England and Wales High Court (Family Division) Decisions

IN THE FAMILY COURT
SITTING AT NEWCASTLE UPON TYNE
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: B & Ors (CHILDREN)

		The Law Courts The Quayside Newcastle upon Tyne NE1 3LA
		22nd May 2015

JUDGMENT

HER HONOUR JUDGE HUDSON:

Introduction

1. I give judgment at the conclusion of care proceedings concerning three children: a girl, Ro (born on 27^th January 2001, aged 14); and two boys, Rh (born on 21^st September 2006, aged 8) and C (born on 30^th November 2008, aged 6). They are the three children of the relationship between M and F, which ended in 2009. Unhappily, these care proceedings were issued as long ago as 26^th November 2013. They came before me for the first time on 10^th February 2015, when the final hearing was listed. Unfortunately, no judge was available to hear the case then. I therefore listed the case on the first available date for final hearing, which was 18^th May 2015.
2. The three children are subject to interim care orders, which were made on 22^nd May 2014. Ro is living in a small residential unit at Residential Unit A. Rh and C are placed separately in foster care.
3. In October 2014, the Local Authority served its final care plans. The care plan for Ro provided for her to remain placed at Residential Unit A, subject to a final care order, with on-going contact with her family. In respect of the boys, the Local Authority care plans proposed special guardianship orders in favour of their paternal aunt (PA) and her partner, following the completion of positive special guardianship assessments.
4. In her statement dated 30^th October 2014 and a further statement dated 29^th January 2015, M set out her case for the return of all three children to her care. She now accepts that since October 2014 she has been involved in another relationship. She and her partner, BM, are expecting a baby, due to be born in August 2015. M indicated her intention to seek the return of the children to the joint care of herself and BM, with support from her parents, MGM and MGF.
5. In the light of serious allegations of sexual abuse made by M's sister, MA, against MGF, he was joined to the proceedings as an intervener to allow these allegations to be determined. MGF has engaged in the proceedings and, in fact, sought to put forward a case to care for the children himself in the event that the children were not to be returned to their mother. In a statement dated 6^th February 2015, MGM put herself forward as a carer for Ro should the children not return to M's care. Since October 2014, F has accepted the children could not realistically be placed in his care. He supports the placement options within the birth family.
6. The final hearing was therefore expected to determine a range of factual issues to inform the welfare decision making. These factual issues included the relationship between M and F, their care of the children, the allegations of sexual abuse against MGF, M's failure to protect the children from the risk posed by MGF and her failure to cooperate with professionals.

Recent Developments

7. In the days before the final hearing was listed to commence, a number of important documents were served. On 15^th May 2015, counsel for MGF served a position statement which confirmed that MGF no longer put himself forward as a carer for the children and, if they were not to be returned to M's care, supported the Local Authority's plans for the children, but sought some form of contact.
8. The Local Authority's case summary for the final hearing was served the day before the final hearing was listed to commence. The Local Authority had then reviewed the entirety of the disclosure relating to the findings sought against the maternal grandfather, some of which had been received late in the day. For reasons I will return to shortly in a little more detail, the Local Authority indicated it no longer sought to pursue findings of sexual abuse against MGF.

The Final Hearing

9. On the first day of the final hearing, I was told that M was considering her position. Having done so, I was told she was no longer seeking the return of the children to her care and was not opposing the placement of the boys with PA, subject to special guardianship orders. In the case of Ro, however, she did not support her continuing placement at Residential Unit A, but proposed that Ro should be placed with MGM.
10. The children's guardian for the three children is Nicola Murphy. Her final analysis was completed on 6^th November 2014, six months ago. In her final analysis, she indicated her support for the Local Authority's plans for the children. Her position has remained unchanged in the light of events since then.
11. The arrangements for the children's contact with the birth family are agreed. It is agreed that all contact will be supervised although, in the case of MGM's contact with Ro should Ro not be placed with her, the Local Authority accepts they should consider a relaxation of the arrangements for that contact if it continues to go well.
12. It is agreed that threshold criteria are established. I was provided with a document agreed between the parties containing threshold findings as agreed between the Local Authority, M and F.
13. In those changed circumstances, the sole welfare issue for my determination at this hearing was therefore whether Ro should move to the care of MGM or whether she should remain in her placement at Residential Unit A. In these circumstances, I did not consider it either necessary or proportionate to investigate the other factual issues. I had myself had the opportunity of reviewing the evidence relating to the allegations made by MA against MGF, in the context of the position of the parties in the case and the placement options for the children. The evidential difficulties relating to MA's allegations were highlighted in a helpful document prepared by Miss Woolrich, for the Local Authority, following full disclosure by the police. I was also alive to the vulnerability of MA herself, although medical evidence had confirmed she was fit to give evidence if required to do so. In the light of the position of the parties, I concurred with their view that it was not necessary and would not be proportionate in these circumstances to investigate and seek to determine these allegations.
14. During the course of the hearing, I therefore heard evidence from the Local Authority social worker, Viorel Duman, from MGM and from the children's guardian. MGM is not currently a party to these proceedings. She has, however, had access to all of the relevant case papers. In circumstances in which M's case was to support Ro's placement with MGM, Miss Gibson (representing M) effectively put the case on behalf of MGM. I am grateful to Miss Gibson for that, as - I know - is MGM.
15. In the light of this limited but nonetheless important issue in dispute between the parties, this judgment can be relatively short.

Background

16. M is now aged 32. F is 39. M is the second of four children from the marriage of MGM and MGF. MA is M's older sister. MA was born in 1981; M was born the following year in 1982. There was Local Authority involvement with the family when the children were young. MA was placed in foster care when she was aged 3. In 1984, a final care order was made in respect of MA and a supervision order was made in respect of M. M was never removed from her parents' care. In 1986, MA first made allegations of a sexual nature against MGF. Investigations were inconclusive.
17. M's relationship with F was volatile and included episodes of domestic abuse. Ro was born in 2001. From an early age, Ro was cared for by MGM and MGF, who obtained a residence order in respect of her on 22^nd May 2003. Ro later returned to M's care (although when this happened is unclear). Rh was born in 2006, followed by C in 2008. M and F separated in 2009, with the children remaining in their mother's care. In 2012, the Local Authority became aware that MA was distributing leaflets in the area in which the maternal family live (and the children attended school) alleging that MGF was a paedophile. She made a complaint to the police, alleging serious sexual abuse by him during her childhood. He was arrested and was duly charged with two offences of buggery and two offences of indecency with a child. MA also made allegations of sexually inappropriate behaviour by MGF to Ro and that Ro's behaviour was sexualised.
18. M and MGM have always been resolute in their support for MGF's denial of these allegations. The Local Authority was understandably concerned to ensure the children were protected from any risk of harm from MGF in the light of those allegations. The Local Authority therefore formulated a written agreement, which was signed by M on 31^st May 2013, in which she gave her agreement that she would not allow MGF unsupervised contact with the children or allow him to visit the family home. The children were, however, accommodated by the Local Authority and placed in foster care on 7^th June 2013, following a strategy meeting which considered information indicating that M had not adhered to the working agreement.
19. In July 2013, Rh, then aged 6, made allegations of a sexual nature against MGF concerning his step-siblings and implicated his mother as knowing of the events. Contact was suspended for a period, but reinstated after Rh did not repeat these allegations to the police.
20. The care proceedings were issued on 26^th November 2013 after M withdrew her consent to the children's continued accommodation. On 23^rd January 2014, District Judge Goudie discharged the residence order in respect of Ro and, in the same order, discharged the maternal grandparents as respondents to the care proceedings.
21. A parenting assessment was undertaken of M, which was completed in November 2013. It concluded that the children would be at significant risk of sexual harm and neglect if they were returned to M's care. The parenting assessment was updated in February 2014. This addendum parenting assessment recommended a plan of rehabilitation, for the children to return to their mother's care with support and monitoring. The children duly returned to M's care on 7^th April 2014. The court was informed and the track of the proceedings was extended to 32 weeks.
22. The rehabilitation of the children to their mother's care broke down within a matter of weeks, however, after she breached the written agreement by going out at night, leaving the children overnight in the unsupervised care of MGF. C reported that he had shared a bed with his grandfather that night. At that time MGF was on bail awaiting trial.
23. M initially denied that she had breached the agreement but later accepted that she had done so. The children were removed and placed in foster care once again. They were each placed separately. Ro had two unsuccessful foster placements before she moved to Residential Unit A, now some twelve months ago, where she settled well.
24. M has had regular contact since the children were accommodated. The case papers record the chaotic nature of contact with the three children together, as a result of which the contact arrangements were altered to provide for better arrangements between the children and their mother, with contact taking place separately.
25. MGF's criminal trial took place in October 2014. He was acquitted of all charges.
26. In October 2014, the special guardianship assessment of PA was completed, following a positive screening assessment. The special guardianship assessment supported her as a permanent carer for the boys in circumstances in which Ro had made it clear that she did not favour a move to PA's care.
27. In October 2014, M told Ro she was involved in another relationship with a man by the name of BM. Ro was reported to be extremely upset and threatened to kill herself. Despite telling Ro about the relationship, in her dealings with professionals M denied her relationship with BM for a further period of months. She now accepts that she was involved in a relationship with him at that time. In or about November 2014, she became pregnant. As I have already recorded, she and BM are expecting the birth of their baby in August 2015.
28. MGM has had regular contact with Ro since January 2015. The contact is of good quality. Both MGM and Ro enjoy the time they have together; MGM is seen as a positive influence during the contact in providing support for Ro for her plans for the future (in terms of her further education and opportunities). Contact takes place for one hour each week and is supervised.
29. MGM was proposed as a carer for all three children in 2014. The previously allocated social worker, Sam Lockey, undertook a viability assessment in June 2014 at a time when MGF was awaiting trial. The assessment recorded MGM's view that MGF posed no risk to the children and that she would be likely to allow him unsupervised contact with the children as a result. That assessment reached a negative conclusion. A second assessment completed by Viorel Duman in November 2014 focused more closely on MGM's ability to manage Ro's behaviour, which is described in the Local Authority's evidence as 'extremely challenging'. The assessment did not support Ro's placement with MGM. The assessment recorded MGM's view that Ro's behaviour is not challenging.

Threshold

30. Before I turn to my welfare evaluation, it is important to record the threshold findings agreed between the parties. The parties accept the threshold criteria were established at the time protective measures were put in place (when the children were accommodated in June 2013) and that subsequent events have confirmed the threshold basis. The agreed schedule is in the following terms:

'The Local Authority asserts that the children have suffered significant harm and are at risk of suffering significant harm and that the likelihood of that harm is attributable to the care likely to be given to them by their parents, that care not being what it would be reasonable to expect a parent to give a child. The Local Authority believes that the children are likely to suffer impairment of their health and physical, emotional, social and behavioural development due to the following facts.

Events Leading to Ro Being Placed with Maternal Grandparents Under Residence Order in 2003

(i) M and F accept there was domestic violence and volatility in their relationship and that M made an allegation of rape by F. The Local Authority does not seek to prove the rape. M remained in a relationship with F and the relationship finally came to an end in 2009, some six years after the allegation was made.

(ii) F had problematic alcohol use.

M's Awareness of Risk and her Relationship with MGF

(iii) M accepts she entered into an agreement with the Local Authority on 31^st May 2013 not to permit contact and that she permitted contact in breach of that agreement.

(iv) M also accepts that she entered into a detailed agreement to support a plan for a rehabilitation of the children to her care on 7^th April 2014. It included the provision that MGF would not have contact with the children. M breached this on 17^th May 2014 when she left the children in the care of her sister and did not return when told that MGF was going to take over their care. At the time, he was on bail for criminal charges of buggery and gross indecency with a child.

Emotional and Physical Needs of the Children

(v) M accepts she struggled to consistently impose the routines and boundaries that the children needed, which contributed at least in part to their behavioural difficulties.

(vi) She accepts she neglected the children's dental needs.

M's Ability to be Honest with Professionals and the Court

(vii) M accepts she failed to be honest about her relationship with BM and at the time she served a statement on 30^th October 2014, she was in fact in a relationship with him.'

The Legal Framework

31. In determining the future care and contact arrangements for the children, their welfare is my paramount consideration in accordance with s.1 Children Act 1989. I must have regard to the general principle that delay in determining any such question is likely to prejudice the child's welfare. When considering whether to make any order under the Act, I must not do so unless I consider it better for the child than making no order at all. I must have particular regard to the factors identified in the welfare checklist in s.1(3), insofar as I consider them relevant to the children with whom I am concerned.
32. The Court of Appeal gave judgment in Re G (A Child) [2013] EWCA Civ 965 in July 2013. The judgment of McFarlane LJ stressed the need for a proper, thorough and holistic evaluation of the placement options, giving full weight to the Article 8 rights. Such an approach involves the court balancing the pros and cons of the placement options in any case. McFarlane LJ considered (at paragraph 46) that where the placement options do not include adoption, the wording of certain elements of the welfare checklist involve a direct comparison of the relevant options that are being considered, giving the following by way of example: the likely effect of any change in circumstances; the harm which a child has suffered or is at risk of suffering; and the capability of the parents (and any other person in relation to whom the court considers the question to be relevant) of meeting the child's needs. The proper consideration of these issues requires the court to consider the positives and negatives of the placement options in material respects.
33. In Re W (A Child) [2013] EWCA Civ 1227 Ryder LJ set out the three questions the court has to answer in any care case:

(i) What is the harm and/or likelihood of harm?

(ii) To what is that harm attributable?

(iii) What will be best for the child?

The court is to undertake its welfare evaluation to determine what is best for the child by reference to three questions:

(i) What is the welfare analysis of each of the placement options available?

(ii) What is the welfare evaluation that is the best option among those available?

(iii) What orders are proportionate and necessary, if any?

34. The Local Authority must provide the evidence to enable a judge to undertake the welfare and proportionality evaluations, including a description of the services available and practicable for each placement option and order being considered by the court.
35. I have applied those principles in my consideration of the planning for the children and, in particular, the disputed positions of the parties so far as Ro is concerned.

Ro

36. Although Ro is now 14, she has a level of learning difficulty and presents as immature and younger than her years. She is widely described as an extremely vulnerable young girl. There are consistent descriptions of Ro's extremely difficult and challenging behaviour. At times, her behaviour is described as inappropriately sexualised. This evidence comes from the direct observations of the key social worker, Viorel Duman, who has been involved since the autumn of 2014 and, to a lesser extent, from the observations of the children's guardian. M agrees with this evidence, which also accords with the consistent descriptions of Ro in other settings, particularly from Residential Unit A. MGM does not accept that there are any behavioural issues relating to Ro. She said that she has not witnessed such behaviour and she was clear when pressed that she does not believe that her granddaughter behaves as others have described.
37. Ro's behaviour is of sufficient concern that she is provided with close supervision at Residential Unit A and as she travels to and from school (when a taxi is provided to avoid the uncertainties involved in the bus journey for her). The evidence of the Local Authority and the children's guardian is that Residential Unit A has provided a positive environment for Ro - it seems somewhat unexpectedly - in circumstances in which the placement was the only alternative at the time and where the social worker and children's guardian at that time doubted its benefit for Ro. The other young people in the placement, boys and girls, are somewhat older than Ro and have adopted an older sibling-type relationship with her, helping her with her personal hygiene and general living arrangements, as well as discouraging her inappropriate conversation and behaviour.
38. The evidence of the Local Authority is that Ro needs to be carefully monitored and regulated in her use of social media. MGM's case was that she would not allow Ro a smart phone with internet access and she would therefore avoid any such difficulty arising. She did not accept that past evidence of Ro procuring a mobile phone from a friend to gain such access would be a problem. She said that Ro would do as she, her nana, tells her.
39. On all accounts, the relationship between MGM and Ro is good and contact is a positive experience for Ro and, of course, for MGM. MGM's evidence was that she would expect this positive behaviour from Ro in contact to be maintained without difficulty if Ro is placed in her care.
40. I accept the strong body of evidence from the Local Authority, supported by the children's guardian, of Ro's extremely difficult and demanding behaviour. MGM's complete denial of any such behaviour does not augur well for her ability to recognise any difficulties and respond appropriately. I do not question the description of Ro's behaviour in contact. I found MGM's evidence naïve in the extreme, however, in her belief that Ro's behaviour would not be demanding or difficult if she was in her full time care.
41. Ro is now 14, although she functions at the age of a younger child. She has consistently said she would like to live with her maternal grandmother. I was read recent texts which reinforced that. Ro has, however, also expressed an acceptance of the prospect of continuing to live at Residential Unit A.
42. Having regard to Ro's age, I explored with the children's guardian the extent to which she and Ro's solicitor had considered the possibility of separate representation for her. The children's guardian told me that she had kept this under constant review, but that she and Mr Wilkinson, Ro's solicitor, had remained of the view that Ro's lack of maturity and understanding about the implications of the placement options was such that separate representation for Ro was not appropriate. Ro's wishes and feelings must be given appropriate weight, but the weight attributed to them is tempered by her lack of maturity and understanding.
43. Ro has all the care needs of any young person of her age. Her behaviour as I have found it to be has required, and will continue to require in my judgment, consistent care with an understanding of the risks to Ro from her own behaviour and a need for appropriate boundaries and supervision to be instilled. I found MGM to lack any insight at all into Ro's vulnerability, her current and likely future behaviour and the demands that Ro currently and in the future is likely to provide for her carers. MGM's lack of understanding of these issues was reflected in her own assessment of M's parenting abilities. She described her as an excellent parent, who could and should be able to care for all of her children. This was her evidence despite M's own acceptance of her own ability to do so, in the light of the evidence before the court.
44. A placement of Ro with MGM would have the very obvious benefit of a placement with a close family member, her maternal grandmother with whom Ro has a good relationship. It would be a family placement for Ro and is the only family option which is proposed. It would meet Ro's wishes. On the other hand, from the evidence that I heard, I found I could have no confidence that MGM understands the care that Ro requires and the demands that Ro will place upon any carer. I do not accept MGM's assertion that the difficulties simply result from Ro's placement at Residential Unit A. On the evidence, that placement is in fact playing a constructive part in Ro's care and social education.
45. The only alternative placement for the court's consideration for Ro is her continued placement at Residential Unit A. That is a placement in Local Authority care and in residential care rather than a foster placement. This accommodation will only be available to the age of 16 and is therefore time limited. Inevitably, there are the prospects of changes, as residents who are mainly older than Ro move on. This placement has, however, provided a generally positive environment for Ro, despite her more challenging recent behaviour. The carers for Ro at Residential Unit A are alive to her vulnerability, her care needs and the risks to which she is susceptible. Ro is at risk of physical, sexual and emotional harm if she does not receive the consistent and structured parenting she requires from carers who are alive to her difficulties and her challenging behaviour. A care plan of residential care is relatively unusual for a young person of Ro's age. The evidence demonstrates that the placement is, however, meeting her needs well and certainly as well and consistently as any other form of placement could offer.
46. I found listening to MGM's evidence illuminating and informative. I was left with the clear conclusion that she does not recognise her granddaughter's extensive care needs and would, based on that alone, be unable to meet them. In reaching this conclusion, I do not question the mutual love and care that exists between MGM and Ro and the positive role that MGM can play in supporting Ro's placement. That is far from a placement with MGM meeting Ro's welfare needs.
47. I have concluded that the Local Authority's care plan for Ro is the only plan which can meet her welfare interests. I have concluded that it is both a necessary and a proportionate response to Ro's circumstances. It is, in my judgment, essential that the Local Authority has parental responsibility for Ro so that it can arrange and manage Ro's care and contact arrangements to meet her welfare needs. The making of a final care order is the only order which will allow the Local Authority to share parental responsibility for Ro and to arrange her care appropriately.
48. The Local Authority has revised its proposals for contact in Ro's case, so that it will give consideration to a relaxation of the arrangements for supervision of her contact with MGM and other ways in which this contact can progress. The Local Authority has accepted the guardian's recommendation that contact between Ro and her mother should take place fortnightly. The Local Authority's care plan recognises Ro's own wishes, so far as her contact with her father is concerned, which will remain under review. Ro will be able to maintain contact with her brothers.

Rh and C

49. For Rh and for C, the court is not invited to consider any option for their placement other than their placement together with PA and her partner, subject to special guardianship orders. It will be clear from the short summary I have given of the background to these proceedings and the events since proceedings were issued that Rh and C have experienced a very disrupted start to their young lives. They have a pressing need for a secure, stable and permanent placement. PA and her partner have been thoroughly assessed by the Local Authority as to their ability to provide such care for Rh and for C. The assessments support this placement for them. There is no challenge to the plans for the boys by their parents (or any other family members). The placement and the making of special guardianship orders is supported by the children's guardian.
50. The Local Authority's care plans provide for monthly contact to take place over the first six months, subject to review. These contact arrangements are agreed.
51. The parties agree a continuing Local Authority involvement so far as the boys are concerned with twelve month supervision orders. I agree that supervision orders are appropriate and meet the boys' welfare interests.

Orders

52. I will, therefore, make a care order in respect of Ro. I approve the care plan for her continued placement at Residential Unit A. I will make special guardianship orders in respect of Rh and C in favour of PA and her partner, together with supervision orders in favour of the local authority.
53. In circumstances in which the making of the care order in respect of Ro, based on the care plan of her placement at Residential Unit A was opposed, I will direct a transcript of my judgment and, in accordance with the President's transparency guidelines, I will direct that an anonymised copy is published on BAILII in due course.