- This hearing concerns four children A, B, C and D. Their parents are M and F. The parents have been couple for some 14 years and have been married for about seven years.
- On the 6th of March 2018 Hertfordshire County Council issued an application seeking an interim care order and full care orders in respect of all four children. This followed from C and D having been made subject to police protection orders on the 1st March 2018, followed by emergency protection orders in respect of all four children on the 2nd March 2018. Intervention by the police and then social services arose because of facial bruising seen to D during a visit by social workers to the children's home on the 27th February 2018.
- The local authority care plans at issue were for C and D to be placed in foster care and for A and B to remain at home and orders were made to that effect. The local authority has since issued a placement application in respect of C and D and seek placement orders in respect of them and care orders in respect of A and B with a plan that they would be placed in long-term foster care.
- These applications are opposed by the parents and indeed the children's guardian, Ms Stephens, although she had originally supported the making of the earlier orders.
- The local authority threshold at issue relied upon an incident at the family home on the 10th February 2018 during which time A sent a text message to a friend alleging that his mother had tried to stab him with a knife. It also included an unexplained injury to D's toe in 2016 and what was said to be significant facial bruising to D on the 28th February 2018. In light of those allegations it seems hardly surprising that the police and the local authority acted as they did, that the Guardian supported the local authority at that time and that the court made the orders that I have mentioned.
- The threshold has moved on and indeed moved on considerably since then and was subject to change even during submissions and now broadly says that the mother has a history of losing her temper with the children. That the children sustained injuries which were inflicted, again this was originally said to be intentional or negligent by either or both of the parents but it was accepted at the outset of the final hearing that there was no evidence to support the allegation that the injuries were deliberately inflicted, but that the children had suffered significant harm as a result of inadequate supervision. That the children's physical needs were neglected and finally that the parents had not provided consistent parental boundaries/guidelines in respect of the children's behaviour.
- The allegation that D was injured intentionally by either one or both parents was withdrawn in light of the medical evidence available from Dr Cohn in an email of August 2018. It remains however that D had, on the 28th February 2018, various bruises as identified in child protection medical on that day and set out in the original threshold. Some of the injuries observed on D included bruising to the inner surface of both arms which were seen at the child protection medical on the 28th of February, but not mentioned in the original threshold. However, the local authority now says that those injuries together with the injuries observed on the 2nd March 2018 and the earlier injury to D's right little toe, when he was about two months old, is evidence of the parents' lack of care, which is directly related to the parent's lack of supervision.
- The parents' response is that the mother did not know of D's injury to his toe until it was seen by a GP as part of a regular medical check-up for D. The parents say the other bruises to D simply arose from him being an active toddler and that there is nothing sinister in them but accept that with a little more forethought that some could have been avoided, particularly those to D's arms.
- It is said that the children's physical needs were neglected and many examples are given between August 2016 and March 2018 when C was said to be dirty with stains in her underwear and that she, and indeed mother, smelled malodorous. This being remarked upon at C's child protection medical, albeit there was nothing else of concern noted.
- The mother denies the allegation relating to C, saying that she was taken to the CPM after nursery and having been to the stables, but otherwise both parents accept that they have allowed the house to become cluttered and untidy giving the appearance of it being unclean. They go on to say that since C and D were removed from their care that they have made great strides in decluttering the home of far too many clothes, out of date or broken toys and other material. They say they have re-decorated part of the house including some of the children's bedrooms and have refloored part of the house. They have provided photographs to me. It is accepted by the local authority that this is the case but they are concerned about the sustainability of such improvements as they have been seen in the past and subsequently matters have deteriorated once again.
- It is further alleged that the parents have not provided consistent parental boundaries/guidelines in respect of the children's behaviour. This was not in the original threshold and appeared in the final threshold although again it underwent a number of changes during the course of the hearing as I have said. The final threshold contained under this heading an allegation that the children have exhibited inappropriate sexual behaviour. This was changed to read that the parents have provided inappropriate responses to the children's exhibited sexual behaviour and relied upon two instances in October 2013 concerning A and a third on the 22nd of July 2016 concerning A and B. The parents accept these events happened but are quite clear that they dealt with them appropriately. It is also said under this general heading that C demonstrated highly over familiar behaviour to almost all professionals she met in the months before she went into foster care. The parents accept that she is a friendly and affectionate child but that she is not overfamiliar with adults and say that as the mother has introduced professionals to C as "safe" whilst in the company of her and her father there is no cause for concern and that at her age it is an ongoing process.
- Finally, it is alleged under this subheading that the parents lack of attunement to the children's needs and what is said to be "the mother's reluctance to talk about sex means there is likely to have been limited opportunities for the children to have had discussions with their parents about sexual relationships and/or sexual abuse ". The mother gives a detailed response saying she believes it neither necessary or desirable to have such in-depth conversations and that she has always told the children they have a right to feel "safe" and that no one should touch them or do anything to them that would make them feel uncomfortable being encouraged to tell the mother or father or another responsible adult such as a teacher or a member of the family, if anything ever happens to make the feel uncomfortable or upset.
- It is upon this threshold the local authority says that the only realistic option for the children is that A and B should be made subject to care orders and placed in long-term foster care together and that C and D should be placed for adoption together. The children's care plans say that there should be contact between A and B and their parents some 4 to 6 times a year and that there should be no contact at all between C and D and their parents or A and B. Their reasoning is that this will cause difficulties in finding an adoptive placement for C and D and contact with A and B would put the security of any adoptive placement at risk. As I have said this is a heavily opposed application by the parents and not supported by the guardian who says that C and D should be reunited with their parents and A and B, and that this should be supported by a supervision order for 12 months.
- The local authority having considered the guardians final analysis have produced a reunification plan which sets out a timescale for unification and support that can be provided to the parents. This includes the support of family and friends. However, having produced this reunification plan in conjunction with the Guardian this is not their position. The parents would be willing to agree to a supervision order but it is obvious from the parent's evidence, their case generally and submissions that they do not accept that the threshold for making orders is crossed. The guardian does but I thought that she and indeed Mr Stott, her counsel, struggled to support it.
- In order to determine this case, I was provided with five ring binders of documents including for some unknown reason a full ring binder of contact notes. I remind everyone of PD 27A and the need for adherence to that rule and practice direction in respect of the length of bundles, what material should and should not be included and indeed now the length of documents generally. I note that the social worker and guardians respective final witness statement and analysis each run to 55 pages. Needless to say, the bundle far, far exceeded 350 pages.
- The bundles contain a number of witness statements from the children's' social worker Miss X who prepared the care plans and the parents parenting assessment in part and the original SGO reports for C and D in respect of the maternal grandmother, Mrs G and her husband. That assessment was negative but was challenged by Mr and Mrs G. However, as matters have transpired they have not pursued that but remain with other family members and friends part of a support group that the parents can rely upon. A paediatric report form Dr Cohn and an updated email. There was a witness statement from the deputy head teacher at the school attended by A; the acting deputy headteacher at the school attended by C and B; an outreach worker at the children's centre, who has worked with the whole family from May 2017 until the present; and the operations manager for Homestart. She has had no direct contact with the children but met the parents at a meeting and Homestart have provided help around improving the home conditions; a health visitor for the children since February 2016 until June 2017. In addition to the assessments I have mentioned there was further special guardianship assessment for Mr and Mrs G prepared by Sarah Waters, an independent social worker. There is also a statement from a social worker from the family finding team, who dealt with generic issues around the adoption of C and D.
- The parents filed responses to threshold and written evidence including witness statements from J, Mother's sister, and her own mother Mrs G and her husband Mr G. There was a detailed Psychological assessment of the family by Jo Clarke which included a specific cognitive assessment of the mother. I had 3 child protection medicals and a wealth of medical notes and disclosure from Hertfordshire police service who conducted an investigation after the police protection order but which did not result in any prosecution. In addition, there are the documents that were not referred to during the hearing. I did, of course, have the guardian's initial analysis and final analysis.
- The report of Jo Clarke concerning the mother said it was not possible to calculate a full IQ score for the mother due to significant variations between the various subtests, nevertheless Jo Clarke said professionals should avoid longer and less commonly used words and phrases and that the mother's comprehension could be checked by asking her to recap her understanding. Concrete examples, pictorial illustrations and role-playing would aid her comprehension. She added that due to the mother's difficulty with verbal skills and working memory it was recommended that information be provided at a slow and measured pace with pauses to assist assimilation. In light of this it was necessary to list the final hearing for eight days. This included a reading day for me and I have read all relevant documents in the bundle. In the event the second day of evidence was not used as it comprised solely of Dr Moore, who conducted the child protection medicals, and Dr Cohn giving oral evidence and because of the local authority's change of threshold it became unnecessary.
- It has to be said also that a number of other planned witnesses fell by the wayside. Ultimately, I heard oral evidence from psychologist Jo Clarke, the adoption social worker, the children's centre worker, Ms X, the mother and father and the Guardian.
- All parties were very ably represented with the Local authority represented by Mr Harris, the mother by Ms Gilliatt, the father by Mr Roscoe and the Guardian by Mr Stott. Ms Gilliatt provided me with a written submission on the law which she managed to reduce to 14 dense pages. It was agreed by all parties to be an accurate statement of the law and I agree but I have no intention of reading it out but have appended it to this judgement. For the sake of brevity but bearing in mind all the applicable law, I would draw from the decision of the Sir James Munby then President of the FD in Re: A [2015] EWFC 11 when he said" It is for the local authority to prove, on a balance of probabilities, the facts upon which it seeks to rely. It is for the local authority, since it is seeking to have A adopted, to establish that "nothing else will do": see In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, and Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146, [2014] 1 FLR 1035. See also Re R (A Child) [2014] EWCA Civ 1625.
As Baroness Hale of Richmond said in In re B, para 198:
"the test for severing the relationship between parent and child
is very strict: only in exceptional circumstances and where
motivated by overriding requirements pertaining to the child's
welfare, in short, where nothing else will do."
In considering the local authority's application for a care order I must have regard to the 'welfare checklist' in section 1(3) of the Children Act 1989 and, since the plan is for adoption, also to the 'welfare checklist' in section 1(4) of the Adoption and Children Act 2002: see In re C (A Child) (Placement for Adoption: Judicial Approach) [2013] EWCA Civ 1257, [2014] 1 WLR 2247, [2014] 2 FLR 131, paras 29-31, Re R (A Child) [2014] EWCA Civ 1625, para 51.
Likewise I must treat as my paramount consideration, in accordance with section 1(2) of the 2002 Act, A's welfare "throughout his life." In deciding whether or not to dispense with the parents' consent I must apply section 52(1)(b) of the 2002 Act as explained in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625.
I add an important point, I must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. I have to survey a wide canvas."
- That decision is particularly pertinent in this case and indeed Sir James went on to set out a number of principles that apply, namely that the burden is on the LA and if an allegation is challenged then the LA must adduce proper evidence. The second is the proper formulation of the threshold and the need to link the facts relied upon by the local authority with its case on threshold. Further, he said this:
14.The third fundamentally important point is even more crucial. It is vital always to bear in mind in these cases, and too often they are overlooked, the wise and powerful words of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, para 50: "society must be willing to tolerate very diverse standards of parenting, including the eccentric, the 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. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done."
15. That approach was endorsed by the Supreme Court in In re B. There are two passages in the judgments of the Justices which develop the point and to which I need to draw particular attention. The first is in the judgment of Lord Wilson of Culworth JSC where he said (para 28):
"[Counsel] seeks to develop Hedley J's point. He submits that:
'many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or "model" them in their own lives but those children could not be removed for those reasons.'
I agree with [counsel]'s submission".
The other is the observation of Baroness Hale of Richmond JSC (para 143):
"We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse antisocial political or religious beliefs."
16. I respectfully agree with all of that. It follows that I also agree with what His Honour Judge Jack said in North East Lincolnshire Council v G & L [2014] EWCC B77 (Fam), a judgment that attracted some attention even whilst I was hearing this case:
"I deplore any form of domestic violence and I deplore parents who care for children when they are significantly under the influence of drink. But so far as Mr and Mrs C are concerned there is no evidence that I am aware of that any domestic violence between them or any drinking has had an adverse effect on any children who were in their care at the time when it took place. The reality is that in this country there must be tens of thousands of children who are cared for in homes where there is a degree of domestic violence (now very widely defined) and where parents on occasion drink more than they should, I am not condoning that for a moment, but the courts are not in the business of social engineering. The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts."
17. There is a powerful message in these judgments which needs always to be borne in mind by local authorities, by social workers, by children's guardians and by family judges.
- Another particular issue in the case is the meaning of significant harm. Section 31(2) of the Children Act says that I may only make a care or supervision order if I am satisfied that the child concerned is suffering, or is likely to suffer, significant 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 if the order were not made, not being what it would be reasonable to expect a parent to give to him. The issue of significant harm was considered in the case of Re MA (Care Threshold) 2 Ward LJ defined 'significant harm' in these terms:
'the harm must … be significant enough to justify the intervention of the State and disturb the autonomy of the parents to bring up their children by themselves in the way they choose. It must be significant enough to enable the court to make a care order or a supervision order if the welfare of the child demands it… . Although Article 8 has of course more relevance to the disposal stage when the care or supervision orders can be made, it does, nonetheless, inform the meaning of "significant" and serves to emphasise that there must be a "relevant and sufficient" reason for crossing the threshold.'
- It is also trite to say that the date at which the threshold has to be crossed is when the local authority first intervenes to protect the children, that being the date of the police protection order on the 1st of March 2018. Considering, this I must necessarily turn and look in detail at threshold.
- However, before I do I make some general observations on the evidence. There is no doubt that for a considerable period of time, literally to the door of the court, that the local authority said firstly, that many of the injuries to D were inflicted and secondly that there was a concern that the children had been at risk of being the victims of sexual abuse. Such that the ADM in her first decision regarding C and D's adoption decision noted "In 2010 a number of referrals to children services were made regarding emotional sexual and physical abuse". In addition, the ADM recorded that "following D's six-week check where he was found to have a considerable graze on his foot ";"M was unable to give an explanation and the medical confirmed it was a non-accidental injury ". It is plain when one reads the child protection medical that Dr Moore, whilst concerned mother was not aware that D had sustained an injury which was regarded as a "significant abrasion", it was still nevertheless described as a "relatively minor injury ". At no time was it said that it was a non-accidental injury. (Quite apart from the improper use of that phrase following the decision of Lord Justice Ryder in Re S (A Child) [2014] EWCA Civ 25). Despite this plain mistake the parenting assessment commences by saying that "and it was confirmed that the injury was non-accidental ". In addition, it says that C and D were removed from their parents later that day under the powers of police protection. That is again simply not true. Those statements are inaccurate.
- I note that, after it was accepted by the local authority that the injuries were not inflicted intentionally, nor that there was a risk of sexual abuse, the ADM reconsidered her decision and on this occasion the ADM took into consideration the guardian's analysis. Nevertheless, there was, in my judgement, throughout the local authority's evidence a pervasive failure to accurately state the correct position by reference to the primary evidence, there was also, in my judgement, a tendency to only look at the negatives in respect of this family and not the positives and to wrongly infer from the evidence that something was a "concern "or to put it another way a risk when it was not. In addition, there was a tendency for inaccuracy in stating what other professionals had said. I have already noted some examples from the ADM decision, but in the evidence of Miss X I note further examples.
- In relation to sexual abuse she says at C115 "With regards to signs of sexual abuse, the parenting assessment noted that there are a number of details in the children's and parent's behaviours and histories that are warning signs. It listed these signs as follows: in February 2010 when A was or he disclosed that his father 'flicks my willie and smacks my bum'; in October 2013 when A was seven, he exhibited sexualised behaviour at school in two incidents with other boys making inappropriate physical contact with the same girl; on 22 July 2016, M reported to health visitor that A and B on have accused each other of wanting to have sex with C; C demonstrated highly overfamiliar behaviour to almost professional that she met in the months before she went into foster care. The parenting assessment noted that these signs were against a background of M having left care at the age of 16 after suffering sexual abuse at the age of six and seven and quickly entered a sexual relationship with a man who is 20 years older than her whilst she was potentially very vulnerable. In addition, M remains in infrequent contact with the stepfather who was one of her abusers while he maintains relationships with at least some of sisters". There are a number of difficulties with this statement.
- The 2010 incident was investigated and concluded with no intervention. I also note that it has wrongly been said that A made the "disclosure". It was not a disclosure, it was an allegation that was strenuously denied by the father. It really ought not to be necessary, after so many years, to have to remind professionals working with children of the difference between an allegation and a disclosure. The incident in October 2013, when A was seven, does not accurately record the circumstances of the section 47 investigation which says "On 15/10/2013 the primary school reported that A and seven other boys in his class chased a 10-year-old girl and touched her inappropriately. On 22/10/ 2013 another referral was received from the school reporting A with another boy sandwiched a year one girl between them, thrust sexually into her and said she was sexy. A admitted both incidents and as a result he was expelled from school for two days and RAMP was put in place to assess and monitor A's inappropriate behaviour at school".
- In respect of mother's horrific abuse as a child this is linked to the mother quickly entering a relationship with a "man" who, of course, is the father. On any plain reading the reader is likely to infer, as did I initially, that it was another man altogether. It is an inaccurate and frankly misleading statement. Further it is said the mother remains in "infrequent "contact with the stepfather who abused her. That is taken from the parenting assessment. I can see no primary evidence of this and the mother has explained that the contact happens by chance, it is never planned albeit she unwisely keeps him as a Facebook friend, although I confess I do not really know what that means. However, the point is this cannot be read as "Infrequent contact" which suggests at the least a planned and desired contact. That is clearly far from the truth.
- The social worker also said in her witness statement that "the parenting assessment made the point that, if it is accepted that the bruises that were observed on D's face on 28th of February 2018 were accidental, they demonstrate a serious lack of supervision by the parents, which is reflected in the pattern of unexplained injuries throughout the early childhood all four children in the social care records." There are two concerns with that statement.
- Firstly, use of the words "serious lack of supervision" and "pattern of unexplained injuries throughout the early childhood all four children". The parenting assessment records very few injuries for A, some of which occurred at school. A number of accidental injuries to B, although there is clear confusion about dates, between the GP surgery and the school nurse. None for C and the known injuries to D. I fail to understand how Miss X has turned that into a "pattern of unexplained injury throughout the early childhood of all four children". It is just wrong. Something which she accepted in her oral evidence. Also in my judgement it cannot lead to it being said they demonstrate a "serious lack of supervision "that is entirely misleading.
- The parenting assessment itself has inaccuracies within it but particularly by stating that the injury to D's toe was his right toe of his right foot. But more importantly that "it was confirmed that the injury was non-accidental". That is simply not the evidence from the CPM.
- Ms X, if it is of any comfort to her, is not alone in being incorrect and inaccurate. When the police took the protective measures for the children they noted that the family had a long history of injuries, which I have found to be untrue and said there was domestic violence within the family, of which there is not a shred of supporting evidence.
- Ms X also said this in her witness statement" it is noteworthy that as of July 2018 a sports regulator issued F with an interim suspension from youth sport whilst investigations are ongoing into the bruising that D sustained whilst in F's care". There is nothing noteworthy about it at all. The local authority LADO decided that the regulator should be informed, as the father is a registered coach and referee for children, and they took the inevitable step of suspending the father pending a decision. Ms X was questioned about her use of the word noteworthy, or frankly why it found its way into her witness statement at all. She was very unconvincing as to her reasons for doing so and I was left with the clear impression, as was father, that it was used solely because, without further reflection, it showed the father in a poor light. It was unnecessary to state this at all and gives the clear impression that Ms X is not balanced in her presentation of the evidence to the court.
- These examples give me considerable cause for concern as to the accuracy of the evidence of the local authority. I do not doubt that Ms X is a dedicated, sincere and honest social worker but she has in my judgement made some critical errors in her evidence and I will treat it with caution accordingly.
- On the contrary I found the mother to be an utterly honest and truthful witness. It was said of her by one of the professionals that she was perhaps "too honest". I found the father to be honest in his evidence although I think he struggled on occasion to fully understand the concerns of the local authority and guardian. With all of that in mind I turn to the specific allegations.
- It is accepted that the mother has a history of losing her temper and shouting at the children and occasionally swearing also. It is, however, to be remembered that she was the victim of horrific abuse as a child and it is obvious that this has affected her deeply and she has many unresolved issues. The mother denies that she has ever said that "she wishes the children dead"; "she hates them"; "she doesn't love them" and "she wishes social services took them away". She and father deny that they have ever hit the children although father says that he did once aim a tap to A's head which missed and caught him on the face. They deny otherwise hitting, kicking and slapping A.
- The foundations of these allegations are anonymous referrals to children services. The mother believes that they were made maliciously by an estranged family member. M and F's evidence was clear, consistent and compelling and I accept it. Whilst it is not good for children to be shouted at or to swear in front them or to "tap" them on the head it simply cannot be said that this amounts to harm, let alone significant harm. To echo the words of His Honour Judge Jack if society were to intervene in every family where this might occur the care system would be overwhelmed. As much as I might deplore their behaviour there is no evidence whatsoever that this has caused the children significant harm.
- The mother accepts that she made a threat to A to stab him but says that it was not said with any intent or seriously. The allegation in the threshold says that A sent a text stating "Mum has gone nuts, she tried to stab me with a knife". I note that we are entirely reliant, it seems, on what the caller to the police said when this was reported a few hours after the incident took place. I can find no direct evidence that anyone in this case who may have seen the actual text sent by A has set it down accurately. The police ISR report records "HELP ME, PLEASE CALL MY MUM SHE JUST TRIED TO STAB ME WITH A KNIFE, HELP (", that is inconsistent with the wording of the allegation.
- I also remind myself that A was 12 when he sent it, no doubt he was frightened and this may have affected the way in which he regarded the entire incident and the way in which he reported it in his text. It is hard to imagine that he used punctuation in any message he sent in these circumstances.
- The police did not intervene on this occasion until the early hours of the morning and this was many hours after the report was made to them. The local authority did not respond to the police notification for about 10 days. Seemingly, therefore, no statutory service took the matter that seriously.
- The parents were later interviewed by the police in respect of D's bruises, but which also included questions about this incident. In their interviews the parents are unclear as to exactly what happened and who was where at the time. Criticism is made of the parents around this uncertainty and I am invited to doubt their credibility. However, I am satisfied that this incident, whilst a plain example of the mother losing her temper and behaving deplorably, occurred as the mother and father have said. This being all over A acting up in relation to his brother's phone. I am also satisfied that the father dealt with both A's behaviour and the mother's response appropriately.
- Indeed, this seems to be the underlying inference that can be drawn from the police record of their attendance some hours after the incident. When the police arrived all the family were in bed and asleep and I can find no evidence that this has had a lasting effect on A. Clearly A felt and still feels guilty that he believes it was his phone call that led to C and D being removed by the police and local authority. He feels a sense of responsibility that is unwarranted and everything must be done to reassure him that is not the case. Jo Clarke in her assessment and in her oral evidence was clear that this had had no significant impact on A. As I say, whilst it was a deplorable thing of the mother to say and should never have been said and must never be repeated I can find no evidence that it caused A significant harm.
- I have, to a degree, already dealt with the injuries in my overall assessment of the evidence. The local authority has changed their position and say that it amounts to a lack of supervision, which the parents accept. Of note are the bruises to Ds forearm, although similar bruises were seen whilst D was in foster care, about which no adverse comment was made. F says that the bruises to D's arms were caused when in the heat of the moment he grabbed D to stop him running into a busy carpark around the home. Clearly a little more foresight would have made him realise that he should have been holding the hand of a toddler in those circumstances no matter how active he may be, perhaps that made it more important to take hold of him. However, it was done to save a potential greater harm and the father would not be the first or indeed the last parent who does not act appropriately in the situation and whilst it has caused D harm to the extent that he had bruises, again I can find no evidence that it caused him significant harm. In general terms I am not satisfied that there is evidence of a "serious" lack of supervision as asserted by the social worker.
- It is of course said that the children suffered neglect and indeed they have been on and off the child protection register in that respect for many years. The first particular allegation relates to C when on the 1st of March 2018 Dr Moore conducted the child protection medical. She noted "C was a bit grubby: she had dirty toenails and a faded stained school polo shirt. She had some stains in her pants secondary to faecal matter as she is just learning to wipe her bottom. She had some red fluff between her toes from her red tights". There is no mention of mother there, but a handwritten written record says "C had dirty toenails and poo stains in her pants. The family were malodorous. I cannot pinpoint the smell. The family equals mum plus child".
- The medical took place between 2:15 PM and 3:25 PM and C had been at nursery earlier that day. The mother had collected her from nursery and gone directly from there to the horse stables where the mother kept a horse. Both the mother and C have fed and mucked out the horses. Nothing of this is said in the evidence to balance what is said in the child protection medical, even though this was known. I am frankly astonished, given the mothers evidence, that this has found its way into threshold at all. It is not an example of C being neglected, it is more of a young girl who it seems enjoyed mucking out horses with her mother. The mother's evidence is not contradicted and it is more likely C had a "poo" at school rather than having left home with soiled pants and that the malodorous smell which the doctor could not identify came from mucking out the horses as likely also did the nails. Why there is reference to "red fluff" from her tights between the toes I simply cannot fathom. I reject the allegation entirely that this has anything to do with a lack of care given by the parents.
- However, that said, the parents have accepted over the years that the home was cluttered and untidy and unhygienic. But again, I can find nothing to say that this has caused the children significant harm and I am not satisfied that it posed or poses a risk of significant harm to the children. Of course, parents should keep the home clean, tidy and uncluttered but again if all children living in such conditions were taken into the care the system would be overwhelmed.
- Finally, the local authority alleges in paragraph 6 (which suffered most amendment) that the parents have not provided consistent parental boundaries/guidelines in respect of the children's behaviour. This is divided into two particulars. The first alleging that the parents had provided inappropriate responses to the children's exhibited sexual behaviour and they rely upon two instances in that respect.
- The first in October 2013 when A was seven alleges "October 2013 A exhibited sexualise behaviour at school in two incidents with other boys making inappropriate physical contact with the same girl". It is accepted that this incident took place but the parents deny that they failed to deal with such behaviour appropriately. The incident was reported as follows by A's school, in the ensuing section 47 investigation "on 15 10 13 the primary school reported that A and seven other boys had chased a 10-year-old girl and touched her inappropriately. On 22 October 2013 another referral was received from school reporting A with another boy sandwiched a year one girl between them, thrust sexually into her and said she was sexy. A admitted the two incidents and as a result he was expelled from school for two days and RAMP was put in place to assess and monitor A inappropriate behaviour at school.
- The section 47 investigation goes on to record as follows "on 10/11/2013 – home visit was undertaken and the issue of A's inappropriate behaviour was explored with both parents. They initially blamed the media as where A was learning his sexualised dance move from. Both parents were advised they have responsibility of supervising what their children are watching as professionals were concerned about parents lack of supervision. Parents acknowledged what A did was wrong and they sought support and advice from the school and their GP. During my home visit A and B were also seen and spoken to. A seemed apologetic due to the two incidents and he said he felt bad for disappointing his parents and making his mother to cry. In regard to initial incident, A said when he realised things were getting out of control, he moved away but he admitted responsibility for the second incident".
- The parenting assessment is reasonably accurate in the reporting of this, although incorrectly says that the same girl was involved in both incidents. That is also repeated by Ms X in her final witness statement. Another clear example of inaccuracies in important documents.
- The parents have been entirely consistent in their explanations around these incidents. It is noteworthy in my judgement that A stopped taking part in the first instance when he believed it was getting out of control and secondly that A was contrite for his behaviour. This frankly could only have come from the parenting that he had received to that point. The parents believed the first incident was a game that got out of hand and clearly that is right and the second was because A had learned dance moves from a TV advert. I thought the report in the section 47 investigation was somewhat sanctimonious in its statement that the parents "have a responsibility for supervising what the children see". Whilst that is, of course, correct it misses the parents point here that in this particular case it came from a mainstream TV advert. Once again, the parents are not the only members of society who are concerned about such advertising and it would be an impossible task for any parent to supervise everything that is shown on TV. The parents acknowledge that what A did was wrong and sought support and advice from the school and the GP. There has been no repetition of such behaviour. I think I can reasonably infer from that that whatever the parents did by way of supporting A worked. It simply cannot be described as a failure to provide consistent boundaries.
- The second allegation is that on 22nd of July 2016 "M reported to health visitor that A and B had accused each other of wanting to have sex with C". This accurately records what the health visitor said in her witness statement. This referral resulted in a MASH. This assessment says that the referral states "health visitor went round for a routine visit, while having a conversation mum said, 'I always make sure C has a nappy on when she's out of my sight' she thought this may just be a general comment. Later on mum then said an incident regarding the two older brothers; one of them regularly sleeps in C's room this is when the other brother said that's because you're going to/want to have sex with her. Health visitor is unsure exactly what was said and when it was said also who said it as she gets the two boys confused she is also unsure the reason why the brother sometimes stays in the room. Mum did seem very concerned by this incident; she said it in a very relaxed manner and didn't say she was worried. Mum asked where they could have got this behaviour from. Health Visitor mention access to the Internet, mum said she can see the history there was one time they had seen something online but could not describe what this was and didn't say if it was an accident or deliberate. No other concerns other than the comment that was made." It seems that following this advice was given to the parents.
- There is no reference in the health visitor's written evidence regarding the first part around the mother stating that C always wears a nappy when she's out of her sight, the only reference to support that was given by the health visitor around toilet training and potty training. It is entirely unclear to me why reference has been made to C wearing a nappy unless it was to highlight a concern that the mother herself was concerned about C's safety from the two boys. But again, I can find no primary evidence for that. It is more or less a casual throwaway statement. It could also be seen that the referral to MASH is inconsistent. It says that mum seemed "very concerned" but that she was "very relaxed" and was "not worried". I did wonder if that was what the writer had intended to say. The mother's evidence was that she was merely stating that as C was being potty trained that she would put a nappy on C, if C were not immediately in her sight so as to save an accident. However, again I fail to understand how this could be regarded as an inappropriate response by the mother.
- The mother dealt with the incident quite appropriately at the time. It is recorded in the MASH report that during a telephone call with the mother on 28 July that "M acknowledges the previous concerns about A sexualised behaviour in school back in 2013"; "A does not have unsupervised access to the Internet at home"; "M said she spoke to A about the comment he made when health visitor was visiting she told him that the comment was not appropriate, not funny and unkind and he must not repeat it again. She stated clearly that B and A share a bedroom and that C has her own bedroom and she noted that two recent social work assessments completed had both commented on the appropriate sleeping arrangements of the family. Again, referring to the MASH report it says "one of them regularly sleeps in C's room". This is denied by the mother and seemingly supported by previous social work visits and there is not a scrap of evidence in any witness statement on that point.
- It is also alleged that C demonstrated highly affectionate behaviour to almost all professionals that she met in the months before she went into foster care and this is presented as evidence that the parents have not provided consistent parental guidance and boundaries. That statement comes directly from the parenting assessment and is repeated in Ms X's final witness statement without giving any details. However, in her first witness statement she said "C is friendly energetic and upbeat which is positive. A potential issue with this temperament is that she has been observed to be unusually open with strangers, readily accepting and enjoying attention from adults who are kind to her and engage her appropriately for her age". I note that this is something also referenced by the health visitor and Dr Moore during the child protection medical on the 1st of March 2018, who noted "she did appear to be over friendly in the consultation room".
- The parents say that the child protection medical took some hours of waiting around for the assessment and that the doctor would have become familiar to C as indeed would her health visitor. The parents say that they have spoken to C that she can trust certain people such as police, teachers and doctors and they say it is therefore unsurprising that she behaves in this way.
- However, the foster carer has noted it also, as indeed has the Guardian. Clearly it is something that needs to be addressed but I am satisfied that the parents have done so and will continue to do so. It is self-evident no such concerns arise in relation to A and B and I think I can reasonably infer from that that the parent's guidance in this area has been adequate and is an ongoing matter. Again, there is no evidence that this has caused C any harm let alone significant harm and I am satisfied that the risk of future significant harm simply does not arise because of the parents ongoing work with C.
- Finally, under the final broad heading is what is said to be "The parents lack of attunement to the children's needs and the mothers reluctance to talk about sex means there is likely to have been limited opportunities for the children to have had discussions with their parents about sexual relationships and/or sexual abuse". This allegation arises from the parenting assessment which says "while the children have not disclosed any experiences of sexual abuse throughout our work with them, there is a history of sexual abuse in M's extended family there are several warning signs including disclosures historically from A as a young child and C's over familiarity with unknown adults. It is a concern that M and F allow the children ongoing (albeit irregular) contact with a family member who has been accused of sexual abuse against M. This is despite M's reservations and concerns about him spending time alone with her children. M and friends lack of achievement to their children's needs and close to reluctance to talk about sex means there may well be limited opportunities for the children to have had discussions with their parents about sexual relationships and or sexual abuse".
- The mother says that she believes that it is neither necessary or desirable to have in-depth conversations with the children about sexual abuse issues. The mother says she has always told the children they have a right to feel safe and that no one should touch them or do anything to them that would make them feel uncomfortable. She went on to say the children have been encouraged to tell the mother or father or another responsible adult if anything ever happens which makes him feel uncomfortable or upset.
- Ms Gilliatt called the allegation a generic argument and noted that many members of our community who come from different cultures would believe no differently to the mother. I agree. Again, in my judgement this simply does not amount to either significant harm or to there being a risk of significant harm.
- Jo Clarke in her written and oral evidence was clear that there was nothing to suggest that the children had suffered any "long-term irreversible impairment in their mental health, emotional social or behavioural development as a result of the care given to them "and "This assessment did not find that the parenting that they have received has had a significantly negative impact on their emotional behavioural or social development". In her oral evidence she confirmed this to be the position. It can be seen from my judgement above that I found that none of the allegations even those which the parents have admitted or where I have made adverse comment satisfy me that the children have suffered significant harm or are at risk of suffering significant harm.
- Mr Harris says that I should look not only at the individual allegations and concerns but consider them in the round. I have done so and still do not find that put together that the children can be said to have suffered significant harm or be at risk of suffering significant harm. I am not satisfied the threshold for making an order is met.
- This is not to say that all is lovely in this particular home. What has been identified during the course of the evidence and the many assessments is that F lacked proactivity, I think being described on one occasion as a "sofa dad ", but most importantly mother simply must address her anger issues which are so intimately and intricately bound up with her past experiences as a child. I am quite sure that both problems which flow from them have been clearly identified by the parents and that the father will now be more active in the future and that the mother will undertake the therapy recommended by Jo Clarke, which is being actively sought for her. It is noted that this will be a difficult time for the mother but Jo Clarke was clear that there was no reason why the mother could not undergo this therapy whilst parenting the children. However, the parents together with their wider family and friends are agreed that this is an area where the mother will need significant support even to the extent of the father considering that he may need to give up work for the time being to enable him to be a full-time carer for the children.
- That being said, as I have not found threshold met there is no foundation for making any public law orders in this case.
- The LA and the Guardian and the parents worked on a transition plan at the outset of these proceedings in light of the Guardian's analysis and I took the unusual step of announcing my decision, without reasons, at the end of the trial. This allowed the transition plan to be put into effect immediately, whilst I prepared my written reasons.
Final Care Order: Legal Summary
Introduction: care by the birth family
- In considering any care application where the local authority suggests that a parent is not able to manage the care of a child, the court will no doubt wish to analyse the case with reference to what Hedley J had to say in Re L (Care: Threshold Criteria) [2007] 1 FLR 1050 :-
"Basically it is the tradition of the UK, recognised in law, that children are best brought up within natural families. Lord Templeman, in Re KD (A Minor Ward) (Termination of Access) [1988] 1 AC 806, [1988] 2 FLR 139, at 812 and 141 respectively, said this:
'The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature.'
There are those who may regard that last sentence as controversial but undoubtedly it represents the present state of the law in determining the starting point. It follows inexorably from that, that the current legal starting point was that children were best brought up within natural families: it followed that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent, and that some children would experience disadvantage and harm, while others would flourish in atmospheres of loving security and motional stability. It was not the provenance of the state to spare children all the consequences of defective parenting; the compulsive powers of the state could only be exercised when the significant harm criteria in s31(2) of the Children Act 1989 (the 1989 Act) had been made out."
- In a similar vein Baroness Hale said this in Re B [2013] UKSC at para 143:
"We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, suffer from physical or mental illnesses or disabilities, or who espouse anti-social political or religious beliefs."
- In Re A (A Child) [2015] EWFC 11, the President expressly approved the words of Hedley J referred to above and these words from the judgement of His Honour Judge Jack in North East Lincolnshire Council v G & L [2014] EWCC B77 (Fam) where he said:
"The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts."
Welfare checklist: Children Act 1989
- The relevant welfare checklist under the Children Act 1989 is found in s 1:
"1) When a court determines any question with respect to—
(a) the upbringing of a child; or
(b) the administration of a child's property or the application of any income arising from it,
the child's welfare shall be the court's paramount consideration.
(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.
(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare.
(2B) In subsection (2A) 'involvement' means involvement of some kind, either direct or indirect, but not any particular division of a child's time.
(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to—
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
(4) The circumstances are that—
(a) the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or
(b) the court is considering whether to make, vary or discharge a special guardianship order or an order under Part IV.
(5) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.
(6) In subsection (2A) 'parent' means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned-
(a) Is within this paragraph if that parent can be involved in the child's life in a way that does not put the child at risk of suffering significant harm; and
(b) Is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child's life would put the child at risk of suffering harm whatever the form of the involvement.
(7) The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1) (c) or (5) (parental responsibility of parent other than mother).
Welfare checklist: Adoption & Children Act 2002
- The relevant checklist applicable to adoption and placement is set out in s 1 of the Adoption & Children Act 2002:
(1) This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child.
(2) The paramount consideration of the court or adoption agency must be the child's welfare, throughout his life.
(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.
(4) The court or adoption agency must have regard to the following matters (among others)—
(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),
(b) the child's particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, with any person who is a prospective adopter with whom the child is placed, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—
(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,
(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.
(5) In placing the child for adoption, the adoption agency must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background.
(6) The court or adoption agency must always consider the whole range of powers available to it in the child's case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.
(7) In this section, "coming to a decision relating to the adoption of a child", in relation to a court, includes—
(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 or 51A (or the revocation or variation of such an order),
(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,
but does not include coming to a decision about granting leave in any other circumstances.
(8) For the purposes of this section—
(a) references to relationships are not confined to legal relationships,
(b) references to a relative, in relation to a child, include the child's mother and father.
- In addition the court will need to consider whether or not to dispense with parental consent as set out in s 21(2) & s 52(1) of the Adoption & Children Act 2002:
"The court may not make a placement order in respect of a child unless—
(a) the child is subject to a care order,
(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or
(c) the child has no parent or guardian.
(3) The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied—
(a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or
(b) that the parent's or guardian's consent should be dispensed with."
"s52(1)
The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—
(a) the parent or guardian cannot be found or is incapable of giving consent, or
(b) the welfare of the child requires the consent to be dispensed with."
Burden of Proof
- In Re B [2008] UKHL 35 Baroness Hale set out clearly what the burden of proof is:
"70. My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation 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."
... As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability. Some seriously harmful behaviour, such as murder, is sufficiently rare to be inherently improbable in most circumstances. Even then there are circumstances, such as a body with its throat cut and no weapon to hand, where it is not at all improbable. Other seriously harmful behaviour, such as alcohol or drug abuse, is regrettably all too common and not at all improbable. Nor are serious allegations made in a vacuum. Consider the famous example of the animal seen in Regent's Park. If it is seen outside the zoo on a stretch of greensward regularly used for walking dogs, then of course it is more likely to be a dog than a lion. If it is seen in the zoo next to the lions' enclosure when the door is open, then it may well be more likely to be a lion than a dog.
In the context of care proceedings, this point applies with particular force to the identification of the perpetrator. It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what has happened to the child, it ceases to be improbable. Some-one looking after the child at the relevant time must have done it. The inherent improbability of the event has no relevance to deciding who that was. The simple balance of probabilities test should be applied."
Threshold criteria: Children Act
- The threshold criteria test is set out in s 31(2) & (9) of the Children Act 1989
"2. A court may only make a care order or supervision order if it is satisfied—
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to—
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child's being beyond parental control.
- Harm" means ill- treatment or the impairment of health and development including, for example, impairment suffered from seeing or hearing the ill-treatment of another"
- In Re A (A Child) [2015] EWFC 11 the President emphasized the need for a local authority to adduce proper evidence to establish what it seeks to prove. He commented: "Much material to be found in local authority case records or social work chronologies is hearsay, often second- or third-hand hearsay. Hearsay evidence is, of course, admissible in family proceedings. But, and as the present case so vividly demonstrates, a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it." He went on to underline the need to formulate the threshold so that it is clear what is asserted (not X reports or it appears that but Y happened) and the need to demonstrate the link between the facts asserted and the harm this is said to establish, particularly with respect to parental attitudes and behaviours which do not directly impact the child such as dishonesty or failing to engage with professionals.
The meaning of "significant harm"
- In Re MA (Care Threshold) [2009] EWCA Civ 853 Ward LJ considered the meaning of 'significant' in 'significant harm':
"Given the underlying philosophy of the Act, the harm must, in my judgment, be significant enough to justify the intervention of the State and disturb the autonomy of the parents to bring up their children by themselves in the way they choose. It must be significant enough to enable the court to make a care order or a supervision order if the welfare of the child demands it" [para 54].
- However in Re B (Care Proceedings: Appeal) [2013] UKSC 33 Lord Wilson warned of the dangers of over-defining 'significant':
"In my view this court should avoid attempting to explain the word 'significant'. It would be a gloss; attention might then turn to the meaning of the gloss and, albeit with the best of intentions, the courts might find in due course that they had travelled far from the word itself. Nevertheless it might be worthwhile to note that in the White Paper which preceded the Children Act 1989, namely The Law on Child Care and Family Services, Cm 62, January 1987, the government stated, at para 60:
'It is intended that 'likely harm' should cover all cases of unacceptable risk in which it may be necessary to balance the chance of the harm occurring against the magnitude of that harm if it does occur'" [para 26].
Threshold and timing
- In Re G (Care Proceedings: Threshold Conditions) [2001] 2 FLR 1111 Hale LJ (as she then was) considered the point in time in care proceedings at which threshold must be met and the question of whether future evidence can be relied upon to establish threshold retrospectively.
"it is common ground that the date at which the threshold has to be crossed is when the local authority first intervened to protect the child: that is, either the date of the application or, if child protection measures (police protection or an emergency protection order) have been continuously in place since before then, the date when those began" [para 10]
"... It is a commonplace in legal proceedings that evidence gathering continues after the proceedings are begun and there is usually nothing to prevent its being used in accordance with the rules. It would be absurd if evidence coming to light during the proceedings, such as further medical evidence on the interpretation of X-rays and scans, further complaints by the children, or confessions by the parents, could not be taken into account to show what the situation was at the relevant time" [para 22]
"... later events cannot be relied upon unless they are capable of showing what the position was at the relevant time. But if they are capable of proving this, then in my view they should be admitted for that purpose. It will then be a matter for the judge to consider how much weight they should be given" [para 23].
Adoption Orders
- Adoption is a draconian sanction and its imposition should only be considered as a case of last resort. If a possible viable parent / family carer is available then the child should be placed with that carer so long as that placement is safe.
- It is not enough to show that a child could be placed in a more beneficial environment for his upbringing (K and T. v. Finland [GC], no. 25702/94, ECHR 2001-VII).
- Article 8 HRA says:-
a. Everyone has the right to respect for his private and family life, his home and his correspondence.
b. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
- The impact of this in domestic jurisprudence is particularly clearly expressed in the case of Re B (A Child) [2013] UKSC 33 in which each of the five justices made it clear that an adoption order is an order of last resort. Lord Wilson said the making of such an order required a "high degree of justification" [para 34], Lord Neuberger, Lady Hale and Lord Kerr preferred the phrase "nothing else will do" [paras 76-78, 130, 145 and 198 respectively]. Lord Clarkee said "only in case of necessity will an adoption order be proportionate "[para 135]. The case stressed the need for the court to evaluate proportionality actively in every case.
- Lord Neuberger outlined the approach to be taken as follows:
a) A care order on a care plan for adoption is a "very extreme thing, a last resort" [para 74];
b) A judge cannot properly decide that a care order should be made unless the order is proportionate bearing in mind the requirements of article 8 [para 75];
c) If found that threshold has been crossed, a care order should only be made if the court is satisfied that it is necessary to do so in order to protect the interests of the child [para 76];
d) As required by section 1(3)(g) of the 1989 Act and section 1(6) of the 2002 Act, the court "must" consider all the options before coming to a decision [para 77];
e) Although the child's interests are paramount, the court must never lose sight of the fact that those interests include being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the overriding requirements of the child's welfare make that not possible" [para 104];
f) The court's assessment of the parents' ability to discharge their responsibilities towards the child must take into account the assistance and support which the authorities would offer. So "before making an adoption order … the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support" [para 105].
- The significance of Re B was emphasised in two subsequent judgments. In Re G (A Child) [2013] EWCA Civ 965 Mcfarlane LJ stressed the need for "a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options" [para 54]. He also warned of the danger of phrases such as 'draconian' and 'proportionality' becoming "formulaic window dressing" that need to be "backed up with a substantive consideration of what lies behind them" [para 53]. In Re P (A Child) [2013] EWCA Civ 963 Black LJ similarly stresses the need for a proper balancing exercise to be undertaken when considering the making of a care order with a plan for adoption.
- The fundamental principles to be applied in applications relating to adoption and concerns about the current approach adopted by professionals and the courts in such cases were further addressed by the Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146. The President, giving the judgment of the court, built on the case of Re B (A Child) [2013] UKSC 33, emphasising the following points:
a) The court should adopt the 'least interventionist' approach [para 23];
b) The local authority cannot press for a more drastic form of order because it is unable or unwilling to support a less interventionist form of order and Judges must be alert where there is any reason to suspect that resource issues may be affecting the local authority's thinking [para 29];
c) An adoption order was only to be made "where nothing else will do" [para 22];
d) There must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option [34];
e) The court must produce an adequately reasoned judgment [41]; and
f) The judicial exercise should not be a linear process; it must be a "global holistic evaluation". The judicial task must be to evaluate all the options, undertaking a global, holistic and multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. [44].
g) Where a parent does not consent to the child being placed for adoption or the making of an adoption order, his consent may only be dispensed with if the child's welfare 'requires' this: s52 (1) (b) of the 2002 Act.
h) 'Require' has the Strasbourg meaning of necessary, "the connotation of the imperative. What is demanded rather than what is merely optional or reasonable or desirable" (Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, at paragraphs 120,125).
i) In line with European jurisprudence, cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child. Family ties may only be severed in very exceptional circumstances and everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. [para 18].
- The judgment of Ryder LJ in Re B (A Child) [2014] EWCA Civ 565 further considers the interrelation between domestic and European law in adoption proceedings. He identified a "continuum" between the court's analysis of welfare and the proportionality evaluation required under Article 8 HRA, and considered that an error in the former inevitably affects the latter. Therefore if no or an insufficient welfare analysis as to the realistic options for the child's long term care is undertaken it follows that the proportionality evaluation as to the local authority's proposed interference with Article 8 HRA will also have been inadequate. The case stressed the need to ensure that sufficient evidence in support of any application for a care and placement order is available in order to allow the court to carry out a proportionate evaluation and balancing exercise.
- In W (A Child) v Neath Port Talbot County Borough Council & Ors [2013] EWCA Civ 1227 [2013] Ryder LJ also encouraged the court to adopt a balance sheet approach first used by Thorpe LJ in medical cases, setting out the positives and negatives of each placement option by reference to the welfare checklist factors. Ryder LJ considered that this "is an illuminating and essential intellectual and forensic exercise that will highlight the evidential conclusions and their implications and how they are to be weighed in the evaluative balance that is the value judgment of the court". He stressed that this exercise is different in substance and form from a mechanical recitation of the welfare checklist "with stereotypical commentary that is neither case specific nor helpful" [para 78].
- In Re M (A child : Long-Term Foster Care) 2014 the proper application of the "nothing else will do" test was again considered. Black LJ stressed that "what has to be determined is not simply whether any other course is possible but whether there is another course which is possible and in the child's interests ...my emphasis). This will inevitably be a much more sophisticated question and entirely dependent on the facts of the particular case. Certain options will be readily discarded as not realistically possible, others may be just about possible but not in the child's interests..." [para 32].
- In CM v Blackburn with Darwin Council 2014 EWCA Civ 1479 Ryder LJ concluded the following:
"33. a court making a placement order decision must conduct a five part exercise. It must undertake a welfare analysis of each of the realistic options for the child having regard among any other relevant issues to the matters set out in section 1(4) of the 2002 Act (the 'welfare checklist'). That involves looking at a balance sheet of benefits and detriments in relation to each option. It must then compare the analysis of each option against the others. It must decide whether an option and if so which option safeguards the child's welfare throughout her life: that is the court's welfare evaluation or value judgment that is mandated by section 1(2) of the Act. It will usually be a choice between one or more long-term placement options. That decision then feeds into the statutory test in sections 21(3)(b) and 52 of the 2002 Act, namely whether in the context of what is in the best interests of the child throughout his life the consent of the parent or guardian should be dispensed with. The statutory test as set out above has to be based in the court's welfare analysis which leads to its value judgment. In considering whether the welfare of the child requires consent to be dispensed with, the court must look at its welfare evaluation and ask itself the question whether that is a proportionate interference in the family life of the child. That is the proportionality evaluation that is an inherent component of the domestic statutory test and a requirement of Strasbourg jurisprudence. ??
- That is what 'nothing else will do' means. It involves a process of deductive reasoning. It does not require there to be no other realistic option on the table, even less so no other option or that there is only one possible course for the child. It is not a standard of proof. It is a description of the conclusion of a process of deductive reasoning within which there has been a careful consideration of each of the realistic options that are available on the facts so that there is no other comparable option that will meet the best interests of the child."
- Further authorities including Re G (A Child) [2013] EWCA Civ 965 stipulate that a linear approach to evaluating competing options should be avoided, meaning that the judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option. Instead the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing.
- However it is obvious from Re R (A Child) [2014] EWCA Civ 1625 that where there are only two realistic options (mother or placement outside the family) before the court, there is nothing wrong with the court considering whether the parent could care, and if concluding against that option going on to look at the issue of placement outside the family.
- In this case the President also took the opportunity to stress emphatically that Re B and Re B-S had not changed the law in relation to care orders with a plan for adoption, voicing concern that the phrases "'adoption is a last resort' and 'nothing else will do' "have become slogans too often taken to extremes " [para 41]. He stressed that "where adoption is in the child's best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child's welfare should not be compromised by keeping them within their family at all costs" [para 44].
- This is clearly accepted within European jurisprudence: where the maintenance of family ties would harm the child's health and development, a parent is not entitled under Article 8 to insist that such ties be maintained (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, 6 July 2010; § 136; R. and H. v. the United Kingdom, no. 35348/06, 31 May 2011 § 73).
Final Care Orders
- In respect of the making of care orders with a plan for long term removal from a family, recent authorities such as W (A Child) v Neath Port Talbot County Borough Council & Ors [2013] EWCA Civ 1227 (11 October 2013), Ryder LJ, McCombe LJ and Sir James Munby P, confirm that this is also a case of 'last resort.'
- Ryder LJ: [94] "It is necessary, however, to recollect that only recently the Supreme Court in In the matter of Re B (a Child) [2013] emphasised that care orders are a last resort. Whether the context is an adoptive care plan or not, Lord Neuberger's conclusion on the correct legal test for the making of an order are unambiguous:
"75. As already mentioned, it is clear that a judge cannot properly decide that a care order should be made in such circumstances, unless the order is proportionate bearing in mind the requirements of article 8.
77. It seems to me inherent in section 1(1) that a care order should be a last resort, because the interests of a child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. This is reinforced in section 1(3)(g) that the court must consider all options, which carries with it the clear implication that the most extreme option should only be adopted if others would not be in her interests. As to article 8, the Strasbourg court decisions cited by Lady Hale in paras 195-198 make it clear that such an order can only be made in "exceptional circumstances", and that it could only be justified by "overriding requirements pertaining to the child's welfare", or putting the same point in slightly different words, "by the overriding necessity of the interests of the child". I consider that this is the same domestic test (as is evidenced by the remarks of Hale LJ in Re C and B [2001] 1 FLR 611, para 34 quoted by Lady Hale in para 198 above), but it is unnecessary to explore the point further."
- However, in Re DAM (Children) [2018] EWCA Civ 386 (Peter Jackson LJ, in a judgment with which Asplin LJ and Moylan LJ agreed), the Court of Appeal held that 'nothing else will do' is not applicable where the plan is long-term foster care:
(5) I reject the argument that a court considering whether to make a care order has to be satisfied that "nothing else will do". A care order is a serious order that can only be made where the facts justify it, where it is in the child's interests, and where it is necessary and proportionate. But the aphorism "nothing else will do" (which, as has been said, is not a substitute for a proper welfare evaluation and proportionality check) applies only to cases involving a plan for adoption. That is clear from the case in which it originated, In re M (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, which concerned an application for a care order with a care plan for adoption. It is clear, where it is not explicit, that all the justices were addressing a situation involving the severance of the parental relationship altogether, and not one involving physical separation under a care order, where the parent retains parental responsibility. That is confirmed by the summary given by the President in Re B-S:
"22. The language used in Re M is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are "a very extreme thing, a last resort", only to be made where "nothing else will do", where "no other course [is] possible in [the child's] interests", they are "the most extreme option", a "last resort – when all else fails", to be made "only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do": see Re M paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215."
Learning Disability
31. In Re T (A Child) [2018] EWCA Civ 650 giving the lead judgement Jackson LJ addresses the roles of the local authority and the court in adoption. He notes as follows:
- An application for a placement order fundamentally engages the State's obligation under Article 8 ECHR, which applies to local authorities and the court as public bodies.
- This common purpose means that 'in the great majority of cases the local authority will acknowledge the court's welfare decision and, if necessary, amend its care plan to accommodate it.' Where that does not happen, the remedy of judicial review is available: Re C (Religious Observance) [2002] 1 FLR 1119.
- The court cannot dictate to the local authority what its care plan should be: Re S and D (Children: Powers of Court) [1995] 2 FLR 456. Nor can it maintain supervision or control after a final order has been made: Re S (Minors)(Care Order: Implementation of Care Plan) [2002] UKHL 10.
- It is not open to a local authority within proceedings to decline to accept the court's assessment and evaluation of risk, which is sovereign within proceedings, and it cannot refuse to provide lawful and reasonable services that would be necessary to support the court's decision if by doing so it would unlawfully breach the rights of the family concerned or if its decision-making process is unlawful on public law grounds: Re W (A Child)(Care Proceedings: Court's Function) [2013] EWCA Civ 1227 and Re CH (Care or Interim Care Order) [1998] 1 FLR 402.
- Although the Family Court cannot dictate the LA's care plan, the court can expect a high level of respect for its assessments of risk and welfare, leading in almost every case to those assessments being put into effect. The process of mutual respect spoken of by Thorpe LJ in Re CH will almost inevitably lead to an acceptable outcome.
- The court has both a power and a duty to assert its view of risk and welfare by whatever is the most effective means.
