England and Wales County Court (Family)

Neutral Citation Number: [2010] EWCC 44 (Fam)

 

 

In the County Court

 

 

Before:

District Judge X

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Between:

 

	A Local Authority	Applicant
	And
	A Mother	1st Respondent
	And
	A Father	2nd Respondent

 

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Hearing dates: 19 October 2010

 

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Judgement

 

Introduction and issues as to orders sought.

In these Public Law proceedings the Applicant Local Authority [ LA ]seek a 1 year Supervision Order in respect of 3 children in conjunction with an order for residence to Father [F] for all 3 children, under S.31 and S.8 of the Children Act 1989. Throughout these proceedings, the Children’s welfare is my paramount consideration. The children for whom I am concerned are age 9, 4, and 2.

 

Following the making of the order, the LA propose contact shall continue to Mother, [M] but such contact shall be supervised by F with the assistance of the LA to which Father agrees.

 

The parties proposals.

Father’s proposals for the future of the children are that all 3 will reside with him at his mother’s property [ the paternal grand mother - PGM] where they have all been living for the last 10 months, under a parental responsibility and a residence order, and with the assistance of the LA any contact by the children to M will be supervised by him but in conjunction with the LA .

 

Mother does not have any alternative proposals

 

The Guardian [G] supports the LA in the making of the orders based on the amended care plan.

 

Family dynamics

The history which led to these proceedings is set out in a detailed chronology at the beginning of the bundle, A10 - A17 which I adopt for the purposes of this judgment. In summary in early April 2009, the parents having separated some 4 days earlier, M telephoned the police asking that the 3 children be removed from her care. When visited by the LA, she was clearly under the influence of alcohol. There were concerns as to the presentation of the 3 children. The 2 eldest children were place with the PGM and the youngest accommodated under S.20 by the LA in foster care. Both M and F were charged with neglect but those proceedings discontinued. The 2 eldest children were also subsequently placed in foster care as the elderly paternal grandmother [PGM] could not cope but owing to the distress the 3 children experienced, the LA eventually returned all 3 to the PGM home where F had taken up residence and where they have remained since 20^th November 2009, and where they have continued to thrive. M has not had contact since June 2010 and before that on one occasion only prior to Christmas 2009. She and has filed no evidence despite orders of the court the attempts of her solicitors.

 

History

The parties met about 5-6 years ago and until these current proceedings they were unknown to the LA. Their relationship was stable producing the 2 youngest children, until they separated shortly after Christmas 2008 due primarily to the M being dependant on alcohol. The eldest child for whom F accepted responsibility was as a result of M’s earlier relationship with that child’s father, but although his identity is known, he has not participated in these proceedings having had no contact with M or the child since shortly after its birth.

 

F had been working full time, for long hours and had been absent for most of the day. The home conditions were poor and despite F returning for short periods he finally left in late March 2009. Some 4-5 days later, M contacted the police and asked that the children be housed voluntarily by social services, under S. 20 Children Act 1989, which they were. On visiting the home it was apparent M was under the influence of alcohol and the children had been neglected physically and emotionally. They were re-housed initially with the 2 eldest children residing with the PGM and the youngest in foster care. Unfortunately the elderly PGM could not cope with the 2 children, and all 3 were place in foster care where they remained for 2 months, following an application in September 2009 for Interim Care Order. The children became visibly distressed especially when contact to F was ending, and 2 months later, November 2009 all 3 children were moved from foster care and returned to F who had taken up residence in the PGM’s home with her consent, where they have remained since and where they are thriving. There was and has been since then little or no contact by M, despite the efforts to promote the contact by the LA and G.

 

M has file no evidence despite the efforts of her counsel and solicitors and can only be contacted by mobile telephone, her address being unknown. She has a significant history of depression, dependency on alcohol and cannot provide consistent safe care for the children. She is possibly psychiatrically ill and suffers from a personality disorder. It is not known whether she continues to actively participate in the detoxification programme established for her.

 

At the time the LA became involved in April 2009, the child R had suffered significant bruising whilst in his M ‘s care which were not explained by her, she alleging that other members of the family may have in the pool of potential perpetrators as they may have had contact with the child at the time. The standard of parenting up until April 2009 was unacceptable and inadequate.

 

All of the above is referred in the consolidated threshold criteria to be found at pages 47 – 49 inclusive of the bundle.

 

The issue of non accidental injury

In April 2009 the youngest child [ who was only some 17months old ] was seen by the Consultant Community Paediatrician who found the child was unkempt , dirty, having sever eczema on the knees, thirsty appeared hungry and shaky. He had head lice eggs. There was recorded 9 separate instances of bruising to the right thigh and leg, left leg inner calf, dorsal of the right arm and upper left arm. They were classed as abnormal bruising clusters and because of his developmental delay, the overall impression was of sever neglect and child maltreatment including the bruising which was highly suggestive of bruising inflicted by fingertips..

The parents were interviewed and neither advanced any explanation for the injuries, nor indicated how the injuries occurred. Father stated that he had been absent from the home for some 4 - 5 days prior to the child being accommodated and could not give any explanation as to how they arose. Mother confirms that during this period she admits to being under the influence of alcohol and can give no explanation for the bruising.

 

Evidence

Mother has not filed any evidence. Father states he was not present when the incidents giving rise to the bruising arose as he had left some 5 days earlier

 

The only medical evidence has been provided by the community consultant Paediatrician which I have referred to above and which appears at pages E1 – E7 inclusive.

 

The Burden and Standard of Proof.

 

The burden is on the Local Authority as the applicant. In re: B 2008 UKHL 35, Baroness Hale stated

 

‘…I … would announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold at s31(2) or the welfare considerations at s1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies’.

 

Findings of Fact

On the conclusion of the evidence, as the parties have not asked me to make a determination today on the bruising inflicted on the child, I reserved those findings that may be required, to a later date. However for future reference the proposed order in this case will recite this reservation.

 

 I do not accept that it was essential today to make those findings as to do so would not add substantially to the outcome or to the disposal of the action, as M has failed to attend this final hearing or file any evidence but that does not negate or lessen in any way the seriousness of the home conditions that existed or reduce their impact

 

Threshold

In a Public Law case a Court has no jurisdiction to make any Public Law Order unless and until the so-called threshold criteria set out in S 31 of the Children Act 1989 are established. I have to be satisfied on the balance of probabilities, that the child concerned, is suffering or is likely to suffer significant harm or likelihood of harm and that the harm or likelihood of harm is attributable to the care given to the child or likely to be given to him/her if the order were not made not being what it would be reasonable to expect a parent to give to him/her.

 

In relation to the other matters relied upon as satisfying the threshold criteria I find

 

M had regularly been drinking to excess, and F to a lesser extent. Additionally F had smoked cannabis and on F’s admission, the home conditions prior to his leaving in March 2009 had deteriorated, but that because of the long hours he was working he made little input into child care.

 

And that this would have been witnessed by the children

 

I am satisfied that taking the above into account the threshold criteria in respect of paras 1-18 inclusive on pages A47, A48, A49 have been satisfied.

 

Capability

It is useful to remind myself of what Hedley J said in re L [care; Threshold Criteria ] 2007 1 FLR 2050

 

“society must be willing to tolerate very diverse standards of parenting including the eccentric and barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it.

It means that some children will experience disadvantage and harm while others flourish in atmospheres of loving security and emotional stability”.

 

Disposal

Once the threshold criteria are established the court has to ask a number of sequential questions. The essential questions are: Whether an order should be made at all, and if so, what kind of order. In answering these fundamental questions, the court has to apply the principle that the Child’s Welfare is the paramount consideration; apply the statutory Welfare Checklist; not to make an Order unless the Court considers that the making of an order would be better for the child than making no order at all; and before making a Care Order, to consider and approve the Care Plan and the proposals for future contact if any.

 

The subsequent Assessments

A psychological assessment was undertaken by X. the findings and conclusion were

 

On M - despite being contact 3 times for appointment she failed to contact the psychologist. F was assessed with positive parenting skills and acknowledged his former failings to protect his children from neglect and harm whilst they were living with their mother. He had now demonstrated a consistent commitment to prioritise the children’s needs and had gained greater insight into the each of the children’s needs with the help of the parenting course. He was continuing to receive support from his extended family, and that the Children’s interest were best served by remaining in the fathers care. It was clear that in the absence of significant changes M would be likely to continue to lead her chaotic lifestyle characterised by alcohol abuse, in which her and any child would be at risk of emotional and physical harm. M’s failure to make positive changes to her lifestyle was having an impact on the future contact to the children which should be consistent and regular, but which at present should be supervised.

 

 A psychiatric assessment reported on M that from the age of 14 she had been self harming and suffering from eating disorders. She had reported as having a long history of bulimia, experimenting with drugs and drinking excessively since a teenager and had been admitted to hospital in early 2010 on taking and overdose of drugs. The conclusion was M could not provide safe consistent care and was possibly psychiatrically ill or suffering a personality disorder.

 

The history of F revealed nothing to impact adversely on his capacity to care for the children. There has also been remarkable progress by the youngest child since they has taken up full time residence with F, and all 3 children were thriving.

 

The LA position is that they wish a supervision order to be made in accordance with the amended care plan, with a residence order being granted to F , and parental responsibility order for the 2 youngest children.

The Children wishes. The eldest 2 children clearly express a strong desire to be with their father who they clearly missed when they were in foster care for some 2 months. The eldest child continues to miss her mother and it is hoped that M will show a commitment and consistency in contact to form a bond with all 3 children.

 

The Guardian report. 3 Reports have been filed the last being shortly before the hearing, and confirms that M has not cooperated with her or the professionals throughout these proceedings and her capacity to parent these children has not therefore been assessed. All 3 children have a good relationship with the PGM and F. The G recommends all 3 children are made the subject of a residence order to F with a supervision order to enable the LA to support the F in advising and assisting him and endorses the order to be made.

 

The courts analysis and conclusions F has a great deal of genuine love and affection for all 3 children. The positives in that capacity to care outweighs any negatives and I am satisfied he is firmly committed. But he will need appropriate support from the LA especially in dealing with contact between M and the 3 children, which he can obtain through the Supervision order. 

 

Decision

Having reflected on all of the evidence I have heard and read and the submission, and as partial family reunification is possible, it is clear that a supervision order has to be made as this is the best option available. Upon a proper consideration of the welfare checklist under S 1.3 Children Act 1989. Both the allocated social worker and the guardian have completed the detailed exercise of the operation of the Welfare Checklist in the circumstances of this case and I agree with their views and adopt them and echo the guardians comments who supports them.

 

I endorse the care plan and move to make a the as orders sought, in accordance with the copies already dispatched and as set out earlier.

 

The Human Rights Act 1998

The principle of proportionality must always be considered alongside the welfare checklist of S.1 Children Act 1989.

 

Hale LJ in re ; C&B [2001] 1 FLR stated;

 

‘Intervention in the family must be proportionate, but the aim should be to reunite the family where the circumstances enable that, and the effort should be devoted to that end. Cutting off all contact and ending the relationship between the child and their family is only justified by the overriding necessity of the interest of the child’

 

I have considered the relevant articles of the Convention on Human Rights. I am satisfied that the interference with the mother and father’s right to family life is both justified in law and pursues a legitimate aim, namely the welfare of the child. By the same token the interference fulfils a pressing need and is proportionate to that need.