IN THE FAMILY COURT

 

Before:

HIS HONOUR JUDGE MORADIFAR

__________________________________

In the matter of:

Re C (No.2) (Children: Welfare)

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Sara Granshaw on behalf of the local authority.

Sharan Bhachu instructed by Wollens on behalf of the mother.

Jacqueline Wehrle instructed by Heald Nickinson on behalf of the father.

Jason Green instructed by Oxford Law Group on behalf of the children through their guardian

 

Date of the hearing:

29 June, 2, 6, 7, 8, 27, 28, 29, 30 and 31 July 2020

____________________________

HHJ Moradifar

 

 

 

His Honour Judge Moradifar:

 

Introduction

1.     On 10 January 2020, I handed down a judgment in respect of the findings that the applicant local authority was seeking about the mother’s parenting of the children and the harm that they had suffered. The judgment is reported as Re C (Children: Fact Find Medical Presentation) [2020] EWFC B1 (10 January 2020) where I set out the background to this case and conclude with my findings. I will not repeat the same here. I will continue to identify the children as A and B. Since that judgment, the family have been the subject of comprehensive assessments. Those assessments have informed the local authority’s proposed plans for each child together with a comprehensive package of support for the children and the parents.

2.     There is no dispute that more recently, notwithstanding the pressures on the family, B has and continues to thrive in the care of his mother. The parties agree that B must continue to live with his mother and be the subject of a twelve-month supervision order. There are three proposed care plans in respect of A. The first is the local authority’s care plan and the latter two are the mother’s alternative care plans. In summary they provide as follows:

a.      The local authority - plans that A should be the subject of a care order, remain resident and educated at ED. The parents will be provided with therapeutic intervention to assist the mother to come to terms with and gain a better understanding of the earlier findings and for both parents to engage in a ‘narrative work’ that is aimed at providing A with a consistent understanding of the circumstances that have led to his removal from the family home and being placed in care. There will also be provision for family therapy more generally. The primary care plan is for A’s rehabilitation to the mother’s care but this is subject to the successful outcome of the identified work. If this does not prove to be successful, A will remain in the care of the local authority until he gains majority. The local authority will continue to facilitate and support contact between A, B, his parents and the extended family.

b.     The mother proposes two alternative plans that would best meet A’s needs. The mother agrees that the therapeutic work as detailed in the local authority’s care plan is helpful and should be undertaken. She proposes that this work can be undertaken without a care order and by putting in place the following alternative plans;

-         The mother’s - primary plan I - subject to approval through a review of A’s EHCP, he is to attend a residential school that is specialist in emotional and mental health issues. There is a planned increase in the contact between A, the mother and B with A spending the school holidays at home.

-         The mother’s - secondary plan II - if A’s EHCP does not recommend a specialist residential school, then A would gradually transition home to his mother’s care and ED will be involved in such a transition. A is to attend the school identified in his EHCP, which may include ED. The local authority is to provide one to one support for A during the week when at home and when going to and from school.

3.     The father and the guardian each support the local authority’s plan as the only plan that will meet A’s needs. A is said to be settled at ED and it is not in his interest to change his placement. At present, a transition to the mother’s care before the completion of the identified work, carries too much risk of failure and any such failed attempt at transition home will be devastating to A, his brother and the family.

The law

4.     As the applicant, the local authority must to prove its case on a balance of probabilities. Before I can make a care order, I must be satisfied that the “threshold criteria” pursuant to Section 31(2) of the Children Act (1989) is satisfied. In light of earlier findings, there is no issue in this respect. I must next consider the realistic options for A and consider what will best meet his welfare interest by reference to the welfare check list as set out in Section 1(3) of the Children Act (1989).  I must consider those options holistically and together.

5.     Each of the children and the parents have a respective right to a private and family life under Art. 8 and to a fair trial under Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). These rights cannot be interfered with unless it is pursuant to a legitimate aim, necessary, proportionate and in accordance with the law. The mother is diagnosed with ASD and her unique make up has given rise to several special measures to be put in place to ensure that she has been able to fully participate in these proceedings. I am most grateful to Ms Paula Backen (intermediary) for her immense contributions to supporting the mother through these proceedings. I will make a special mention about her innovative approach at the end of this judgment.

Background

6.     A is twelve years old, continues to reside at ED and access education on the same site. He is reported as having a particularly unsettled period in January 2020 with an escalation in his challenging and functional neurological disorder (‘FND’) behaviours. It is common ground that A reacted to being informed about the outcome of the fact-finding hearing and the delay that followed whilst assessments were undertaken. The professional view is that there were other factors that contributed to his deterioration. It is also common ground that there have since been further periods of deterioration. Notwithstanding these periods, the professional view is that he has improved and is much more settled. The mother does not accept this. He has continued to have regular contact with his family that include the mother, B, father and the large extended family. There have been some disruptions to this as result of the Covid-19 pandemic.

7.     B is eleven years old and has continued to reside with his mother. His parents and the professionals are delighted with his progress over the last twelve months. He is clearly thriving in his mother’s care and appropriately accessing education, although this together with his contact have been disrupted by the recent pandemic. Furthermore, B has had to contend with very difficult and challenging circumstances that have included the impact of his brother being away from home, the ongoing court proceedings and assessments. His hard work and perseverance must be recognised. He is a real credit to his parents, particularly the mother who has, as his main carer, invested a great deal of time and effort in improving and maintaining the optimal circumstances for B to thrive in.

8.     At the commencement of this hearing, it became apparent that the maternal grandmother, who is a significant adult in the children’s lives and support for the mother, gave the local authority notice that she wished to be considered as a special guardian for A. After much discussion amongst the parties, it was agreed that this could be addressed in the local authority’s care plan and the local authority must follow the necessary steps during the three-month notice period. No party thought that it would appropriate for the case to be adjourned to consider the grandmother’s position who is very much supporting the mother’s position within these proceedings and was in attendance for significant parts of the final hearing.

Evidence and analysis

9.     I have considered the material that is within the court bundle which has been updated as the hearing has progressed. This includes the updated care and support plans that the local authority has adduced together with many documents that the mother has adduced that notably include her two alternative plans, analysis of the ED records (charts), recent FND examples, duration of seizures analysis when at home, a recent behaviour document and a document in which she highlights her communication differences. I have also heard the oral evidence of the children’s social worker Ms Freshwater, her team manager JB, Dr Wilkinson and Ms Neal on behalf of the assessing team at the Great Ormond Street Hospital Child Care Consultation Team (GOSH), Dr McDonald (from CAMHS), JM who is the manager at ED, the mother and the children’s guardian.

10.            There can be no doubt that A has consistently expressed a strong desire to return home. This is set out in several documents that are within the court bundle and most powerfully attested to by the mother. A is intelligent, articulate and of an age and understanding that his wishes and feelings must weigh heavily in the balance when making decisions about his welfare interest. Similarly, there is no doubt that B has expressed a clear view that he wishes to remain living with his mother and that he wants his brother to come home. Although he is a year younger than his brother, he too is an intelligent, articulate child who is of an age and understanding that his wishes and feelings must also weigh heavily in the balance. The local authority’s care plan for A, is clearly contrary to both children’s expressed views. The brothers are close and it is clear to me that they wish to be reunited. There is no doubt that the continuing separation of the two children and a plan that is against their wishes will cause anxiety and harm to each of them, particularly A.

11.            There is no evidence to suggest that B has any physical or emotional needs beyond age appropriate needs that are happily met in his mother’s care. I have found that previously he had suffered harm in the care of his mother which included the mother’s inability to promote a positive relationship with the father and to protect B from A’s behaviour which B found frightening. Indeed, in the assessment by the GOSH, whilst expressing his desire for his brother’s return home, he observed that by being at ED A “does not hurt him or frighten him anymore”. B has described being frightened by his brother and scared for his mother if he left her at home alone with A which at times impacted on his attendance at school. He reported home is now quieter, calmer, that he dislikes noise and people shouting. I have also found that his educational needs had previously suffered whilst in the care of his mother although these issues have now resolved. It is beyond dispute that B’s physical, emotional and educational needs will continue to be met by remaining in his mother’s care.

12.            A’s physical and emotional needs are complex and closely connected. A is assessed as not meeting the criteria for ASD. Therapeutic work will be undertaken with him so that he can gain a better understanding of this and its impact on his day to day life. A may potentially suffer with epilepsy, although this is yet to be medically established. He also suffers with non- epileptic seizures that are closely connected to his FND. He continues to suffer with incontinence and at times with leg paralysis or limitations in his mobility. There is no dispute that these physical symptoms are a manifestation of his underlying emotional difficulties and FND. As I have found, A’s educational needs were not adequately met when in his mother’s care and his engagement in education has been curtailed by the combination of the parenting that he has experienced in the care of his mother together with his emotional and physical needs.

13.            The mother has most helpfully undertaken a detailed analysis of A’s behavioural issues and presented them in graphs and charts. The data used in this analysis has been collated from different sources. A significant contributor to this data has been the information held in various records at ED. In the course of the oral evidence, the mother mounted a challenge to the accuracy and the reliability of this data. Most notably JM accepted the importance of accurate record keeping and despite best efforts, ED records have not always been entirely accurate or informative. Therefore, I have treated the mother’s analysis with some caution as it relies on information that on her own case is not entirely reliable or accurate. The following is a summary of that analysis;

-         Soiling: There is a clear undulating profile that is present over the 2020 analysis and the longer analysis that begins in December 2014. From December 2014 to May 2015, there was a dramatic decrease before a ‘spike’ in December 2015 and the highest incident being recorded from September to November 2016. There then followed a small reduction in the number of incidents back to the December 2014 levels. This level was maintained from March 2017 to February 2018 before a dramatic drop to no incidents between May and November 2018. After A was taken into care, the number of incidents sharply increased to the highest level (same as 2016), with a dramatic drop in August 2019 and an increase in March 2020. The period between March 2020 and end of June 2020 presents as another undulating profile with an overall decrease to less than half of the numbers of incidents in June 2020.

-         Seizures: This chart covers the period September 2019 to June 2020. It too has a ‘spikey’ profile with the highest number of incidents being recorded in late September 2019 and the lowest in April 2020. More generally the profile shows a decreasing average number of incidents and except for April 2020, the lower numbers are maintained at between five to seven incidents.

-         Other analysis: In January 2020 A’s behaviour is recorded at 50% of the days being described ‘negatively’, 23% ‘positively’, 17% not recorded. With respect to his mood the ED recordings suggest 17% of the days described ‘negatively’, 27% ‘positively’, 23% ‘fluctuated’ and 33% not specifically commented on. Additionally, the mother states that A was recorded as being involved in incidents in 53% of the days, not eating fruit or vegetable for 70% of the days and finally A did not shower for 37% of the days.

14.            The study of the charts over a long period may prove to be instructive. However, the study of a shorter period may be less reliable and potentially misleading in the absence of any other information. The degree and severity of the incidents are not accurately reflected in these graphs. For example, the soiling charts in ED records the degree and severity that may also prove to be relevant. Most importantly, the data gives no information about the context of each incident or a developing pattern that may be observed. As JM stated, the increase in A’s behavioural issues in January 2020 may have been caused by multiple factors. These included many contact sessions over the Christmas period with his family and extended family members whom he is clearly missing, being informed that the proceedings were taking longer than he expected and the difficult telephone conversation with his mother on 19 January 2020. It is for these reasons, that such an analysis, though useful to a limited degree, must be treated with great caution.

15.            It is also crucial that such an analysis does not distract from other important factors that must also be considered in the balancing exercise. The unanimous professional view is that A has significantly improved since being placed at ED. Indeed, this is one of the pillars upon which the professional conclusions and the local authority’s care plan rest. Dr Wilkinson, Ms Neal, JM, and JB all attested to A’s greater ability to regulate his emotions and to reflect on the circumstances as he finds them. I was particularly impressed with JB’s evidence as to how he has built up a healthy and supportive relationship with A. He told me about the activities that he now undertakes with A that includes kayaking. JM and JB also mentioned the other physical activities that A undertakes. He is more able to form and maintain peer relationships and has a positive relationship with certain members of staff at ED. JM gave clear and detailed evidence about A’s attainments. I found her evidence in this regard to be balanced, reliable and informative. She clearly had a detailed knowledge of A. These are gargantuan steps for a child who had real difficulties in these areas. Furthermore, he is now positively accessing education. The continuing emotional support and the provision of education by mostly familiar adults in familiar surroundings are some of the key advantages of the local authority’s plan.

16.            It is clear from the professional witnesses that both children maintain a view that their mother has been wrongly criticised by the court and A was wrongly removed from the mother’s care. Dr Allam has also undertaken a comprehensive psychological assessment of the mother. Dr Allam undertook a detailed discussion with the mother about the previous findings and recorded her response to the same (see paragraph 43 of her report). In her unchallenged opinion, she states that the mother has “found the court proceedings stressful; and quite overwhelming at times and she worries about [A] and [B] and the impact of [A] being taken into care. She clearly has given the findings of HHJ Moradifar a lot of thought. She can see how he has arrived at some of his conclusions and she (at least partially) agrees with some of these. There are other findings that has found more difficult process because she doesn’t understand how the conclusions were reached.

It is my opinion that the mother will need help to fully understand these findings. Even then, I suspect that she will not fully accept all of them as she has a belief that she has been misunderstood and misrepresented. However, even if she does not agree with something, it might be possible to assist her in moving forward if she can be provided with information and strategies that will assist her in promoting the well-being of her sons …

Although [the mother] does not feel that she has any therapeutic need, she does want to have some assistance in processing the Court findings. She also indicated that she is willing to consider any suggested intervention or support because she does want to do what she can to ensure her children’s needs are met …

“[The mother] believes that she has parented the children sensitively and has been highly attuned to their needs. There has at times been some very positive observations of her interactions with her children. She can show them great warmth and can be calm and responsive. I believe, however, that [A] and [B] have also almost certainly been exposed to inflexible parenting (with the expectation of compliance at times); lack of effective guidance and boundaries and, at times of heightened stress, emotional unavailability. My assessment of the mother is that she finds it difficult to accept that her own behaviour has had a negative impact on her children’s well-being. I believe that she will need considerable assistance in coming to an understanding of the impact of some of her parenting behaviour on [A] and [B].”

17.             The GOSH experts together with Dr McDonald were highly supportive of the work that has been identified by Dr Allam. Dr Wilkinson and Ms Neal (GOSH) were very clear that this work is crucial before attempting to move A back to his mother’s care. This is not the only work that has been identified as a requirement prior to such a plan taking effect. The clear recommendation is that the parents must also engage in the ‘narrative work’ through which a consistent narrative can be agreed and presented to the children. The narrative needs to provide the children with the reasons why they find themselves in the current circumstances. This narrative will need to be consistently maintained and to do otherwise will be unsettling and harmful to the children. At best, the mother’s abilities in this regard are untested and there is some doubt about the final outcome of this process. Additionally, A will need to have his own therapeutic sessions with Dr McDonald and his team to help him process his life events and gain a realistic understanding of how he has come to be in care. Dr McDonald anticipated that this first stage of work with the parents and the subsequent work with A will take about three months at each stage (six months in total). He was clear that he could not be precise about these timescales. Thereafter, they can embark on family therapy which may take one to two years to complete.  

18.            In his oral evidence Dr McDonald was not closed to a review of plans for A’s return home in about six months. He was concerned that A’s expectations should be managed carefully. Whilst Dr Wilkinson was not opposed to ongoing reviews, he was highly doubtful about the prospects of success of the work with the mother and pessimistic about the likelihood of a successful attempt at returning A home for at least a year at which point there will need to be a review of the plans for A considering his needs. He explained that there is uncertainty about the likely success of this work and in his opinion, it would be unrealistic to expect such a planned move to take place within six months. All the professionals were very concerned not to put any set time scales that may lead to raising A’s expectations only for him to be let down. This would cause him further uncertainty and harm. A needs to be made aware of the plan without giving any unrealistic hopes and expectation.

19.            I found the mother’s alternative care plans to be considered and well thought out. The mother had clearly spent a great deal of time and energy thinking, drafting and presenting the two plans. I also found her to soften in her views about the timescales within those plans after reflecting on the evidence. The first plan is made in the premise that A will return home in on or about six months and that in the intervening period, A will move to either a residential school or another school as approved by A’s EHCP. The latter is very much dependent on A’s EHCP. There is no evidence before me that is capable of providing any guidance about how realistic the mother’s plans are. Indeed, the experts and the professionals are unanimously agreed that it would not be in A’s interest to move from ED at this stage. Such a move can be unsettling and damaging to A. The collective professional opinion is that A is settled at ED, notwithstanding the changes in staffing, A has a good relationship with the staff from whom he gains a lot of support and any change in his placement and/or school may see his behavioural issues worsen and cause A to regress. This would in turn put in jeopardy any plan for his move back home.

20.            There is clear evidence that A wishes to return home. However, given my findings about the mother’s parenting and the up-to-date assessments that have since been undertaken, I would be profoundly concerned that the mother will soon find herself overwhelmed by meeting the demands of looking after A. This will inevitably lead to B having to take second place as he did before. I also accept as attested to by the experts and the guardian, that a subsequent placement breakdown would be devastating to both children, particularly A. It is also clear to me that A will be very upset if I conclude that he should remain at ED. I accept JB’s opinion that A understands that this is a possibility and notwithstanding his clear strong views, there is an element of resignation by A. Furthermore, A has an established support system within ED that will support him whilst he undertakes the much-needed therapeutic work. A disruption to A’s established support is one of the key disadvantages in the mother’s proposed alternative plans.

21.            I found the mother’s evidence to be highly informative. Her evidence illustrated a profound lack of knowledge, understanding and insight into the harm that her parenting has caused her children. When she was challenged about specific issues in this regard, she seemed unable to provide any answers other than stating that she was committed to undertaking the recommended work and hopes to gain a better understanding of my previous findings. It was clear that the mother continues to believe that she has been misunderstood and misrepresented. After considering her evidence in the context of all of the other evidence, it was clear to me that she was not seeking to avoid these difficult questions, but she faced a genuine insurmountable wall by reason of her strongly held beliefs and a lack of understanding of the concerns. I was left with no doubt that she is committed to the therapeutic work but I am far less certain about the likely outcome and the timescales for the outcome given her deep-seated and rigid beliefs in this regard.

22.            Despite the support and the amended special measures that have been in place for the mother, I did not find any material change to the quality of her communication when giving her evidence. I found the mother to continue to be rigid and unyielding in her approach to parenting and what her children’s needs are. In my judgment her evidence confirmed Dr Allam’s view as I have set out above. Those observations continue to be pertinent. Whilst I appreciate that the mother has an understandable desire to have A back in her care, she displayed a distinct inability to take onboard or give any weight to the opinion of the experts and other professionals about the impact of change on both of her children and the ensuing difficulties should there be a failed attempt at returning and keeping A in the care of his mother. 

Conclusion

23.            I have no doubt about the mother’s love and commitment to her children. Her excellent parenting of B has amply illustrated her capabilities as a mother. However, in my judgment there are serious deficits in the emotional component of the mother’s parenting and her ability to parent A, given his specific needs. I find that at this time, the mother’s rigidly held views and lack of understanding of her contributions to the harm that her children have suffered, have manifestly compromised her ability to meet A’s complex needs. It would be unrealistic to expect the mother to be able to meet both children’s needs, even with a high level of support whilst the family is undertaking the demanding and challenging therapeutic work. Furthermore, A’s return home will seriously compromise the mother’s ability to provide an acceptable level of care for B. The parents and the children must first engage in the recommended therapeutic intervention, the success of which will dictate when and how A is to be returned to the mother’s care. I have no doubt that the local authority will continue to consider A’s return home as the priority plan and that the maternal grandmother will also be considered in the context of the local authority’s continuing implementation of its care plan.

24.            Changes to A’s school and placement at this stage are most likely to be unsettling and harmful to him. Whilst engaging in the challenging therapeutic work, A will require the continuing support of the trusted adults in ED together with the support system that is already in place and familiar to him. Furthermore, a change to his school is dependent on his EHCP which will be informed by the opinion of the professionals that include those whose evidence I have considered. Therefore, I am doubtful that in light of such evidence, his EHCP will recommend a change to his school. Even if I am wrong, there is no evidence that would permit me to reliably conclude what his EHCP is likely to effect a change to his school.

25.            Whilst I found the mother’s alternative care plans to be well thought out and well presented, by reasons of the aforementioned, at this stage I do not find that these are realistic plans for A. These plans or a variation thereof may well prove to be realistic in due course and must be reconsidered at the forthcoming reviews. In my judgment, the only realistic plan that meets A’s needs is the local authority’s comprehensive care plan. Given A’s complex needs, the required level of support and intervention that is identified in his care plan, the current views of the mother, and serious concerns about her abilities to parent and emotionally support A, I am left with no doubt that there is a need for a care order and that such an intervention is proportionate and necessary. Finally, I have no hesitation in endorsing the parties’ agreement to B’s placement with his mother and the need for a twelve-month supervision order.

Postscript

Ms Backen is an experienced intermediary, whose services to support the mother were engaged at an early stage in these proceedings. She has invested a great deal of time and effort in assessing and assisting the mother. Her contributions and her imaginative approach to addressing the particular needs of the mother have been nothing short of excellent. She has made herself available for every hearing in very challenging circumstances and has remained entirely focussed on assisting the mother. In that time, she has adapted her approach and her advice to the court to cater for changing circumstances as she has found them.

Latterly, she suggested that the mother’s oral evidence should be given by presenting her with written question whilst in the witness box and for her to type the answers in real time. Those answers were then read out before moving to the next question. The advocates were able to amend or ask additional questions which were typed in real time by Ms Backen, after which the same process as above was followed. Whilst the mother was questioned, she wore headphones that played white noise and minimised the stimuli that could have been distracting or distressing. These arrangements were, with the mother’s input, regularly reviewed to ensure their efficacy and identify the need for any changes.

This was the first experience of such an approach by anyone involved in this case. At first, there was some understandable anxiety about this. However, this approach proved to be highly successful. The mother needed less frequent breaks and those breaks were of a shorter duration. Most importantly, it enabled the mother to fully participate and to be effectively questioned on the important issues in the case. I am most grateful to Ms Backen and the advocates whose efforts have guaranteed the success of this innovative approach.