England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/12/2007

The Hon. Mr Justice Sumner :


 


Introduction

1. There are two applications before me for a final care order. They are brought by Birmingham City Council, the local authority. The first of 20 September 2005 concerns four children, K who is 7 (dob 21.1.00), Z who is 5 (24.3.02), A who is 3 (15.3.04), and Z who is 2 (26.12.04). The second application dated 29 May 2006 concerns I who was born 3 days before (26.5. 06). The parents of all 5 children are Mr U R who is 35 years old and Mrs H P who is 23. She was 13 years old when she married the father in Pakistan and only 15 years old when K was born. The families are closely intermarried.
2. This is the fourth judgment that I have given since the case started, the first resulting from a 4 day fact finding hearing in November 2006 in Birmingham. This hearing lasted from 12 to16 November again in Birmingham when I reserved judgment. It involves the question of the children's future placement. Though it was not accepted that it would be outside the family, this was not challenged. The main issues were the extent to which they should have contact with their family and each other. It will assist with an understanding of the relevant events if I set out a short history.

Short history

3. The immediate cause of the first application was the admission of A to hospital on 31 July 2005. She had been admitted earlier on the 12th of June 2004 when she had a left Petal skull fracture and an older haemorrhage of the right shin consistent with an excessive grip injury.
4. At the time of her second admission A had extensive injuries. They included a recent fracture of the skull, a fracture of the arm which was about four weeks old, and a fractured rib which was about six weeks old. In addition she had some 18 marks on her including cuts and bruises, a torn fraenulum, and bruising to the nail bed of both big toes.
5. On the same day as the second admission police protection orders were obtained in respect of the four elder children. The four children were placed in foster care. K had been living with their paternal grandmother Mrs B, since 2003. He and Z went to live with her in September 2005, the younger two remaining in foster care. They were joined by I in May 2006.

The hearing in November 2006

6. The parents accepted that a total of five skeletal injuries suffered by A on five occasions in June 2004 and July 2005 were non-accidental. The mother also accepted that the 18 marks on her at her second admission were non-accidental, the father did not. No one else was suggested as a possible perpetrator.
7. The local authority also relied on some 14 allegations relating to marks seen on a Z at his nursery school between November 2004 and July 2005. It was said that given the quantity of them, the nature of the injuries, and the explanations given the majority of these injuries were not accidental.
8. The mother was represented at the hearing by the Official Solicitor. Her learning disabilities and vulnerability were such that she required his assistance, lacking the ability to understand the proceedings or to deal with cross examination. In the circumstances, she did not give evidence.
9. I heard from the father's sister, RB. She had made a statement through the police detailing the mother's violence to Kyle, Z, and A. In evidence, she said that her statement was untrue. I permitted the local authority to treat her as a hostile witness and relied on her statement.

Judgment of November 2006

10. I held that K was physically abused by his mother on a regular basis. The father and his family were aware of it. It was the reason why Mrs B had taken him to Pakistan in 2003 and why he lived with her on his return. She had also taken him with Z to Pakistan in March 2006, returning in October shortly before the hearing.
11. The mother was also responsible for the injuries to A and Z of which again the father was aware. I said in my judgment –

"Finally, I have considered the father's explanations. Whether because of undue loyalty to his wife and his family, whether it was to save any loss of face occurring to the family, he has sought from time to time, since he was first interviewed by the police in August 2005, up to and including his evidence to me, to present innocent explanations for all that has happened to the children wherever he can. I do not consider that he believes them. He has been inconsistent, accusatorial, and at times plainly incredible…

He has sought effectively to put pressure on his sisters. He may well not have been alone in that. The result has been serious. It has resulted in a covering up of a series of abusive actions by the mother to the children within the household, starting possibly as early as 2002 and continuing until 2005…

This has great importance…there is a message which must be received and understood by the family. The best persons to bring up children are their parents. If for good reason, they cannot do so, then it is better that they be brought up by a member or members of the wider family, where possible. This becomes more difficult if the extent of what went on, which was seriously wrong, has not been revealed over a period of time, false explanations have been given and pressure put on family members to silence them. This is what I find has happened here.

I mention this for one particular reason. There is time between now and the final hearing … for the family to stand back and consider the court's findings, however unpalatable they may be for them. Despite the seriousness of the injuries, and my findings… there may be time for an acknowledgement and a wholehearted determination to cooperate fully with the local authority. The results of not doing so could be serious for the future of the children."

12. The history of this case since then and the further hearings demonstrate sadly that those words went unheeded. The result is that I find none of the children can be brought up by the parents or their families. The main argument has been about the care plan and the extent to which it is both practical and in the children's best interest. I turn to the history since then and my decisions on the various issues that have arisen.

Events between November 2006 and November 2007

13. Following my judgments in November 2006 an agreement was signed by all parties in relation to contact between the two older children K and Z and their relations. There was a police investigation which led to charges being brought against both parents.
14. In January 2007 the mother alleged that she was physically abused by Mrs B and other members of the family; Mrs B had the care of the children for long periods of time and was responsible that many of the injuries. A further assessment of the mother's mental capacity concluded that she could give evidence with appropriate safeguards.
15. In March 2007 there was a hearing before Wood J. in relation to an application by the local authority to remove the two older boys from the care of Mrs B. The local authority relied upon a series of alleged breaches of the written agreement. There was no oral evidence. Bearing in mind the boys' attachment to Mrs B, no order was made.
16. In April 2007 a detailed report was received from an independent social worker, Ms Hossain, relating to the family. It raised serious concerns about child protection within the paternal family. At the same the mother sought a rehearing of the fact finding hearing. It was based on the matters she had raised in January. The mother had been too frightened she said to mention them earlier.
17. At a hearing ending on 9 May, I heard from Miss Hossain, the father, the Guardian and other witnesses. I held that the two boys should be removed from Mrs B's care. I concluded–

"It was understandable to leave the boys with family members in the first place. But it required not only cooperation, but respect for and observation of the agreement. I am satisfied that she (the grandmother) is the centre of her large family and plays a decisive role in decision making. She has not accepted that any member of her family could pose a risk to the two boys. There by itself might not necessarily be fatal…

Her trip to Pakistan with the two boys in 2006 was a plain indication that she was not prepared to respect the parent's views nor the rights of other local the local authority in relation to the two children. Her removal of them without notice for a period of nine months was the clearest sign of her total lack of respect for any differing views…

It was a defiant act of the grandmother's which involved misleading the parents, the court, and the two boys. It was maintained, despite the obvious disadvantage and upset to the boys of being separated as the Guardian described...

This is a family at war with itself facing a major criminal trial with family pressure on those who do not conform to the grandmother's view. Rightly the local authority lack confidence in being able either to monitor what is happening to the boys, whom they see, and with whom they are in contact, aware as they are of allegations of ongoing violence to them… I am clear that the paternal family has not been able to be open and honest with the local authority. "

18. The next important event was the parents' criminal trial which started in May 2007. The mother was found fit to plead. Mrs B gave evidence for the prosecution. On 4 June the father and mother were both convicted of cruelty to Zahir and A. The mother was also convicted of causing grievous bodily harm to A. The case was that the mother had deliberately caused the injuries to the children and that the father failed to take sufficient steps to safeguard the children. They were given suspended prison services.
19. The next hearing before me hearing before me was listed as a final hearing starting on 9 July 2007. This did not prove possible. The parents were appealing their convictions. A further assessment by Miss Hossain on the ability of family members to care for the children was awaited. In the event I was asked to rule on the local authority's plan to reduce the level of contact and on an application by Mrs B for a further assessment of her.
20. I held that the level of contact was disruptive for the children. I reduced it. I refused the further assessment.

The hearing 13 to 16 November 2007

Representation

21. The local authority was represented by Mr Casey, the mother through the Official Solicitor by Miss Meachin, the father by Mr Gibbons, the Guardian by Mr Carvil. They had all appeared at the first hearing. In addition Mrs B was represented by Miss Cotter.
22. There had been a further report from a psychologist Dr Wilcox in respect of the mother. He had first reported in November 2005 in relation to her cognitive and intellectual abilities. In April 2007 he concluded that her cognitive impairment justified the continued involvement of the Official Solicitor. In November 2007 he said that she was capable of consenting to adoption.

The parties' position

23. The local authority sought final care orders and placement orders in respect of all 5 children. There were no proposals for ongoing contact once permanent adoptive placements had been found. The Guardian supported these proposals.
24. The mother wished the children to live with her. Alternatively she wanted the children looked after by her mother either in Pakistan or in this country; if this was not possible then by her sister, Ms Wahida B. On her behalf the Official Solicitor recognised that she was not a viable carer for them. He also conceded that it was not viable to place any of the children with members of the extended family. He sought ongoing contact.
25. The father asked for the return of the children. It this could not be, then he set out a series of descending alternatives. This was on the basis that he was not going to separate from the mother. He wanted all or some of the children placed with them. If not it should be with Mrs B, with his sister Noor P, with the maternal grandmother Mrs W B, or with the extended family. Finally, as adoption was an alien concept, they should be fostered. In that case it should be with Sunni Muslims, they should speak Pushto, and the children should pray in Arabic.
26. The paternal grandmother Mrs B sought special guardianship or residence orders in her favour. Together with the parents, she wanted on going contact with the children if they were fostered or adopted.

Mrs B's change of position

27. On the third day Miss Cotter said Mrs B had heard the evidence of the local authority and that of Miss Hossain on the previous day. She had had a long and hard think about it. She recognised that sadly the weight of the evidence was against her in relation to her application to care for all or some of the children. Though she very much loved her grandchildren, she did not wish to pursue her application.
28. She would be moving to Pakistan with her 80 year old husband and hoped to achieve this by the summer of next year. If the children had achieved a permanent placement by then, she accepted that she would have a farewell contact and thereafter only indirect contact.
29. Indirect contact was important to her and she wished to have it with the two older children four times a year, as well as to the 3 younger children. If the children were in foster care, she sought direct contact twice a year. The local authority agreed with videos being exchanged but said indirect contact should be twice, not four times a year.
30. If the children could not be placed within the family, she supported long-term fostering. Sibling contact was essential.

The care plan

31. It was queried on a number of different points. It led to the local authority producing further drafts during the course of the hearing. One of the reasons was that little had been done in order to see whether adoption was feasible for the children and there was at first no parallel planning proposed if adoption failed.
32. Part of the reason for this was that the local authority was awaiting Miss Hossain's report on the prospects for a family placement. It came in late September. It was negative. Panel approval was needed thereafter.
33. By then K and Z had been in foster care since July 2007, Z and A since July 2005, and I since May 2007. But it had been clear from an early stage that the family did not accept my findings, from which there was no appeal, and that any suggestion of adoption would be opposed.
34. Regrettably too little was done. The resulting revisions to the care plan did not help the parties' confidence about the local authority's decisions. The parties have sought to protect their positions by seeking orders under s.26 of the Adoption and Children Act 2002 concerning future contact.

The evidence

35. I heard from the allocated social worker Mr Joseph, a contact supervisor Ms McInery, the independent social worker Miss Hossain, the father, the paternal aunt MB, and the Guardian Mrs Barker. The statement and reports are contained in 6 lever arch files and runs to over 1400 pages. In the light of my earlier judgments, my review is now confined substantially to the recent evidence of the parties, Miss Hossain, the local authority and the Guardian.

Essential findings

36. The hearing and the subsequent submissions on the part of the parents are based on certain fundamental facts which should be set out before I consider the evidence further. The mother denies harming A, K, and Z. She blames Mrs B. She explained that she lied earlier because the father and Mrs B told her to take the blame for the injuries.
37. The father neither accepts my findings about the mother's responsibility nor that he failed to protect the children. He also considers he was wrongfully convicted. I note from the pre-sentence report of 25 June 2007 that he then said that he had failed to protect the children and that it was his mother who had caused the injuries. In his last statement he considered the report on the family members by Miss Hossain was biased and not independent. He is not seeing his own family.
38. Three of their children suffered significant physical harm. In relation to A it was of the most serious kind and on a number of occasions. I have held the mother responsible and that the father failed to protect them. Both have been convicted of cruelty. Neither accepts either my findings nor their convictions.
39. The father now intends to take his conviction to the Criminal Cases Review Commission. On behalf of the mother, following the refusal of leave to appeal, she has not sought to renew her application for a rehearing. It follows that the parents have the most serious findings against them which either have not been appealed or for which leave to appeal has not been granted.
40. As counsel have properly accepted, it means that no responsible local authority could contemplate returning the children to their care however much the parents proclaim their devotion to them. Equally relations who do not accept the essential findings are most unlikely to be able to protect the children if otherwise they might be able to care for them.

Focus of the hearing

41. The result has been that the hearing has concentrated on the plans of the local authority, the question of contact for the parties, and the extent of contact between the children. I shall shortly set out what each party finally seeks. This will assist when I consider the evidence.
42. The local authority proposes that all children will be placed permanently with Muslim carers. The mother through the Official Solicitor has set out full responses as has Mrs B bearing in mind she intends to live permanently in Pakistan next year. The father presses for placement with him and if not as much contact as possible.

Plans for K and Z

43. There should be placement orders with parallel planning for adoption and long term fostering. In the event of adoption, there should be only indirect contact twice a year with exchange of letters and photos for the family. If it was fostering, there should be 3 supervised contacts per year for 2 hours subject to a 6 monthly review for the parents with 2 such contact visits for Mrs B should she not be in Pakistan. Until placement the parents and Mrs B should have fortnightly contact for an hour reducing to once a month in January until placement.
44. The parents and Mrs B resist a placement order and adoption in principle. They also do so because by reason of the boys' age and behaviour it is unrealistic. If a placement order is needed it can be sought later.
45. If there is adoption the mother says there should be direct contact once a year. Should it be fostering then contact should be 12 times a year as they are used to, not 3 times a year.

Plans for A, Z, and I

46. The local authority seek placement orders with a view to adoption. This is again resisted by the family on grounds of principle.
47. No contact is proposed for Mrs B. It is proposed that contact to the parents will reduce in December from weekly supervised contact for 11/2 hours to monthly from January 2008 until permanent placement. After placement the arrangement will be as for the 2 elder children with no face to face contact but indirect contact 2 times a year.

Plans for inter sibling contact

48. Until permanent placement the proposal is for all 5 children to meet once a month. For the younger 3 it will be fortnightly. All possible efforts will be made for adopters willing to promote continued contact, and they will be presented on that basis. Once there they are all placed permanently it is proposed that it will take place 2 times a year.
49. This is not opposed by the family save in two respects. Firstly only adopters who are prepared for inter-sibling contact should be chosen. Secondly the need for contact should be enforced by court order. The local authority does not agree, saying they have set out the necessary priority to be given to such contact. To go further would be potentially restrictive.

Mr Joseph

50. He said that a member of the Family Finding team had been appointed the previous Thursday to find families for all five children. CAMHS had had an original referral in June, but there had been delay. They were buying in services for the life story book. The elder two were now out of Birmingham and if local CAMHS would not accept the referral they would have to do the work from their resources.
51. He had drafted the amended care plans after hearing the evidence of Miss Hossain and discussion with his colleagues. He had already been involved in one Muslim adoption that year, and they did find such adopters. They had had five computer placements for I and three matches for A and Zahir.
52. He produced a note from Ms Deborah Ferris, a senior practitioner with the Family Finding Team. She said that, since the beginning of January 2005, they had placed 18 Muslim children with adopters. They had currently 1 Pakistani Muslim child waiting to be adopted. There were 38 Pakistani Muslim adopters on the national Adoption Register.

Miss Hossain

53. She produced a report in March 2007 running to over 80 pages in respect of the parents and the paternal grandparents. She has particular experience in assessment of carers in and from various countries including Pakistan. She has been a guardian for 14 years.
54. She considered the family dynamics to be extremely complex and very worrying. She ruled out the parents as carers for the children because of their denial and non acceptance of my findings. The parents had difficulty in managing and controlling the behaviour of the children, because the attachment and relationship with them was one of anxiety and insecurity.
55. When she reported again in April 2007 she raised several serious child protection allegations in respect of Mrs B. One of the real difficulties had been ascertaining the accuracy of the information received from the adults. She gave evidence to me in May 2007 and I have set out my findings about Mrs B.
56. She then carried out further assessments of family members as potential carers starting with the maternal grandmother Mrs Wahida B whom she interviewed in Pakistan. She considered the disadvantages outweighed the advantages whether she living there or in Birmingham.
57. I do not go into the background further. As with the other assessments of members of the paternal family, though not accepted by the parents, there has been no challenge to Miss Hossain's evidence. As she said in evidence, Mrs W B had no sufficient understanding of the risks or what the issues were. She believed her daughter was innocent. It was not in the children's interest to be with her here or in Pakistan. The placement of the children with her would lead to further tension and feuding.
58. In September 2007 she assessed the sibling relationship. The children were divided up with the 2 elder being with one foster carer, the next 2 with another, and I with a third. There had been changes in placements at short notice which had been totally unhelpful, the 4 elder children showed considerable confusion, and they had no understanding of the relationship that they shared.
59. The overall quality of contact was very worrying with the parents unable to prioritise the needs of the children. There was no boundary setting and no guidance on behaviour was given. She recommended placing the children with the elder 2 together and the younger 3 together.
60. She then undertook 5 separate assessments of members of the parents' family as potential carers of the children. They were a half-sister, half-brother, step-niece, and nephew of the father and a sister of the mother. In each case the positive and negative features were well set out.
61. None were favourable. I have read them. There was no direct challenge to the evidence. I quote from her report.

"It is my opinion that wherever possible that the best place for a child to be raised and brought up is with its natural family. In this case, and in the light of my previous assessment (30^th March 2007) I remain of the view that neither Mr. U R nor Mrs. H P can safely parent any of their children. They are likely to suffer significant harm if placed in the care of either or both parents.

I also believe that if it is not possible then a child or children should be placed within the wider family. Various relatives, including the paternal grandparents who are themselves party to these proceedings have put themselves forward or their names have been suggested by the parents. I have real concerns regarding the placement of the children within the extended family and have highlighted these in the end of each section…

I have also concerns that the children may simply be "shared" amongst the family and would be passed around. There would be no way of knowing where the children would finally be living or who their main carer was. My greatest fear is that the carers would simply be "minding" the children for the parents and would "hand over" when professional monitoring or scrutiny was less intense or had diminished.

It has been very apparent that up to two weeks prior to my interviews, Mr. U R had been in contact with the various key individuals. I have included my notes of a telephone conversation on 5^th September 2007 in the Appendix ("He knew all about me. He would see to anyone who took his children away"). I really do believe that Mr. U R is the driving force behind the various family members desire to look after one, some or all the children. Mr. R has been known to apply pressure on his sisters previously and indeed such was a finding by Mr. Justice Sumner. It is entirely possible that he has put pressure on his half siblings and extended family to look after the children in order to maintain his parental responsibility and have a greater say in future decisions. It is my opinion that he sees himself having involvement and access to the children through his own extended family.

It is my opinion that the negative factors linked to all five family members far outweigh any positive contributions they could make for the future welfare of the children K, Z, Z and I R and A B."

62. In evidence she said she supported the care plan for placing all five children outside of the family in two separate placements. The five children had never lived together, they had had no shared experiences, and they did not see each other as brothers and sisters. The elder two had two changes of placement and the younger three had had three different placements. There was a lot of work to be done.
63. She strongly advocated more contact between the three youngest. For K and Z permanency was most important, whether through adoption or fostering. Parallel planning was essential. K was very confused and Z needed to be settled in August rather than now. He needed some work immediately. CAMHS and life story book was the sort of work that should have been done.
64. Sibling contact was very important. It could be done because adopters were coming through who recognised it. Placement orders for the younger three was absolutely appropriate. She did not recommend direct contact to the parents for them, it would be too confusing. They needed to belong to another family, and they would not understand two mothers and two fathers.
65. With the older two she recommended an adoptive placement which allowed contact with parents and grandparents. If it was long-term fostering then contact had to be revisited to see how suitable it was. They would not have new parents, so there should be contact, say three times a year.
66. The children should see each other without the parents, it could be based round activities. The parents should see the children separately with I alone as he had a good quality contact with them.
67. She considered the question of security, for instance the older boys knowing where the three younger ones were placed for adoption. She said the local authority had to be vigilant. They could not say that there should be no contact because of the risk. It needed to be thought out. It was tragic that the family finder had only been appointed last week.
68. She shared the concerns about the behaviour of the two older boys. She would have preferred that work had begun after they had returned from Pakistan. She considered that they had a prospect of adoption, but they were very unsettled. Muslim adopters were coming forward. However there was a very remote prospect of adoption if their emotional state remained as it was. Z was struggling with his feelings and did not have the same attachment to the grandparents.
69. If they were not returning home, they needed a clear message so they could make an attachment to their carers. They needed to know where their parents are fitted in.
70. She did not advise contact for the older two boys if they were adopted. Their relationship with their mother had been very difficult, they were dismissive of her. They needed a positive picture, and the comPson could be damaging. Videos either way would be more beneficial. The relationship between the children and their parents was not that strong.
71. She did not support direct contact with the three younger children. The mother had never accepted that she had any part to play in their removal, and the messages would therefore be very confusing. Direct contact would not be positive, they needed to make attachments, and with the grandparents it would have no meaning for them. Life story work could be done.
72. The mother's acceptance of what had happened was the key. The dynamics here were very worrying. Each child had a different relationship; I had never lived with them. She agreed with the proposed reduction in contact before a permanent placement was found.
73. She agreed that there had to be Muslim adopters. There was a small pool of them. Non Muslim foster carers would be very much a last resort. The children needed a Muslim upbringing.
74. For the two older children contact with Mrs B was important. For K Mrs B was the principal contact. There could be indirect contact for instance by video. For the younger three, there should be indirect contact with parents and grandparents twice a year.
75. In relation to Mrs B she raised concerns. She believed the mother had caused the injuries, but statements were made and then retracted. She had not been consistent. She had not told the whole truth. She was the matriarch and mother of nine children. She can exercise her will, but her judgment was flawed. There was no one to stand up to her. They minimise the problems of their children. If the children were with them, she queried how could it be policed. Mrs B showed no direct physical warmth.
76. She had enormous concerns about the future and the preparations for permanency. There were questions to be asked of senior management. If work had not been done on their life story, what confidence could there be that it would be done later? The children were waiting for someone to take them through to their next stage of life.

The father

77. He accepted the court's findings in November 2006 but he did not accept his 2 convictions. He was referring them to the Criminal Cases Review Commission. He naturally disagreed with adoption. He wanted the children returned to him. He could look after them and protect them. He had been to parenting classes last term. If not the children should be placed within the family, failing that long-term fostering.
78. He was not happy with Ms Hossain's assessment of the family. He wanted a Pushto speaking Sunni family. He wanted to see the children even if they were adopted. He would not try and find out where the children were living, he was prepared to give an undertaking on this.
79. He would separate because the children come first if the local authorities said that the mother was a risk. He was taken through the finding I had made about the injuries to the children. He did not accept that he had taken no effective action. He accepted that he had not been open and honest with the court, the local authority, and the police. He did not know if the injuries were accidental or not, the children had been hyperactive.
80. He had told the jury that his mother and his sisters had caused the injuries. His admission that he had failed to protect the children from his mother was not truthful. He said he had to protect his wife. He knew that the mother was not responsible for the bony injuries. He had been too loyal to the family last November. A had brittle bone disease and that explained the injuries; the bruises were accidental.
81. He did fail to protect the children, he should have been there for the children not at work. He failed to protect them from the physical abuse of his wife, but he did not know if she inflicted the injuries. He had not been happy for his sisters to give evidence. He had put pressure on them, and it was wrong. One at least could provide the warmth necessary for the children. He did not think it would be too much for his mother-in-law to come to the UK to look after the children. Caring for seven children under eight years of age also was not too much for her.

The mother

82. She did not give evidence. I gave her an opportunity to make a statement there if she wished, but she did not. Miss Meachin on her behalf set out her proposals, which I have outlined in paragraph 24 above. Mrs B also did not give evidence.

MB

83. She wished to give evidence. I asked her questions to begin with. She had attended every contact with the family save for 2. She had lived with her parents for 1 1/2 years when the two older children were three. She had seen them every day on her return from work. She would like to attend twice a year with her mother, and on her own when her mother had returned to Pakistan.
84. She had considered becoming a carer. She disagreed with placement outside the family. She thought the assessments of Mrs B, the father and herself were biased and one-sided. She did not communicate with the father. She would not discuss the mother or father if she had direct contact. The children were already confused.

The Guardian Miss Barker

85. In her report she said that K presented as a confused and angry child. He was upset when removed from the care of Mrs B. His behaviour was challenging, and at times he would use physical and verbal aggression. He had limited attention span and struggled to cope with boundaries. There had been some improvement since a change of placement in August 2007.
86. Z presented challenging behaviour. He also had a limited attention span. His emotional needs meant that he was unable to cope with the structures of a school day, whilst his unruly behaviour meant that he required constant one to one supervision. He was making little progress in education lately. The other children did not raise the same level of concern.
87. She concluded –

"Neither parent accepts the findings of the court. On that basis there are no grounds for rehabilitation to either one or both of the parents as the children would remain at risk of injury. Also the history of the matter shows that there is no member of the wider family who could act as a protective influence. Indeed, as the assessments of the wider family members show, there is serious concern about their openness, honesty and ability to prioritise the needs of the children above internal family disputes which have led violence both in England and in Pakistan."

88. She supported the local authorities' care plan, the making of placement orders for all 5 children, and the placement of the two eldest separately. As the parents were in total opposition to the local authority's proposals, it would not be in the children's interest to consider face-to-face contact. She supported the gradual reduction in contact, post placement indirect contact, and contact between the siblings twice a year.
89. In evidence she was in broad agreement with Miss Hossain. She agreed with inter-sibling contact twice a year. The local authority had amended the wording on the need for this. She did not consider that it should be imposed. That might restrict the families available to care for the children.
90. If there were no placement orders for the two oldest children that limited choice. They deserved every opportunity for stability and security. Indirect contact for Mrs B should be 2 not 4 times a year but not to the younger 3 children who had had limited contact with her. That would be too intrusive given other direct and indirect contact. I agree. Likewise I do not support sending cards.
91. She did not support MB as a substitute for Mrs B. It was Mrs B who was the primary carer. MB's real value was in indirect contact. She would like the children to maintain their language, though it may have to go. An adoptive placement for the older 2 would be a challenge.

Submissions

92. Miss Meachin took care to set out the mother's position. In essence it was that the threshold criteria had not been met and that the children should be returned to her, her mother or her sister. The Official Solicitor's submissions were based on the fact that the criteria had been made out.
93. For the two oldest, the most desirable long-term placement was with foster carers. Adoption would mean only indirect contact, which would not meet their life experience, nor their knowledge of the family. It was unrealistic given their age, a behaviour and links to their birth family. Where they could be adopted, they should have direct contact with their mother once a year. For the three youngest contact should be higher than three times a year.
94. There should not be placement orders for the two oldest children. Adoption would result in a lack of knowledge and understanding of their heritage, as well as culture and language. It is also such a low possibility. If necessary, the local authority could always apply later for placement orders, if it was needed. It provided a barrier to the parents seeking revocation.
95. With inter-sibling contact, it was difficult to see how it would be in the best interests of the children if any prospective adopter would not accept this. It was either an absolute requirement or it was not, only the court had the opportunity to make it such a requirement.
96. If the children were in a long-term foster placement it was difficult to understand such a rapid change to reducing contact from once a month to three times a year. There was said to be a need for the children to settle, but the parents and their links remain. Furthermore there should be direct contact once a year to the parents if the older children are adopted. It would provide the reassurance they would need and meet their loss of their heritage.
97. Mr Gibbons for the father said that he had to be realistic; the father neither accepted my judgement nor the verdict of the jury. There could be no opposition to the making of a care order. There was a real doubt about any Moslem adoption. The father wanted generous contact.
98. For Mrs B Miss Cotter sought indirect 4 times a year not twice to the 2 older boys. They had lived with her and she is seeing them once a week. If not then she would like to send cards as she would like to do for the 3 youngest. She would like indirect contact to them accepting that the professional view is against that. She also wanted indirect contact and inter-sibling contact protected by s.26 orders.
99. Mr Casey for the local authority argued that the hope of adoption for the 2 older boys was not low. Without placement orders any prospective adopters would face legal proceedings which might be off-putting as well as causing delay. There can always be an application for a revocation of a placement order by an interested party.
100. There should be no binding requirement for inter-sibling contact. Its priority had been recognised. Maximum flexibility was needed so the children could achieve a permanent home soon.
101. The Guardian and Miss Hossain had given persuasive reasons for no direct contact in the event of adoption. It will be difficult in any case given the disruption already and the fact that their families do not support such a placement. A need to keep the families informed was recognised and supported by the Guardian.
102. Mr Carvil pointed out on her behalf that ongoing contact to children after adoption can be of benefit for the children where the parents support the placement. Here the parents did not nor had they moved on. Her priority was for the children to settle happily in a permanent home. This would be helped by a reduction in contact and work on the life-story book.
103. Adoption for the older 2 was not impossible. She too wanted inter-sibling contact 2 times a year. It could be restrictive to make a s.26 order. There was a danger of overloading if Mrs B had indirect contact 4 times a year. There should be no contact by the mother if there was adoption. The parents had not moved on. Contact 3 times a year if they were in foster care is appropriate.

The law

104. Under the Adoption and Children Act 2002 local authorities are under a duty to apply for a placement order where a child is subject to a care order, and it is satisfied that the child ought to be placed for adoption (s.22(2)). A placement order authorises a local authority to place a child for adoption. The child must be subject to a care order. The court cannot make a placement order unless the parent has consented or the parents consent should be dispensed with (s.21).
105. When considering the question of adoption for a child, a paramount consideration is the child welfare throughout his life (s.1(2). The court has do it have regard to the checklist (s1 (4).
106. This includes the child's wishes and needs, the likely effect throughout his life of no longer being a member of the original family, the child's age, sex, background and any relevant characteristics, any harm which the child has suffered or is at risk of suffering, and the relationship the child has with its relatives, the likelihood of any such relationship continuing and the value to the child of this, the ability and the willingness of any of the child's relatives to provide the child with a secure environment in which the child can develop or otherwise meet the child's need. Finally the wishes and feelings of any of the child's relatives regarding the child had to be considered.
107. The parents do not consent to adoption. Accordingly I cannot make a placement order authorising the child to be placed for adoption unless I dispense with their consent. The only ground that I can do so is if the welfare of the child requires that the consent is dispensed with (s.52(1)(b). When a placement order is made the parents lose their parental responsibility (s.25(2)) and any care order ceases to have effect (s.29(1)).

Conclusions

108. I accept the evidence of the local authority, Miss Hossain, and the Guardian. One view of the evidence of the father is that he is confused. The alternative is that he will say whatever he thinks will help whether truthful or not to ensure that the children are restored to their family, and that adoption is avoided. Given all my earlier findings, the threat I am satisfied he made to Miss Hossain and his evidence, I find that it is the latter.
109. Miss Hossain said of him in March 2007 –

"Of greatest concern is his denial of the findings of Mr Justice Sumner and his continued explanations to the contrary for the injuries to Z and A. He does not accept that his wife could be responsible for the injuries and absolves himself from any responsibility for his failure to protect them. He continues to make serious allegations about his mother and his sisters and considers them responsible for his current predicament. I do not believe that Mr R would be able to robustly protect his children from any risk and certainly not from his wife or his wider family."

110. I have held the mother responsible for the injuries to the children and the father guilty of failing to protect them. They have also been convicted for the same offences. Neither has accepted either my findings, nor the convictions. They have not been able to move on. Contact has been disruptive. It follows that the children are a risk of significant harm, both physical and emotional, were they to be returned to their care.
111. Miss Hossain has shown through thorough assessments of relevant family members that those risks are not met were they to be placed with them, or the particular individual or couple cannot provide sufficient care for them. The children have experienced considerable disruption, in particular K. He has lived with Mrs B, gone into foster care, been taken by her to Pakistan for 10 months to his distress, and in July of this year placed in foster care. The same is true for Z save that he was not living with Mrs B in the first place.
112. Hardly surprisingly they are showing disturbed behaviour. Their need for a stable, permanent and loving home is particularly strong. Neither their parents nor the wider family can provide this. The alternatives are adoption or long-term fostering. Adoption provides a greater opportunity for being permanent members of a new family. There should be an opportunity to see if this can be achieved.
113. I do not regard the search for adoptive parents as doomed to failure. K and Z's age, behaviour, and experience, do not make it likely but there is a hope. It is also the best hope for their future development and emotional maturity. Given the trauma through which they have been, their parents' total failure to accept what has happened, and the poor contact, I do not consider that it is in their best interests for there to be any continuing contact should they be adopted.
114. If they are placed in foster care, I accept that the proposals of the local authority provide the necessary level of contact to their parents and grandparents consistent with them settling down and making the most of their new life. I consider that the prospects of their settling down, were they to see their parents every month, would be considerably reduced. It might be otherwise if the parents were able to accept their placement. The parents cannot do so, and a greater degree of contact runs the risk of undermining the foster placement. Their present disruptive behaviour might well in those circumstances continue.
115. MB has shown considerable commitment in attending regular contact with them. I have considered carefully whether there is scope for her continuing direct contact. It is a link to the time that both children spent with Mrs B.
116. I have borne in mind that I relied upon her earlier statement in relation to the mother being the perpetrator of the injuries to the children, a statement which she subsequently retracted under family pressure. I have not at the end attached particular importance to this, but much more to the effect that it was Mrs B who was their principal carer. Miss Munir has a valuable role in indirect contact, but I am not satisfied that it is in the boys' interest to increase it to direct contact.
117. For the much the same reasons, I do not support direct contact between the parents and the three younger children should they be placed for adoption nor indirect contact to the grandparents. Given their ages I consider such a placement likely.
118. In reaching those conclusion and making placement orders for all 5 children I have borne in mind the checklist summarised above. I have also considered whether the children's welfare requires such a drastic step as adoption for Muslim children of Muslim parents. The history I find demands nothing less if their essential needs are to be met.
119. In this regard I have read the extract produced by Mr Gibbons about adoption in the Muslim faith. At the risk of over-simplification, I note that the rules emphasise that the adoptive family is not taking the place of the biological family, they are trustees and caretakers of someone else's child. When the child is grown-up members of the adoptive family are not regarded as blood relatives. Adoption rarely occurs because of the importance attached to the family network, which is both extensive and very strong.
120. I have set out above why the children cannot be returned to their parents or to members of the wider family. I have emphasised their need for stability and security within a loving family and why adoption is the best course to achieve this for all 5 of them. I have concluded that though it will not be easy to place the two eldest boys for adoption, there is nevertheless a prospect that this can be achieved. I therefore do not rule out adoption for them.
121. However the parents do not consent to such a course. I cannot dispense with their consent unless the welfare of each of the children requires that consent to be dispensed with. In this regard I have to bear in mind the welfare of the particular child throughout its life, and the matters set out in the check list in s.1 (4). I give due weight to the fuller relationship that the 2 older boys have with parents and relatives than is enjoyed by the 3 younger ones.
122. It is an important feature that neither parent accepts that such serious non-accidental injuries were caused to A, and that non-accidental injuries were caused to K and Zahir as well. Even amongst those few members of the family who accepted that this was happening, there was a serious failure to protect these children. These are relevant considerations when considering the value of the relationship which each of the children has with their relatives.
123. I shall not further summarise the evidence of a Miss Hossain and the Guardian. However their support for adoption for each of the five children is a powerful factor. Miss Hossain has the added value of bringing her personal knowledge of the necessary religious and cultural considerations into consideration. Both they and the local authority have I am satisfied brought a detached but sympathetic scrutiny to the position of the parents and their families.
124. In reliance upon that, the Guardian, and the local authority, I can safely conclude that the welfare of each of the children during their lifetime can be properly met by adoption. Furthermore their welfare also requires that consent to adoption by their parents should be dispensed with. I rely upon that also for my further conclusions.
125. I have given an anxious consideration about whether any contact that might arise in the future between the children and the family, and the contact that will continue between the siblings should have an order under s.26 of the Act. That section says that the court may require the person with whom the child lives to allow them to have contact with any named person, or with the other children.
126. The need for such an order can arise in a whole variety of cases. It could arise where the benefit of the contact is clearly established and its continuation needs to be assured. There is a discretion given to the court to exercise on the basis of each of the children's welfare.
127. I am not satisfied that any of the contact by the children to members of the family come into this category. Furthermore, though each of the two groups of children know each other well, as between the groups there is far less knowledge and understanding as Miss Hossain pointed out. Even then, though the priority of the contact is properly recognised in the revised care plan, the potential difficulties surrounding any placement of Muslim children demands that as few restrictions are placed upon the prospective adopters as possible.
128. I do not therefore consider that there are circumstances either in adoption or in long-term foster placement that give rise to the need for a s.26 order between the children and their parents and family. It is not only restrictive on potential placement, it makes no allowance for the dynamics of how the children will develop, their changing attitude towards their parents and family, and the reaction to those changes.
129. Between the children themselves I recognise that the need for an order is stronger. Nevertheless the dynamics of their changing relationship and the possible restriction on placement with a family otherwise suited to adopt them rule against the making of such an order. I am satisfied that there will be cases where no family is suitable for adoption or long term fostering unless they agree to sibling contact. Given the troubled behaviour of the two older boys, the strong need for an adoptive placement, and the lack of significant relationship between the 2 groups of children, I have decided in the children's best interests that I should not make an order.
130. Finally, there is the argument that I should not make a placement order now, but wait until there is certainty for the two older boys that an adoptive placement can be found. The application for such an order can then be made.
131. I am against such a proposal. It is not in the children's welfare interests. In particular, it means that prospective adopters may be deterred on 2 different levels. Firstly any placement requires a further legal hurdle in respect of which, though the prospects may be reasonable, no guarantees can be given. Secondly, and no less importantly, there will be yet further delay in respect of children who are in need of the earliest placement in a permanent setting. That is a significant factor.
132. I understand that the local authority is content to keep the Respondents informed of progress until each of the children achieves a permanent placement. It would be appropriate for such an agreement to be recorded as a preamble to the order, which I shall invite Mr Casey to draw.