England and Wales Family Court Decisions (other Judges)

THE FAMILY COURT SITTING AT OXFORD

CASE NO: OX20C00095

7^th July 2021

Before
Her Honour Judge Owens

- - - - - - - - - - - - - - - - - - - - -

Re a Child

- - - - - - - - - - - - - - - - - - - - -

Ms Ishmael, Counsel, for OCC

Ms Styles, Counsel, for the First Respondent Mother, M

Ms Sharon, Solicitor, for the Second Respondent Father, F

Ms Cox, Counsel, for the Third & Fourth Respondents A & B acting through their Children’s Guardian

- - - - - - - - - - - - - - - - - - - - -

 

This judgment is being handed down [in private] on 7^th July 2021. It consists of 16 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.  

 

Introduction, Background and Evidential Summary

 

This is the final hearing of the Local Authority's applications for a public law orders in relation to A & B, a boy and girl now aged 8 and 6 years old respectively.  Their parents are M and F.  This is the third set of public law proceedings for these children.  In November 2014 care proceedings commenced as a result of B having sustained bruising and a fractured left clavicle whilst in the care of her parents.  Concerns at that time also related to the volatile behaviour of M and F and neglect of the children’s needs and a finding was made in respect of lack of adequate supervision.

 

B was placed in foster care for a short period after discharge from hospital, before moving to live with a family friend (C).  A stayed with his maternal grandmother.

 

The first set of care proceedings concluded on 10^th December 2015 with Care Orders being made for each child.  The approved final care plans were for them to move to the care of their paternal aunt and uncle in Madeira.  The transition to their care was completed in January 2016.  Contact with M and F was to take place four times a year.

 

A comprehensive support package was provided to the paternal aunt and uncle in Madeira, which included post-adoption support through the Local Authority’s permanence and support service.  Sadly, A’s behaviour deteriorated very significantly over time.  By April 2018 the paternal aunt and uncle felt that they were unable to continue caring for A and B.  A psychologist had been working with A and she considered that, owing to his attachment difficulties and early life experiences, A was experiencing high levels of anxiety and difficulty in managing change.  His needs included: low self-esteem; confusion; loneliness; loss; lack of empathy and difficulty regulating his emotions.  She anticipated that the trauma of returning to the UK would be likely to result in him “withdrawing and displaying higher level (sic) of aggression towards himself and towards others” (C35 quoted in Viability Assessment of C).

 

Further support and assistance were put in place to try to stabilise the placement, and this resulted in the carers reaffirming their commitment to caring for the children long term.

 

Towards the end of 2018 the second set of care proceedings commenced, the aim of those proceedings being to provide the carers with what would amount to special guardianship orders.  The Care Orders were discharged, and Special Guardianship Orders were made in March 2019 at the conclusion of those proceedings.

 

Unfortunately, there then followed a further significant deterioration in the behaviour of A and also in the behaviour of B at this point.  It was felt that B may be copying A’s aggression and self-harming and was also showing some low-level behavioural issues.  This in turn put considerable strain on the paternal aunt and uncle and led to them giving notice via the Portuguese court system on 12^th June 2020 that they could no longer care for A and B.  The paternal uncle returned the children to the UK on 27^th July 2020.

 

On 4^th August 2020 these proceedings were issued.  On 10^th August 2020 interim care orders were made for each child and they were placed with C.  Unfortunately, A’s behaviour again became unmanageable, and he moved to a separate foster placement in December 2020 as a result.  His behaviour continued to be very difficult to manage and the foster carers gave notice to end the placement on 14^th April 2021.  On 28^th April 2021 A moved to a Therapeutic Residential Care Placement where he has remained.  B remains in the care of C.  The final care plans for each child propose that they remain in these placements under Care Orders.

 

M has been assessed by a consultant psychologist in these proceedings, Dr Furlong (E1-27) and he recommended that there should be a PAMS based parenting assessment of her.  Dr Dowd conducted a psychological assessment of the parents, and his report (dated 28^th October 2020) can be found at E28-79.  Dr Murray completed an autism assessment of M dated 23^rd December 2020 (E160-180) and concluded that she met the criteria for a diagnosis of Autism Spectrum Disorder.  The children have also been psychologically assessed.  Dr Murray completed this assessment, dated 30^th November 2020, and his report can be found at E117-E149.  Ward Andrews completed a PAMS based parenting assessment of the parents on 1^st February 2021 and their report can be found at E181-197.  The consensus of all of these experts was that the children have significant additional needs arising from the parenting which they received when in their parents’ care which now require a very high standard of care, and that the parents remain sadly unable to care for either child jointly or individually.

 

M and F remain in a relationship and living together.  The Local Authority acknowledged at the outset that M had taken some positive steps to address the concerns about her.  She has engaged with the complex needs service and completed anger management work, for example.  The couple’s relationship also appears stable and there is no evidence of domestic abuse.   However, significant concerns remain about her ability and that of F to meet the now very complex needs of each child.  Both parents accepted fairly early on in these proceedings that they could not care for B.  Very bravely, both parents accepted at the IRH for this case on 17^th June 2021 that they could not provide the heightened level of parenting that both children require and thus did not pursue a return of A to their care either.  They thus confirmed that they accepted the proposed placements for A and B.  All parties subsequently agreed threshold, but the remaining issue for this hearing is about contact.   

 

Parties’ Positions in relation to the dispute about Contact

 

The Local Authority final care plans for each child propose a reduction in contact between A and B and their parents from the levels provided during the proceedings. The Local Authority final plans outlined today propose the following each year:

a.Minimum of 4 x “whole family contact” for birth parents, A and B, 3 hours

b.      Minimum of 2 x contacts for birth parents and A alone, 3 hours

c.Minimum of 4 x contacts for birth parents and B alone, 3 hours

d.      Minimum of 6 sibling contacts for A and B   - this would be a combination of direct and indirect contact, activity based, with a maximum duration of 1 hour each time, with the possibility of extending the duration as reparative work is completed with the children.

 

M ideally wants contact with B at a minimum of once per month, progressing towards unsupervised contact and then overnight contact once per month.  In respect of A, she fully accepts the plans in relation to him.

 

F wants the same as M.

 

The Guardian recommends that the contact proposed by the Local Authority is in the best interests of the children but should remain subject to review.

 

Relevant legal considerations

 

In addition to considering section 31 (2) of the Children Act 1989 regarding threshold and section 34 with regard to contact with a child in care, I have considered the welfare checklist in section 1(3) of that Act and had regard to the article 8 rights of the parents and the children.  I have also had regard to the article 6 rights of all concerned, particularly the parents, not least in relation to the remote hearing that I undertook to conclude this case.

 

I have also considered the options for the children applying the considerations set out in Re B-S (Children) [2013] EWCA Civ 1146. 

 

Findings

 

The threshold findings sought by the Local Authority appear at A93 of the Bundle.  These findings are agreed by all parties.  Based on the uncontested evidence in the Bundle relating to threshold, I do find that threshold is crossed for the purposes of s31 and adopt the findings at A93 in this regard.

 

Turning next to consider the welfare aspect of this case, all parties accept that it is in the welfare interests of the children for there to be Care Orders and for them to remain in their current placements under those orders.  The unchallenged evidence in the Bundle, including the Guardian’s analysis that the wishes and feelings of the children are to remain where they are (E209), is that it is in their welfare interests to remain in their current placements.  I therefore find that it is in the welfare interests of the children for there to be final care orders with care plans for them to remain in their current placements.

 

The remaining issue is therefore the frequency and duration of contact between B and her parents as I have noted.  The children are at an age where they can articulate their wishes and feelings, especially A, but they are not old enough for these to be determinative of any issue.  The Guardian has clearly carefully considered this aspect.  She has spoken to A: “We talked about contact with his parents, A said it was good. When asked why it was good, he said "because they bring me toys and presents ... if they don't I get angry ... ". I asked A about his sister B, A looked sad, he said "boo ... I miss her ... ". It is my view that whilst contact for A with his parents is enjoyable, evidently his focus is often on the gifts they may bring.” (E212).  She also explored B’s wishes and feelings: “On the issue of contact, I asked B if she wanted to see her parents more, about the same or less often than at present. B said, "I want to see them sometimes ... ". Whilst I can only interpret what I felt she was saying as B turned away from me at that point and clearly did not want to continue with this topic, I formed the view based upon her narrative and presentation that she would be content with contact at a lesser frequency to that that occurs at present.” (E214).  The Guardian encouraged B to draw an eco-map during one of their video calls to help explore the relationships she shares and understand her views on contact.  The Guardian noted: “B placed A close to her on her eco-map, whilst she did not volunteer much information as to why she placed him there, she did say of contact that she wanted to “see him sometimes…”.  When asked if she would like to share cards and letters with A in-between contact, B smiled broadly and said yes” (E213).  The wishes and feelings of the children are therefore nuanced.  They clearly want to continue to see their parents and each other, but B seems to want to have less contact that currently takes place with her parents.  

 

Physical, emotional and educational needs is the next relevant welfare heading.  All agree that the children display a heightened level of need, especially A, arising from their exposure to developmental trauma which also complicates their relationships with their parents and each other (see for example Dr Murray E128).  B will have an emotional need to have stability in her current placement as the social work and Guardian’s evidence shows, but also to maintain her relationship with her parents.  

Any harm the children have suffered or are at risk of suffering is the next relevant welfare heading, and this links to the heading considering the parenting capability of M and F and C in my view.  It is not disputed as I have noted that the parenting each child received from M and F caused them significant harm, and the resultant developmental trauma is clearly long-lasting and significant based on the evidence of Dr Murray.  The social worker has also raised a concern about the impact on the children of the journey time when they are attending “whole family” contact: “I would say that the 1.5 hour / 75 mile journey is unfair on both A and B to be making at too greater frequency. I supervised the family time contact on 26/06/2021, transporting B to X from Y, and she found the duration of the journey very difficult.” (C335).  The impact on both children of the travelling involved in contact is therefore something that needs to be borne in mind when looking at the dispute around the frequency of contact for B.  It seems clear from the social work evidence that B struggles with longer journeys.  The submissions made by Ms Styles on behalf of M set out that M seeks for contact to continue initially in the current contact centre under supervision, progressing gradually towards unsupervised contact via the building up of time in the community with C being able to supervise in due course and after 3-5 sessions of contact.  However, M does want the care plan endorsed today to include provision for her to have contact with B each month from the outset (adding a further 4 sessions of contact to the current care plan).  That position is supported by F.  

 

The Together or Apart Sibling Assessment completed by the Local Authority in January this year concluded: “It is acknowledged that the impact of both A and B living apart is significant, both in terms of their sibling relationship and the potential lasting impact over the years. They have a shared history and narrative that extends beyond the current presenting issues, which should remain at the forefront of future planning for the children. It is my view that both children need more support in making sense of their experiences separately at this time” (C289).  The question of what frequency of contact between B and her parents is in B’s welfare interests must be considered in this context, I find, since it is clear that their living apart is going to have a long-lasting and significant impact upon each of them based on this evidence.  That evidence also highlights how important sibling contact is compared to contact with the parents, I find.  It is thus not possible to view parental contact in isolation.

 

It was submitted by Ms Styles on behalf of M that there is no welfare analysis of the impact of reducing the frequency of contact on B in either the final social work statement at C262-281 or the Guardian’s final analysis at E203-217.  This is not accepted by either the Local Authority or the Guardian.  On reading the documents in question, I do not find that the welfare analysis in either is lacking.  In fact, each contains a very careful and well-balanced analysis in my view, and it is significant that they both refer in detail to the extensive professional and expert evidence filed at various stages in these proceedings in reaching their conclusions.

 

The social worker at C230 sets out the reasons behind the Local Authority’s proposed contact plans, pointing out that the needs of the children will change as they continue to grow and develop and that “contact arrangements may need to be amended to ensure that their needs continue to be prioritised and met.  In order to achieve the best possible care plans and outcomes for A and B the local authority understands that there needs to be a balance between sustaining and enhancing the children’s relationships with their parents and each other, providing them with the security and stability that they require” (C320-321).  The social worker goes on to note the impact on B of suffering upheaval and instability (C321), though he does also note how settled and well B is doing in the care of C.  Ultimately the social worker’s professional opinion is that: “B's long-term planning requires an ongoing opportunity for B to remain integrated and settled in her long-term foster placement. In devising the contact plan and recognising the importance of supporting B to sustain and enhance her relationship with her parents, we are also mindful that the plan needs to be sustainable. Parent's contact proposal is of a very high level and the local authority take the view that this would be destabilising to B's placement with C” (C321). This opinion acknowledges the fact that the parents have not only done nothing to try to destabilise that placement, but have actively supported it (see for example C308: “Both M and F are happy for B to remain in the care of C. Both parents told me that they are satisfied that B is safe and well cared for by C”; and as noted in the parenting assessment).  M also acknowledged how well B was doing in C’s care in her final statement at C311: “In respect of B, I accept that she is very happy, well cared for and settled with C and I am in agreement with her remaining with C under a Care Order.”  This is not therefore a case where I have evidence that either parent would actively seek to undermine the current placement.

 

However, there is compelling evidence that both parents would continue to struggle to meet B’s needs, especially during longer or unsupervised contact (see for example the conclusions in the parenting assessment at C241, the addendum report at C298 and the final social work statement at C306).  This evidence shows that they struggle to manage challenging behaviour from A (and thus would struggle if A were to display challenging behaviour as she gets older) and to set appropriate boundaries, in marked contrast to C.  C has also been noted to require some support in providing care to B (though at the time she was caring for both children), as well as to have competing demands and pressures arising from her caring and work commitments (C171).  It is important, therefore, that whatever expectations are placed upon C about contact whilst caring for B do not add to the pressures upon her as they would potentially impact upon B as well, I find.

 

The risk of harm arising from either parent as a result of the previous threshold findings in the first proceedings is also something that must not be overlooked, as Ms Cox for the Guardian rightly submitted.  The weight of the expert and professional evidence before me at this stage is that both parents still sadly lack insight into this and therefore this risk has not reduced (see for example the conclusions reached by Dr Dowd about lack of acceptance of the findings at E40).

 

The Guardian has also carefully assessed what level of contact is in the welfare interests of both children, I find.  Again, she did so taking into account the professional and expert evidence, key aspects of which she highlighted at E205-206 and at E211.  She set out a very detailed and thoughtful analysis of the significant harm threshold analysis at E209-210 in which she clearly balanced the positive aspects of contact for the children.  As a result, she concluded: “this leads me to question their ability to understand the concerns and act upon advice given in order to safeguard the children should one or other be in their care” (E211).  Her consideration of the child impact analysis stretches from E211 to E214, and her conclusions in light of all of the evidence and her own professional analysis of that are that the Local Authority proposals would allow the children to maintain a meaningful relationship with their parents which “would mean that the children would attend contact with their parents, or with each other, once a month.  I think if it were to be any more frequent than this it would be unsettling and disruptive for the children in their placements.  The frequency of contact will remain subject to review at each Child We Care for meeting” (E216).  I have to bear in mind that I have a very clear recommendation from a Guardian about the level of contact and a Court should be slow to depart from such and would need good evidence to justify doing so.  In this case I find that I do not have any good evidence to justify departing from this recommendation.  As was submitted by Ms Cox, what is proposed by M would mean that B would have contact in some form a little under every 3 weeks which is an exceptionally high level for any child, let alone one that has suffered the level of instability and change that B suffered prior to moving to C’s care in August last year.  I agree with Ms Cox’s submission that this would be likely to be potentially very disruptive for B when I take into account the trauma she has suffered, the difficulties she has with travelling to and from contact, and the fact that she has a heightened level of needs.  I have also been mindful of the fact that, whilst she is undoubtedly well-settled with C, there is bound to be a difference for her when proceedings end since it is only at that point it can be confirmed to both her and C that she will be staying with C permanently.  

 

I have also been very mindful of the fact that, as I noted earlier, these are children who are going to need time to come to terms with having been placed separately and the undoubted significant impact of that for them.  It is important that contact is set at a level that is manageable for them considering this aspect as well.

 

It is also clear from both the social work evidence and that of the Guardian that it is not possible to determine now when it might be in B’s interests to move from supervised to unsupervised contact or an increase in the duration of contact.  The evidence of ongoing risk of harm is compelling as I have already said.  There is an acceptance on the part of M that it is not in B’s welfare interests to move to increased or unsupervised contact immediately.  However, there is also no evidence to show that it would be in B’s welfare interests to adjust things after 3-5 sessions as Ms Styles suggests.  The Local Authority, supported by the Guardian, agree to keep contact under review and that any increase in frequency, duration or removal of supervision will therefore happen if a review concludes that this is in B’s welfare interests.  Given the weight of the professional and expert evidence in this case, I find that is appropriate especially when one remembers B’s heightened needs.   

 

Through Ms Styles, M expressed strong scepticism about the ability of the Local Authority to comply with what they have promised about reviewing contact.  M alleged that promised reviews of contact whilst the children were in Madeira did not take place.  However, as Ms Ishmael for the Local Authority clarified, the social work chronology at C7-C9 confirms that regular reviews did take place whilst the children were subject to care orders.  She explained that these took place in two parts given the distance involved, with the social worker and IRO traveling to Madeira for part 1 and then part 2 taking place back in England with the parents.  Ms Cox pointed out that once the care orders had been replaced by the Special Guardianship Order equivalent orders this would have ended regular reviews by the Local Authority in any event.  She also pointed out that, as it shows at C7 contact in Madeira moved from being supervised by the social worker to being supervised by the paternal aunt and uncle.  There is simply no evidence to substantiate M’s allegation that reviews did not take place, I find.  In contrast, there is significant and compelling evidence that the Local Authority have actively reviewed contact between the children and their parents and worked collaboratively with the parents about this, and this is further reinforced by the final social work statement at C320.  In addition, the Guardian through Ms Cox told me that she would speak to the IRO about the expectations around contact reviews, as well as asking me to permit disclosure of this order to the IRO with recitals around those expectations.  This seems sensible to me and would protect the rights of the children and parents about those expectations as that is the role of the IRO.  I therefore conclude that, based on the evidence of the social worker and Guardian, the contact proposals in the final care plan for B at D150 are in B’s welfare interests and the frequency and duration of contact sought by the parents (albeit not immediately) is not.  I also conclude that the Local Authority will keep contact under active review and adjust arrangements when appropriate in accordance with whatever may be in the welfare interests of the children at the time.

Conclusions

 

This has been a very long case, not just in relation to the length of the latest set of proceedings but how long overall these children have waited for permanency.  No-one could have foreseen that the placement in Madeira would break down in the way that it did, nor that ultimately both children would be better off living apart from each other.  This case does highlight the very significant impact of early childhood trauma upon children and the risk that this will result in complex and heightened need.  It is incredibly fortunate for B that C is able to meet her needs and has done so since August last year, but very sad for A that he is now in a residential placement.  I note that both parents still hope to care of A at some point in the future.  Whilst I cannot rule that out, I should point out that A seems likely to have heightened and very complex needs for some considerable time and that, sadly, the deficiencies in their parenting which caused M and F to inflict significant harm on both of the children are still present on the evidence before me.  It is therefore important to point out that A would not be helped by any suggestion that he may return to the care of his parents, especially whilst he is receiving therapeutic input in his residential placement.  I know that both parents now support this placement for him and there is no evidence of them trying to actively undermine the placement, but they need to know that they must not inadvertently do or say anything about their hopes for the future which might cause B to feel less secure.  I think it is also important to thank C for attempting to care for both children when they returned to the UK, and for continuing to care for B.  It is clear from the evidence that B is thriving in her care.

 

I will therefore grant care orders to the Local Authority for each child and endorse the final care plans.  I will not make a section 34 contact order and will require recitals on the face of the order about the expectations around reviewing contact and disclosing a copy of this order to the IRO as the Guardian suggested.

 

 

 

7^th July 2021