D (A Child) [2014] EWFC B77 (09 June 2014)

1. This case is about D, a little boy born on 11 December 2011, now aged 2½ years. His parents are M and F, a happily married couple in a strong and mutually supportive relationship. They are devoted, loving and committed parents to D who has, until just over a month ago, remained in their care since the day he was born. Previous assessments have found M to be on the borderline of a mild learning disability and F to have a more significant cognitive impairment such that he lacks capacity to conduct litigation. D is represented by his Children’s Guardian, Clare Mowbray (CG).

2. A final care order was made on 7 November 2012 in favour of Swindon Borough Council (LA) with a care plan that D continue to live with his parents. The plan specified the level of professional support to be provided for the family. It was hoped that in due course, it might be possible to discharge the care order, if need be substituting a supervision order. However, in the event that things did not progress well and the placement broke down, the contingency plan was that D would move initially to a foster placement. LA would then review a viability assessment of his maternal grandparents (MGP) focusing particularly on previously identified areas of concern to see if they were able to look after him; an assessment during the care proceedings had concluded that they were not. If MGP were still not viable carers for D, the plan provided that the LA would look for an adoptive family.

3. On the basis of this plan, the court approved the making of the care order, which was not opposed by the parents. The order included an undertaking by LA not to remove D from the care of his parents without giving 7 days notice in advance, unless an emergency situation should arise. I note Baker J’s guidance that in future a minimum of 14 days would be appropriate.

4. The LA’s position is that in spite of the extensive support provided during the period following the making of the care order, M and F have been unable to consistently meet D’s needs. The concerns are about his physical and emotional safety as well as his development. As a result, the LA has reluctantly concluded that D’s welfare requires that he should not remain in his parents’ care. The LA gave notice to the parents that they intended to remove D to foster care on 25^th April. This was obviously extremely upsetting for the parents. However, F sought advice from his solicitors in the care proceedings, and issued an application under s.39 Children Act 1989 to discharge the care order. Neither M nor F is entitled to legal aid to assist them in making such an application and their representation is all provided ‘pro bono’.

5. At an early first directions hearing before the District Judge, the parents made an, unsuccessful, oral application for an interlocutory injunction under s.8 Human Rights Act 1998 to prevent the removal of D from their care pending the outcome of the discharge application. That decision was successfully appealed and the case remitted to this tier for a rehearing.

6. The parents seek the immediate return of D to their care, to be secured by way of an injunction. In addition, the court is asked to make a declaration that the removal of D from the care of his parents on 25 April was unlawful, and in breach of article 8 ECHR rights of parents and D. Further, the parents have filed an application under Part 25 FPR 2010 for the instruction of an Independent Social Worker (ISW) to conduct an assessment of the MGP’s ability to support the parents in their care of D, or to care for D.

7. At the time of this hearing, D remains in foster care, and has contact twice weekly with his parents. MGM also attends one contact each week.

8. The background to the case and the legal considerations that apply are all clearly and carefully stated in Baker J’s judgment handed down following the appeal. I can adopt and rely on that analysis and need not repeat here what is already helpfully set out.

9. Following the appeal hearing, the Official Solicitor has now agreed to act on behalf of F, and has filed a document setting out legal submissions made on his behalf. M has filed a statement as directed, and a position statement in relation to this application has been prepared on her behalf. The LA has also filed a position statement and the social worker, Melanie Bristow (SW), has filed a second witness statement and a short chronology. The Children’s Guardian, Claire Mowbray (CG), has filed a short statement and an initial CAFCASS analysis.

10. I should record that in the course of this hearing it became apparent that P, who previously provided considerable support to this family as foster carers before the family moved to their own property next door, and who had stepped back somewhat, although continuing to assist the parents particularly in relation to their need for adult support and in matters relating to their tenancy, have been considering whether they might be able to become more involved again and if so, what form that should take. Longer term plans might include something in the nature of joining the two properties, however I understand immediate support is offered for the family to be in P’s home between 4 – 7pm every weekday before taking D home to be put to bed. Any long term proposals would need to be properly investigated and the LA has indicated a commitment to explore what might be viable and realistic. However, neither the LA nor the CG consider the interim proposal to be sufficient protection for D if he were returned home.

11. At this rehearing, I heard oral evidence from the social worker, Melanie Bristow (SW), and CG. It was not appropriate to hear from F, there being no intermediary available to assist him give evidence. M was reluctant to give evidence and I declined to require her to do so, having considered the nature of this hearing, the extent of the factual dispute before the court, and the evidence available in her statement, albeit that I would need to take into account that it is untested in cross-examination.

12. SW has the considerable benefit of having been D’s social worker throughout his whole life, and has watched him grow and develop from being an immobile infant into a mobile toddler, has seen D show the beginning of language skills and start to challenge his parents. During this time SW has also got to know the parents. She has observed their strong relationship, does not doubt their love for D, or their desire and commitment to care for him. However, SW explained how she became increasingly worried about aspects of D’s care. In her second statement at D68 in the bundle, she has set out “Area’s of on-going Concern” which she addressed further in her evidence.

13. On 30.7.13 SW had a discussion with M and F following information received from MGM about an incident when D had escaped into the road. SW was concerned not only that D had been placed at risk of potentially very serious harm due to lack of supervision, but also that M’s response was to blame MGM for having reported the incident rather than demonstrate an understanding of the risk and a sense of responsibility for D’s safety. I note that in her statement, M says that this was an isolated incident, D was on a driveway and stopped by her before he got to the road, and points out that no harm came to D. She believed MGM was watching D at the time. M states she has since purchased reins for D to prevent a recurrence.

14. At the same visit, SW reports that M told her of a second similar incident where D had been able to leave the house by himself in the early evening and went next door, but M said this was not her fault. I see from her statement that M says that F apprehended D before he reached the road. Following this incident, M says they have ensured the door is locked and gates closed and asked their landlord to secure the garden so that D cannot get out to the front of the house.

15. I note D would have been approx 18 months old at the time of these events.

16. In September 2013, SW received information from the Family Nurse (FN) describing how she had observed M failing to respond to D’s distress when he fell over and that M had needed prompting to do so. However, although M picked D up, FN observed that M did not speak to him, or kiss or cuddle him to soothe him. In addition, FN reported that M had told her that she cannot be bothered to play with D and only gets toys out when professionals visit. FN was observing D to be increasingly frustrated, hitting out, shouting and throwing toys. In her statement, M accepts playing with D is something she does struggle with and admits that she said this to FN. I note M is in the process of being assessed to determine if she may be autistic. In addition, M sets out how she has found it confusing to have what she says is conflicting advice from SW and D’s childminder about how to manage D’s behaviour when frustrated which includes him hitting out and throwing things.

17. Later that same month, SW needed to discuss with M some potentially upsetting information following a visit with D to hospital where a nurse had heard raised voices and what might have been a slap coming from behind curtains where M and MGM were with D. SW was mindful to approach this issue in a sensitive and non-accusatory way, but she says M immediately became visibly very angry, red in the face, shaking in her body and voice. M threw a remote control across the room which just missed D. As a result of this incident, SW was not only concerned that D might have inadvertently been hurt, but that M’s reaction makes it increasingly difficult to raise worries about D with her and F. SW confirmed in evidence that this was the only time she had been aware of M behaving in this way, but it was still a cause for some alarm. She confirmed that M’s advocate was not present when that conversation took place. At a later meeting when M had appropriate support, M accepted that she had got angry and D had nearly been hurt. In her statement M says she had been expecting the conversation and had built up anxiety about it. She regrets that it happened and confirms it has not happened since.

18. SW continued to raise with M and F concerns about D’s delayed development and the need to provide stimulation, including reading and play, for D each day. SW said that M accepted that she was not reading with D. In her statement, M asks the court to take into account that she was taking D to Baby Peeps and that D was also going to his childminder, as set up by the SW. She points out that she is the only one who can read to D, as F in unable to manage that. M says in her statement that D plays with them both in the evening and that D has a lot of stimulation. She says he is often tired out after a full week of activities. SW accepted that F enjoyed playing with D and was keen to do so.

19. SW had noted how the parents did not always identify or respond to D’s emotional cues. She accepted that one of the strengths within the family is F’s very warm relationship with D, evidenced by the way D seeks out his F for play, who responds. She considered this a significant relationship, but was concerned that F was not always consistent in his responses to D. In contrast, she said M finds that type of interaction more difficult. Again, M’s responses to D are seen to be inconsistent. SW described how M has been observed to fail to hold eye contact or to provide comfort when required, but then attempt to hug D at other times when he may not want it. SW was concerned that D was not receiving the reassurance and encouragement he needs and was left to try to work out boundaries for himself.

20. It was suggested to SW that the observations by professionals that M failed to react to D was likely due to her difficulty in focusing on more than one thing at a time due to their presence. SW accepted that this might be possible, and that it was becoming more apparent that M does need to be able to be fully engaged in a discussion and that as a result this diverts her attention from D. She accepted that it was possible that M would be better able to focus on D when professionals were not present and that M might be less self-conscious when doing things with D on her own. She understood that the parents found meetings difficult and were nervous in her presence. However, they had built good relationships with P who had assisted them in the beginning and were more comfortable in the presence of other professionals.

21. In January 2014, SW herself observed D running around the room aimlessly and throwing things around to the point that she recorded that the room ‘felt chaotic’. Following this, additional support was provided for D by way of increasing the time he spent with his child-minder in the hope that this would compensate for the perceived deficiencies in consistent care in the home.

22. On 14 February 2014, the new Health Visitor, Lisa Westall, made a joint visit to the family home with FN as it was intended at that time that she would take over. Later that day, Miss Westall set out in an e-mail to SW her concerns following this visit. SW has not exhibited the original e-mail, but in her statement she includes what appears to be a ‘cut and paste’ of the text of the original communication. SW also received an e-mail from FN in relation to the same visit, the text of which she also includes in her statement, which suggests it too was written on 14 February 2014. Again the original has not been provided. There is a document at D44, appended to SW’s first statement, which does not appear to be an e-mail, but its title and content (particularly the fact that it is written in the first person and replicates much of what is apparently in the e-mail from Miss Westall as set out in SW’s statement) strongly suggests it also emanates from Miss Westall. I anticipate this may be her note of the meeting from which she then constructed an e-mail to SW. That will need further clarification, but in the meantime I am sufficiently satisfied that this information comes from the professionals who made that joint visit on 14 February 2014 to be able to rely on it. If comments in documents from third parties are to be relied upon, it would be helpful if the source documents are disclosed, if not exhibited to a social work statement, and properly identified as to what they are, to avoid these issues being raised.

23. A number of concerns were raised by Miss Westall, including D’s unusual gait for which she recommended his feet be properly measured. FN found D appeared unable to actually play with anything, throwing toys with some force, pushing and hitting the adults present. It appears he was continually throwing toys at FN, which M seemed unable to prevent. In her statement, M points out the rather inconsistent opinion provided by Miss Westall that D might have too many activities, when everything D was attending was at the recommendation of the professionals.

24. On 13 March 2013, SW was informed that D had been taken to a family party at the weekend where the paternal uncle, G, was present. M and F are aware that G is considered to present a risk and that D is not to be allowed to come into contact with him. SW says that previously when she has explained the concerns to M, she has always rejected them, saying she does not believe G would hurt D. SW gave evidence that it was only a couple of days before the incident that M had asked her if they could meet with G as he was in need of family support and they wanted to be able to spend time with him. SW says she made it clear that they should not do so, although she did also say she would raise the issue with her manager and come back to them. She did not indicate when that would be. SW came to know about this event through the NSPCC as M had told a worker that G had been present, but again expressed the view that G would never hurt D. When the worker explained that she would need to inform SW, M’s response was to the effect that she should not have said anything as SW would take D away. It has been clarified on behalf of M that she does not dispute that G poses a risk. It is M and F’s case that they did not know G would be present, kept a distance and left as soon as possible. Up until now, they have managed to avoid coming into contact with him. The LA does not necessarily accept the parents account, and as I have not heard evidence from them, this issue must await future determination. The fact that the parents did not themselves inform SW, and M’s comment to the worker does not appear to be in dispute.

25. In addition to the concerns set out in her statement, SW told the court about other incidents including D having been observed to get hold of and run around with a dinner knife which M had to be prompted to take off him, standing on a rocking chair which again M had to be prompted to tell D not to do, and jumping on the sofa which M declined to do anything about saying he was fine as he was not jumping off it. SW then observed D to sit on the arm of the sofa and fall off it backwards.

26. SW also referred to an incident a couple of months ago when D managed to shut the door while M was outside talking to the FN who was in the process of leaving, thus locking her out of the house, and which required FN to go to the neighbours for a spare key while M kept D talking through the letter box. SW says she is aware that this was not the first time M had found herself locked out of the house when the door shut behind her. On behalf of M it is said that on an earlier occasion when this happened there was another adult present in the house with D. Indeed, M relies on this as an example of how comments she makes are not always properly understood. In her statement she says a similar misunderstanding arose in a conversation with Dr King when she was asked about what toys D played with.

27. SW describes how since he was removed from his parents care, D has been seen to become much calmer in the foster home and at contact. This observation is a consistent one from all those currently coming into contact with D. He is no longer seen to throw toys, charge around, or hit the adults and appears less frustrated. M in her statement says she believes that the behaviours D exhibited at early contacts were as a result of his confusion and feelings at being removed. She says that the way D behaves now is how D was in their care before removal. She says he was a loving and happy little boy. SW accepted that it must have been confusing at first for D to be seeing his parents at contact and not returning home with them, and she did not rule out that his initial behaviour at contact could have been as a result of him having been removed. However, the behaviours observed at the early contacts were also those that had been seen when D was in his parents care. I note that elsewhere in her statement M does accept that D’s behaviour was not always as calm as it has been more recently.

28. SW indicated that the improvement in D’s behaviour in foster care was what the LA had hoped to see, and it was likely with calmer behaviour D would be able to better develop in other areas. It appears that D’s gait has also improved since he was bought different shoes. In her statement M says that the improvements now being seen were happening prior to D going into foster care.

29. SW accepted that D has twice sustained bruising to his head since being in foster care, on one occasion due to his rushing down some steps and falling. SW confirmed that she was not aware of any bruising to D when in his parents care. In her statement M points out that D had remained safe in their care with no accidents or injuries.

30. SW referred to growing concerns about D’s slow developmental progress and how this was a long term concern for D’s future. In the bundle at D20 she exhibits an e-mail from FN which records her opinion that D has developmental delay in all areas. It appears some tests were completed on 28 March 2014, however, FN felt unable to confirm reliability of these results due to D finding it difficult to focus on the tasks required, or fixing on one activity. SW has also provided a report from Dr King, consultant paediatrician, following a clinic on 5 March 2014 where she says D seems to be making poor developmental progress across the board and his gross motor development is now delayed. Dr King also pointed to his limited language ability for a child of his age. In that report, she went on to say that she continues to have serious concerns about M’s ability to care for D and promote his development. I have not, of course, heard from Dr King. Although some genetic testing has taken place and a chromosomal imbalance has been identified, it is not known whether or not this has any significance in relation to D’s delayed development. Dr King points out that two of the imbalances have been associated in the literature with learning difficulties, with or without behavioural problems, but this is based on a very limited sample of cases. It may be that genetic testing will not be able to provide an instant answer to whether D’s developmental delay is organic. The LA intends to continue to monitor D’s development and SW says his placement in foster care gives an opportunity to see how D progresses away from the home environment and to gain a clearer understanding of D’s needs. If it does turn out that D has some form of learning disability, SW pointed out that as a result D might well require a greater than average level of care to adequately meet his needs.

31. In summary, although SW accepted that a number of concerns in relation to D are in the long term, she remains of the view that D is not safe at home. She says it is merely fortunate that he has not yet suffered serious harm in circumstances where there have been so many potential opportunities for that to happen. Furthermore, she reports that although there have not previously been concerns about the parents allowing access to D or the home, or in their engagement with professionals, it has become increasingly difficult to discuss D’s safety and care issues with his parents who have become distressed when she has broached this subject. She pointed to the evidence of occasions when the parents had failed to disclose to the LA such incidents and she was concerned if D was returned to their care, they would be less likely to report such matters out of fear that D would be removed again. SW would include in this the failure to mention G’s presence at the family party.

32. It was SW’s assessment that while there were pockets of good enough care, it was not consistently maintained. She accepted that in addition to the concerns there are a lot of positives in relation to M and F and their care of D, and it is for that reason that the LA has not acted to remove D sooner, hoping that with continued support, the situation might improve. Unfortunately that has not been the case and matters are at an unacceptably bad level.

33. SW said that a high level of support had been provided to this family as set out in her statement at D15, specifically tailored to their needs, and higher than would be expected for other families, and yet the concerns remain. SW was asked about the nature of that support which included professionals visiting and carrying out work with M and F in the home around safety and risk and encouraging play. In her statement M sets out how they find it difficult to pick up subtle cues, need information to be provided directly, repeated and be consistent. The Official Solicitor has raised on behalf of F the fact that none of the professionals working with the family appear to be specifically ‘PAMS’ trained. SW said this had never been raised by the parents as an issue before now, including when the final care orders were made and the support to be provided under the care plan finalised. She understood much of the work, particularly that around risk, to have been provided ‘in the moment’ when such issues arose. When asked about why pictorial information had not been provided, she said that F had expressed some sensitivity about the way information was provided to him. SW was aware that M liked to have advocacy support for social work visits, although she acknowledged that Miss Chambers, who M relies on for such support, was not always able to attend. SW was aware that F had been without adult learning disability support for a year, but understood that recently services had been restarted. Because she was aware that M and F found social work visits difficult and more recently they had tried to reduce the amount of professionals visiting to lessen the pressure in the home. When asked, SW could not think of anything that had been done or not done to support the family that she would change, and she felt she had given it all she could.

34. D has never been placed apart from his parents, and SW accepted that D would have suffered a level of confusion and distress on being removed from M and F, his primary attachment figures. SW described how D was confused and bewildered for the first 24 hours, but soon settled in to a routine, sleeping, eating and responding well to the foster carer. I understand he is in a placement with one other 3 yr old child. For the parents, SW acknowledged that removal had been very stressful, but that they had handled it very well, had contained their no doubt considerable distress and had carefully packed what D would need while in foster care. I have to observe that they should be commended for this and I find it confirms the evidence SW gave about their concern for and commitment to D being happy.

35. SW’s opinion, in conclusion, was that although removal of D from M and F’s care was something that the LA had worked hard to avoid, she was unable to support D retuning home. He would be exposed to too much risk of harm.

36. SW confirmed that the LA had further considered the MGP in the light of the original care plan. I note that the concerns identified in the first viability assessment she had carried out in September 2012 were in relation to MGP’s willingness to work with the LA and their understanding of the LA’s concerns. She had concluded at that time that a trusting relationship could not be established between MGP and the department and would be undermined by a failure to accept the LA’s concerns. She was satisfied that MGP had the best of intentions but believed they did not recognise deficits in the parents care of D and in particular found issues of concern around accidental harm to be insignificant. This SW had described as a persistent theme. As a result she doubted their ability to remain objective or enforce restrictions around M and F if that was required. She did recognise them to be a valuable source of support for M and F, and that had continued to be the case.

37. In line with the earlier recommendation, SW had met with MGP again on 9 May to update the assessment. Included in that assessment is reference to SW’s experience of the ongoing involvement of MGP throughout the time SW has been working with the family following the making of the care order. She notes their significant relationship with D and believes they are well-intentioned. She recognises their experience of bringing up children with learning difficulties but is concerned they may be insufficiently ambitious for D. She records that there are times when MGP have shown that they can work with the department, for example when caring for D while his parents were away on their honeymoon, but she observes that co-operation is dependent upon the MGP view of the issues. When the family is not being challenged by the LA, relationships are better. In addition to SW’s concern that their ability to work with professionals remains limited, she observes that they have poor health and MGM has significant caring responsibilities for MGF. In her opinion it is not realistic to expect that they could meet D’s needs throughout his childhood.

38. I turn next to the evidence of the Guardian. Clare Mowbray is a very experienced Guardian and has had the benefit of having been D’s Guardian in the care proceedings. She has had no involvement since the conclusion of those proceedings and was reappointed in April 2014. As a result, she is able to see D and his parents as they are now, and compare that with her assessment made in 2012 when the proceedings concluded. She has been able to see D in the family home and observe a recent contact following which she had a brief meeting with the parents with their advocate. The Guardian has spoken with the foster carer but has not yet been able to visit D in the placement.

39. She was able to clarify for the court how although the original proceedings concluded with an unopposed order, M had been unhappy about the prospect of the LA sharing parental responsibility with them under a care order. I note in her statement, M confirms this, saying she felt she had no choice but to agree if they were to be allowed to keep D in their care.

40. CG referred to her final report filed in the care proceedings, which is available in the bundle at E64 and in particular her description of the LA’s care plan as “courageous”. I note that she sets out at para 55 some of the issues current at that time, including D falling off the sofa, M failing to protect him adequately from the sun, leaving an unsafe object around the home and being resistant to the advice about G. At para 57 - 59 she says as follows: “In essence, D has several experienced [sic] minor accidents and has narrowly escaped experiencing more serious care crises due to poor supervision and /or M’s resistance to taking advice about child care issues. There is no guarantee that D will not experience further physical risk as a result of poor supervision and M’s difficulty in appraising and preventing child care risk. M’s resistance to social work supervision and to taking advice must increase the risks that D is exposed to on a daily basis”.

41. In considering the welfare checklist and particularly risk of harm, the CG identified that D had, in part, been protected from harm and risk of harm by means of the family foster placement and the considerable support and monitoring that had been in place since the family moved to independent living in July 2012. She considered that D was at risk of minor or even major accident due to inconsistent parental supervision, M’s resistance to advice and the absence of reliable support from MGM in relation to risk. Under the heading of likely change of circumstances, she identified that D had always lived with his parents, but that if his care circumstances became less safe or he suffered further accident due to poor supervision or not acting on sensible professional advice, that he may need to be removed. She did not support a placement with MGP. However, if their ability to work with the LA and understanding of risk improved, she would support the suggestion of reviewing the viability assessment.

42. At that time, D was described in the CG report as a placid, mainly smiley baby, developing well and presenting with no health or development concerns to date.

43. The CG also identified the emotional warmth that F demonstrated to D, and M’s less spontaneous approach. She noted that M can present as emotionally cool especially when pre-occupied, and can be slow to anticipate D’s need for attention including safety-orientated attention.

44. The CG commented on the parents love for D, and their consistent commitment to looking after him, albeit that M did not always want to follow professional advice.

45. Finally, in her analysis of the key issues, she noted that in the period D had been living in semi-independent circumstances there had been a worrying number of accidents and incidents, some of which could have been prevented by better parental supervision or by M acting on professional advice. As a result, D’s care was therefore being carried out where everyday risk continues to exist and wider risk issues have not gone away. She said this: “Although I support the LA’s courageous attempt to try to enable D to be looked after by M and F, I am not yet entirely confident that they will be able to provide D with the safe emotionally attentive care he will need on a long-term basis”. She also noted and supported the LA’s contingency plans, which in the event that MGP’s could not work with the LA in a failsafe manner, referred to adoption as the preferred care future for D.

46. CG’s initial analysis in these proceedings had been prepared in a relatively short period of time so that it could be filed in advance of this hearing. In that report CG sets out an assessment of the current risk factors and strengths within the family, considers parenting capacity and analyses issues impacting on D. Her interim position is that she is unable to support the Care Order being discharged at this stage and recommends that D remain in the foster care placement. On the basis of the evidence available, CG did not consider that D’s immediate safety and emotional needs would be met if he was returned to the care of his parents.

47. She adhered to those recommendations and opinions in the course of her evidence. She described the situation as ‘multi-faceted’, with D in the middle not having made good enough progress, although the reason why is not yet clear. While D remained in foster care, there would be an opportunity to resolve the issue of developmental delay.

48. CG referred to the evidence of change in D that was already being observed. The difference in his current behaviour from that in his parents’ care, which she described as assertive and over-boisterous, was of significance. This was particularly so as the foster carer did not consider that D was a child that needed anything more than the usual boundaries and levels of supervision, and she had not found him particularly challenging in her care. This pointed to the issue not being D’s behaviour but rather his parents’ inability to contain it. The CG described how when she had visited the family on 23 April, which was the day before the court hearing, there had been an atmosphere of high anxiety as the parents knew that the LA was intending to remove D. She described how D was not receiving much attention and had managed to scribble on the carpet in spite of their being 3 adults present.

49. She accepted that D would have been confused and upset by his removal, and would be affected by disruption of attachments, but was of the view that this was countered by the advantage of his being in a safe environment where a detailed assessment of his needs could be carried out. D was coping with seeing his parents at contact, and was not of an age where explanations could be given to him. Even accepting the harm to D of removal, he was presenting as settled and calm not only with the foster carer, but also at the child-minders where he was spending less time. When challenged on behalf of the parents as to why she had not included in her analysis factors arising from removal that were detrimental to D’s welfare, CG referred to the short time available for preparation and the fact that to some extent they would be present in any removal situation.

50. She thought that improvements seen in the more recent contact sessions were probably a combination of D being more settled and calm and contact forming part of his routine, and the parents presenting as less distressed.

51. She did not accept that the fact that the issues being relied on now were the same static and historic risk factors previously present when D was placed at home made them less relevant. She pointed out that D’s safety had been a real concern in 2012, due to poor supervision and M’s resistance to following advice.

52. The CG had been able to discuss issues briefly with the IRO and although further discussion would be useful, the CG understood the IRO to share the LA’s concerns. The CG did not see the LA as seeking to remove D at the first opportunity, indeed far from it. She said she had not come across a case where such an extraordinary level of resources had been able to be provided. I note from her report in the care proceedings that she considered SW to have devoted time to this family, and demonstrated a careful and thorough approach.

53. The CG shared SW’s concerns that if returned to M and F, that future monitoring would be difficult.

54. Having set out the relevant evidence available at this interim hearing, I turn to consider the applications that need determining.

55. The declaration sought by M and F that D’s removal from them was unlawful is confined to the LA’s decision to remove D on 25 April 2014 after the hearing before the District Judge. It is acknowledged and accepted that well before that hearing the LA had already reached a decision that D’s long-term welfare required him to be removed from his parents care. It is also not in dispute that when taking such a decision, the LA, being a public authority, is required to ensure that it does not act in a manner that breaches article 8 ECHR rights of parents and child, whether procedurally or in relation to its actions. I note Baker J’s general observation that a LA considering changing a care plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process.

56. Where matters become rather more complex is as a result of the issue of F’s application to discharge the care order. Once it became apparent that a case to discharge was before the court and remained to be determined, it is submitted on behalf of M and F that the proportionality of the decision to remove fell to be considered not as the LA would previously have needed to consider, it on the basis of whether nothing else will do to secure D’s long-term welfare, but as Baker J sets out in his judgment, whether the child’s welfare requires his immediate removal. It therefore follows that unless the LA was satisfied that there was a need for immediate removal as at 25 April, D should have been left with M and F pending the determination of the discharge application. Furthermore, Baker J’s guidance sets out how the LA must keep a written record demonstrating that it has considered this question, consulted with the parents and recording the reasons for its decision. Any removal of a child in circumstances where the child’s welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child.

57. As I understand it, in this case no point is taken with the process by which the decision to remove was reached; on behalf of the parents it is a straightforward and simple submission that the act of removing D was not necessary and was disproportionate in the circumstances. The parents submit that the LA concerns were in relation to D’s long term welfare, and the facts did not warrant removal before those issues could be determined within the discharge proceedings. Further that the LA failed to properly take into account and balance against their concerns the impact on D and his parents of removal. On behalf of the parents, it is suggested that it is for the LA to satisfy the court that having taken a step that clearly interferes with s.8 ECHR rights, that their actions are necessary and proportionate and therefore lawful.

58. On behalf of the LA, it is accepted that it cannot simply rely on the fact of an existing care order to justify removal, and points to the steps taken under the Care Planning Regulations 2010 and the fact that no point is taken by the parents in relation to process. The LA submits that D’s removal was lawful in the circumstances, that the required test of necessity and proportionality was indeed met and relies on the evidence of the SW, supported by the CG, as substantiating a finding that D’s safety and welfare required his immediate removal.

59. I remind myself that where this court is considering whether there has been an unlawful interference with art 8 ECHR rights, it is necessary to consider and balance D’s rights separately from those of his parents, and where they may be in conflict, it is D’s rights that must prevail. D’s rights include those to be safe, protected from all types of harm, including emotional and developmental harm, and not to be placed at unacceptable risk of harm, as well as to be brought up within his birth family where possible without the interference of the state. M and F’s rights include the right to care for D and bring him up within a family setting without interference of the state.

60. In considering the totality of the evidence, I bear in mind that I have not heard directly from the parents and note the hearsay nature of some of the material relied upon. A number of the issues raised are not for determination at this hearing for an interlocutory injunction, but are more appropriately dealt with at a final hearing of the discharge application, including the full extent of D’s developmental delay and the cause of it.

61. Further, issues around whether the support offered to the parents has been appropriate and accessible to them in view of their needs is an issue for further consideration in the discharge proceedings, together with consideration as to whether there are alternative supports or arrangements that could be made for D’s care in the long-term. The assessment of M is a particularly important piece of information not yet available.

62. I start by recording a finding that it is not in doubt that these parents love their little boy and cannot bring themselves to consider losing him from their care. This is apparent to all. On the basis that the LA has made it clear that this is a case where the alleged risk of harm to D arises wholly from a lack of parenting capacity and there is no suggestion that either parent would deliberately or intentionally cause D harm or place D in a situation where that harm might arise, I also record a finding to that effect.

63. The LA asks the court to consider that even with what has been described as an extraordinarily high level of support in place, that D has remained at risk of harm as illustrated by the evidence.

64. The parents ask the court to consider that, as a matter of fact, D has not come to harm in their care, indeed that has only occurred once he was removed from their care. They point to the care they have provided to date, their love and commitment to each other and to D, the attachments D will have formed to them which have now been fractured, the way in which each parent with their particular strengths compensates where the other may find things more difficult. I am also asked to take into account the level of co-operation shown under the Care Order and the ability of the parents, particularly M to engage with the professionals, taking D to his activities and childminder, attending meetings and allowing professionals access to D. The court’s attention is drawn to the possible supports available from P and from MGP. For D, it is submitted that he has encountered a profound change in his circumstances, having spent his whole life in the care of M and F.

65. As I consider the evidence, in the light of the parties submissions, I note there have been no unannounced visits to this family, but I anticipate that was to ensure M had the opportunity to arrange for an advocate to support and assist her. From a social work perspective I observe that this greatly reduces the scope for the LA to gain a clear picture of what care is being provided when professionals are not monitoring. M in her statement says that she found the presence of professionals distracted her from being able to focus on D. SW knew that M and F found these visits difficult and it is also possible that the anticipation for such a visit would heighten anxiety.

66. I accept the factual evidence given by SW in relation to M’s care of D, including the occasions when she says D has been placed at risk of physical and emotional harm, and her description of D’s behaviour at SW visits, much of which is not in any event challenged by M. Although I have not heard direct evidence from FN or Miss Westall, I am satisfied that their observations of how D was seen to behave as set out in e-mail correspondence, match those made by SW herself and can also be relied upon.

67. The deficits in M’s care are the more troubling as the care plan identifies M as the main carer for D. The LA is concerned that M is unable to keep pace with D’s development and has not been able to demonstrate, as had been hoped, an ability to anticipate risks including as those risks may change as D grows up, and alter her parenting accordingly.

68. I remind myself that risk of harm has to be considered not only in terms of the likelihood of an event occurring, but also the potential harm arising from such an event should it occur, and must take into account the child’s age and stage of development. I observe that the concerns relied on by the LA come at a time when D has become mobile but is still too young to have a fully developed sense of risk. He is still only 2½ years old and I bear in mind that D’s development is said to be delayed. It is also relevant that when some of these incidents occurred, he would have been considerably younger. I note that the foster carer has formed a preliminary view that D does not need a greater level of supervision than would be expected for a child of his age.

69. I find that the evidence supports a finding that the supervision and care of D has not been consistently adequate for D and has left him at risk, on occasions, of physical and emotional harm. I am satisfied that at times the level of risk to D has been high, particularly when he has been insufficiently unsupervised. I rely on the occasions when D managed to get out of the premises on his own, closed the door locking his M out of the house, and the occasions when his boisterous and sometimes dangerous behaviours have been allowed to continue unchecked. The potential for a serious accident to have resulted given D’s age is to my mind quite high. For children to feel safe, they need the adults to step in and contain their behaviour.

70. It has no doubt been distressing for the parents to hear that D has hurt himself since being in foster care, I also recognise, as any parent will know, that even with the best supervision accidents happen. And I do not ignore the fact that there are no reports of D having bruises while in his parents care. However this is not evidence that can be relied on to counter the other evidence that I accept and rely on about how in their care D has been able to charge around the room unchecked, throw toys, hit people and climb on and fall off furniture. In addition, there is the isolated incident when M accepts she threw a remote control in anger that narrowly missed hitting D. Although this is the only report of such an incident, what happened and the reason for it is surely a matter for concern.

71. The Guardian’s evidence was that it was a matter of luck that D had not in fact come to any physical harm while in his parents care, and that appears to me to be an accurate assessment of the situation. The fact that the LA did not act sooner does not lessen the risk.

72. I am also satisfied that there is sufficient evidence available at this time upon which the court can conclude that it is more likely than not that D’s need for adequate stimulation, given his age, is not currently being met consistently by his parents. I rely on the observations of the FN and Miss Westall who observed that D seems unable to play. The SW and other professionals have impressed upon M and F the need to play with D and read to him every day, play being something which M acknowledges she finds difficult, and F being out of the house during the day is only able to provide at limited times. It will be a matter for further determination what the impact of this, if any, might be, particularly with the additional activities that had been put in place for D, but it is a further risk factor in the overall picture of D’s welfare needs and how they are currently being met.

73. I turn next to consider the proportionality and lawfulness of the LA’s decision to remove in the light of my findings. The LA accepted at the hearing before the District Judge that no ‘emergency’ situation had arisen; there was no precipitating event that triggered the decision-making process, but a continuing level of concern that eventually led to a conclusion being reached that remaining with his parents was no longer in D’s long-term best interest. The parents rely upon this as demonstrating that the decision to remove on 25 April was not necessary and proportionate as it related to the long-term. On behalf of the CG, it is submitted that the test for removal does not require that there be an emergency.

74. I have reminded myself of the test which Baker J has indicated should be applied in these circumstances, which is that the child’s safety and welfare requires their immediate removal. I have also been referred to the cases of G v N [2009] 1 FLR 774, and Re GR (Children) and others [2010] EWCA Civ 871 which contains a useful summary of the case law on removal under an ICO. On behalf of the LA, I am asked to consider that in fact this kind, caring social worker possibly made too many allowances in relation to risk because of the observed pockets of good care which persuaded her to continue to persevere with the plan. The parents say that this is, in itself, indicative of the fact that D’s immediate removal was not necessary.

75. I note that previously the LA has not immediately stepped in to remove D at the time of concerning incidents, and also that the decision not to pursue placement with the parents further has been made while SW, who has a good working knowledge of the family and has until now been committed to making the care plan work, remains D’s social worker. I am satisfied that the evidence points very clearly to a finding that this LA’s intention has always been to support this family and keep D with his parents, if that is possible and in D’s best interest.

76. At the hearing on 24 April, the LA was invited by the District Judge to consider giving an undertaking not to remove while the F’s discharge application remained to be heard, but having given the matter some thought, declined to do so. This, in my view, adds some weight to the case put on behalf of the LA that there was an escalating level of concern for D’s immediate welfare if left in the care of his parents. The LA maintains its position that it has been unable to keep D safe in the care of his parents in spite of sharing PR and the high level of support and monitoring from a multiplicity of professionals. That has to be considered in the light of the most recent information provided to the LA by other professionals, and SW’s own observations. The CG visit to the family immediately before the court hearing highlights the level of pressure the parents were under knowing that the LA was concerned for D remaining in their care and planned to remove him. There is evidence that these parents have continued since the care proceedings were finalised to be anxious about the fact that the LA had a care order and might be able to remove him. There is also evidence that M was aware that informing the LA about concerning incidents, including D getting out on his own or that they had been at a family gathering where G was present, might result in D’s removal. I find it likely that that M would continue to be concerned about revealing such matters to SW, and perhaps now other professionals which increases the level of risk to D. Without hearing from M and F, it would be inappropriate to make any finding in relation to the circumstances in which they came to be at a party when G was present so soon after the issue had been raise with SW, but the way in which this information came to the attention of SW and what M is reported to have said to the NSPCC worker is of concern.

77. The parents have raised in cross-examination of both SW and the CG the failure to include in their written evidence any consideration of the effect on D of being removed from the care of his parents. The court is invited to form a view that this is indicative that insufficient consideration was given to this very important aspect of the balance of harm.

78. While it is indeed an omission to have left out such an important part of the reasoning process, the court must look to the other evidence before concluding that it was not brought into the balance. I have no doubt that SW has always had in mind the impact on D of being removed from his parents, and indeed the impact on D’s parents of being separated from D. She has worked tirelessly to support what the CG described as a ‘courageous’ care plan. Similarly, I am not persuaded that this very experienced CG, who told the court that such matters are generally a given in all cases of removal, failed to take such matters into account. However, it is clear that she prioritises his safety, an issue that concerned her in the original care proceedings.

79. Procedurally, their written evidence falls short of what is required, and particularly setting out in relation to this particular child and his parents what the impact of a change of circumstances will be. However, I am not satisfied that it has not been fairly and properly considered by both the SW and CG in reaching their conclusions in support of removal. I find that it is inevitable that D will have been caused some harm as a result of removal, the change in placement, the inability to explain that to a child of his age, and the loss of his parents from his life except at contact twice weekly. The evidence that he has settled quickly in the care of his foster carer and a new routine, and is happy, compliant and making progress, suggests that his distress and confusion has been short-lived. Further changes in placement at this time risk compounding such harm and may risk more long term effect which could affect success of any future placement, including return to his parents.

80. I have indicated that it is not appropriate at this hearing to make findings about developmental delay. However, I accept the evidence given that D’s behaviour has improved considerably since he has been in foster care, that being the opinion of all of the professionals who have been involved with him and are in a position to make the comparison, as well as the direct experience of the foster carer who has witnessed that change. It is also important evidence that the foster carer does not consider that D requires more than the usual level of supervision and boundaries for a child of his age. His calmer behaviour seen in such a short period of time leads me to conclude that the wilder more out of control behaviour seen prior to D’s removal is more likely than not due to D’s parents inability to manage him at that time. I find it unlikely as is suggested by the parents that this behaviour was confined to when professionals were visiting. There is some evidence this type of behaviour was also exhibited when D was at the childminders.

81. Although it is not appropriate to make findings in relation to the cause of D’s developmental delay, it is appropriate to take into account that D is at an age where his development would normally be expected to move on swiftly. Dr King identifies his gross motor development in particular is delayed and so he needs to be able to make progress in that area, but under safe and careful supervision. He will need to be taught to understand and anticipate risk for himself. He requires daily stimulation to assist in progressing his language skills. These are immediate needs for a child at D’s stage of development.

82. Having identified the risks to D, including those arising from D’s removal from his parents care, I remind myself that there are also the considerable positives about M and F and their care of D that I have already identified and referred to and must be taken into account. These matters are recognised and accepted by both LA and CG and I am satisfied have been brought into the balance in reaching their opinions as to what is in D’s best interest.

83. I have considered whether, even if removal from D’s parents is justified, the LA sufficiently considered alternative arrangements, including wider family members. I am reminded that the LA has sanctioned D staying with MGP when the parents took their honeymoon. I have read the viability assessment carried out in the original care proceedings and the updated assessment filed in these proceedings. I am satisfied, having read the viability assessments of MGP’s that placement of D with them on an interim basis would not have been appropriate.

84. Having weighed all these matters, I reach a conclusion that the LA has demonstrated that the evidence is such that, at 25 April 2014, D’s safety and welfare required his immediate removal from his parents care, his removal was therefore lawful and accordingly I decline to make the declaration sought by D’s parents.

85. Even having found that D’s removal to foster care was justified at 25 April, I have gone on to consider whether it should continue in the light of the information now available. Having considered D’s welfare in accordance with the factors of the welfare checklist, I find that his welfare is best met by him remaining where he currently is in foster care. This protects his immediate safety, returning him to his parents care would again place him at risk of harm. I am not persuaded that the suggested interim additional support that could be provided by P would be sufficient protection, particularly at a time when the parents are under such scrutiny and no doubt feel the pressure of that. I also factor in the potential confusion that would be created for D if returned now, and the impact this could have on his behaviour particularly during an important stage of his development. Were it necessary to remove D again in future, this would risk serious disruption to attachments and emotional damage to D. I take into account the continuing harm to D of being away from his parents, and record that it is very important that he retains a relationship with his parents through contact, and while D’s behaviour in contact is improved, that provides the best opportunity to preserve his attachments to them in so far as that is possible.

86. I wish to impress upon the parents that this is an interim holding position. Any findings that I have made are on the evidence as presented to me at this time. The decision I have reached does not mean that the court has concluded that the LA’s revised care plan is appropriate to meet D’s long term welfare. That is a decision to be made when the merits can be fully considered. There is further information required that the court does not yet have and other potential arrangements to be considered. Particularly important is the fact that I have not yet heard from the parents themselves in evidence.

87. I turn next to consider the application made under PD25 of the FPR 2010 for the instruction of an ISW to carry out an assessment as to the capacity of the MGP’s to care for D in the long-term.

88. My attention has been drawn to the fact that the review of the Viability Assessment was conducted after one meeting with MGP when the LA had already filed a statement in the discharge proceedings in which they had already formed a view about the MGP’s as potential future carers. As such, it is suggested their assessment cannot stand as a matter of fairness and an independent review is required.

89. I am told there are no issues in relation to delay, the assessment will take 2 months, is within the timescales that the LA seeks to assess D’s needs and identify possible cause of his delayed development, and the assessment of M still requires to be completed which will be taking place in June.

90. As the parents have no public funding and are unable to afford to contribute to the cost, if ordered it will need to be borne by the LA and the CG, the LA bearing a ¾ share. The expert favoured by the parents representatives charges slightly above legal aid rates, and requires a greater number of hours to complete the work. The LA has requested that in the event that the court determines the assessment to be necessary, opportunity should be given to the LA to see if some further assessment can be arranged by the LA or an ISW can be identified who can report within the timescales but within legal aid rates.

91. On behalf of F I have been reminded of the case of Re M (A Child) [2009] EWCA Civ 315, and Re B (Children) [2010] EWCA Civ 363 and the need to pay careful consideration to the views of the Official Solicitor, that a court should be slow to reject an assessment of the Official Solicitor that the instruction of an expert is necessary, particularly where that expert opinion would be pertinent to the discharge of the Official Solicitor’s responsibility to the incapacitated litigant.

92. The LA asks the court to find that assessment is not necessary. There have been two assessments of the MGP’s neither positive. I am asked to consider that the second assessment does not come in a vacuum, the MGM has remained part of the picture since the care order was made and there is reference to her in the evidence before the court. That will continue to be the case as she attends contact each week.

93. The CG maintains a neutral stance in relation to the application for an expert. In relation to delay, she is concerned that a decision for D’s future care should not be delayed for too long, but also notes that a fuller assessment of D’s needs is required which she considers should be better done while he remains in foster care.

94. I have re-read both assessments and considered what are the issues that concern the LA and whether in the light of those assessments and the LA clearly formed view of the MGP’s as potential future carers, or indeed as support for M and F, whether involvement of an ISW is necessary.

95. Given the nature of the concerns, in particular the ability to form a trusting relationship with LA, I am not persuaded this needs reassessing. The conversation as reported from the meeting on 9 May, and I acknowledge that I have not heard from MGM as to whether she accepts this, but it is an ongoing theme and so I believe it likely to be reasonably accurate, suggests that the MGP’s very much remain of the view that there are no concerns about the parents parenting of D and that he should not have been removed from their care. Those and other comments suggest that the LA is right to believe that it could not work in partnership with MGP confidently. The health concerns raise practical issues in relation to their ability to offer long-term care. I am not persuaded that there is much useful information that an ISW assessment of MGP could bring to this, particularly when the issue is one of co-operation with the LA. Even taking into account the case-law and the fact that the Official Solicitor seeks this assessment, for the reasons given, I find that such an assessment is not necessary.

96. More important, in my opinion, is to consider whether further assessment may be required of the parents ability to manage D’s care in the long-term. There are a number of issues that arise

i) A full assessment of D’s needs, and whether his developmental delay is likely genetic or affected by the level of care he has been receiving

ii) M’s outstanding assessment and if she is identified as being autistic, whether there is specialist support that she requires that she has not yet been provided with

iii) Whether the parents have been able to understand and make use of the parenting support provided to date in the light of their learning disabilities, i.e. has the right support been provided or is there some other more appropriate help that could make a difference

iv) Whether there are other potential options to be explored for D’s future care, including what might be offered by P.

97. The LA has indicated that it does not intend to issue a placement application at this time, although the care plan at present remains adoption. It has confirmed that it will consider all other options, as indeed is required of it. There is time for further assessment to be carried out that should not cause undue delay and such information is likely to be necessary for the court to properly consider the discharge application.

98. I would ask the parties to assist in identifying a suitable ISW who has the necessary expertise of working with parents with learning disabilities, who could carry out an assessment as indicated in para 96 (iii) and (iv) above, in the light of the information required in para 96 (i) and (ii), and preferably within legal aid rates. I would hope that this matter could be dealt with by way of written application and e-correspondence. As discussed at the hearing, I invite the parties to arrange an advocates meeting by telephone to discuss the issues arising from my decision and to consider further timetabling and directions within the discharge application.

99. I record my grateful thanks to all the advocates for their assistance with this very sensitive matter, and in particular those who have provided the parents with their services pro bono, both solicitors and advocates, without which these issues simply could not have been fairly aired on their behalf.

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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> D (A Child) [2014] EWFC B77 (09 June 2014) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B77.html Cite as: [2014] EWFC B77

England and Wales Family Court Decisions (other Judges)