English and Welsh Courts - Miscellaneous

IN THE COUNTY COURT AT NEWCASTLE

		The Law Courts The Quayside Newcastle-upon-Tyne Tyne & Wear NE1 3LA
		7th July 2017

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RECORDER HENLEY:

1. This is an application for a care order brought by the local authority (LA). The court is concerned with E, now aged almost 10 years old. She is an English-speaking chid who identifies culturally with the North East of England. For the first two years of E's life, she spoke Italian, having lived in Sardinia in Italy for approximately six months. She is not now able to speak Italian.
2. The Mother (M) is aged 42 years old. She resides in the North East of England. The Father (F) is aged 44 years old. He is Italian and now lives in Florida, in America with his wife, R, where he works as a chef. They have no children together and were married on 7 December 2015, following an 11-month relationship. R has three adult children to her first husband, who sadly died in 1998. Her 19-year-old adult son lives with the couple.
3. The Father has limited use of English, his first language being Italian and therefore has had the benefit of an Italian interpreter throughout this hearing. The third respondent is E's Maternal Grandmother (MGM), aged 70 years. She resides in the North East of England. RP and NP are not part of these proceedings but have been positively assessed by the Local Authority to care for E. They are her maternal uncle and aunt and live in Barnsley, in South Yorkshire.
4. This matter comes before the court for a final hearing in public law proceedings with a time estimate of four days. The proceedings were issued on 9 August 2016. The timetable for completion of this case was extended due to the need to assess the Father in America.
5. On 29 June 2017, prior to the final hearing commencing, I met E. The meeting took place at her request and was recorded. It lasted for approximately 20 minutes, following which she had a brief tour of the courtroom. I informed the parties about the nature and contents of our discussion at the outset of the final hearing. E's request was predominantly prompted by a desire to meet me rather than a desire to tell me or ask me anything. We discussed her school achievements and love of English and reading. She said she would be very sad if she had to leave her school and friends as a consequence of my decision. She said that enjoys spending time with her Grandmother and with RP and NP, although she missed her friends and Grandmother when she was in Barnsley. I conveyed this information to the parties at the outset of the final hearing.
6. This judgment is delivered on the fifth day of the hearing, after I announced my decision about where E should live on the afternoon of the fourth day. All parties agreed to the early announcement of my decision in advance of a full judgment. This allowed the Father to be present when I announced my decision and allowed my decision to be communicated to E in the hope that she would agree to see the Father that afternoon, before his flight back to America this morning. I should add that I was delighted to have been informed this morning, prior to delivering this judgment, that E did agree to see her Father yesterday evening and I was even more delighted to have been told that she was able to do that in the company of her Grandmother. What was described to me this morning was clearly an extremely happy family occasion and, I hope, paves the way to many more such occasions.

Background

7. At the time that the parents met they were both living in the North East of England. The Mother was working as a solicitor and the Father was a chef, they married on 10 November 2006, at the same time that they discovered the Mother was pregnant with E. E was born in Newcastle upon Tyne. The Mother misused alcohol during the parents' relationship and reached a stage where she was no longer able to work as a consequence. The family then moved to Sardinia, Italy, where the Father originates from, when E was 18 months old. The Maternal Grandmother moved out there with them to assist in providing childcare for E for a period of time.
8. In 2009, when E was two years old, the parents separated and the Mother moved back to the North East of England with E. They lived with the Maternal Grandmother until E was three years old. The Mother met and then married AS when E was three and a half years old. E lived with them until she was five years old, when that relationship ended and she once again moved back to the Maternal Grandmother's home with the Mother. The parents divorced in 2012.
9. The Father has not been involved in E's care arrangements since E left Italy. He saw her three times since then, the last time being on her fifth birthday prior to the commencement of these proceedings. They had no telephone contact with each other until E moved to live with GP and BS.
10. E has been known to the Local Authority since August of 2009, as a consequence of the Mother's longstanding and significant issues with alcohol, which have impacted upon her own health, her relationships and her ability to provide good enough care for E. Throughout her life E has been cared for extensively by the Maternal Grandmother, especially at times when the Mother's ability to care for her adequately has been compromised by alcohol use.
11. Until 28 February 2015, E had been treated by the Local Authority as a 'Child in Need'. This changed as a consequence of an incident when the Maternal Grandmother suffered an accidental fall, resulting in her suffering multiple injuries, including fractures. The Mother presented at the hospital to see the Maternal Grandmother following this incident, in a heavily intoxicated state. As a consequence of that, E was placed with her maternal uncle and aunt, GP and BS on a voluntarily basis pursuant to Section 20 of the Children Act 1989.
12. E was the subject of care proceedings which were commenced in May 2015 and which concluded on 2 February 2016 with the making of a special guardianship order in favour of GP and BS together with a 12-month supervision order in favour of the Local Authority. The Father did not ask to be assessed as a carer for E in those proceedings and agreed with the Local Authority's suggested placement for her.
13. In March 2016 the Mother attended a supervised contact session with E whilst under the influence of alcohol. E refused to see the Mother since that time until her ninth birthday in July 2016, when she again agreed to see her on one occasion. They have had no direct or indirect contact since then, although E has agreed to see her Mother for her 10^th birthday next week. This follows a pattern in recent years of E only agreeing to have direct contact with the Mother for her birthday and at Christmas.
14. In April 2016 the Father contacted the Local Authority requesting an assessment to care for E. This followed the commencement of telephone contact between them in December 2015. In May 2016 E made disclosures, first to her Maternal Grandmother and then to her social worker that she was unhappy in her placement with GP and BS. She indicated that she felt unloved, unwanted and not part of their family. Once E's views were made known to BS this caused her to feel resentful towards E and ultimately the placement broke down in July 2016. GP and BS gave their consent to E being voluntarily accommodated in local authority foster care, on 13 July 2016, where she remains to date. They have played no role in these proceedings having invited the court to discharge the special guardianship order made in their favour and to discharge them as parties at the outset, which it duly did on 1 September 2016. E was made the subject of an interim care order at that hearing.
15. E has continued to have unsupervised contact with the Maternal Grandmother twice each week and to stay overnight at her home for one weekend each month, since her accommodation in foster care.

Positions of the Parties

16. Prior to the final hearing commencing, the Local Authority had sought a care order in respect of E, advancing a care plan for her that provided for her to be placed with RP and NP in Barnsley. It had hoped that in due course the care order could be discharged in favour of a special guardianship order. On the first morning of the hearing the Local Authority changed its position, indicating that having reflected upon the Guardian's report and upon E's meeting with me, as well as the position of RP and NP, as set out in an email exchange with the Guardian, in which they indicated that they would not wish E to be unhappy in their care and would support her living with the Maternal Grandmother in preference to them, if that was her wish. It sought to revise its care plan to one that provided for E to live with the Maternal Grandmother.
17. Unfortunately, it took until the fourth day of this hearing for the Local Authority to then put a concluded care plan before the court. Initially the Local Authority suggested that the placement take place under the auspices of an interim care order with a lengthy adjournment of around six months to enable further assessment work to be carried out. I indicated that such a plan did not find favour with me and I considered that E needed finality. Eventually, the Local Authority was able to present a plan for E to be placed under the auspices of a child arrangements order and a 12-month supervision order. During the course of the hearing the Local Authority also invited me to make an occupation order together with a power of arrest against the Mother, to prevent her attending the Maternal Grandmother's home or E's school. Ultimately, the Local Authority wishes to support the Maternal Grandmother to obtain a special guardianship order in respect of E.
18. The Mother accepts that she is not in a position to care for E as a consequence of her on-going difficulties with alcohol. She accepts E's wish not to see her at the current time. She supports E being placed with the Maternal Grandmother and agrees to the making of a supervision order and child arrangements order. She opposes the making of an occupation order on the basis that she is willing to give the court undertakings in the terms sought.
19. The Father opposes the Local Authority's care plan and seeks to care for E with his wife in the USA. If that is not possible he would not oppose her living with the Maternal Grandmother provided that he can be reassured that she will be safe living there. He opposes her remaining in foster care.
20. The Maternal Grandmother seeks to care for E and agrees to the making of a supervision order and a child arrangements order in her favour. She aspires to become E's special guardian in due course.
21. The Children's Guardian, Ms Julia Hagan, supports E being cared for by the Maternal Grandmother. Initially her preference was for this placement to take place under a care order but during the hearing agreed that a supervision order and a child arrangements order were appropriate. She supports the making of an occupation order with the power of arrest against the Mother. The Guardian would wish to be appointed in any subsequent application for a special guardianship order.

Threshold Criteria

22. It is not disputed that the threshold criteria for the making of public law orders in this case is crossed. Care proceedings in respect of E concluded on 16 February 2016. The court determined that the threshold criteria for the making of public law orders at that time was met in the following terms:

(a) The Mother had misused alcohol for a significant period of time. That misuse continues to date. The Mother was admitted to hospital in early 2015 with cirrhosis of the liver.

(b) E has suffered emotional harm whilst in the care of the Mother as a result of witnessing her being under the influence of alcohol.

(c) The Mother has disclosed that the Father had a gambling problem and that he perpetrated both physical and verbal domestic violence towards her during the course of the relationship.

(d) The Mother's current partner has a history of alcohol and substance misuse and violent offending.

23. The Local Authority in these proceedings have correctly identified that (c) is not a factual finding and has given thought as to whether it seeks to prove that the Mother's disclosures are true. It does not pursue those findings.
24. Further conceded facts relevant to the threshold criteria in these proceedings are:

(a) In July 2016 E's placement with GP and BS broke down and she was accommodated in Local Authority foster care.

(b) GP and BS were unable to meet E's emotional needs.

(c) E disclosed that she was not happy in that placement. BS has admitted having feelings of resentment towards E and that she struggled with the pressure of caring for her.

(d) The Mother continues to be alcohol dependent.

(e) The Mother attended contact with E in March 2016 under the influence of alcohol and was verbally abusive to E. The Mother has no recollection of being verbally abusive towards E but deeply regrets her behaviour if she had.

(f) E is currently not willing to have direct contact with the Mother.

25. I am satisfied that as a consequence of these factual concessions and findings the threshold criteria, for the purpose of making public law orders in these proceedings, is crossed.

Legal Framework in Respect of Welfare Decisions

26. I remind myself that E's welfare is my paramount consideration. That is Section 1(1) of the Children Act 1989. In considering what orders I have to make I must have regard to the welfare checklist contained in Section 1(3) of the Children Act 1989. In relation to the threshold criteria, found in Section 31(2) of the Children Act 1989, I have to have regard to whether I am satisfied that E has suffered or is at risk of suffering significant harm. In this case the parties concede that the threshold criteria is crossed and as I have already said, I am satisfied that it is, as a consequence of their concessions and the findings made in the last set of care proceedings. E has undoubtedly suffered significant harm.
27. When considering which orders, if any, are in the best interests of E I start very clearly from the position that wherever possible children should be brought up by their natural parents and if not by other members of their family. I have looked again at the words of the President in Re B-S (Children) [2013] EWCA Civ 1146 as well as the judgments in Re B (A Child) [2013] UKSC 33. I remind myself of the importance of addressing to my mind all of the realistic options for E, taking into account the assistance and support that the authorities would have to offer.
28. In considering whether to make public law orders I have to have close regard to the Article 6 ECHR and Article 8 ECHR rights of each family member and of E, but I remind myself that where there is a tension between the Article 8 rights of the parent or adult family member on the one hand and of the child on the other, the rights of the child prevail.

Evidence

29. This hearing took place on 3^rd, 4^th, 5^th, 6^th and 7^th July 2017. During this hearing I have heard from the child's solicitor and from counsel for each of the other parties. I have read the bundle of documents filed for these proceedings. I heard oral evidence from SW, E's social worker, from the Father and from the Children's Guardian, Ms Hagan.
30. SW was allocated in July 2016. When she was first appointed she saw E twice per day, as a result of a need to provide transport for her. She has continued to see E on a very regular basis, not less than once a fortnight. When I met E I specifically asked her who she wanted to tell her of my decision. Without hesitation she indicated her social worker. I am satisfied, having read and listened to all of the evidence in this case that E has a very good relationship with SW.
31. During SW's oral evidence she described numerous conversations with E in which she sought to elicit her wishes and feelings, give her reassurance and attempt to promote her relationships with RP and NP and with the Father. She said that on the three occasions when the Father has visited the UK during these proceedings and had contact with E, she had personally supervised his contact. As a consequence of the Father choosing to visit over the course of weekends on two of those occasions this necessitated her giving up her own weekends to do so. She described the efforts that she had gone to in order to attempt to explain to F and his wife that they needed to be patient with E and that E was finding their communication, both in volume and content, overwhelming. She said that she had explored with E whether she wanted to go to Florida to see the Father, at his request, to see whether that would assist her in reaching a decision about whether she wished to have contact there, or live there, and told me that she would have supported E to do that. She said that E was resolute in her refusal. She said that if E's reaction to the Father had have been different, then her recommendation as to placement may well have been different as well.
32. I am satisfied that SW has worked diligently in this case to ensure that E has had every opportunity to build a relationship with the Father and indeed with RP and NP. I found SW to be a careful, straightforward, and honest witness and I accept her evidence as factually correct. She struck me as immensely fair in her approach to all of the adults concerned whilst remaining entirely child-focused in her work.
33. Insofar as the Father's case is concerned, SW accepted that she has no concerns about his ability to provide practical care to E. Her primary concerns about E living with him are:

(1) That it would be contrary to E's expressed wishes.

(2) A move to Florida would take her away from everything she knows and loves and would be too big a change for her.

(3) The Father's relationship with his wife is in its infancy.

(4) E would suffer emotional distress if she had to move there.

(5) E struggles to communicate with the Father as a consequence of language difficulties and given the prolonged gap in contact he is effectively a stranger to her.

(6) At the current time E is voting with her feet and is refusing to have any contact with her Father.

(7) E is a reserved child who does not easily make friends. She would struggle in a new school.

(8) A move to Florida would make it very difficult for her to have regular contact with the Maternal Grandmother, her friends, RP and NP and the Mother.

(9) E has not lived with the Father since she was two years old and therefore a placement with him is not tried and tested and there is a risk it will break down.

34. SW told me that in her opinion throughout E's life there have been two consistent factors: the love and availability of the Maternal Grandmother and the support of her school. In her opinion, E's primary attachment is to the Maternal Grandmother. SW said that the Maternal Grandmother and school are sacred to E. She feels that E would be devastated if she had to go and live with the Father as she would lose everything that matters to her. Given that E's last placement failed, SW was clear that her next move should be a permanent one. She accepted that a placement with the Maternal Grandmother is not a risk-free option, but on balance in her opinion it is the best option for her. She highlighted that E's placement with GP and BS had broken down, in part, as a consequence of E failing to make positive attachments to them or investing emotionally in a relationship with them. She expressed concern that E may well replicate this if placed with the Father.
35. SW gave evidence that, at the current time, E is refusing to have any contact at all with the Father. She had discussed E's reasons for this with her. In evidence she said:

'E has said that she'd been upset by texts that had been sent to her. She didn't show me the texts. She just said that she'd been upset and that she had retaliated. She said that the Father had accused her of taking her mother and maternal grandmother's side and not listening to him. She said that she believed them and not him. She said that she felt pressurised by his texts and constant phone calls.'

36. In SW's opinion, E feels under a lot of pressure and decided to block the phone calls of the Father and his wife due to the anxiety that she is feeling. SW describe E essentially voting with her feet and told me that although E had expressed a wish to have the Father in her life she was not responding to his attempts to contact her in case she gave him the message that she wanted to live with him. E has told SW that she thought that if she limited contact he would understand where she wants to be. SW suggested that since E likes letters the Father might like to write to E as a way of re-establishing communication and offered to assist him to do that and to pass on a letter to E. She said she would encourage E to see the Father before he returns to the USA at the end of this week, but in her opinion E may well be more amenable to seeing the Father if she knew that she was able to live with the Maternal Grandmother.
37. SW accepted, when questioned by Miss Middleton on behalf of the Father, that E's views may be being influenced by a desire to please the Maternal Grandmother but did not accept that her views were being "parroted". E was quite capable of forming an independent viewpoint in her opinion. Examples of this included her reluctance to see the Mother, notwithstanding the Maternal Grandmother's desire for her to do so. SW also highlighted E's reduced contact with RP and NP in the lead up to this hearing at E's request. In her opinion, this too is a reflection of E's wishes and feelings that she does not wish to live with them either. SW told me that E is very aware of these proceedings and that her views appear to have hardened over the last couple of months. She links E's behaviour to these proceedings. She highlighted that this is the second set of care proceedings that E has been the subject of in the last two years.
38. At the time that SW initially gave evidence before me there was no care plan before the court. The original care plan filed for this hearing supported a placement with RP and NP but that care plan had been withdrawn. A written agreement was presented to the court, which had been drafted whilst the parties were at court with input from the Children's Guardian, the Mother and the Maternal Grandmother. Within that document there were three possible orders. Placement under an interim care order, or a care order, or a supervision order expressed in the alternative. SW's evidence was unclear insofar as which option was being advanced. At times in her evidence, she advocated the need for E to be given a final decision about where she should live which appeared to support the making of final orders. She disagreed with Mr Rowlands when cross-examined on behalf of the Mother, that a supervision order would be sufficient and gave reasons as to why the Local Authority needed to share parental responsibility under an interim care order. During that part of her evidence she sought to advance a case for a six-month adjournment, to allow a special guardianship assessment of the Maternal Grandmother to be completed.
39. Later in her evidence SW referred to the making of a supervision order. It was plain from her evidence that she was struggling to reach a concluded decision about which order would best meet E's needs. I permitted further time for the Local Authority to reflect upon what its care plan would be, indicating that on the evidence I had heard to date it appeared that a care order would be the most appropriate legal framework and I invited the Local Authority to consider that option.
40. On the morning of the fourth day of the hearing, after the Father had given his evidence but before the Children's Guardian had given hers, I was presented with two alternative care plans. The first an interim care plan requesting a lengthy adjournment whilst E was placed with the Maternal Grandmother under the auspices of interim care orders, during which time an extended special guardianship assessment would be completed and the second, a final care plan providing for a placement with the Maternal Grandmother subject to a 12-month supervision order and a child arrangements order. The Local Authority requested more time to consider which option was its primary position. I allowed that time.
41. SW was then recalled to confirm that it was the final care plan that was being advanced. I asked her why there had been a change in position and was deeply concerned to hear that should the court determine that a final care order was appropriate against the wishes of the Local Authority, and in line with the Guardian's written recommendation, then the Local Authority would not guarantee that E could remain with the Maternal Grandmother in the event that she failed a full fostering assessment. SW had already told me in her earlier evidence that this was likely and that although she would write an interim assessment which would be positive and allow for E to move to the Maternal Grandmother's care within a week, the fuller assessment would need to be done by the fostering team and ultimately the placement would need to be considered by the fostering panel. The information that she had received was that the Maternal Grandmother would almost certainly fail that assessment and would not be approved by the fostering panel. The placement would then be an "illegal placement" as far as the local authority was concerned, notwithstanding that it had been sanctioned by the court, and she told me that the Local Authority may then decide to move E to a different placement.
42. SW told me that having reflected, she was now of the view that the proceedings should come to an end. She said that it was about a year to the day since E had been placed in foster care and that E is very aware of proceedings. She said she was not sure how it would impact upon E if she were to be told that there needed to be on-going assessments and an adjournment. She said, "At the beginning of this, I didn't appreciate that. It's a really long time". When cross-examined by Mr Rowlands she indicated that a care order was always intended to be a short-term measure and that having reflected upon the evidence and my indications that E needed finality, she had come down in favour of a final supervision order. This decision was reached following meetings that she had had with the Local Authority team manager, service manager, and Local Authority solicitors. Ultimately all present in those meetings had reached a unanimous decision that a placement with the Maternal Grandmother was clearly in E's best interests and that E's needs for finality and certainty about her placement, without the danger of encountering delays or risks of failed internal assessments drove them to the conclusion that on balance a final supervision order was the best option.
43. SW told me that she was most concerned about timescales not being met and the potential for E to be moved and that when she balanced those risks against managing the risks involved in a move to the Maternal Grandmother's care she came down in favour of the supervision order as the best legal framework for the placement. SW was able to reassure the Father and the court that the same work would be undertaken in respect of his contact under a supervision order as had been proposed under an interim care order and that she would remain as E's allocated social worker for the duration of the supervision order. SW told me that since Monday of this week, (the first day of the hearing) the Local Authority's long-term plan had been for E to be placed with the Maternal Grandmother under a special guardianship order and that she could commence the necessary assessment work for that without delay and complete it within a matter of weeks in anticipation of an application being made by the Maternal Grandmother which the Local Authority would fund. The service manager would look to assist in expediting the required medical assessment to assist that process.
44. I heard evidence from the Father via a court appointed interpreter. At the times the Father was emotional when giving his evidence. I have no doubt, having heard his evidence, that he genuinely loves his daughter and that his desire to care for her is well motivated. The Father believes that he can give her a better life in Florida, free from any risks that the impact of the Mother's behaviour when intoxicated may pose to E. He accepted in evidence that after separating from the Mother when E was around two years of age, in 2008/2009, he visited the UK twice after that to see her and then paid for her to visit Italy with the Mother on one occasion, for her fifth birthday.
45. Those three sessions of direct contact, the last taking place in 2012, are the only times he had seen E between his separation from the Mother and these proceedings being issued. I found the Father to be evasive at times in his evidence, most notably when it came to indicating any clear plans as to when and how often he may be able to come to the UK to have contact with E in the future or how often he would be able to bring her back to the UK to see friends and the maternal family if she were living with him. Only after I pressed him to give a clear answer did he say that realistically it would be four or five times a year.
46. The Father's evidence was contradictory in respect of E's wishes and feelings. At times when questioned about E's wishes and feelings he was quick to dismiss them on the basis that she was only a child. Notably this was his response whenever it was highlighted to him that she did not wish to live with him and did not wish to have contact with him. He was similarly dismissive of any notion that she may have plans for her future on the grounds of her age. However, when asked by Mr Murray on behalf of the Local Authority what his plan would be should I sanction E living with him, he was unable to give me any clear answer and sought to defer entirely to E. He described a situation in which her wish was his command and she could stay and say her goodbyes in the UK for as long as she wanted. Ultimately deferring all decision-making to her. I entirely accept that the Father finds himself in a difficult and novel situation, but in any application to remove a child from the jurisdiction the court would ordinarily expect some clear plans in respect of the contact that would be provided to remaining family members, details as to when the child would be taken out of the jurisdiction and details as to how a child's educational needs would be met. It is this fundamental information that is lacking. The Father told me that his return flight to Florida is booked at 6am on the morning of the day after this hearing was due to finish. At the conclusion of his evidence I was left with no clarity as to when he next plans to return to the UK.
47. The Father said that he had not considered moving to the UK. He offered to allow the Maternal Grandmother to stay in Florida with him for up to three months at a time, if she had Visa difficulties, or else invited her to move over there permanently. At no stage in his evidence did he consider moving to be near E in the UK. He told me that he had emigrated to America as it was a childhood dream of his. I gained the impression from his evidence that his focus in recent years has been to build a life in the USA. He has plans to open a restaurant there and has recently married, which he told me, coincided with the expiration of his Visa. It appeared to me from the evidence he gave that E has played little part in his decision-making in that regard. I gained a clear impression that he had prioritised his life, his work opportunities and ultimately his desire to realise a boyhood dream in America over E.
48. The Father accepted that he has not taken any steps, thus far, to improve his English language skills so that he can communicate with E more easily, beyond simply listening to English being spoken by others he works with and asking his wife's adult children what certain words mean. He has not enrolled on a college course or attempted to take English lessons. I accept that he has a grasp of English but in light of it being explained to him that E struggles to understand him over the telephone and this being one of the primary methods by which he could have built upon his relationship with her, I was troubled that he had not attempted to improve his language skills more significantly during the course of these lengthy proceedings.
49. The Father seemed to find it extremely difficult to answer questions about how E may feel or what it might be like for her if she were to be ordered to live with him. He accepted that he does not know her well, but even so I found his lack of insight to be striking. Ultimately, he accepted that a move against her wishes may make her feel sad and conceded that if she did not wish to live with him and wished to live with the Maternal Grandmother she should be able to do so. Notwithstanding this position he continued to advance a case to care for her. He appeared convinced that if E could only see him more often and visit his home in the USA she would change her mind. He was critical of the Local Authority for promoting a relationship with RP and NP above a relationship with him. He appeared unable to accept that the reason that E is not having contact with him and did not go to Florida to visit him is because she chose not to do so.
50. The Father was highly dismissive of any suggestion that he should write a letter to E describing a letter as "scrap paper to a nine-year-old". I was troubled that he was unable to accept professional advice in this regard, from a social worker who clearly knows E far better than he does. The Father appeared to be convinced that the only way he can build a relationship with E is to have direct contact with her and ultimately have her live with him. It did not appear from his evidence that he was able to digest professional advice about how best to progress his attempts to build a relationship with his daughter.
51. The Father came across as a forthright, passionate, and emphatic man with an emphatic manner. His approach to E appeared to be an entirely simplistic one. He wants her to live with him; he is her father. As far as he is concerned he has a suitable home, is economically able to care for her and is in a stable and loving relationship. He did not appear to be able to understand why E would not wish to live with him. I entirely understand that the position that he finds himself in is a frustrating one, but having heard his evidence and heard about his attempts to telephone and send messages to E, I can see how E may have found his approach to be intense and overwhelming.
52. I heard oral evidence from the Children's Guardian, Ms Hagan. She said that irrespective of the legal framework she supported a placement with the Maternal Grandmother above a placement with the Father. She had recommended a care order within her written evidence and had invited the Local Authority to change its care plan in that regard. Having reconsidered the two legal options that permitted the Local Authority to share parental responsibility for E, namely an interim care order or a care order, she considered that neither option would give E the certainty required. Whether the Local Authority had a care order or an interim care order it would intend to carry out further assessments. Her concern was that the outcome of those assessments would then be unknown and that the impact on E and the Maternal Grandmother could be significant. The Guardian gave evidence that at the time of writing her report she had considered that E needed to remain a Looked After Child to ensure that she had continued involvement from an Independent Reviewing Officer but that her opinion in that regard had changed. She said that she was reassured from the discussions that she had had with the Local Authority team manager and service manager that they will support a placement with the Maternal Grandmother. They had informed her that they could complete the necessary work for a special guardianship assessment within six weeks. She said that she would be further reassured if she could be reappointed as E's Guardian in any subsequent application to ensure that those timescales are met. She is therefore now of the view that a child arrangements order, together with a 12-month supervision order is the best legal framework to underpin a move to the Maternal Grandmother's care.
53. Ms Hagan said that E is a bright, charming girl who is also incredibly anxious and that the sooner a decision can be given, the sooner it will give E certainty, which will reassure her. Ms Hagan filed an extremely detailed and lengthy report, which sets out in considerable detail why she supports E living with the Maternal Grandmother. I have no doubt that the clarity of her reasoning within that report enabled the social worker and Local Authority more generally to change its plan for E. In essence, her reasoning was echoed within SW's evidence. Central to her thinking was E's attachment with the Maternal Grandmother, E's wishes and feelings, and E's desire to remain in the same school where she is thriving.
54. Ms Hagan's reasoning had not changed in oral evidence and she was able to highlight that any risks inherent in a placement with the Maternal Grandmother are entirely outside the Maternal Grandmother's control. The least worst option between the Father and Maternal Grandmother, in her opinion, is a placement with the Maternal Grandmother because any risk that the Mother will cause difficulties with that placement when intoxicated need to be balanced against the risk of a placement in the USA with the Father breaking down. Such risks of placement breakdown are enhanced, in her opinion, by the fact that E would not be in this jurisdiction. Ms Hagan raised the concern that we may not even know about a placement breakdown and, should it occur in the USA, a whole extra layer of services and procedures would be added. She rejected any suggestion that the Mother or the Maternal Grandmother had negatively influenced E against the Father and told me that E's wishes and feelings, as reported, are being accurately portrayed and, in her opinion, are genuinely and independently held.

Welfare Analysis

55. E is a child born of mixed heritage. The Mother is White British; the Father is Italian. She identifies as being from the North East of England and speaks English. She is a bright child who is working above all expected levels in all subjects for a child her age. She is making exceptional academic progress and excels in every area, being the top of her class in every subject. She is a polite and well-mannered child. She attends an academy where she is a "GAT" - gifted, able and talented - student. As a consequence she spends a lot of her free time, above and beyond the ordinary school day, in school. The academy is one which E has attended since she was three years old. A place will be available for her there until she is 16.
56. E has suffered significant harm both in the care of the Mother and in the care of her special guardians. She has experienced numerous changes of care arrangement and home moves. She has suffered a great deal of instability. This is the second set of care proceedings that she has been the subject of within the last two years. Only last year she was made the subject of a special guardianship order. Within months of the making that order the placement broke down and she was moved to foster care. She is a bright, polite and resilient little girl with huge academic promise. Following the Local Authority's revised position there are now two realistic placement options for E. Firstly, with her Father and secondly, with the Maternal Grandmother.

The Father

57. F is E's natural Father. He is 44 years old and in good health. I have no doubt that he could provide E with a suitable home and that economically he would be able to provide for her very well. A placement with him would ensure that she is not exposed to significant harm as a consequence of the Mother's actions, as has happened in the past. He has had a positive assessment from Adoption Homes Study Services in Florida, which I have read. The assessment highlights a number of positives about the Father's home and family life in Florida but was necessarily limited to an assessment of him in the USA. The author of the assessment undertook this piece of work without the benefit of meeting E or knowing the context in which a placement with the Father would take place. All parties accepted the limitations of this piece of work, prior to the commencement of the final hearing.
58. E has expressed a clear and consistent wish not to live with the Father. She has refused to visit his home; she has never been to the USA. At the time that I hand down this judgment, she has now seen him on one recent occasion -last night, but at the time that I pronounced my decision yesterday, she was refusing to have any contact whatsoever with the Father.
59. If E were to live with the Father she would have far less contact with her Maternal Grandmother than she does now. She would have to change schools and leave behind her friends. The Father's use of the English language is limited. Her use of Italian even more so. They struggle to communicate fluently and do not know each other well. E has never met R's children, one of whom lives with the couple. E finds the Father's approach to contact with her oppressive and overwhelming. She has not lived with him since she was two years old. Since then his involvement in her life has been extremely limited. He has no experience of parenting a child her age, his relationship with his wife is in its infancy and they have never parented a child together. E essentially views the Father and his wife as strangers.
60. I am satisfied that E would be extremely isolated if placed in the Father's care. I am satisfied, having listened to the evidence, that the Father has not been proactive in maintaining a relationship with E and that he has prioritised his own ambitions above her. The Father's desire to care for E, although entirely natural, is unrealistic. I have no doubt that he has demonstrated his commitment to her, during these proceedings, at a time when he seeks to have her placed in his care. This level of commitment is however, a very recent development in E's life. The Father allowed her to live with the Mother aged two years, at a time when he was aware that the Mother had significant alcohol difficulties. He attempted to tell me that he could see no danger for E. I do not accept that. Over the years that followed he saw her three times. He told me he attempted to keep in contact with the Mother and Maternal Grandmother by telephone but that they rarely answered.
61. I find that he failed to protect E from the Mother's alcoholism and that he permitted E to continue a life with the Mother which was high risk and in which she went on to suffer significant harm. I do not accept that he had any valid excuse in failing to alert authorities in Italy or in the UK of his concerns, either when E was two years old or in the years that followed. I am satisfied that he remained preoccupied with his own life and that that took centre stage above any thoughts of E's safety and welfare.

The Maternal Grandmother

62. The Maternal Grandmother has been heavily involved in E's care all of E's life. E's primary attachment is to her. E wants to live with her and they enjoy a very positive relationship. She is described as a sanctuary for E. She has been a stable, constant factor in what has otherwise been an extremely unstable life. Living with the Maternal Grandmother would allow E to stay in the North East of England, to remain at the same school where she will have a place until she is 16. The school is at the end of the Maternal Grandmother's road. E's school has also been described as a sanctuary for her. It would allow her to retain her same peer group and friends. The Maternal Grandmother has influenced and promoted E's educational needs. She attends E's parents' evenings at school and provides her school uniform and equipment. She is an experienced parent who has provided stimulating and positive social experiences for E.
63. In many ways E is a credit to the Maternal Grandmother. The Maternal Grandmother does not present E with a negative image of the Mother and is willing to promote contact to both her parents. Her home conditions are good and E already spends weekends staying overnight in her home and has her own bedroom there. The Maternal Grandmother has always ensured that E's health needs were met and can meet her basic care and educational needs to a very high standard. She is in good health. She has regular and frequent contact with E, there are no concerns about her ability to parent E. The Maternal Grandmother demonstrated that she is able to prioritise E above her own children, by reporting E's unhappiness to the Local Authority when she was living with her previous special guardians, even though it was to the detriment of the relationship she had with her own son. She also demonstrated her ability to prioritise E's welfare above the Mother's, by reporting the Mother's behaviour when she attended for contact with E in a drunken state and was verbally abusive.
64. A placement with the Maternal Grandmother carries with it a number of risks. The Maternal Grandmother did not always adequately and sufficiently protect E from the Mother's alcohol misuse. There are fears that without support she may not be robust enough to protect E from the Mother's behaviour in future. The Mother and Maternal Grandmother enjoy a very close relationship and the Maternal Grandmother may struggle to maintain the necessary distance required, between herself and her daughter. The Maternal Grandmother minimises the Mother's alcohol misuse to an extent and also minimises the extent of the Mother's behaviour when in drink. The Mother is unpredictable and volatile when intoxicated.
65. Having considered all of the positives and negatives of each placement option I have reached a clear conclusion that E should live with the Maternal Grandmother. I am satisfied that with appropriate professional support and guidance the Maternal Grandmother can meet E's needs to a very high standard and that E will be safely cared for. I entirely agree that this move of placement should be E's last and I am of the view that this is the only option that will succeed for E. E is a bright, articulate child. I am satisfied that she would be devastated if I were to order her to leave her friends, her school, her Grandmother and live in a country she does not know with people she barely knows. She would be extremely isolated and unhappy.
66. To force her to live with the Father against her wishes would cause her significant emotional harm. I am satisfied that such a placement would be highly likely to break down. E takes refuge in her school. Her school and the Maternal Grandmother have been constant sources of support for her in what has been a troubled childhood to date. She is thriving in her school and must be allowed to continue in her education there. A placement with the Maternal Grandmother will allow her to do that.
67. When I consider the welfare checklist I accept the submissions made by Mr Thornton, on behalf of the Maternal Grandmother and adopted by the Local Authority. I am satisfied that E's wishes and feelings are to live with the Maternal Grandmother and that she has expressed them clearly. I agree with Mr Thornton that E is a child who disengages when she feels she is not being listened to. I am satisfied that this is the reason why she chose to stop having contact with the Father. He was not listening to or respecting her wishes. I bear in mind that E is almost 10 years old and that her wishes cannot and should not be determinative but I find that in this case, given that she has not only expressed them but acted upon them, they are a very powerful factor which cannot be ignored. I am satisfied that the Maternal Grandmother is far better able to meet E's emotional needs than the Father. At times of distress it is the Maternal Grandmother that she turns to. This was notably the case when she was placed with her previous special guardians.
68. Her educational needs can be met to a very high standard in the Maternal Grandmother's care. The Father was unable to present a better or equal alternative. In terms of change, a placement with the Maternal Grandmother represents the least change for E. She will continue in the same school and will continue to enjoy the same relationships and friendships. A placement with the Father conversely would result in a monumental change for her, in every aspect of her life.
69. I agree with Mr Rowlands' submissions that it is tragic that E has been saying that she does not wish to have contact with either of her parents and will only see her Mother for her birthday. I agree that the explanation for that is the deficiency in care that she has been provided with by both her parents and that credit must be given to the Local Authority for attempting to repair the damage. The Father must bear responsibility for the situation that he finds himself in. E's reaction to him is a consequence of his behaviour. It is a symptom of the harm that she has suffered and that he has failed to protect her from. I have no doubt that her recent absolute refusal to communicate with him is borne out of a reaction to the emotional pressure that he was placing her under. I hope that his newfound commitment to E continues and that with patience on his part their relationship can improve at E's pace.
70. I hope that in due course E will agree to spend time with him in Florida and see for herself the benefits that he undoubtedly has to offer her as her father. However, before that can happen he will need to start following professional advice about how best to nurture a relationship with her. At this stage I am not minded to make a contact order in his favour. Too much is predicated upon whether E will agree to communicate with him and how he reacts to my decision. I have confidence that the social worker will continue to do her best to promote contact with the Father and that the Maternal Grandmother will cooperate with the Local Authority and follow the advice that she is given in respect of his contact.
71. I am not satisfied that an order for contact, at this stage, is necessary. Should a special guardianship application be made in the near future, the Father's contact can be reviewed at that stage.
72. I am extremely grateful to the Children's Guardian, for her thoughtful and detailed report in this matter. Her reasoning was powerful, convincing and cogent. It is her report that challenged the Local Authority's thinking and persuaded it to change its care plan. I have found her report to be immensely helpful in shaping my own thoughts. I accept Ms Hagan's evidence in respect of her recommendations for E's placement and her oral evidence in respect of the best legal framework to underpin E's move to the Maternal Grandmother's care.
73. I commend SW for her ability to reflect upon the evidence of the Children's Guardian, together with the information she was receiving from E and about the maternal family, which ultimately resulted in her changing her position in respect of E living with the Maternal Grandmother. She remained open-minded about what was best for E and responded to evolving information and evidence as the case unfolded.
74. I consider that despite E's difficult childhood to date she has been extremely fortunate to have the Maternal Grandmother, her school, her social worker and her Children's Guardian who have supported her and ensured that she has been listened to in this process. I am confident that notwithstanding her past difficulties, her future holds great promise. I am reassured by the totality of the evidence that a final supervision order and child arrangements order, together with tight written agreement, is sufficient to safeguard E's placement with the Maternal Grandmother. I am satisfied that E needs finality to these proceedings and that there is nothing additional to be gained by the Local Authority continuing to share parental responsibility for her.
75. I therefore grant a child arrangements order in favour of the Maternal Grandmother together with the 12-month supervision order in favour of the Local Authority. I direct that the Local Authority files an amended written agreement within seven days, together with an addendum care plan setting out its willingness to promote direct contact between the Father and E.
End of Judgment