England and Wales High Court (Family Division) Decisions

IN THE FAMILY COURT

		Sitting at: Watford County Court, Cassiobury House, 11-19 Station Road, Watford, Hertfordshire WD17 1EZ.
		23rd May 2014.

1. The President of the Family Division, Sir James Munby, is engaged in the process of encouraging and facilitating transparency in Family proceedings. This is a welcome drive, to which the judges are committed, to increase access to the Family courts, and if not to the actual hearings themselves, to the judgments and the reasons given for important decisions involving children and families. Of course the essential privacy of families and children should be preserved. Publicity and transparency does not extend to disclosing the identities of the children involved. That may in some circumstances also mean keeping private – not secret; private – the identities of the parents because their identification can lead to identification of the children. The Family court judges are conscious of the risk of "jigsaw identification" whereby information can be pieced together without identifying by name so that identity becomes obvious. The father is quite right that I am entitled to and should name local authorities and in most cases to name social workers as well. I shall consider at the end of this judgment whether the name of the excellent local authority social worker, who I have heard give evidence, should be made public. There have been some real problems in this case as I shall recount. I would not want to expose any member of the profession to any risk outside this courtroom. However distressing these proceedings are none of this must lead to any outburst or to any reaction which causes any member of the public or any person who is engaged in these proceedings to feel fear or distress. In spite of what has happened, I know I can rely on all, including the parents, whatever I say, to make this, if not a calm hearing, certainly an orderly one.
2. The father has made a number of serious allegations about various professional people involved in this case, including counsel for the local authority, and an account has been placed online as to the reasons why his children are in care. That account, which is materially misleading, has elicited a degree of supportive comment. One of the reasons why I am giving judgment in open court with the Press present is so that my findings and the findings of District Judge (Magistrates Court) Mellanby who heard earlier proceedings can be out in the open in order to address the misleading accounts which the father has given.
3. This is a terribly sad case because father and mother have many excellent qualities. Both of them love each of their sons from the bottom of their hearts, and with great and deep commitment. Those two boys are J, who is now just over two and one month, and a baby who is known only as Baby, born on 13^th December last year. J has been in local authority care under an interim care order since February 2013 and was made the subject of a full care order and placement order at the end of last year. Those orders were appealed to a judge at this court. The appeal was dismissed. I am told that a potential appeal is before the Court of Appeal in London which is some weeks at least out of time. It is not known whether the Court of Appeal will grant an extension of time or permission to appeal, and if it does, what the outcome likely to be.. This is the final hearing of the care and placement application in respect of Baby.
4. The mother has a son aged now 10 who lives with a family relative. He went into foster care when he was under two years of age because of the mother's inability to cope. The mother is a very likeable, very warm individual. She is said – although she disputes this – to suffer from a learning disability. She presents in the witness box as a very articulate lady. That is not necessarily inconsistent with a learning disability. She was first reported on by Linda Jeffs, a psychologist, in 2006, in relation to the boy who is now 10. Linda Jeffs conducted a formal assessment of the mother. She concluded that the mother could not care for T and that she had a significant degree of intellectual impairment. The mother's relationship with T's father was stormy and difficult and she was the subject of some domestic violence. That relationship was extremely unsupportive to her, and that of course was relevant to her ability to care for T. But things looked very different when in May 2011 the mother met the father. The father has always been in stable employment; he has a strong family network; and he loves the mother and he wants to care for her. She loves him and she wants to be his domestic support, and to support him in his worthy and successful endeavour to be a working man who has the capacity to look after his partner and children.
5. The mother became pregnant with J fairly shortly after the relationship started. The father was very concerned about the intervention of the local authority. A meeting took place before J was born in which the father complained about racism and was very oppositional towards the involvement of the local authority, because he does not think that the mother either wants or needs their support. He thinks he can provide her with support himself. It is not clear to me how far the father has always thought, as he told me in court in this hearing, that the mother has been incorrectly assessed and is perfectly capable of looking after a child without outside support.
6. I make it absolutely clear – and this is not the first time I have said this in a courtroom – that learning disability is not necessarily a reason for a parent not to look after a child. I have said before, and I say again, that many clever people make absolutely rotten parents and many people who are intellectually impaired, in the sense that they are not good at book-learning and so on, are warm and understanding and caring and provide children with wonderful upbringings. I also accept – and I discussed this with the mother when she gave her evidence – that no one is a perfect parent. In fact the more perfect people think they are probably the more imperfect they really are. We all have our faults. We all have times when we think 'I wish I had not done that' or 'I wish I had done something different or something better.' That is part of human nature. So what I have to decide is whether this case, as J's case was found to do, goes over the line into the territory mapped out by Section 31 Children Act so that there is established actual past significant harm or a risk of significant harm in the future.
7. Significant harm of course can take many forms. It can include emotional harm, by which is not meant just the kind of jokey comments that parents sometimes make to children which they sometimes may take the wrong way, or that they are sometimes short-tempered with the child, or strict, or any of those parental activities within a very broad spectrum which all or many parents do. It means something which goes right over the boundary and actually causes the child some emotional damage. The Supreme Court in the case of Re B (A Child) [2013] UKSC 33 made it quite plain that there can be many ways in which emotional harm could be demonstrated.
8. Shortly after J was born the father continued to be extremely hostile to the involvement of the local authority. He again alleged that they were racist and he called the Practice Manager a paedophile. Care proceedings were started in relation to J on 1^st June 2012. When Linda Jeffs had assessed the mother she had found not only that she has a learning disability in the sense that she has an IQ between 63 and 68 (which is not the end of the matter at all as I say) but her own functioning was impaired, and although she can parent she needs outside support on a daily basis. The parents went to the Hertfordshire Family Assistance Unit (HFAU), a residential unit. The parents left the HFAU after five weeks by agreement. They had done excellently well. They came back to their own property. I have seen testimonials from the father's employer and from others indicating how much the father – and of course the mother does too – loves these children. They have made efforts to provide a lovely family home. All of that is of course not only to be commended but is extremely important when assessing their strengths. However, by 26^th October the local authority was concerned about the father's inability to cooperate with the support and monitoring from the Children's Centre, the health visitor and social workers, which was part of the package, on the basis of which this family had left the HFAU. On 26^th October Judge Million made an interim supervision order because of these problems. The parents confirmed that they would attend an appointment with Linda Jeffs on 7^th December. They missed that appointment, firstly because J was unwell, so the mother could not go. The father would not go and they missed another appointment on 20^th February and the father would not attend unless his costs were met.
9. The following day, on 21^st February 2013, the father refused to let the social worker in to check that all was well with J. It is correct– and I must express this in the strongest possible terms – that everything was fine in the flat and about the care of J. But the difficulty is not what actually was; the difficulty is what the local authority feared might be the case in the light of the mother's problems in coping, and because of what had happened in respect of T in the past, when the mother did not find herself able to offer good enough care at all through no fault of her own. Throughout these proceedings it has been that the father's view that he can cope; he can be trusted; in deciding to make sure the support is there. He is opposed to the role of the local authority; and he says that their anxiety to check that all is well with the children is misplaced because it is totally unnecessary. But the local authority has statutory duties in respect of all children in need and particularly children who are the subject of proceedings. They have to think about what might be, what might reasonably be feared, as well as what actually has happened.
10. On 22^nd February, the day after the father had refused to allow the social worker and later the police to come into the house, there was a hearing before the magistrates' court on the local authority's application for an interim care order. It was contested. The mother and the father were represented. The decision was not made by the local authority. It was made by the magistrates who are judges in the Family Justice system. I have seen their reasons. They granted an interim care order because of the father's aggressive behaviour and the risk of further violent outbursts. Unfortunately, that finding made things worse rather than better because the father, in the court room, then assaulted the social worker – a male social worker – by punching him in the face a number of times. The father says that he was provoked into this because the social worker barged him with his shoulder. The father thought this was done deliberately. But he did not pause to tackle the social worker about this or to ask for an apology. He just immediately reacted and struck the social worker about the face. The Social Services became even more concerned about the father because J was in the courtroom when this all took place. He was in his pushchair. The mother and the father were asked about this in the witness box when they gave evidence. Neither of them could see that there was any likely harm possible to J in that situation at all. Each of them said that J was about the same distance as the length of this courtroom (15 to 20 feet) from the area where this fracas was going on. Mother says that J was crying before the incident took place and that was because he was hungry, but of course he was only 10 months old and so he was not able to express his views about what was going on. The father says that there was no shouting out or calling out or noise: I do not know whether there was or not, but there might well have been. It must have been apparent to anybody who was able to stand back rather than emotionally reacting in the heat of the moment, that this could have been a very distressing experience indeed for a baby. The mother says the baby was facing away and I do not know whether that is a true memory or not. Even if it was, the baby was quite capable of hearing noise. I simply do not accept that a really quite serious assault like this can take place without others in the room being aware of it.
11. I was very troubled indeed by the perception of the parents that a serious incident like this could acceptably take place in front of a child, and that a 10-month old baby is not aware of what is going on around him and does not have feelings. Much though both of these parents adore these children I have been worried during the course of this hearing about aspects of their evidence when it has been difficult for them to stand back and look at things from the point of view of a small child and how a small child is likely to feel. Babies and small children have feelings even if they are not able to express them and are entitled to have those feelings taken notice of and regarded, rather than simply being seen as objects to whom their experiences do not matter.
12. The mother, who I am sure did not actively condone this assault, and told me so, is, on all the evidence, unable, because of her strong feelings of love for the father, to address and tackle the aggressive aspects of his behaviour. Rather than remonstrating with him and telling him that what he had done was wrong, she sat by him after his arrest by the police, together with J. I am sure that J was aware of his father's distress and agitation. Little children rely on their parents for emotional support and are acutely aware if those parents have strong feelings, which are bound to be communicated to them.
13. About a week later the mother told Social Services that she had separated from the father. A few days after that a Section 34(4) Children Act 1989 order was made permitting the local authority to refuse contact to the father. On 30^th April both parents filed statements saying that they were separated. On 2^nd May the mother did attend an appointment with Miss Jeffs and two experts were appointed, a Dr Oliver and also Dr McLintock, a psychiatrist, to assess the father, although he did not attend appointments to see them. On some date in May the mother resumed living with the father but did not disclose this to social workers. It has now become apparent that she was already by that stage pregnant, and must have known she was pregnant, or certainly must have been suspicious that she was pregnant, with Baby.
14. In May Judge Mellanby directed contact to the father to take place over a month at the well-known Hertfordshire independent facility Ward Andrews. That contact took place. The case was timetabled to a final hearing on 16^th September. J was then going to be almost 18 months old. At that stage of course everyone in the Family Justice system knew perfectly well that there would be a new provision in the Children Act which makes it compulsory, save in the most exceptional circumstances, for cases to be concluded within 26 weeks. Everybody knows how vulnerable young children are to moves and to uncertainty, particularly if they are too young to express themselves or understand explanations. It was obviously in J's interests for these proceedings to be concluded in a timely manner.
15. It is alleged on 3^rd July that the father made a threat to kill a female social worker. Father denies that. He has been convicted but he says that the conviction is based on untrue evidence and he is appealing it. But as a result of that conviction court permission was given to refuse contact to the father. If he had agreed to have contact supervised by the local authority, as the court decided should be the case, that would have taken place. But he refused to have contact unless at Ward Andrews.
16. Unfortunately, rather than the proceedings causing the father to face up to the problems in his behaviour and to do something about them, matters became worse. By June the father was refusing to agree that J could be immunised. I entirely accept that in this country it is not a criminal offence not to have your children immunised and it is not compulsory so to do. But there are a lot of still very dangerous childhood diseases which can afflict children in this country. Medical advice is that unless there are very strong reasons to the contrary children ought to be immunised. Father was not prepared to allow immunisation, not because he is opposed to immunisation in principle, but because he thought that it was important that he should be there to comfort the child. That was not permitted because of his feared behaviour and as a result J did not get his jabs.
17. The final hearing with regard to J before Judge Mellanby began on 16^th September. On 26^th September the final hearing was adjourned to allow the father to be seen by Dr McLintock and for the parents to show that they would cooperate. The circumstances were these. The father was entitled to legal aid but he refused it and was in person. The mother was represented. She was seeking care as a sole carer. She admitted on the second day of the hearing that she had been living with the father, since August. Ms Jeffs had given evidence and she said how much the mother had matured and that she had shown willingness and preparedness to take and follow advice and to find appropriate support. Ms Jeffs advised that the mother's IQ level would not preclude her from being a good enough parent providing that she had strong support. Judge Mellanby accepted that all the indications were that prior to removal of J on 21^st February the mother and father were compliant with and accepting and benefiting from the advice and support from the workers at the Abbots Langley Children's Centre, the health visitor and the HFAU. She records however that the father had some issues with the staff at the HFAU. I have already during the course of this judgment pointed to occasions when the father's complaints about the local authority and his obstructiveness had caused anxiety and indeed had led to that first interim supervision order. However, the mother had continued to engage and cooperate; J was thriving, and there was no evidence that he was suffering any harm whatsoever. The judge said that at that stage the only missing piece in the jigsaw was the psychological assessment of the mother and the father. She remarked that they had both agreed to cooperate but that father appeared to become increasingly frustrated and intolerant of what he thought was the local authority's invasive and controlling approach and that he had become more and more entrenched in his opposition to and criticism of social workers. There had been a meeting fairly shortly before the events of February 2013 when the HFAU support was deemed no longer necessary which he had interpreted as being a green light for there being no order and that there was no need for any further social services involvement.
18. As Judge Mellanby records, the father developed a conviction that the local authority was in conspiracy or in allegiance with CAFCASS, and intended to remove his child whatever he did. The social worker (the one who was later assaulted by the father) explained to the judge the number of different approaches he had tried to convince the father that this was not the case, but that the father would not listen. Changes of personnel visiting the house, offers of meetings and conciliation, had fallen on deaf ears, and the father had begun to adopt an almost siege mentality. Although the mother voiced her independence and continued to accept the offer of support provided, the local authority was becoming increasingly concerned that she was under the father's control. It did not help that assessments were not complied with or appointments were not attended. Judge Mellanby used the word 'paranoid' several times about the father. She is not a doctor just as I am not a doctor and this is a word to be used, I think, with circumspection by a non-qualified person; but I certainly have found the father in his evidence before me to show a degree of suspicion of all kinds of people, and a degree of conviction about malign associations between professionals, which is highly unusual. It does not seem to be based on any objective evidence at all. That mindset seriously inhibits the father's ability to see the interests of his children in an objective way and it certainly inhibits necessary working with professionals.
19. Judge Mellanby went on to say that the father had little insight into the difficulty and risks, not just as to the mother's ability to put in place learned and acquired parenting skills, but that her low level of intellectual functioning might expose J to emotional and physical neglect if she was to parent completely unsupported. She did comment, as indeed I have commented, that the father appears to have many of the support characteristics which the mother requires – security, income, stability and love – and I acknowledge that.
20. Judge Mellanby commented on the father's hostility and aggression and described how at times, on the basis of evidence that she accepted, the father had become aggressive or abusive in front of J. This was not just at the time of the assault at the magistrates' court on 21^st February. The judge said that J was likely to be confused if not frightened by his father's apparently uncontrollable behaviour. I share that view. Judge Mellanby commented that the mother, whilst ostensibly critical of the father's behaviour, is unable to control the father. She said that J is in danger of becoming emotionally damaged when his parents apparently have such different styles of expressing their disagreement or frustration. Judge Mellanby said that the father had clearly frightened and intimidated social workers; had struck the male social worker; and had been racially abusive and insulting to him and some members of the HFAU. She found that this behaviour 'has often occurred in front of J; uncontrollable anger is terrifying for a child let alone the adults.' She described how the then guardian in her evidence criticised the mother for not appreciating 'why people were paralysed by fear.' The guardian told Judge Mellanby that she was prevented from carrying out her proper inquiries with both parents for fear of putting herself at risk; and she had no doubt that J's emotional wellbeing was significantly put at risk and that this is that should not be ignored. Judge Mellanby commented that both the parents said that J was too young for any such behaviour to impact on his wellbeing. She commented that the father was unable to form any objective viewpoint or empathy as to how his behaviour might impact on others especially J. It was no excuse to say that he was provoked when he struck the social worker. Although he apologised to him in court prior to cross-examining him he then sought to justify much of what he had said or done. He said that he could not see that his outright refusal to see his son, if contact were supervised by Social Services or the guardian, was damaging to his son and demonstrates an inability to put his son's needs before his own. She said that that showed a lack of empathy and an inability to compromise which any good parent requires. She then described his "irrational mistrust" which interfered with his son's needs. She said that she had no doubt that J was emotionally traumatised by going into foster care in circumstances when his father had assaulted someone. It was unreasonable and irrational to place the entire blame on the local authority and then fail to do anything to mitigate that damage. She said that the father had a duty and responsibility to reduce that damage as far as possible by seeing his son and reassuring him that he was not giving up on him and still loved him. She said that the father had completely failed his son in that regard and was completely unable to put his son's needs over and above his own fury and rage and sense of injustice. She too had read the references describing him as a respectable and successful businessman with pride and affection for his son, but 'To harbour such consummate mistrust and overt anger and unacceptable behaviour towards the very persons who are in the business of protecting his son exposes his son to the likelihood of emotional harm.' She said that the mother 'with her level of intellectual functioning has demonstrated that she is unable to protect J from such tirades. She is between a rock and a hard place since without a strong partner she will not manage to parent J alone.' She said that the mother clearly loves the father – as I find her to do – and 'It is in so many ways a mutually supportive relationship with many commendable features.' She found that the Section 31 threshold was crossed and that decision was upheld by Judge Waller at this court on appeal.
21. Judge Mellanby went on to say that she was not going to make a final order notwithstanding the length of time that the proceedings had lasted and J's age. She described the mother's evidence as 'compelling, honest and forthright;' and how the mother had conveyed 'a genuine warmth and love for J' and appeared to be 'her own person.' She agreed with Ms Jeffs' assessment of her as a 'warm, engaging individual who has made a courageous effort to cope with independent living despite her learning disability.' That assessment chimes entirely with my observation of the mother. Judge Mellanby went on to say that the mother had not been entirely honest nor committed to the separation from the father. But from the witness box the mother 'entreated the father to change his ways and stop being aggressive. I am convinced by her evidence that the father has never been aggressive or threatening towards her or J. She was perfectly clear she would never tolerate that behaviour again and had learned from her previous abusive relationship.' The mother accepted the criticism as to her failure to confront the father, and that she had sat beside him with J, thus exposing J to an intensive hot-tempered situation after the arrest on 21^st February. She described how the mother did not believe that J had been emotionally affected by the father's aggression.
22. The father then gave evidence and became very emotional. He accepted his mistakes. He accepted that he had himself to blame. He described how dishonoured he felt by his involvement with Social Services. He begged Judge Mellanby to give him a chance to keep an appointment with whoever was recommended Judge Mellanby thought it should be Dr McLintock, an adult psychiatrist. She described that the father was still quick to criticise Social Services, whom he described as having stolen his child, but she found his outpouring of grief and distress genuine and said that she thought that the hearing had gone some way towards him understanding for the first time that he is his own worst enemy and that he has only himself to blame if he destroys his own life, not to mention his son's.
23. Judge Mellanby concluded by saying that there were too many positives on the table for her to agree that day with the care plan for adoption for J. Notwithstanding that time was running out, and notwithstanding J's vulnerable age, she was nonetheless prepared at that stage to give the mother and father a chance. She appreciated that this was exposing J to further delay and that there was a very strong argument that he should not be asked to wait any longer in foster care whilst his father tried to correct his maladaptive functioning. However she said: 'I am not totally convinced that J's welfare demands permanent removal from his parents' care.' She said that she did not think that his welfare demanded separation from all family ties. She paid due regard to the potential gravity for J of a final order separating him from his family and that J would expect her to give his father one last chance to prove that not only can he be a good enough parent from the day to day practical perspective but that' he can and will control his temper and negotiate and compromise in a civilised and respectful way.' She said that she was sure the mother 'would never want J to speak and behave in the same way as the father has done.'
24. The matter came back before the judge on 13^th November. Dr McLintock had formed the view that the father's behaviour was not amenable to change. He did not diagnose any specific psychiatric condition but the father's personality was such that he was 'stuck' in this form of behaviour. The judge said 'Sadly for J I can find no evidence to give me any cause to believe that the father can and will cooperate and work with Social Services for the good of his son. He still has no insight as to how his approach and irrational and unreasonable beliefs impact not only on how people view him but also his ability to safeguard and develop J's emotional wellbeing. The risk posed to J by the father remains "unaddressed/unquantified, managing this risk would be an unimaginable task"' (that was from the guardian's addendum report). Dr McLintock in evidence said that to return J to his parents' care and test whether the father cooperated would be 'a highly dangerous natural experiment.' She found that the father either would not or could not protect his son from emotional harm, to which he had already exposed his son (1) by not maintaining regular contact with him; (2) by destabilising J's placement forcing his removal to a second foster placement after the father had been given the second chance, because he had said in court that he knew the address where J was placed and had contacted J's GP for a copy of his medical records for no demonstrably good reason.
25. Dr McLintock's view was that the father 'does not present as a man who is going to make meaningful changes in his perception of certain professionals or change the manner in which he would be able to work with them.' The mother appeared to accept that. She said to the father when he cross-examined her 'You can change but will you change? I know I can for the sake of my kids. If 'E' [social worker] comes round, are you going to open the door? Or will this go on over and over again?' Judge Mellanby was impressed by the mother's insight, but there was another extremely important factor which gave her real concern, real worry, in fact was dismaying to her. It was only at this hearing that it became apparent that the mother was eight months' pregnant with Baby and that she and the father had concealed that from Social Services.
26. The judge concluded that if she were to return J back to his parents' care 'There is no doubt that J's emotional (not physical) welfare would need to be overseen and supported by professionals with expertise, on the instruction and oversight of the local authority.' She recorded that J had only seen his father on six occasions since he was taken into care and had very recently moved to a second placement. He would be returning home, if that were permitted, when his parents were coping with a new baby. She said again that the mother had a learning disability which necessitates support and advice from experienced professionals which the father has not tolerated. Although the father was prepared to access necessary help that would be on his terms through a Family Assistance Order preferably through an independent social worker from Ward Andrews. He had no insight into the damage that he had done, how that damage might be repaired, or how he would avoid further harm.
27. Judge Mellanby concluded that despite all the positives the emotional damage to which J would be exposed by the father's uncompromising and dangerous behaviour towards professionals was so serious and so significant that there was no option left other than to remove J permanently from his parents' care and permit the local authority to place him in an adoptive placement where he will have the opportunity of experiencing balanced and secure family life. She said that she approved the plan for adoption with a heavy heart and extending enormous sympathy to the mother whose courage and dignity she described as 'remarkable.' She said that the mother's belief that the father has or will learn from his mistakes is misguided because he did not even acknowledge his mistakes. She said that it was the overriding requirement in respect of J's welfare and that nothing else would do Re B (A Child) [2013] UKSC 33. There was no acceptably safe alternative for J other than adoption. She took into account the Human Rights, particularly of J but also of his parents. There was no family member put forward who might be interested in or available to care for and support J so that he could remain with his family. She agreed that contact to mother should be reduced and that there should be no contact to the father. She made a care order.
28. She then considered a placement order and decided looking at the relevant authorities that she had no option given J's age and the available alternative proposals, either mother and/or father, or adoption, that she should make a placement order.
29. Baby was born exactly a month later and at first remained with his mother on the post natal ward. Concerns were expressed there about the attitude and behaviour of the father. In the light of the findings made by Judge Mellanby proceedings were issued the day that Baby was born and an interim care order made by District Judge Rhodes at this court. Four days later the Designated Family Judge, Judge Wright, continued the interim care order and made directions. At a later hearing in January the father indicated that he would or might make an application for a Dr Dale, independent social worker, to assess him, but did not proceed with this.
30. The baby is simply 'Baby' because the father has refused to allow him to be given a name. Although I think the mother independently would not have taken that view that is the father's view and thus it has remained. This baby is now five months and a week old. He will be beginning to acquire language. Every child needs a name. Perhaps he thinks his name is Baby. But so far as the father is concerned he has no name. He refers to him as 'Baby …' (the initial of the father's surname). In April there was an attempt to have a naming ceremony. At the outset of this hearing I declined to admit new evidence, which was principally hearsay, as to events said to have happened around the naming ceremony. Complaint was rightly made on behalf of the father that this evidence had been filed late at a time when the father had also changed his solicitors. I exclude those allegations from my mind. However the fact is that the naming ceremony did not take place. The father would not allow the baby even to be registered and so the local authority has had to register this child as 'Baby' with the father's surname.
31. There was also a continuing difficulty about immunisations and again for the same reason; the father would not permit the baby to be immunised because he wanted to be there in order to comfort Baby, although Baby does not know him at all, because the father is not prepared to agree to contact on the local authority's terms. The local authority carried out a risk assessment of contact between the father and Baby. A contact agreement was proposed between the father and the local authority as to the terms upon which contact should take place. A number of drafts went back and forward. I can understand that the father wanted it to be made absolutely plain in the document that he did not accept that there were objective reasons for the local authority to be concerned about unsupervised contact; in other words, the complaints about aggressive and intimidating behaviour (although that father did accept his behaviour when he gave evidence but said that it was justified or at least explicable because the local authority had behaved outrageously in removing his children).
32. The upshot is that Judge Wright, at a hearing on 8^th April, had to rule on the contact agreement. I have seen the final version. For some reason it was taken away from the hearing in April by father's counsel without having been copied by father's then solicitor. Goodman Ray, the father's previous solicitors, were approached yesterday., and a document was faxed or scanned by them and sent almost by return. I am very grateful to them. The father then would not accept that this was a copy of the document that had been taken away by his counsel, Mr Ker-Reid, even though it was countersigned by Mr Ker-Reid. I had to require the social worker who had actually been there when the negotiations had taken place to give evidence. I know Goodman Ray to be a highly experienced, competent and reliable firm. The document must have been in their possession for them to have sent it. I am satisfied that the document bears the signature of Mr Ker-Reid of counsel. I am satisfied from that evidence and that of the local authority social worker that I now have the final version of the agreement which was approved by Judge Wright. It records the father's stipulation that he does not accept the local authority's contentions. The father first told me that the agreement had been unacceptable to him because it did not record his challenge to the assertions. When it was pointed out that the document did record that he did not accept what was said about him (as did earlier versions) , he then said that he would not have contact because he wanted it to be supervised by the social worker from Ward Andrews rather than by the local authority. As in respect of so many aspects of this case the father's view is always a matter of principle rather than a question of a practical evaluation as to what is in the best interests of his son.
33. I agree with Mr O'Brien for the local authority that in some respects the father's attitude has hardened rather than softened in the six and a half months since the final order was made in respect of J. He has made a number of accusations essentially of conspiracy. At the outset of the hearing the father's counsel asked me to adjourn this case. In April he had asked Judge Wright, who had continued the interim care order, to transfer the case to a High Court Judge. As I was to be sitting here Judge Wright proposed that I should hear the case and brought it forward from a date in June to this particular slot. There was no objection until the beginning of this hearing to my hearing the case but his counsel Mr Reid then asked me to recuse myself. He told me that the father had carried out some research on BAILII, the Law Reports online facility. He had found out that I had been the judge in three cases in which Mr O'Brien had appeared and on each occasion I had found for Mr O'Brien. Two of those cases I can recall. The first was a Court of Protection case where the mother agreed that her children should remain in foster care. The issue was a very technical one as to what constituted a deprivation of liberty. I did find in favour of Mr O'Brien (I was overturned by the Supreme Court but that was a question of law). On the second case Mr O'Brien on behalf of Hertfordshire asked for permission to withdraw care proceedings on the basis that there was no reasonable prospect that I could make any finding under Section 31, a view with which I agreed. I gave a judgment about that which is available. The one hesitant person in that case was the guardian and I found that I should nonetheless allow the proceedings to be withdrawn. Of the other I have no recollection at all, but Mr O'Brien's recollection does not support the view that I was biased.
34. I did not recuse myself. There was no appearance of bias. I assured the father that I would try this case according to my judicial oath, and as is my practice, with a rigorous attention to admissibility of evidence, to relevance and to the proper scope of cross-examination. At the outset of the case I acceded very largely to Mr Reid's submissions that I should exclude certain evidence and indeed I did so. That has not only shortened the hearing and made the case more manageable but has also, I believe, done substantial justice to the father. As is my usual practice I was not prepared to proceed where there was insufficient opportunity to challenge relevant evidence, or to permit reliance on hearsay evidence where a witness as to fact is available, or without the kind of analysis as to weight and admissibility required in the civil and criminal jurisdictions.
35. I also refused the father's application to adjourn on the basis that he would find it difficult to be here as he had a very busy week at work, for reasons which have been explained to me, and which I accept. I told him that so far as possible – and of course in conjunction with his counsel – I would release him to go to work for part of the day. I have done that. I appreciate he has had a tough time juggling these responsibilities. I am very grateful to him for falling in with my suggestions. In refusing an adjournment I was of course extremely aware of the fact that the 26 weeks are shortly to run out in Baby's case. I left over to the final decision the question of whether I should further adjourn the decision as to the future of this little boy after another assessment of the mother and indeed perhaps of the father as well.
36. The father was good enough to say during the course of this hearing that although he still took the view that counsel for the local authority was personally vindictive towards him he had no problem with me. However the focus of the father's antipathy has a tendency to shift as his focus changes. Mr Crowder, the new guardian, agrees. There have been occasions when the father has been vituperatively critical of him and others when he has been able to sit with Mr Crowder and have quite reasonable discussions with him about the options notwithstanding the very sad context of this case. There is other evidence to support a fluctuating attitude in the father. I detect in the father beneath the bluster and the threats and the criticism a deep sadness which I acknowledge and with which I sympathise. I wonder whether the father's more extreme statements and actions are born out of some sort of internal conflict. But that is a matter for him to evaluate and if he could, as the guardian says, find someone to talk to about this it might be of help to him. However notwithstanding Mr Reid's submissions, if he does wish to access any such support it cannot be effective within the timescales of this baby.
37. The mother and the father both gave evidence. The mother became quite agitated from time to time. I am not being critical of her. She is in an awful situation as well. I have described her general demeanour, her pleasantness and her communication skills. The mother has two almost diametrically opposed attitudes which she displays. The first is an expressed disapproval of the father's actions, and an expressed understanding of how very unacceptable his behaviour is; but also almost in the same breath she makes excuses for the father on the basis that he has lost his children, it is all the local authority's fault, and therefore he cannot be blamed for his actions.
38. Mr Chippeck, in conjunction with the father's application to adjourn, had said that he would make an application at the end of the hearing for the mother to be assessed now by Dr Dale as to her capacity to cope as a single parent. Mr Chippeck assured me that he was putting forward on instructions the mother's case that she was prepared to and indeed wanted to 'go it alone'. The mother has been described as socially isolated but Mr Chippeck told me that she would be supported by friends and neighbours, although he was not even on instructions able to name any. He said that Dr Dale would be asked to assess this support network. He showed me a draft Letter of Instruction to Dr Dale which did not in fact mention outside support or any assessment of any other individuals. Even without that component a number of hours would be required which might very well take this case out of the four weeks which Mr Chippeck had suggested would be appropriate. The number of hours including travelling that Dr Dale would require, according to his brief email in response, was more than the hours of the working week over the next month.
39. When the mother came to give her evidence she was very anxious to be assessed by Dr Dale. She rejected Ms Jeffs' diagnosis or opinion that she suffers from any learning disability at all. She described Ms Jeffs' report as 'a cut and paste job.' She did not explain what she meant. Where that came from became apparent when father gave his evidence and when he came to comment on Ms Jeffs' report he also described it as 'a cut and paste job.' The father has friends and supporters who are McKenzie friends – some of them are here listening to this judgment today. I am glad that they are here because as much information as possible which is consistent with privacy and confidentiality is important. I know what a very valuable job McKenzie friends do in our Family Courts, at appellate level and at first instance, particularly since the drastic cutbacks in public funding. As a result of those contacts the father has access to all kinds of documentation from other cases. He says that he has seen reports on other individuals from Ms Jeffs and that they all say the same thing as her; that the mothers have an IQ of between 63 and 68 and are unable to cope. I was not clear whether he was suggesting that there had been a mistake and she had written the report about someone else and attributed it to the mother, or whether she had just been lazy and had transposed one opinion from one report to another without actually having regard to the individual who was in front of her. The mother was represented by counsel at the hearing before Judge Mellanby. It is quite apparent from my reading of the judgment, from which I have quoted many insightful observations, that this hearing was conducted with particular care and sensitivity, and that the judge was acutely aware of all the issues in the case. I am told that there was some challenge to Ms Jeffs not on the basis that her assessment on the Wechsler Scale was incorrect but with regard to the mother's functioning, but Judge Mellanby entirely accepted that the mother required support. The mother's evidence wavered as to the extent to which she does require support at all from outside.
40. Mr Chippeck submits that the mother presents in the witness box as far more sophisticated, articulate and engaged than one might imagine from Ms Jeffs' report. He suggested at the conclusion of this hearing that Dr Dale might form a different view of her capacity, although he is not a psychologist. He submitted that Dr Dale certainly could take an independent view with regard to risk management. But the mother's position is that she wants to be seen by Dr Dale in order to be vindicated so far as her intellectual functioning is concerned. That is her prime focus and only secondarily in her view would it be helpful generally in assisting the court to know whether she can care for Baby. In any event she asserts that she is perfectly well able to care for Baby and that there are no difficulties, and that Dr Dale would confirm that.
41. The mother's evidence about whether she is prepared to separate from the father was not consistent. On the one hand she said that she saw no reason to separate from him, and that she did not want to separate from him. On the other she said that if she had to, she would, and would be assessed and would live anywhere 'even a cardboard box' – an indication of her use of very vivid expressive language – if there were no alternative. I do observe however that she says that she went back to the father in 2013 because she was living in a hostel, the conditions of which were unacceptable to her. So I have some hesitation about what the reality of what she said about accommodation.
42. I have formed the view that the mother still does not face up to the problems, despite her overt acceptance of the father's behaviour, or her own vulnerabilities. Most importantly in light of the history last year I cannot accept any assurances , in fact I go further than that, I am quite clear; there is a real and very high risk that the mother and the father would not maintain any separation and would conceal that. Most importantly neither has the slightest true internal understanding of why it is necessary.
43. The father was extremely frank in the witness box and for that I am grateful. He will not accept any assistance by the local authority and he will not cooperate with it at all. He wants Ward Andrews, who were involved in supervising contact for only a month, and I do not think expressed any view about the future, to be involved in monitoring him, and perhaps Dr Dale as well. The father became very angry and aggressive at times in the witness box. I am used to courtrooms and the emotions they can engender and I am probably a fairly hardy plant when it comes to coping with volatility, threats, and physical intimidation. But I found the father's simmering anger quite difficult to cope with, partly because I also felt within it – as I have already described – a latent distress which is painful to experience. The guardian regards the father as a dangerous man and Dr McLintock agrees. I think he can be dangerous but I think also he feels that he has to behave in this way as an expression of his feelings, to get his feelings over and perhaps also to try and achieve results. Although the father has been convicted twice in respect of assaults I do not think anyone has ever done anything serious to address his behaviour. It may be that his experience so far is that there is never any comeback. His agitation has been expressed to others rather than me and his interaction with me has been courteous, communicative and open, and I am grateful for that. This judgment cannot have been easy to listen to, and I am grateful for his containment and for paying regard to what I said at the beginning of this judgment. It must have taken an effort, and I am appreciative.
44. But that does not mean that this control will or can be maintained in the short, the medium or the long term. The father says he is willing to be supervised by someone other than social workers from the local authority if necessary until the children are 18. He told me that his main motivation is to prove that the local authority has lied and to prove that a profound injustice had been created. I do not find that this authority has lied.
45. I said at the outset that notwithstanding the 26-week requirement there always will be cases where even though a final hearing has been reached there is real utility in adjourning for a short, focused piece of work. I will always consider whether that is necessary and is likely to help me. But the reality is that a judge who hears evidence and who has the benefit of another experienced judge's evaluation is usually in the best possible position, a unique position, to evaluate whether there has been any change within the child's timescale. In some respects, as Mr O'Brien rightly comments, comparing the acknowledgements that were made to Judge Mellanby and the evidence of each of the parents now given to me, things have got worse rather than better. I am particularly troubled that having had pointed out so clearly by Judge Mellanby the dangers or the harm to which the father was subjecting J by not having contact with him, the father has gone further in standing on his 'rights' in respect of the contact agreement to the deprivation of his younger son. Also, it is emotionally harmful not to give a child a name, and father's expressed reason for so doing is that he is not going to give his child a name, i.e. a first name, until the child comes home to him. That focuses on him and not on the child.
46. A court has already investigated the family background within the last six months. Judge Mellanby, who is a skilled and highly compassionate local judge, has come to conclusions which bind me. We are all now judges of the Family Court together and the fact that she may in the past have been regarded as at a different tier makes not the slightest difference to the fact that her findings and her approach are now set in stone, and always would have been. I would not be entitled to go behind any of her evaluations unless there were the most compelling recent material which could legitimately allow me to take a different view. In fact, my assessment concurs with hers. Ms Jeffs' evidence was accepted and it stands. Therefore I have no reason now to direct a further psychological assessment of the mother. The only real objective of an independent social worker's report would be to see whether there is there is any change. The application for Dr Dale comes at the last possible moment when there has been every opportunity in the run-up to this hearing to make an application for him to report. Just as litigants have to be aware that if they want to put forward alternative family carers they must do so at the earliest possible opportunity, the same is true in respect of experts.
47. I am quite satisfied that the threshold criteria are made out. There is absolutely no evidence, I accept, that either of these children has ever been physically harmed within the father's care. However, there have been displays of uncontrollable physical aggression by father which are likely to occur in front of Baby placing him at risk of physical harm ( as well as emotional harm) if there is physical conflict. Counsel for the parents have sought to persuade me that the fact that there has as yet been no physical harm means it is not likely to occur in the future. I cannot accept that analysis. As the guardian said in evidence, it is very easy to envisage a child being in the vicinity of the parent, perhaps in the father's or mother's arms, perhaps in a pushchair, perhaps on a sofa, when there is a fight between the father and a social worker or a fight between the father and someone else and the child gets caught up in that dispute. I make that evaluation fully conscious of the fact that there is absolutely no evidence that the father has ever come into situations of conflict in other aspects of his life as the quite excellent testimonials from his employers make clear.
48. Judge Mellanby has made findings with regard to aggressive behaviour, and the father's violent behaviour is not limited to employees of the local authority. One of the troubling aspects of the father's evidence yesterday was a series of emails which he has sent, threats to broadcast names of professionals involved in these proceedings on the internet, including in some cases the names of their extended family. The father perceives himself as having suffered racial abuse and bullying and harassment at the hands of the local authority. I reject that assertion. The father uses those allegations as the platform for these threats. They must frighten those against whom they are made, and he must know that.
49. I am also satisfied that the mother has a learning difficulty into which the father has little insight and that there are risks to Baby due to the fact that her limitations may mean that inadvertently she will not be able to provide care. I accept that the father's self-righteous indignation supersedes his children's needs. I also accept – although this is not directly relevant to harm – that the mother's failure to take up proper antenatal care for her pregnancy with Baby is extremely significant when looking at the general risks of neglect or of the parents putting themselves before the baby in the future. The mother cannot control the father and J was found to be in danger of becoming emotionally damaged. Baby is at risk of emotional harm from the father; he has no insight into how his approach and irrational and unreasonable beliefs impact on his ability to safeguard and develop his child's emotional wellbeing. I have already referred to Dr McLintock's views, and I entirely accept that the father's irrational and volatile attitudes and behaviour, his suspicion of the world and his shifting perception of the conspiracies against him, are likely to give rise to damage to the development of Baby. His irrational refusal to cooperate with the local authority will mean that those professionals who are charged with the duty of safeguarding children will not be able to intervene. I reject the submission made on behalf of the father that the only reason why the father has this attitude to Social Services is because of the removal of J in February 2013, because the history as I have recited it shows that this is a longstanding if escalating problem.
50. That leads me to my overall conclusions. I am in no doubt that there is a high risk of significant harm to Baby due to a combination of the vulnerabilities of the mother and the father's attitudes and behaviours as I have described. Is there any prospect that that will change within Baby's timescales? There is none. I do not see what Dr Dale can bring to the evaluation. I know what the parents said to me in the witness box. Dr Dale would not be able to provide a risk assessment which undermines the very firm views reached by Judge Mellanby and by myself. Also this child is pushed right up against the barrier of a time limit which is not there for arbitrary reasons but to safeguard children. I will come when I deal with the placement order application to consider what the Court of Appeal said about the duty of the local authority to maximise support for parents in order to give the opportunity for that child to be cared for. I entirely recognise, as did Judge Mellanby, how very drastic, serious and invasive of human relationships is a care order whether designed to lead to adoption or not. I acknowledge that Section 8 rights of all these individuals and in particular the child are fully engaged. I accept that the test is nothing else will do. I accept the test is one which requires me to have regard to safety and to harm and to whether there is any alternative – any realistic alternative, that is. I accept that removal must be proportional to that risk.
51. I deal finally with what the parents or each of them are actually asking me to do. The mother asks me to adjourn for a short period for Dr Dale to assess her and then to bring the case back. I have found that the issue with the mother is principally her relationship with the father. Nothing has changed. I see no utility in that opportunity. She wants Baby home as soon as possible. She would ideally want him home tonight. The father's position was only clarified at the end of submissions. I am not being critical in any way. He has many different matters to think about and he has two children to think about, not just one. He agrees to the continuation of an interim care order but simply on the basis that he thinks that these children, who are placed together, with a plan that they be adopted together by the same family, will suffer if Baby is returned home and J is not. He thinks that J would be jealous and would be bereft. I do not necessarily agree about jealousy. I think he is probably right that J would be bereft. I cannot accept the submission made on behalf of the father that all will be well between him and the local authority if Baby returns home. Not only is his opposition to the local authority longstanding and predates J's removal. And has given rise to resentments which will not easily be forgotten, but whilst J remains in care those resentments will continue in any event. It is wholly unrealistic to suggest that an independent social worker or Ward Andrews or anyone of that kind should be appointed under a Family Assistance Order. Section 16 of the Children Act 1989 does not cover those individuals. They have no statutory duties and no right to intervene. As agents of the local authority instructed and paid by them they would also be regarded by the father as tainted by their association with the local authority.
52. The father's proposal is that he should now proceed with his appeal and then when, as he believes it will be, it is allowed, and J returns home, then both children should return together. There is a whole host of uncertainties implicit in that proposal. The first is, that this being a second appeal, the hurdles in the parents' way are very high. The second is that who knows how long it is going to take? And damage is going to be caused to the children the longer this uncertainty goes on. The third problem is, what happens if I make a decision now in anticipation that Baby will eventually go home and then something else occurs in the meantime, and how can I in any event foresee the future and say that there will come a time when the interim care order will lapse and the child will return? I have to make a decision, not in respect of J's independent position here, but on behalf of Baby. I have to assess this case on the evidence now.
53. I have come to the conclusion that the proposals which the parents put forward to give acceptable care to Baby (although they do not in fact accept that there are any reasons to criticise their care) are wholly unrealistic to address these presenting problems. Every opportunity has been given for insight to be developed, for attitudes to be changed, for behaviour to be addressed and ameliorated, and things have got worse and worse and worse. I see no prospect of change until the father in particular actively does something to change himself. I am very sorry to say that because he is in many respects a likeable man and as I say he is a man of considerable qualities.
54. The only way that the local authority can safeguard these children – and they require to be safeguarded by an agency with statutory duties – is for there to be a full care order in respect of Baby. I recognise, as I have already said, what a very serious step this is.
55. When looking at the Children Act the important features are Baby's age and his vulnerability. His ascertainable wishes and feelings are of course for love and stability. He is like any other baby in that regard. His needs are for stability, care and consistency and not to be exposed to aggressive behaviour which could distort his own development and his personality and character. That also is relevant to his age, sex, background and any characteristics. The actual harm that he has suffered due to the father's irrational attitude to the local authority so that he is in care and has also been deprived of a name given to him by his parents. Neither of his parents has the capacity of meeting his needs. The range of powers available under this Act are to make a full care order, to continue the interim care order, or to make a residence order or make no order save for a supervision order or Family Assistance Order. I am quite clear that the answer is a care order for the reasons that I have already set out.
56. I accordingly turn to the application for a placement order which relies on the same grounds. Mrs Justice Pauffley has recently stressed in Re: LRP (a Child) (Care Proceedings: Placement Order) [2013] EWHC 3974 (Fam), and I agree, the decisions of the Court of Appeal over the course of the last year, starting of course with Re B-S, only require the court to look at realistic options. Long-term fostering is not appropriate for a child of this age and since there is no family member available, as there was not in respect of J- the options are stark; they are return – or at least a potential return – to the care of the parents, which I have ruled out in my care order decision, or to be adopted.
57. The local authority has found two potential couples of appropriate ethnic background and religion who are matchable with these two delightful small boys, who have made a good attachment to their foster mother, and who have reasonable prospects – if not very good prospects – of making the transition even at J's age to a new family in a way which will preserve their capacity to make attachments and will allow them to become wholly part of their new family. That match and transfer can take place very shortly. I am not comparing these potential carers with the parents. I am looking at what is available.
58. In considering the adoption checklist under the 2002 Act I have dealt with ascertainable wishes and feelings and needs under the Children Act; the likely effect on the child throughout his life of having ceased to be a member of the original family and become an adopted person – of course this is extremely important. It is always a deprivation to lose a natural family. There will always be questions; and there will always be anxieties. I entirely recognise that. There will be a sense of dislocation but it will be replaced by belonging to a new family, and family relationships will be created which will go a long way to addressing the losses which Baby will suffer. Baby has no relationship with relatives other than his mother: he has unfortunately no relationship with his father at all. His relationship with his mother is good. The mother – and there are many strengths and positives which have been outlined by Mr Chippeck to which I pay due regard – has attended five times a week for long periods of contact; she has behaved entirely appropriately; she has behaved with extreme dignity when Baby was removed from her; and she has made absolutely the best of a very difficult position. So there will be a loss to Baby by losing his mother. Contact will be stepped down. That is not meant to be a glib or a superficial remedy for what is an extremely important change in Baby's life. Unfortunately, if his mother cannot care for him and his stability, emotional needs and all his other needs can only be met elsewhere, he will lose his relationship with his mother. I cannot contemplate a continuation of direct contact for all the well-known reasons about disruption to the placement both from the point of view of the child and the point of view of the new family. So there is no likelihood of the relationship with the mother continuing and the child's relatives do not play any part in Baby's life as actual figures to whom he is known. They are unable or unwilling to put themselves forward. I take into account the wishes and feelings of each of his parents, who could not oppose this solution more strongly. The adoption agency has given due consideration to the child's religious persuasion, racial origin, cultural and linguistic background.
59. Complaint is made, and made I think with reason, that the guardian in his checklist analysis has not set out the positives which were described by Judge Mellanby in her judgment. They do need to go into one side of the balance sheet, which otherwise I accept, but they do not shift the balance. One of the reasons why this is such a painful and difficult decision is because of those strengths. But a lot has happened since then which I am afraid outweighs those positives. I am quite satisfied, as the guardian has said, that there is nothing that can be done to assist these parents to change. Change can only come from within. There is no support which the local authority can give. The father will not tolerate the professionals' support which the mother requires unless it comes from a source which is acceptable to him, and it is difficult to know when indeed he might fall out with anyone for instance the children's teachers or doctors with whom he may well disagree about the care of his children. The father accepts that he will not cooperate with a supervision order so that is not an available option to the court. I accept that against the findings, and notwithstanding the potential benefit which an upbringing by his parents could give this child, the findings in respect of harm very strongly outweigh any such benefit and that therefore the only option is adoption. This will give permanence, a strong sense of belonging, and what the guardian has described as 'a more enduring psychosocial basis' than any other non-parental option. So the balance sheet comes down very strongly in favour of adoption and indeed once parental care is ruled out that is the only realistic alternative. I am terribly sorry it has come to this but there really is no other option. Interference with the right to family life of parents and child is proportional to the risk of harm, and to the needs of the child.
60. I cannot do anything other than endorse the local authority's plan for contact. I do not think there is any scope now for any contact to the father in the light of the decisions that he has taken. Therefore sadly the mother, who I am sure will cooperate with the scheme put forward with dignity, self-sacrifice and in a child-centred way, will unfortunately have to cope with this loss alone. But I think I can have confidence in her ability to do so.
61. The father does not have parental responsibility. I have paid due regard to his parental role. I am sure that had this baby been registered by both parents his name would have been on the certificate. I am sure that the father would have wanted parental responsibility and I do bear that in mind. But as a matter of law I do not have to dispense with his consent. I dispense with the mother's consent on the basis that it is in the child's interests for me to do so.
62. I am never offended by applications for permission to appeal. The parents have a right to ask me for permission to appeal. As the parents know, if I refuse permission they have an opportunity to renew to the Court of Appeal. Judges are discouraged from giving permission to appeal where a discretionary evaluation or evaluative role has led to a particular decision. It might be different if there were a new or novel point of law involved. So on the basis that I have evaluated this case on the evidence and with due consideration of the relevant legal principles I am not going to give permission to appeal. If the parents wish to appeal they of course have the assistance of their representatives in helping them take the appropriate steps.