England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/01/2013

Mrs Justice Pauffley :

Introduction and issue

1. Wherever possible, consistent with their welfare needs, children deserve to be brought up by members of their natural family. When, as here, the findings made at the end of an earlier hearing effectively preclude any return within the parental home, then it becomes vital to anxiously weigh the proposals made by wider family members. In this instance, the choice is stark. Either the children are to be made the subjects of final care orders with care plans for adoption by an as yet unidentified couple; or they are to be entrusted to their maternal grandparents under a special guardianship order or some other temporary legal mechanism leading to such an order.
2. For much of the two days of the hearing, it seemed to me that the decision was particularly finely balanced. It must have been obvious to all that, at times, I entertained significant reservations about the local authority's proposals. I wavered during the course of the evidence as indeed did the children's experienced guardian. After the first witness, a consultant psychiatrist, had completed his oral evidence, the guardian, through her solicitor, indicated she was minded to support some further assessment of the grandparents' ability to meet the children's emotional and psychological needs.
3. When she went into the witness box as the final witness, the guardian reverted to the position she had adopted within her written report namely that the grandparents simply do not have the capacity to meet the children's needs. Accordingly, with some sadness and after much consideration, it is the guardian's recommendation that the children should be made the subject of placement orders as the first step towards securing for them an adoptive placement together.
4. The parents' unified position is that they would support the making of a special guardianship order in favour of the maternal grandparents. They are wholly opposed to the local authority's plan for adoption and wish, quite obviously, to be able to maintain a relationship with each child by continuing direct contact.
5. Ultimately, but decisively, I have reached the conclusion not only that further assessment would be unwarranted but also that the children's welfare demands that the adoptive plans be pursued. If I had considered there was a realistic prospect that the grandparents might be able to meet the children's complex emotional and psychological needs, I would have resolved the case entirely differently. As it is, having reflected upon all of the available material – most particularly the oral evidence – I am impelled to favour the local authority's proposals for adoption. Now, and because it is my duty to do so, I set out some of the background as well as the factors which have led me to decide as I have.

The children and their parents

6. The children for whom the decision must be made are K who is just five years old; and H who will soon be three. Their parents attended this hearing, sitting side by side throughout. Neither gave oral evidence. The role of their Counsel, Miss Mitchell and Mr Routley, was to support and promote the application for a special guardianship order brought by the mother's parents, Mr and Mrs F; and I should record my gratitude to Miss Mitchell, in particular, for the way in which she was able to take instructions from Mrs F, assist Mr F in the process of his evidence in chief and cross examine, with commendable realism and thoroughness, all of those witnesses who were opposed to the grandparents' proposals.
7. In similar vein, Mr Routley's written submissions contained all that could feasibly and reasonably have been said in support of the grandparents' case, tackling head on the various counter arguments raised against the family's proposal. I am grateful to both Counsel as I'm sure are the Fs.

The context for the decision

8. The context in which the decision arises appears within the judgment given on 2^nd November 2012. It was my conclusion at the end of the October hearing that the younger sister of the two subject children, E, died as the result of a traumatic shaking type injury; and that she had also sustained other bony injuries some 10 to 14 days before her death. I found that either parent could have inflicted the injuries; that there was no sound basis for excluding either of them as a possible perpetrator and that there were several matters which led me to be suspicious, even highly suspicious that the mother rather than the father may have been responsible – though the evidence was insufficient for a finding. I also found that the couple had remained together, in emotional terms, right up to the date of the hearing which led me to conclude that they may have been intent upon suppressing the truth.
9. Since November, the parents have resumed their relationship in the sense that they are once again living together in the family home. They are clear that their reunification is permanent. They have also clarified in the interval between the last hearing and this that they have no further information to provide as to the circumstances of E's death. Towards the very end of my November judgment I expressly indicated a willingness to review my findings if further evidence became available. Each parent has recently filed a statement in which it is said the other must have been responsible. On occasion, outside the court arena, the mother has reiterated her baseless claim that H may have caused E's injuries. The parents' attitudes are more or less identical to those put forward at the conclusion of the last hearing.

The maternal grandparents

10. The maternal grandparents are Mr and Mrs F. They have been in a relationship with one another for more than 30 years and married in August 2009. They have another daughter, M, who is 14 almost 15 years old. She is, by all accounts, doing well in every aspect of her development and a credit to her parents' abilities to raise a child.
11. Mr and Mrs F have been through an extensive and extremely thorough assessment process. Rebecca Gibson of Buckinghamshire's Friends and Families Team, together with Joy Vincent the children's allocated social worker, prepared the special guardianship report. Ms Gibson took the lead in working with the grandparents and establishing whether or not they represented a viable option for the children. Dr Andrew Williams, consultant psychiatrist at the Portman Clinic, was commissioned to prepare a psychological assessment of the grandparents and to consider any risks associated with their application to become special guardians. Finally, the children's guardian, Sarah Norris, from the Milton Keynes office of Cafcass prepared her own evaluation founded not only upon what she had read from others but also – and very importantly – arising out of her own lengthy discussions with Mr and Mrs F.

The children's history since October 2011

12. The children's history since the death of their sister in October 2011 is of considerable significance both because of the part played by the grandparents in looking after them for a short period and also because of the inevitable emotional consequences of a series of disrupted placements.
13. K and H left their parents' home and went to live with their grandparents on 24^th October 2011. They remained with them for a month until 23^rd November under a temporary arrangement with the local authority whilst the Fs were being assessed as foster carers. When the placement with the grandparents broke down, K and H went to live with a local authority foster mother who looked after them until 20^th August 2012, so for some nine months. Most unfortunately, it was necessary to move the children again because the first foster carer had decided to retire and relocate to another part of the country. Since 20^th August last year, the children have remained with other foster parents, a couple who are prepared to continue looking after them, so the care plans confirm, until their final placement is achieved.
14. Thus, for these two very young children there have been three significant moves and each of them, without question, will have taken an emotional toll. That is particularly the case for H for whom, because of his age, any kind of comprehensible explanation will have been pretty much impossible.

The grandparents' stance

15. Mr and Mrs F's position was made crystal clear in the written submissions document, filed with the court on Monday morning, as the supplement to the evidence they gave last week. They speak of the children's need for the love, support and stability they can offer. They emphasise that the children would be loved equally and unconditionally within a family which is able to call upon the assistance of other wider family members when the need arises. The grandparents stress that they know and understand that K and H must be protected from their parents. They also express their deep regret for the events of November 2011 which led to the children's placement breakdown and seek to assure me that nothing similar would ever happen again.

The balancing exercise

16. Arriving at a decision in a case of this kind, of necessity, involves a delicate balancing of the strengths and advantages of any particular proposal against the likely risks and shortcomings.
17. There are many positive aspects of the grandparents' proposals which deserve to be fully recognised. Most have been referred to by those who have prepared assessments, particularly Beccy Gibson who was able to form a good working relationship with the Fs and also Sarah Norris whose work has been painstakingly thorough, carefully considered and impressively even handed.
18. Mrs F deserves great credit for the way in which she was able to chair a Family Group Conference in October 2012, just a couple of days before the beginning of the fact finding hearing. According to Ms Gibson, the grandmother was non directive, compassionate and calming in the way she facilitated the meeting. Mrs F's mediatory, conciliatory and communication skills were described as exemplary. I wondered, in advance of hearing her give oral evidence, whether she might be able to translate those strengths to coping with the children's emotional and psychological needs which are likely to be very considerable.
19. I accept much of what is said on behalf of the parents about the advantages of a placement with the Fs. It is very significant indeed that they represent 'family' in every sense of that word and, in recent times, have shown very strong commitment to pursuing a placement of the children with them. The positive reports of contact sessions underscore their ability to react to the children with warmth and affection. They co-operated well with Beccy Gibson's assessment work as indeed they did when interviewed by Dr Williams and Sarah Norris.
20. Mr and Mrs F unquestionably love K and H – of that there can be no doubt. Involving themselves as self represented litigants in a court dispute of this kind tells much about their commitment to the children; and I am sure they are entirely sincere when they say they are prepared to do whatever is necessary in order to ensure a return for the children to their home.
21. It is also an advantage that Mrs F is prepared to give up her part time work so as to concentrate her efforts upon looking after the children; and she has already carried out research in relation to attachment disorders, for example. In addition, Mrs F has been in touch with relevant potential support groups such as Young Minds, Adoption UK and a provider of bereavement counselling. The Fs are, as Mr Routley says, determined that a placement with them should succeed, envisaging a carefully planned transition to minimise any further disturbance for the children.
22. Everything I've read and heard both from and about Mrs F supports Sarah Norris's assessment of her as a "very able and resourceful woman who, in terms of organisation is on top of her game". Mrs F is intelligent, articulate and cannot be faulted in the way she, together with Mr F, has provided for M in every area of her development. Like Ms Norris I have no doubt of their love for their grandchildren or their desire to care for them. On a practical level, there is no suggestion they would be unequal to the task.
23. Against those encouraging indications though there are a number of adverse factors for consideration and it is to those that I now turn.

The circumstances surrounding the earlier placement breakdown

24. First – and I am bound to say most significant to my mind – are the circumstances surrounding and reasons for the breakdown of the children's placement with the grandparents in November last year. The bleak reality is that if it happened once before then the risk of such a thing occurring again is there and deserves special scrutiny. Thus, and entirely properly, Mr F in particular was asked a number of searching questions by Mr Archer on behalf of the local authority.
25. More or less at the outset of the placement, it was evident that the grandparents were experiencing difficulty in settling H at night. Mr F who, seemingly, was the spokesperson for the couple throughout the period, made very clear to Claire Peacock, the then allocated social worker that they would not be able to look after the children long term though they were prepared to keep them until February 2012.
26. There were difficulties about ensuring that K and H attended for skeletal surveys because of a conflict with one of M's school commitments and there were problems also about finances. Mr F in particular found the fostering assessment intrusive and as time went on he became increasingly stressed.
27. By the middle of November, Mr F was making it clear to Ms Peacock that the mother "needed to be with the children"; he was requesting that his daughter be permitted to move in to look after them. He was also reported as saying that "it was becoming too much caring for K and H as he needed to put (his) own family first", explaining that his daughter's and wife's welfare came before K and H. He added that his wife was exhausted because H wasn't sleeping at night and this was having an effect upon M.
28. On 17^th November, again according to Ms Peacock, during the course of a meeting which lasted for about an hour and a half, Mr F became angry, accused Social Care of failing to provide enough support, was quite vocal about contact workers and raised his voice. There was a fairly heated exchange in front of not only M but also K and H even although Ms Peacock had tried to move the adults away from the children and into the kitchen. Mr F accused Social Care of causing all of the stress to the family, saying they would have been OK without social workers. He was, according to Ms Peacock sarcastic about social workers and the decisions which had been made. Ms Peacock felt intimidated by him and said he was "quite aggressive". Neither he nor Mrs F seemed concerned about K and H's ability to hear these discussions as they walked in and out of the kitchen. Mr F apparently accused Ms Peacock of having lied to them about the length of time the skeletal surveys would take to complete. He also called her professionalism into question asking for how long she had been a social worker and suggesting she did not know how to do her job properly.
29. On 21^st November, the parents agreed that it was in the children's best interests to move to a foster home – a decision which was implemented on 23^rd November.
30. I am very mindful that I've not had an opportunity to hear oral evidence from Ms Peacock. All of the aforementioned material about the Fs emerges from within her written statement and has not been cross examined to. However, although Mr F was initially reluctant to accept much of what was set out in writing, by the time that Ms Edwards came to cross examine him he was able to agree that "most of what was reported is or must be accurate".

The grandparents' responses to Claire Peacock's account

31. Mr F's broad position in evidence in relation to the placement breakdown was that he "should have handled things better". He said that he and his wife did not know about the procedures and they were under a lot of stress. He regrets his actions, emphasised that he would not behave like that again and said that "it would definitely be better now". In chief, Mr F denied he had said or demanded that the children should be moved, stressing his regret for what had occurred.
32. Challenged by Mr Archer with some of the more noteworthy specifics from Ms Peacock's statement, Mr F's response, on at least five occasions, was that he did not remember the conversation or the words attributed to him. He said he couldn't recall making it clear that he and his wife could not look after the children long term. He did not "remember at all" the conversation in which he'd said the children's mother needed to be with them. He did not recall saying that he had to put his own family first; that is before K and H. Likewise, he did not remember saying no one had provided them with enough support or that the social workers were not thinking about he and his wife, only K and H. Nor did he remember referring to social workers as "all you lot".
33. Whilst it might legitimately be said that the Fs had not seen Ms Peacock's statement until part way through the hearing, they were aware of the broad nature of what had been said against them. After all, there had been detailed discussions about the period with both Beccy Gibson and Dr Williams; and there had been considerable focus upon the events of the time resulting out of the F's pursuit of the complaints' procedure.
34. Mrs F described in evidence that she had felt "devastated when K and H had left (their) home". She said she didn't think there had been "a full scale discussion" between herself and her husband about the need for the children to leave but they had reached a stage of being "physically and mentally exhausted." Mrs F added that when she'd suggested H might go to the father's sister, for respite and because she might have been able to suggest "some pointers," she had not realised "it was the wrong thing to suggest."
35. Mrs F, who was barely mentioned in Ms Peacock's statement, accepts that she was also there and had participated at the time of the discussions her husband was having with the social worker. Mrs Fagreed that Mr Fhad raised his voice but not to the point where he had shouted. Although she did not view his behaviour as aggressive, the grandmother had to accept that is how Ms Peacock saw it.

Discussion and conclusions

36. A number of conclusions, highly relevant to the associated questions of potential further placement breakdown and the F's ability to manage the children's emotional needs long term, arise from a detailed survey of the period between late October and 24^th November 2011. Claire Peacock's account ultimately was accepted as accurate. The children had to leave the grandparents' home because the burden of looking after them, albeit in very stressful circumstances, was too great for Mr and Mrs F to withstand.
37. Mr F was the spokesperson for the couple even although his wife, almost certainly, is the better able of the two of them to moderate her emotions and expressions of view. She did not present any difference of attitude and was content to allow her husband to say what he did and in the manner he adopted in his interaction with Ms Peacock.
38. The priority for the Fs was the preservation of their own nuclear family. They could not put K's and H's welfare needs ahead of their own and in particular M's interests. H was seen as a difficult child whose emotional needs they were at a loss to satisfy.
39. Mr Routley stresses in his final submissions that the grandparents have had ample time to think long and hard about caring for the children. He submits that now they are mentally prepared for the task and determined it shall succeed. Given the extent to which their actions have been under scrutiny, I was both surprised and dismayed to find both grandparents as defensive and guarded as they unquestionably were when asked to consider the period leading to the placement breakdown.
40. The starting point, surely, for any possible sense of optimism in relation to the future would be a full and frank acknowledgment that in the past they made some fairly serious mistakes. I was on alert, as I listened first to Mr F and then to his wife for some acknowledgment that they bore responsibility for the placement breakdown. I listened but did not hear any attempt at some apology for the way in which Ms Peacock was treated. Nothing of any real substance arose in terms of acceptance as to their own responsibility. Each of them is, I'm afraid to say, all too willing to look elsewhere – police intervention, social services' requirements, the numbers of appointments, H's behaviour – rather than acknowledge that because of their own limitations and reactions they bear responsibility.
41. Mr and Mrs F are a very long way indeed from the starting point of ensuring that no similar breakdown could ever happen again. And that is because all they say as to the past is that they were placed under stress and at this juncture they are deeply sorry for what went wrong.

Ability to meet the children's emotional needs

42. I move then to consider the associated point which is as to whether the grandparents have the capacity to meet the children's complex emotional needs. Miss Mitchell submits that I should be mindful of the grandparents' nervousness and difficulty in openly expressing their feelings within the court setting. She suggests this does not mean they do not have such feelings or insight into the children's needs. Mr Routley identifies that in the task of seeking to come to terms with the death of their sister, the children will be afforded a similar level of psychological support whether they are within or outside the family.
43. I bear all of those things in mind but cannot agree, having heard them give evidence, that the grandparents are able to meet the emotional demands of looking after these children. K and H will require intuitive, empathic and highly sensitive individuals prepared to put their own needs well behind those of the children. Sadly, I simply cannot agree that the Fs either individually or as a couple have those qualities and that ability.
44. In her discussions with the grandparents, Sarah Norris has found them quick to focus upon practicalities. She had to "push hard" to get them to begin to consider how they personally would meet the children's emotional needs. Mr F accepted that "he doesn't really do emotions". Mrs Norris found Mrs F to be very resourceful and able but she was left with a sense that she, too, focuses on practical solutions to the exclusion of being in touch with her emotions.
45. Dr Williams described Mr F as limited in his emotional range which would be a restrictive factor in relation to helping the children through the trauma they've suffered. Dr Williams gained the impression that Mr F struggles to think about and express his emotions about painful or difficult events. His answers when asked to imagine what the children might be feeling, according to Dr Williams, tended to be basic and seemingly lacking in curiosity or imagination about the children's experiences.
46. In relation to Mrs F, Dr Williams was struck by the 'matter of fact' way she described her thoughts about E's death and the implications following the judgment. She spoke about the risks and what she thought should happen in a practical and assertive manner but it was difficult to get a sense of what those events have meant for her on an emotional level.
47. Now I have listened to their evidence I would add this to those assessments with which, incidentally, I entirely agree. Mr F presents as quite a blunt individual, a man of few words who has considerable difficulty in discussing his emotions. It's my view that he would encounter insurmountable problems, however much professional help were made available, to empathise with the children, to understand and share their feelings about the many painful events they've encountered thus far. If he had possessed that ability, then to my mind however challenging the period leading up to 24^th November 2011, Mr F would not have required the placement to come to an end.
48. Whilst undoubtedly more articulate and engaging than her husband, Mrs F too failed to impress me as a woman who would be able to instinctively react to the children's emotional needs at the required level. Looking after them will call for compassion, a depth of understanding, great sensitivity and fulsome commitment if they are to be able to make progress in coming to terms with all of the traumatic events of the last fifteen months or so. And part of the children's need will be to accommodate the reasons why they had to leave the F's home after a month. I do not believe, even with professional assistance, Mrs F would be any more able than is her husband to manage the task of responding with empathy to the children.
49. Part of Dr Williams' reservation about the grandmother was that when she described her relationship with the mother, there was a sense of 'toughness'. In her evidence, Mrs F accepted that she has a different relationship with Ms W to the one she has with M. She explained that toughness is her way of dealing with her own feelings of having been hurt and discarded. At another point in her evidence, Mrs F was asked about her response to the fact finding judgment and said she "would not trust Ms W with them (the children) as far as (she) could throw her". Her daughter, of course, was sitting in court listening to her mother's remark which struck me as brisk, dismissive and unfeeling. Whatever happened in relation to E's death it might have been hoped that Mrs F would have been able to show some hint of compassion towards her daughter who has lost and is facing the loss of so much.

Acceptance of the earlier judgment

50. In the light of those conclusions, it becomes unnecessary to deal with the criticism that, as yet, the grandparents may have inadequately accepted the findings contained within the November judgment on an emotional, as opposed to an intellectual, level. Had that been the only perceived problem, then to my mind it would not have been sufficiently serious as to obviate a placement within the family. All of the following would have been relevant – the short time in which the grandparents have had to adjust to the judgment, the very recent police decision to halt the prosecution of Mr H, the lack of clarity within the judgment itself, the enormity of the information with which they had to grapple.

Future pressures in relation to contact with the parents

51. One of the final matters for comment is as to the ability of the grandparents, long term, to withstand pressure from the parents in relation to contact and more generally. The local authority, Ms Norris and Dr Williams all express anxiety that the Fs may find it impossible not to give in to their daughter, in particular, and allow more contact with the children than is considered appropriate. The grandparents sought to assure me they would only do what the authority and the court directed. They rely, understandably enough, upon their current fairly poor relationship with the mother, saying there should be no cause for concern.
52. The parents likewise emphasise that they would do nothing to de-stabilise any placement with the Fs; and would follow to the letter any restrictions upon their communication with the children.
53. I am far from convinced that the way ahead would be as straightforward as is suggested by the family. For the mother, the separation from her elder two children has been uniquely painful. During her evidence at the last hearing, the mother told me how she felt she "had lost everything; E, the kids. (She is) still in shock", her "head was all over the place". She had returned home to the father for comfort as much as anything else.
54. If I needed any reminder of just how acutely the mother feels the pain of her losses, it came at the very end of the evidence, late on in the afternoon of Wednesday 16^th January. I was explaining how it would be impossible for me to deliver judgment until this week because of a commitment which took me away from the RCJ on the following two days, 17^th and 18^th January. I was asked by the Bar to list the case for judgment today, 25^th January, so more than a week later. I said how sorry I was for the delay, recognising the anguish for all of the family participants, at which point the mother could contain herself no longer. She left her seat by the father and flounced out of court. Her actions served as a powerful reminder of just how profoundly she feels the loss of her children.
55. It must be a distinct likelihood, as I see it, that the mother, in particular, would view any placement with her parents as the beginning of an opportunity to re-involve herself with K and H over and above any supervised contact arrangement. Her very understandable and natural desire would be to have a role in their lives which, inevitably, would impede the potential for the children to satisfactorily settle with their grandparents. The Fs would find themselves torn in the same way as they undoubtedly were in October / November 2011. Mr F's view then was that the children needed their mother. His daughter wished very much to be back with the children. How would it be so different if a similar situation arose now? I'm sorry to say I don't believe it would. Much the same family dynamics are in play. The potential for enormous disruption stemming from the parents' desire to have a greater role in the children's lives is not only real, it is palpable.
56. Finally, therefore, I resolve that the appropriate welfare decision is as the local authority suggest. The children will be made the subjects of care and placement orders so that the adoption process might begin in earnest. I approve of the care plans which comprise the detail of how the arrangements are to be made. I dispense with the consents of both parents to the making of placement orders on the basis that the children's welfare positively demands such orders be made.
57. I express my profound sadness that the outcome of this court process has been to deny the grandparents and parents their heartfelt wish. If I had believed there was a sufficient basis to be optimistic about the children's future with the Fs, I should not have decided as I have. The tragedy is that the prospects of such a placement would involve enormous risks which, on behalf of these two very vulnerable children, I simply could not take. Whatever else I am able to achieve for K and H it has to be the best possible chance of growing up to be settled, secure and rounded young people able to make sense of their past and to look forward to successful futures with a sense of confidence and ease. Those aspirations will only be achieved, in my judgment, by an adoptive placement.