England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT WEST LONDON
IN THE MATTER OF THE CHILDREN ACT 1989

		18 September 2020

His Honour Judge Willans:

Introduction

1. On 7 August 2020 I handed down judgment following an 11-day fact finding hearing concerning the children subject to this application. By reason of that judgment the proceedings continued to a welfare hearing conducted before me on 14-18 September 2020.
2. It is my intention to publish this judgment pursuant to the transparency principles governing such public law proceedings. The parties are understandably concerned to avoid the inadvertent breaching of anonymity in a case which has some factually unusual circumstances which might otherwise permit 'jigsaw identification'. I recognise these concerns but remain of the view that publication is in the public interest. I am particularly mindful of the very positive features of this case with respect to professional – family co-operation and the recognition by the family of the child focused manner in which the social workers have conducted themselves throughout the proceedings. As the father told me in evidence: he had always understood that social workers were bad people, but he had seen how the professionals in the case had been looking out for the welfare of his children (I summarise). Sadly, it is often only those cases that go 'wrong' that are deemed to warrant public interest and wider reporting. It is therefore doubly important to recognise and report where the opposite is the case.
3. However, the concerns as to inadvertent identification remain valid. I therefore intend to meet this concern by (1) ensuring this judgment is carefully structured to avoid risk of identification; (2) summarise in a very general manner the circumstances of the fact finding hearing to inform the reader within the FFH section below; (3) publish this judgment, but; (4) not publish the fact-finding judgment itself.
4. Throughout this judgment I will utilise initials and roles to identify key participants. No discourtesy is intended. The judgment provided to the parties has a schedule attached explaining the abbreviations used but this will not be attached to the published judgment.
5. In making my decisions I am assisted by (i) the documents contained within the hearing bundle; (ii) the live evidence of the social worker; ISW; parents, and guardian; (iii) the written opening and oral closing submissions of counsel for all parties. The hearing was conducted remotely without any issues or technical complications. I am in no doubt my ability to reach a fair and appropriate decision has been unaffected by the format used.

The FFH

6. Whilst the Court is concerned with two children the events relevant to the FFH related to only one of the children. Within the child's first year the child was presented within a short time period to a number of hospitals. Following investigation, it was discovered the child had a series of injuries including both intra-cranial and ophthalmic haemorrhages. This led to concern among professionals that the child had suffered an abusive head trauma. Following this being brought to the attention of the Applicant proceedings were issued. I have throughout had case management of the proceedings. As a result of the concerns the children have been separated from their parents (who remain together) throughout the proceedings but due to safe available family care it was neither necessary to place the children with strangers or regulate their care under the structure of an interim care order. The family placement has continued to date under the provisions of section 20 Children Act 1989.
7. The Court was assisted by a range of expert consultants in the field of Neurosurgery; Neuro-Radiology; Paediatrics, and; Ophthalmology. The expert concurred in the opinion that the injuries arose out of an incident (and probably two incidents) of abusive head trauma. They considered alternative explanations; organic and inherited possibilities and the possibility of an unknown cause but remained of the view the most likely cause was an episode(s) of abusive head trauma.
8. I conducted a hybrid FFH and the parents gave live evidence on an attended basis. The parents and guardian were represented by leading counsel. I considered a wide ranging canvas of evidence before concluding I was satisfied to the necessary standard that the child had likely suffered two episodes of 'shaking' but whereas I could not be satisfied as to which of the parents were responsible I was satisfied it was likely it was the same parent on each occasion and that the other parent had no basis for being aware of the episodes in question. I also accepted, following the evidence that it was possible that whilst the handling leading to the injury would have fallen outside the range of that to be expected of a reasonable parent it might be the case, given the surrounding circumstances, that the responsible parent would not have been conscious that they had occasioned harm to the child on each occasion. I reflected on what I accepted was a constellation of stressor factors in reaching my conclusion that in all likelihood the events in question had arisen in the circumstances of a momentary loss of self-control.
9. The case management directions provided for a parenting assessment of the parents by the ISW and the family placement was assessed for special guardianship purposes. The latter was an assessment of the interim carers and reached a positive outcome. In default of placement with the parents the Applicant would have been supporting placement with the family carers.

The issues in the case

10. At the outset of this case it was clear there was considerable agreement between all the parties that a positive outcome could be pursued with the children returning to their parents under a careful rehabilitation plan. This was not in issue before me and I support this fundamental course of action. One of the parents has undoubtedly misconducted themselves in the manner described above but I have regard to context and certainly do not see either parent as a one-dimensional character posing only risk to their children. Indeed, I accept these are parents who have worked hard; have shown respect for the process in difficult circumstances; have demonstrated a capacity to work with professionals notwithstanding the context in which the professionals are engaged, and perhaps most importantly; have shown a deep love and motivation to care for their children together.
11. The issues between the parties are as follows:

a. The speed of the rehabilitation process with the central issue being between the rehabilitation plan of full time return after 6 months and the parents wish for an earlier return and speedier transition

b. The legal structure to be applied. The Applicant and parents seek a 12-month supervision order with a time limited child arrangements order in favour of the family carers (although the Applicant suggests this should have a back-stop length of 12 months rather than the 6-months favoured by the parents). In contrast the guardian supports an adjournment of the proceedings under an interim care order whilst the rehabilitation is affected. Were the matter concluded at this hearing then the guardian would support the making of a full care order underpinning the same rehabilitation plan.

c. There is some limited debate as to the work to be undertaken by the parents to support the plan (parenting course / drugs work and counselling). However, the disagreements are not stark in the light of the evidence heard.

Evidence

12. I do not intend to review the totality of the evidence but rather to focus on those aspects with particular resonance to the actual issues in dispute.

The social worker

13. The social worker gave evidence first. It is important to note she is part of a team which have worked with this family. She will shortly be taking a period of leave, but reported the plan would remain with the same team in the event of a supervision order being made. Often the status of children can change post-final decision, introducing instability in the working relationship. This is not expected to be the situation in this case.
14. I have considered her written evidence which whilst acknowledging the seriousness of the issues in this case and the continuing uncertainties concludes that there are sufficient grounds for confidence to affect a plan of rehabilitation. She, with her team, author the rehabilitation plan and propose the draft written agreement as a foundation for planning the return of the children to the care of their parents. In considering the speed of the rehabilitation she emphasised that whereas there are significant reported positives in the interaction between the parents and children (they have been seeing them on a near daily basis under the supervision of the family carers) none of this has been professionally viewed and assessed by the social work team. This partially explains the need for the appearance of a slow start whilst observations are checked and hopefully confirmed. There is also the issue of not wishing to overload the parents as they commence engagement with the support programme suggested by the plan. She made clear that whilst the plan has clear marker points it is intended to be flexible and the Applicant does not intend to apply an over rigid approach. There is nonetheless a cautious underlying attitude but by month 4 the parents would be exercising the majority of care. To speed up the process at this stage would be to set the parents up to fail by assuming a readiness at a stage that cannot yet be confirmed. The calculation of 6 months for return reflects the work to be done but will be reviewed. She explained the role of a care coordinator proposed by the Applicant. This is an individual who would work alongside the parents and who will have been familiar with the programme of works such that she/he could support the parents in an effective manner. The intention is for the individual to establish a trusting relationship within a professional context. This is a role with a greater level of specialism than a family support worker.
15. She considered both parents would benefit from counselling and drug work although she clarified the drug work was not intended to be group work in which the parents were to be joined by others struggling with drug dependency. Rather this was a focused piece of work aimed at targeting and educating the parents as to the triggers which might cause them to find abstinence a challenge. In making these observations the social worker was fully aware of the negative drug tests produced by the parents and the positive signal this sends. She considered the legal structure and disagreed with the guardian. She felt a care order would be a backwards step. From her perspective the parents and family carers had been fully co-operative. The family carers are reliable and trustworthy. An adjournment to the proceedings would be stress inducing without purpose. She was 100% confident there would be compliance and co-operation. Throughout the case this had felt like a family affair and to change this now would be a negative decision. She was very positive about the parents and was thrilled the Applicant could offer this outcome. Whilst she agreed she could not offer a 100% guarantee as to outcome she wanted the relationship to continue and for the parents to feel able to be open and transparent and speak up if they had concerns or if things went wrong. The children were thriving in the care of the family carers and there is a solid relationship between the parents and carers which has held up despite the immense strains of the legal proceedings. If there were conflicts, she felt these could be worked through via a reasonable dialogue. The parents seek the guidance and advice of the family carers and listen to them. I note the family carers are in any event the default carers were the plan to fail (under a SGO). She considered the Applicant had not had to share PR to date and did not need to do so now. A care or interim care order would be to rob the parents of this successful outcome and might have a stigmatizing impact.
16. As to interrelationship between the programme of works and the rehabilitation plan she would like to see engagement before transition. Ultimately the Applicant accepted the transition should not have a pre-condition of completion of the programme. She wanted the parents to have time to focus on their own needs prior to return home. In this way she felt the plan would be more likely to be successful. For the avoidance of doubt, she confirmed the rehabilitation was not an assessment process. She confirmed the financial support that would be on offer. I do not need to record these issues but note they further confirm the Applicant's commitment to making the process work. She considered the counselling and other works would have benefit for the father although there was in the evidence more focus on the mother (re counselling). She was in no doubt this was a case in which one should not overlook the underlying stressor factors and the associated risks of the same. This explained the caution in the rehab plan. But a care order was considered to be too invasive and not necessary. It would offer no practical benefits and would not change the plan. She felt the Applicant would remain in the driving seat whether or not it shared PR. If there were disputes, then she felt these would be resolved. But one should not lose sight of the overarching plan which is for the rehab to be completed and the parents to be wholly autonomous within 12-months.

The ISW

17. Her essential conclusion can be found in her response to questions^[1] in which she concluded the Applicant needed to be 'very much in charge' of the plan. This suggests the appropriate order would be the making of a care order or alternatively an interim care arrangement with the proceedings being adjourned. Despite delay this would not impact the children as they would not see a change in care. In reality her live evidence was a repetition of this simple but important observation. Beyond this she questioned the speed of the plan suggesting a quicker plan might be preferable. However, when probed she was wary of providing an alternative and arbitrary date, agreeing flexibility would be important and that observations on the ground which supported the positive reports to date might support a speedier transition.
18. She felt work for both parents was important and considered there was the real prospect of each learning from the process whatever their current inclination. In terms of the legal structure point her repeated observation was as to the difference in impact of this now being a different phase in which one was working towards an outcome rather than an assessment process. This would raise different challenges and stresses and it was appropriate for the Applicant to hold the reins. In her view it felt premature to be exiting proceedings. She could not see why this would be viewed as negative as it was working towards a positive outcome. She felt a care order might be a 'clumsy' outcome but equally felt a supervision order came with the risk of the case sliding down the priority ladder. She did not want to be prescriptive about the speed of the plan but rather wanted to see each stage accomplished before moving onto the next stage. In her view the courses need not hold up the plan. She considered the mother's proposed timetable to be a little rushed (it suggested return by month 4). Equally she felt the plan's 1-year structure seemed arbitrary. She envisaged monthly reviews. She felt the feedback from the parenting course would be important in the timing of the full return home. She was concerned the family carers did not end up holding mixed roles as both carers and in policing the plan. If the case was to be ended, then she felt a care order offered greater protection.

The parents

19. Prior to the hearing the parents had expressed some ambivalence as to the programme of works. However, by the end of the hearing both had taken the view they would engage in the process on the basis this was considered to be helpful although they would await the professional advice as to how this should then proceed post-assessment (counselling). They were relieved to hear the drug work was not intended to place them into a group setting. They appeared to have no issues with the suggested parenting work and pointed to the work they have completed by way of self-referral. They were keen to tell me about the role they currently play in the lives of the children. They spend most days with the children and when present take over the key role caring. They do though listen to the family carers and respect the guidance they give. Both expressed a sense of being both more confident at the end of the proceedings with their relationship remaining strong and mutually supportive. Ultimately the parents were willing to do what the Court felt was necessary to have their children back. I considered whether they were simply paying lip service to the suggested works. However, I did not form this view and felt they are genuinely delighted to have the opportunity to have their children back in their care and that whilst they would want this to happen tomorrow if this were possible, they are willing to keep working at a slower speed to ensure this happens successfully.
20. The parents were entitled to and did point to their negative drugs results. Having said this the father accepted an isolated occasion on which I sense social pressure (of a light form) led to him smoking cannabis. The point was made that this reinforces the benefits to him of undertaking some drugs work based around understanding triggers to use. Each talked about the way in which they manage stress and whilst their explanations were by no means sophisticated it is right to recognise that the stressors in their life have significantly reduced in recent times. It is also right to recognise the evidence of the mother as to her ability to be able to talk about things more openly as a stress relief. Of the two parents the father is the more confident in articulating their position. When asked about the relationship with the Applicant social work team he was clear in his positive attitude. He talked about the need for mutual respect and the experience of the social workers acting like this was a team effort to make things work. I am no doubt these were genuine views on his behalf. He was frank in accepting that whilst he wanted the case to end, he considered it would not matter to his working relationship were there to be a supervision or care order.

The Guardian

21. The Guardian shared an equivalent view to the ISW. He very much preferred an ICO to underpin the plan noting that there was a lot that was untested. He agreed there was no evidence of tension in the relationship between the parents and the family carers. He agreed confidence has been built in the working relationship and that the parents were so committed to affecting the return of their children that he could not visualise them failing to work with the social work team whatever the form of order. He did not consider an ICO was a step backwards or had any stigmatizing impact. For him the crucial feature was for the Applicant to be in the driving seat. It was essential for the Applicant to hold the reins and they needed to share PR. He did not advocate for a full care order but if the proceedings were to end then this had to be his preferred outcome. He had experience of cases concluding under a full care order with such a plan. He considered there need to be statutory control and pointed out his preferred option left the case open to judicial scrutiny. As to the period of adjournment he could not be clear but appeared to suggest a period of at least 6 months and possibly up to 12 months. He was probed as to the realistic benefits of either a care or interim care order but remained of the view that continuing scrutiny and the role of the Applicant in the driving seat supported such outcome.
22. As to speed of plan he felt the timetable might be speedier and suggested the possibility of transition home around month 3-4. However, as with the ISW he was reluctant to be overly prescriptive and argued in favour of flexibility. It was put to him the crucial factor on this case was the personalities of the key actors and the evidence of how they had conducted themselves to date. This suggested likely future co-operation and mutual respect. He remained of the view that ultimately disagreement was a potential; we were entering a new phase, and that; the Applicant needed to be in the driving seat.

The Law

23. I should not lose sight of the fact that it is the welfare of the children that is my paramount consideration. In considering this I have regard to section Children Act 1989.
24. I have been referred to the following authorities:

a. Re O (A Child) (Supervision Order: Future Harm) [2001] EWCA Civ 16

b. Oxfordshire CC v L (Care or Supervision Order) [1998] 1 FLR 70

c. Re T (A Child)(Care Order) [2009] EWCA Civ 121

d. Re D (Care or Supervision Order) [2000] Fam Law 600

e. Re O (Supervision Order) [2001] 1 FLR 923

f. Re B (Care or Supervision Order) [1996] 2 FLR 693

g. Re DE (Child Under Care Order: Injunction Under Human Rights Act 1998) (2014) EWFC 6

h. Re S (A Child) [2014] EWCC B44 (Fam)

i. Re K (Care Order or Residence Order) [1995] 1 FLR 675

j. Re D (A Minor) (Care or Supervision Order) [1993] 2 FLR 423

k. Re C (Care Order or Supervision Order) [2001] 2 FLR 466

l. Re P-S (Children) (Care Orders) [2018] EWCA Civ 1407

m. Re FC (A Child: Care or Supervision Order) [2016] EWFC B90

I will hopefully be forgiven for not setting out my conclusions by reference to this range of authorities. Each case turns on its own facts and I consider this case is a prime example of this proposition. Nonetheless there are principles in play which I have in regard in reaching my decision.

25. I bear in mind the article 8 rights of the family members in particular. Any intervention amounts to an infringement of their right to respect for private family life. It must be justified if it to be permitted. The test of justification is based on the principles of proportionality, necessity, reasonableness and lawfulness. The Court's intervention should in any event be set at the lowest level consistent with meeting the needs of the child. If two options are equally appropriate, then the least interventionist approach should be favoured.

Discussion

26. Having considered the evidence I have reached the conclusion the outcome which meets the welfare needs of the children and the article 8 test is that proposed by the Applicant with the following components:

a. rehab plan as proposed with agreed flexibility and revised focus on appropriate review

b. 12-month supervision order

c. 12-month shared care order between the parents and the family carers

In the paragraphs below I will explain why I have reached this conclusion and particularly so in the light of the fact in doing so I disagree with the experienced guardian and ISW.

Speed of rehab plan

27. In reality this issue considerably narrowed as the evidence was heard. The Applicant in final submissions accepted the order / plan should be amended to reflect an enhanced focus on review together with other matters raised during the evidence.
28. For my part I see the sense (and the child focused sense) in taking a cautious timeline. I consider it is far more likely to be positive and non-disruptive of the working relationship for a cautious timetable to be set but then progressed more speedily than to set a faster timetable only for it to be delayed. In reality full transition may occur under any approach around months 4-5 but it is the former that will likely enhance this process.
29. I entirely agree that observations may show the parents have met the month 1-2 level of child care already. However, I consider the Applicant are justified in wishing to review this for themselves. There are obvious and genuine reasons why the family care assessment may differ from that of the social work team. But of course, the assessment may bear out the reported observations. My sense is that the impact of all this may be to speed up the process in an evolutionary manner by perhaps a month or so. I agree to an extent there is something to be said for allowing space for the parents to focus also on the programme of work. I also consider the parents would be advised to hold back in their natural rush to take the children back into their care. There will be unexpected stresses as they resume care of the children and I would want them to have the time and space to address these issues. I do not want these parents to fail and particularly to do so because they find themselves on an arbitrary timetable and are fearful of the message that may be sent if they come off that timetable. Caring for children is a challenge and this is more so given all these parents have been through. I have confidence in them, and I trust they will understand the caution I apply. It is intended to support their care not undermine it.
30. To my mind there is an irony in the dispute between the Applicant and guardian in that the guardian seeks a more invasive order but suggests the process could be completed more speedily. Whereas the Applicant is more cautious in structuring the timetable but suggests a less invasive approach. At this stage I would simply endorse the application of caution in setting the long stop to the plan whilst importantly recognising the facts on the ground may justify a quicker timetable.

Works to be undertaken

31. I approach this issue with a degree of caution (as I did the points above). As counsel for the mother rightly accepted it is not the role of the Court to finely manage the care plan or rehabilitation plan. I can make general observations and trust these are reflected upon. But I should pay respect to the professional skills of those engaged in making the plans work.
32. Having heard the evidence, I do though support the programme advanced by the professionals. In particular:

a. Re the drugs work: This is plainly not the work which concerned the parents. They have done very well to date and do not need to talk through their issues with those dependent on drugs. I bear in mind the drug results and reflect on the relatively low readings which were previously obtained. However, as they know these parents have faced challenges and turned to cannabis in times of stress. It has not worked for them and they would benefit from reflecting on the triggers which tempt them into use. The father's frank admission as to a recent usage underscored this point.

b. Re the parenting work: I need say nothing in this regard as this is agreed.

c. Re the counselling: I respect the views of the parents, but I also give them credit for the willingness to follow an assessment process and see where it takes them. I would ask them not to close their eyes to the possible benefits that they might obtain from counselling. That they feel they have made progress does not mean there is not more progress that could be made with support. They owe it to each other and more importantly to their children to keep an open mind on this subject.

Appropriate legal structure

33. In reaching my conclusion I have placed particular emphasis on the evidence of the social worker. Importantly it is the social work team who will implement this plan (under whatever structure). It is quite clear there is a high level of mutual respect and co-operation between the social workers and family. This is not a recent development but has endured throughout the proceedings. It would be perverse not to have regard to this when evaluating the future period. This plan will commence with the children already being in family care. This is not a case of introducing the children to new carers who are untested.
34. I should make it clear that I agree there is a fundamental difference between the assessment period and the outcome period. Under the former the Court retained overarching control and this feature would likely contain conduct and the approach of the parties. The outcome phase is materially different in raising expectations with the potential for associated tensions. However, I consider this distinction is such as to require consideration but of itself does not supply the answer to the question under consideration. Ultimately the facts and circumstances are of real relevance. Here the social worker has 100% confidence and whilst I treat this statistical analysis with caution it demonstrates the underlying level of relationship and confidence in play. When the team who are expected to make the plan work tell me they feel this is the best way of achieving the shared goal then I should pause and question on what basis I am justified in taking an opposite view.
35. This is I consider reinforced when one considers the realistic distinction to be drawn between the two options. There is a superficial attraction in suggesting the Applicant will be in the driving seat only if they obtain PR. However, I do not consider this survives real scrutiny. As was correctly pointed out the Applicant would find its decision making circumscribed by authority and would require the approval of the Court to vary its plan. In my assessment this would require a real justification and I consider were this to apply then it would likely meet the test whether under either a return to court in existing proceedings or under a new application. However, reflecting on the obverse, if the circumstances could not justify a new set of proceedings then I doubt they would justify a change to care planning. This being the case is there any material benefit to the Applicant sharing PR?
36. In any event on what basis could I, in an article 8 consistent manner, impose on this family at this stage an ICO arrangement when it has not been required to date? I simply do not consider this could meet the test of necessity and as such I can identify very little distinction between the case proceeding under adjourned proceedings with the Court as a distant spectator - looking forward to receiving an eventual update - and simply allowing this Applicant to get on with it as they intend under their proposed plan.
37. In reaching these conclusions I was very impressed by the attitude of the social worker and her evidence as to the quality of the relationship between the professionals and the family. I was equally impressed by the respect for the professionals shown by the parents. During the FFH I heard from the family carers. I have little reason and no evidential basis for challenging the positive overview provided by the social work team. This is I am sorry to say unusual but is a factor which weighs in the assessment. I am not particularly persuaded as to the arguments as to stigmatization, but I do worry that either the continuation of proceedings at this time or the making or a care order will undermine the important confidence the family have in the rehab plan. I question on what basis a Court should be introducing such an invasion of family life at this very late stage.
38. In my assessment the professionals are entitled to be cautious, but caution should be reflected in the format of the plan not the legal structure underpinning it. And so, I come to disagree with both the ISW and guardian. I do so with reluctance because I recognise their experience and have no doubt their conclusions follow from a child focused assessment. I suspect our differences reflect a heightened level of caution deriving from their roles in contrast to my enhanced duty to apply the legal principles set out above. But at heart my judgment is that the plan has been structured by those best placed to formulate it and it is they who deserve the greatest respect in evaluating how it is most likely to work. Importantly I have found nothing in the evidence that undermines their evaluation and much that supports it.
39. Turning to the order I intend to make:

a. There is no doubt a supervision order is both warranted and consistent with Article 8. The parents agree the same and it is both necessary, reasonable and proportionate in underpinning the plan in this case. I intend to make the 12-month order proposed. The legal basis for making such an order is found in the threshold established in fact finding.

b. I intend to make a 12-month shared care order between the parents and the family carers. The children shall live with the individuals in line with the implementation of the rehabilitation plan. I prefer 12-months for much the same reasons as I accepted the 12 month plan of the Applicant. In my assessment such a period covers the situation should a slower process arise but fully permits an earlier transition should this be possible. It is flexible order in respect of which I can see no disadvantage. I bear in mind that these are family carers fully ready to hand over care to the parents at the appropriate time. Whilst the Applicant might wish to apply to the Court to discharge the order in the event of an earlier transition, I cannot frankly see the need for the same given the shared care order will not in reality diminish the role of the parents during this limited residual period.

40. I would not wish to end this judgment without thanking the professionals for the care and attention they have brought to this difficult case. Judging such a case is not easy but I have been greatly assisted by their joint efforts. I thank the representatives for the support in making this an effective remote hearing and the manner in which the case has been investigated. Finally I wish the children and parents the very best for their future. They have been through a testing time and whilst this has been necessary they have demonstrated exactly the right attitude to give me the confidence to make the orders I do today.

His Honour Judge Willans

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