their long term placements if placed in foster care and that a reduction in contact as proposed would support that.
Based on the evidence of the social worker and Guardian, I find that there is a high likelihood that the parents in this case will struggle to accept placement in foster care. While they have not actively sought to undermine the placements during these proceedings, as I have found earlier they have exposed the children to inappropriate comments and conversations during supervised contact. There is overwhelming evidence from the Bundle that F in particular struggles to accept things that he does not agree with and can react very strongly at times (see for example his reaction to Dr Gada's diagnoses and recommendations and when talking to the Guardian about the psychological assessment at E67). This leads me to be very concerned as to how supportive F in particular, but also M in light of her discussions with J, would be for a placement in long term foster care as the outcome to these proceedings. I am therefore persuaded that the reduction in contact is appropriate and in the welfare interests of the children, but would note that if the parents demonstrate an ability to accept long term foster care and support their children in those placements, the Local Authority have committed to reviewing whether there could be any increase.
Finally I have considered F's application to adjourn proceedings to enable a full assessment of A and B to be carried out. Ms Kotilaine was unable to explain why this application was being made at such a late stage in the case given that the viability assessment was completed and filed on 3rd November 2017. It is common ground amongst the parties that the viability assessment recommends further assessment and is therefore not negative. However, I have noted that it was recommending further assessment before Dr Bailham had completed her psychological assessment of the children. It is unclear therefore to what extent A and B, who it is accepted do not have a close relationship with either child, were aware of the extremely high level of need that each child has and the implications that this would have in terms of what would be expected of their carers. The assessor raised a concern about whether they would be able to meet the needs of the children in any event without what we now know about the level of those needs (C74). Of course, this could be explored in a full assessment as Ms Kotilaine seeks. However, I do have to balance this against the impact on the children of further delay to these proceedings as well as the likelihood of a positive outcome to that assessment.
If I were to adjourn for a full assessment of A and B, there would be a delay of some months to concluding these proceedings in reality as Ms Kotilaine accepted. The proceedings have been ongoing since the end of August last year which means that the statutory mandated timetable expires shortly. It is possible in an exceptional case to extend that timetable but it does have to be an exceptional case which links to the fact that the viability assessment dates back to early November and the absence of any explanation for such a late application to adjourn. The allocated social worker, Dr Bailham and the Guardian were all extremely clear that these children need permanency now and simply cannot wait any longer. I have taken into account that, although proceedings commenced on 30th August 2017, the children have been subject to Local Authority involvement consistently since at least June 2015. This is a significant period of time for them to be exposed to uncertainty about their long-term placements (and one must bear in mind here that as a result of what F said to the children about going in to care in April 2017 the children have had that uncertainty since at least that date).
The viability assessment expresses some significant reservations around the ability of A and B to meet the needs of the children and the potential impact of placement with A and B on A and B's young child. There is also the potential complexity of trying to assess a placement for one child where the expert and professional evidence is that they cannot be placed together but where the impact upon the child who might not be in a kinship placement would also need to be borne in mind, as the Guardian told me. It is by no means clear that the outcome of a full assessment of A and B would therefore be a positive one, I find. This, coupled with the negative impact upon the children of further delay, leads me to conclude that it is not necessary to adjourn this final hearing to obtain a full assessment of A and B and that I accordingly have sufficient evidence before me to make a final decision for each child. If one were to be dealing with younger children where adoption was under active consideration as an outcome, and where a court has to be satisfied that nothing else but adoption will do to endorse a care plan for adoption, the conclusion might be different. However, given the ages of these children adoption is quite rightly not a realistic option and therefore I do not have to apply a test of nothing else will do to the potential placement option of long term foster care.
Ms Kotilaine made specific reference to social engineering as part of her questioning in this case. As a result, Mr Sampson quite rightly referred to the words of Hedley J in Re L reminding Courts that society must be prepared to tolerate very diverse standards of parenting and, in some cases, some harm to children as a result. However, given my findings above the level of harm which these children have suffered and would be at risk of suffering is significant and that goes far beyond what Hedley J was saying would be permissible. It also satisfies me that this case is not based on social engineering but on very significant deficiencies in parenting capability, which have caused the children significant harm over a number of years, resulting in long term additional needs for the children which in turn means they need better than good enough parenting.
Given my findings above, I find that placement in long term foster care is in the welfare interests of J and W and that the amended care plans meet their welfare needs. I will therefore grant care orders to Oxfordshire County Council and endorse the care plans.
I would also just like the Local Authority to note that, whilst I accept that they say with hindsight that proceedings should have been brought earlier, I think that hindsight was not necessarily required to realise that proceedings could have been brought earlier. In particular the point at which REOC expressed grave doubt about whether this was an edge of care case or one where the children should be in care, which was in May 2017, is one where it seems clear to me that the Local Authority could have issued proceedings.
Ms Kotilaine criticised the Local Authority approach to these proceedings as desultory and both Ms Kotilaine and Ms Pepper criticised them for the late production of Ms Lacey's statement. I have to say that I do not think that the Local Authority approach was desultory in this case though I share the concerns about the failure to produce a statement from Ms Lacey earlier. It seems to me that the Local Authority approach has only been limited by the lack of engagement by the parents, for example with Dr Bailham but also in terms of their late responses to threshold as directed. The late production of Ms Lacey's statement was extremely regrettable, particularly in light of the fact that there is an earlier statement from her and it was known that she had continued to be involved with the children in supporting contact. However, as I noted at the time Ms Pepper made her submissions asking for more time, any potential impact on the fair trial rights of the parents was addressed in terms of granting the advocates the time required to take instructions on the statement. What the Local Authority need to do in future is to avoid repetition of such late production of evidence as there will not always be time during the course of the hearing to allow for consideration of that evidence by the parties' advocates. I am grateful for Mr Sampson's apology in relation to this late production of evidence, but would ask that the Local Authority note my comments and seek to avoid repetition in future.
23rd February 2018