England and Wales Family Court Decisions (other Judges)

In the Family Court at Reading

Before Her Honour Judge Owens

10^th June 2015 to 18^th June 2015

Case No: OX14C00068

OCC v B & T

Ms E Rayner, Counsel, for OCC

 Mr D Sheridan, Counsel, for the first respondent Mother

Mrs M Giles, Counsel, for the second respondent Father

Ms Zabihi, Counsel, for the third and fourth respondents, acting through their Children’s Guardian

 

Introduction

 

I am dealing with public law proceedings in respect of two children, JR and K aged 3 years and 2 years respectively.

 

The children’s mother is RB.  She is deaf and communicates using British Sign Language (BSL).   

 

The children’s father is ST.  He has four older children from previous relationships; two of whom were subject to child protection plans and subsequently resided with their mother, and two of whom (from two different mothers) were adopted following (two sets of) care proceedings.  He does not have direct contact with these older children. He was diagnosed with borderline personality disorder in 2008, which was confirmed by a further psychiatric assessment during the care proceedings in 2008.

 

 

I have read all of the evidence contained in the Court Bundles and heard from various witnesses in the course of this final hearing.

 

Background

 

ST has a significant history both with the criminal courts and with children’s services.  He has 48 offences between 1984 and 2008.  He is subject to a 16-year restraining order in respect of his previous partner.  There has been a history of threatening behaviour from him towards his partners and professionals.

 

JR was the subject of a child protection plan as an unborn baby.  This plan was ended in October 2011 as the parents had been complying with the statement of expectations and were making good progress. 

 

On 6^th September 2012 there was a further referral to the Local Authority as JR had attended A&E due to sustaining a bump on his head.  Concern was raised about the supervision of JR.  There were then further concerns raised about RB being the victim of domestic violence perpetuated by ST.  RB entered a refuge in September 2012 and August 2013 but on both occasions returned home and resumed her relationship with ST. 

 

JR was made the subject of a child protection plan on 20^th October 2012 and K was made the subject of a child protection plan as an unborn baby on 7^th June 2013.

  

Concerns were raised about ST’s aggressive behaviour towards RB in front of the children during a home visit on the 4^th March 2014.  RB disclosed physical domestic violence.  RB was supported to move to B&B accommodation with the children prior to going to a refuge.  However, RB then chose to apply for non-molestation and occupation orders rather than seek alternative accommodation.  These orders were granted on 19^th March 2014 and RB and the children returned home.

 

On 14^th May 2014 RB applied to discharge the orders stating that she had post-natal depression and that ST intended to marry her.  She did not discuss this with the Local Authority.  The orders were discharged on 4^th July 2014.  The Local Authority had meanwhile received an anonymous referral that ST and RB were back in a relationship, which RB denied in a meeting with Social Services on 2^nd July 2014.

 

As a result of these events, the Local Authority issued care proceedings on the 10^th July 2014 and applied for interim care orders for the children.

 

Proceedings to date

 

At the first hearing on the 17^th July 2014, the contested interim care order hearing was adjourned until the 4^th–5^th August 2014 so that there could be an assessment of RB’s capacity and communication needs, and so that there would be enough time for her representatives to take instructions. A non-molestation order against ST was made of the court’s own motion.  A CMH was also listed on the 4^th-5^th August 2014.  

 

It was subsequently not possible for RB’s representatives to find an expert to assess her communication needs before 4^th August. RB made a Part 25 application for a psychological assessment of her by Dr O’Rourke, who is a specialist clinical psychologist for deaf people.

 

At the hearing before District Judge Payne on the 4^th August 2014, an interim care order was made (not being opposed by the parents).  RB sought that a viability assessment of the maternal grandparents be undertaken and the children placed with them if possible.  Permission was given to instruct Dr O’Rourke to assess RB.  Other case management directions were given in respect of disclosure and timetabling the matter to a 5-day final hearing on the 2^nd March 2015 before District Judge Payne.  The 26-week timetable was extended by 8 weeks to 34 weeks due to Dr O’Rourke not being able to complete her report within a 26 week timescale.  Also RB required additional time to consider and respond to the Local Authority evidence. 

 

A further CMH took place before District Judge Payne on the 27^th August 2014.  The viability assessment of the maternal grandparents was not positive and so there had been no change in the children’s placement.  The maternal grandparents and the other proposed kinship carers have since withdrawn from the assessment process as full carers. Directions were given for disclosure of papers from the proceedings in respect of ST’s other children and further evidence to be filed.

 

Dr O’Rourke provided her report on the 30^th September 2014 [E2-38].  She concluded that RB is of low average intellectual ability but does not have a cognitive impairment or learning disability [E6, E30-2] and she is not currently suffering from a diagnosable psychological disorder [E6, E30-2].  RB had been disadvantaged in aspects of the proceedings to that date due to her deafness [E7, E35-37]. RB did not fully understand the risks posed by ST, particularly in respect of his personality disorder [E31-2].  As such she required further appropriate work and support to enable her understanding [E6, E31-2].  RB required support as opposed to treatment which is envisaged at weekly sessions of intervention over a 4-6 week period [E34]. The use of deaf professionals or professionals fluent in BSL to provide this work to RB was recommended [E6, E32]. A referral to DeafHope to provide counselling and support in relation to domestic violence was also recommended [E32].

 

As a consequence, the Local Authority instructed WA, a deaf social worker who uses BSL, to carry out the work with RB as recommended by Dr O’Rourke.  WA summarised her work and recommendations in a letter dated 30^th November 2014 [E52-59]. WA was instructed by the Local Authority on the basis of undertaking no more than 4 sessions of work each lasting no more than 4 hours.  Having read the trial Bundle, WA accepted the instructions but on the basis that she wished to carry out the work over 2 days, namely 28^th and 29^th November 2014.  Her conclusions after undertaking that work were that there should be a risk management plan and that DeafHope be contracted to provide specialist input around:- “What is a healthy relationship?; What is Domestic Abuse?; Understanding the categories of Domestic Abuse including emotional and psychological Abuse.” She also went onto recommend that RB would benefit from a Deaf Parenting course either through a specialist resource or through a local authority parenting course with a registered qualified Sign Language Interpreter (E58-59).

 

On the 9^th December 2014 RB moved to a place of safety following an alleged assault on her by ST on 8^th December 2014.  This assault was witnessed by a member of the public and ST was arrested.  The Police records of this assault are at F110-112 and F129 – 144 and I have also seen the DVD recordings of ST’s Police interview and RB’s statement to the Police about this incident. This incident as well as other concerns about ST’s behaviour led the Local Authority to become concerned about being able to facilitate ST’s contact with the children safely.  His contact was suspended on 9^th December 2014 and on 22^nd December 2014, following the Local Authority applying on 12^th December 2014; I granted a section 34(4) order enabling the Local Authority to continue to refuse contact between ST and the children.  In light of the recommendations of WA and the change in circumstances of RB, the Local Authority also sought an extension of time to file their final evidence. On 22^nd December 2014 I also extended the timetable of the proceedings to 42 weeks to 30^th April 2015 and listed the matter for a final hearing on 20^th April 2015 with a time estimate of 7 days.

 

RB undertook the recommended parenting work by the Local Authority commissioning one on one Holding Hands programme with HE, also present was an interpreter and a family support worker (for the majority this was GM). The records of the Holding Hands work can be found at [C71a - e].

 

During the period December 2014– March 2015 ST had one contact on 7^th January 2015; due to his alleged emotional unpredictability and aggression another contact was not arranged until 25^th February 2015.

 

The Local Authority completed a parenting assessment of ST and RB, dated 3^rd March 2015, which concluded at [C94]:

“There have continued to be concerns relating to ST’s presentation. ST has not engaged in the recommended long-term therapy, Dr Saktar recommended in his report of 2008 and, given this, ST’s functioning is likely to remain unchanged.

 

RB has made a number of changes since moving to refuge in December 2014. She has made progress in relation to her parenting, her working relationship with the department, her willingness to accept advice and support and put this into practice. She has completed a six week Holding Hands Parenting course and has been attending a Survivors of Domestic Abuse group weekly. She has fully engaged with the parenting assessment and has shown commitment to contact with the children. RB has remained in refuge and separated from ST.

 

There are concerns about how RB would manage in reality if the children were returned to her care and there are also concerns about her not feeling quite ready, which she has acknowledged. This poses a dilemma for the department as the timescale for the children needs to be given careful weight and consideration.

 

However the department proposes that in light of the changes made by RB her contact be increased from 1.5 hours to 4 hours 2 times per week and that 2.5 hours of this be unsupervised. The department would then wish to consider contact taking place in the refuse with a view to the gradual rehabilitation of the children to RB in the refuge providing the increase to contact is positive and provided that RB feels able to manage with appropriate support being put in place. The proposal is that this plan be implemented ahead of the final hearing so that this can be assessed, reviewed and monitored and that this would help inform the assessment for the final hearing.

 

A referral to Social Services in the area RB is living has been made as it is proposed that, in the event that the children are rehabilitated to RB’s care, Social Services in that area should be involved to support and monitor the children.”

 

The Local Authority filed an updating statement dated 10^th March 2015 [C96-101], setting out the rehabilitation plan [C99-100] and their reasons for wishing to suspend contact further between ST and the children [C100-101]. At the hearing on 24^th May 2015 I permitted an extension of the timetable to 50 weeks to allow assessment of the rehabilitation process.  I also refused to give the indication sought by the father that contact should continue and did not interfere with the s.34(4) order of 22^nd December 2014.  I confirmed that that Local Authority did need the power to keep the contact under review during the delicate and dynamic rehabilitation plan and stop it in short order if necessary.

 

The Local Authority facilitated one contact between the children and their father on 25^th March 2015 prior to the children commencing the rehabilitation plan with their mother. It did not go well with the children’s behaviour before and after contact being disturbed so the Local Authority therefore suspended further contact. 

 

The Local Authority implemented the rehabilitation plan and worked closely with the Refuge and DeafHope to provide support to RB throughout the process.  The children were rehabilitated fully to RB’s care on 13^th April 2015. There were concerns raised about RB struggling to manage the children’s behaviour, her relationships with the other residents of the refuge and her leaving the county in which she is residing without informing the local authority or refuge. On 7^th May 2015 RB informed the Refuge staff that JR had ‘phoned his father. When spoken to, ST confirmed he had spoken to JR on 7^th May 2015 and had also done so a week prior. The Local Authority was informed that the Refuge intended to ask RB to leave the Refuge. The Local Authority felt they had no alternative but to move the children to foster care; the children were returned to their previous foster carers on 7^th May 2015. The Local Authority filed a statement dated 8^th May 2015 at [C102 – 106].  RB made an urgent application back to the Court and on 12^th May 2015 I endorsed the interim care plans of the Local Authority for the children to remain in placement in foster care. The Court also permitted the parties to obtain a forensic report of the RB’s telephone, which can be found at [E60 – 174]. The children remain in their previous foster care placements to date.

 

Threshold

 

The final threshold document was filed with me on the morning of 10^th June 2015.  In summary the Local Authority’s concerns in this case relate to:

(i)                 Domestic violence between the parents and the impact on the children;

(ii)               RB’s ability to manage the children’s behaviour given their exposure to domestic violence;

(iii)             The impact of ST’s personality disorder;

(iv)             ST’s criminal behaviour and historical concerns in respect of his other children;

(v)               RB’s insight into domestic violence, ST’s mental health and ability to protect the children from harm;

(vi)             RB’s vulnerability;

(vii)           ST’s engagement and behaviour towards professionals.

 

During the course of this final hearing, the above summary concerns have been further condensed by the Local Authority and Guardian as follows:

 

(a)    domestic violence

(b)   ability to safely and consistently parent and supervise the children.

 

Parties’ Positions

 

The Local Authority has filed its final evidence at [C107 – 121] of the bundle and the final care plans can be found at [D39 – 45] for JR and [D46 – 52] for K.

 

The Local Authority is seeking final care orders for both children with care plans for adoption. Recently the children’s current foster carers have indicated an interest in providing long-term care for the children. The discussions around this are in their infancy, specifically around the form of order that the foster carers may care for the children under. At this stage the foster-carers are indicating a preference for an SGO but they have yet to have in-depth discussions with the Local Authority or any legal advice (which the Local Authority is proposing to fund). The Local Authority’s preferred carers would be the foster carers.  Placement Order applications have been issued to link with the care proceedings and the Local Authority were seeking for these to be decided in the course of the final hearing as at the date of the IRH on 9^th June 2015.  However, on reflection, the Local Authority have accepted that they will not be in a position to put final evidence before me in relation to the placement order applications and therefore they agree with the Guardian’s suggestion that these applications would need to be adjourned.  All other parties agree with this course of action.

 

The Local Authority has also filed a statement of Natalie Allen, the family finder, at [C144 – 150].

 

RB’s final evidence can be found at [C134 – 143], she seeks for the children to be returned to her care.  Counsel for RB, Mr Sheridan, submitted that the Local Authority have failed to have appropriate regard to the report of Dr O’Rourke.  He contends that RB has not had the benefit of appropriate deaf-specific parenting advice and support and therefore it is not fair for the Local Authority to criticise her parenting.  As the Placement Order applications cannot be concluded in the course of this hearing, he asks me to either refuse to endorse the Local Authority care plans and instead prefer a plan of rehabilitation to RB’s care, or in the alternative to adjourn the final decision in respect of the Care Orders whilst the Local Authority provide RB with deaf-specific parenting support.

 

ST’s final evidence can be found at [C151 – 152], he was asking for the children to be returned to his care and for contact to be restarted as soon as possible. His response to the final threshold document is at [A66-69] but he changed his position at court on 10^th June 2015 in advance of my starting this final hearing.  I recorded that position in a short judgement which in summary noted that he was no longer seeking for the children to be returned to his care and opposed the mother’s case that they should be returned to her care.  He accepted the plan for adoption in relation to both children but would not accept them being placed with their current foster carers in the long term.  In relation to contact he was simply asking for one goodbye contact of 2 hours duration on 24^th June 2015.    The Local Authority social worker NB indicated in her evidence to me that, subject to a meeting with ST to establish an appropriate agreement to ensure that such contact was positive for the children, the Local Authority would be prepared to consider that requested contact.

 

The Guardian’s final evidence has been filed with the court and her report can be found at E175. She supports the making of care orders and for the Local Authority to carry out further work before a decision is made regarding their application for placement orders.

 

Essentially the disputed issues in this case relate to whether the Care Orders sought are in the best interests of the children, or whether their best interests are met by being returned to the care of their mother.  As is submitted by Ms Zabihi on behalf of the Guardian (and by Mr Sheridan for RB too as I have already noted), in relation to the latter there are two options: namely a return with no order or a return with an adjournment of the final decision and an interim care order whilst the local authority amend their care plan.

 

Relevant legal considerations

 

In addition to considering section 31 (2) of the Children Act 1989 with regard to threshold, and welfare checklist contained in section1, I have had regard to the cases of Re B S and Re R with regard to the careful balancing exercise to be adopted by courts when weighing realistic options for children in care proceedings.  I have also been mindful of Re A as to the burden and standard of proof being upon the Local Authority on balance of probabilities to prove any facts which they assert. I have also had regard to the case of Re C which provides invaluable guidance as to the correct approach in care proceedings where one or both parents are profoundly deaf.  In particular, four key principles are set out in that case as follows:

 

a)      First, it is necessary for all the agencies concerned to understand that communicating with a profoundly deaf person is not simply a matter of interpretation or translation.  There is a need for expert insight and support from a suitably qualified person at the earliest stage.  It is the duty of those acting for the parents to identify the disabilities as a factor at the earliest stage;

b)      Secondly, the parents and local authority should make the court aware of the disabilities and need for special measures as a matter of case management;

c)      Thirdly, an expert should be appointed so that the impact of the disability could be addressed at a case management hearing.  In the case of a profoundly deaf person, consideration should be given to the use of a deaf relay interpreter as an intermediary to communicate with the local authority and the court; and

d)     Fourthly the issue of funding by the Legal Aid Agency, the Courts Service and the local authority had to be considered prior to or at the case management hearing.

e)       

The judgement in Re C also goes on to note that “For a profoundly deaf person, the "commonplace" may not be readily understood or accessible simply because of their inability to be exposed to ordinary communication in the course of their everyday life. What is required is expert and insightful analysis and support from a suitably qualified professional” (para 18).

 

Threshold Findings

 

Threshold is no longer in issue in this case.  A composite threshold document has been agreed and the Local Authority accepts that the concessions recorded in that document are sufficient for threshold purposes.  They do not therefore seek findings in relation to the  issues not accepted on that document and I adopt that threshold document as my threshold findings in this case and make no findings in relation to items 1 (e), 3(a) and (b) on that schedule.  A copy of that schedule, suitably redacted in relation to the identities of the parties, is appended to this Judgement.

 

Options in this case and analysis of these options – advantages and disadvantages

 

In reality the options in this case are only two – either a return to the care of RB or placement outside of the natural family.

 

In relation to a return to be cared for by RB, there are obvious advantages for the children.  The children would be returning to the care of their mother who has cared for them since their birth and it would maintain their relationship with not only their mother but their wider maternal birth family.  The disadvantage of this option arises if RB is not yet in a position to ensure that they are kept safe from risk of harm arising from domestic violence (whether directly inflicted upon them or indirectly being exposed by virtue of RB being subject to it) and if she is not able to safely and consistently parent them to a good enough standard to meet their particular needs and within the children’s timescales.

 

In relation to a placement outside of the natural family (the current care plan in other words), the potential advantage of this is that they would have a stable and secure permanent placement with carers who are able to meet their needs within their timescales.  They would not be at risk of exposure to domestic violence if that risk still exists with their mother.  The disadvantages relate to the severance of their relationship with their mother and maternal family as a result of placement away from their birth family.  This includes weighing the emotional impact upon them of losing their ties to their birth mother who has cared for them since birth.

 

Looking at the issues in the case in more detail as they relate to these options and the disadvantages and advantages, I am struck by two things.  One is that the work undertaken by the local authority prior to the involvement of Dr O’Rourke really cannot be relied upon.  This is because that work was not undertaken in a way which was tailored to meet RB’s needs as a profoundly deaf person and in accordance with the guidance provided in Re C.  The second thing that strikes me (as it has done the advocates in their final submissions) is that the case therefore hinges on the issues surrounding the work and support offered since Dr O’Rourke’s report.  In essence, if the local authority persuade me that they have done enough to tailor the support and work with RB to meet her needs, and she has still failed to adequately improve her parenting in light of that, they will potentially have established on balance of probabilities that she is not capable of meeting the needs of the children within timeframes that suit the children.

 

I have looked firstly at the work which was recommended by Dr O’Rourke.  In her report she made various recommendations, having been very critical of the local authority’s actions in the past in relation: “There is a lack of deaf awareness and appropriate measures taken by professionals to date” (E30).  Dr O’Rourke assessed her as not having any form of psychological or cognitive disorder (E29).  She also gave more detailed commentary as to the deficiencies in the way in which matters had been approached in relation to RB at E35-38, culminating in her final comment “In my opinion, she has been disadvantaged in proceedings to date due to her deafness”.  It is in light of this opinion from Dr O’Rourke, accepted by all parties, that I have found that it is not safe to rely on the work undertaken with RB prior to this report.   Dr O’Rourke recommended that RB required support in understanding the risks presented by ST, suggesting weekly sessions over a 4-6 week period (E34).  The use of deaf professionals or professionals fluent in BSL to provide this work was also recommended (E6, E32).  Dr O’Rourke also recommended a referral to DeafHope to provide counselling and support in relation to domestic violence (E32).  She also highlighted the need to avoid using written documentation as a means of communication with RB, noting that “unless documents are translated into BSL (good practice would be to do this onto a DVD which she could then refer back to), she will not have had full access” (E36) and that RB had a reading age of 9 years which mean that she would not understand more complex grammar and concepts in written documents (E27 & E36).

Following the receipt of Dr O’Rourke’s report at the end of September 2014, the local authority submits that they carefully considered it and have used it to inform their approach with RB.  The local authority also, in line with Dr O’Rourke’s recommendations, commissioned an ISW (WA) to undertake a specific piece of work with RB relating to the risks posed by ST. At this point I need to deal with Mr Sheridan’s submissions about WA’s work being limited to two days.  The original recommendation from Dr O’Rourke was for a piece of work dealing with risk to be completed with weekly sessions over the course of 4-6 weeks (E34).  WA was eventually identified as someone appropriate to carry out this work (and it is accepted by all concerned that there does appear to have been some delay at this point though NB told me that the delay was caused by looking into what work would be available with DeafHope and in trying to identify an appropriate professional before settling on WA).  NB told me that the reason for WA undertaking her work over 2 days was as a result of discussions with WA about how the work could be done.  It does seem clear to me from the letter of instruction to WA which is at E40-42 that the local authority were actually prepared to fund four sessions of up to four hours each.  The limitation of two days work therefore seems to have come more from WA than the local authority.  As WA was not sought to be called and no further questions were sought to be put to her, it seems that the appropriateness of her decision to undertake the work in this way is actually unchallenged by the mother.

 

There is also criticism of the local authority by Mr Sheridan as the reports of Dr O’Rourke and WA were not shown to all professionals involved with RB.  However, as was clear from the evidence of NB she had read the reports and found the report of Dr O’Rourke very useful in terms of identifying what was required and took those recommendations into account in her work with the family.

 

LJ, a member of the social work team with NB and who entered a case note regarding events on 7^th May 2015 (G70-72), also gave me evidence about her limited involvement with the family and, although she was not shown the reports of Dr O’Rourke or WA, she was aware of the recommendations and in particular that written communication was not the best method of communicating with RB.   I will deal separately with the events of 7^th May and the issues of fact around the removal of the children from the refuge on that date.  Suffice it to say, the communication that LJ had with RB on 7^th May 2015 was facilitated by a BSL level 3 interpreter who acts as an IDVA at the refuge (KW) and the services of KW as an interpreter were used to translate the document which set out the concerns and the purpose of the local authority visit and actions (G70). 

 

WA came to the conclusion that RB would benefit from a parenting course.  Crucially, she stated that this could be provided through Deaf Parenting but “Deaf Parenting can be expensive.  I am of the opinion that Ms RB would be able to access local authority Parenting Courses with a registered qualified Sign Language Interpreter subject to the quality and experience of the interpreter to translate into British Sign Language” (E59).  The decision of the local authority to use an in-house parenting course and tailor it to RB’s needs by using a BSL interpreter was one that was therefore in line with the recommendations of both Dr O’Rourke in terms of communication and WA in terms of what would be appropriate for RB.

In terms of the local authority parenting programme which RB undertook with HE for six sessions between 19^th December 2014 and 16^th January 2015, namely Holding Hands, HE told me that she had not only worked with RB before in 2014 and had a good relationship with her but she has also worked with deaf parents before.  She was very clear that an interpreter was present for the entire time that she worked with RB.  She also told me that she had seen the recommendations of Dr O’Rourke and those of WA and she discussed with NB what she could provide in light of those recommendations.  HE also told me that she had talked to RB and asked her what she would like cover in advance, though by the end of the six sessions HE was satisfied that all aspects of the course had been covered including how to implement a time out technique with the children if required.  The work with HE was undertaken in contact sessions as the course was designed to empower and facilitate RB to parent rather than for HE to parent for her, so HE observed at contact and provided input before, during and after those contact sessions as recorded briefly in her notes at C71a-71e.  HE felt that the work with RB in those six sessions had been extremely positive and she told me how successfully RB had worked in them, only having one situation when she could have used time out and didn’t. 

 

Importantly, when cross-examined by Ms Zabihi, HE told me that she felt that RB was not simply doing what she was told during those six sessions but that in her opinion RB was capable of feeling what was the right thing to do.  At the end of the six sessions HE felt she was confident and RB told her that she also felt confident as a result of the work undertaken.  In her view, HE pointed out that the issue relating to RB’s parenting after the six sessions was not that she couldn’t do it but that she couldn’t sustain it.  It is curious that RB told me she was dissatisfied after the Holding Hands course because she only had the one piece of paper (the FLIP document at G71c) summarising the guidance from the course.  This is curious in light of Dr O’Rourke’s comments and recommendations about her reading age and her difficulties with processing complex written information.  It seems to me that providing her with more written information would have run the risk of her being unable to grasp the information contained in it fully- rather than disadvantaging her, the provision of the single FLIP sheet seems to be entirely in accordance with Dr O’Rourke’s recommendations, I find.

 

GM also told me about the work she had undertaken with RB in the course of supervised contact sessions.  She was involved in the Helping Hands work in the sense that part of her role was to ensure that the same programme was followed after the course finished.  She noted that at the beginning RB’s response to the programme was really good, describing things as going really well at first.  After the children were returned to her care she noted that RB did not put what she had learnt from the course into practice, in particular the absence of encouraging the children to sign and not using time out when JR displayed challenging behaviour.  Throughout her work with RB she was very clear that an interpreter was used and, although she did not see the report of Dr O’Rourke she seemed to me to be aware of the need to ensure appropriate translation for RB and she had relied on explaining things through the interpreter rather than written notes.  She did accept that she had used written notes at times with RB before the interpreter arrived but, as was accepted by RB in her evidence to me, these notes dealt with minor practicalities such as train times rather than substantive parenting advice. 

 

In addition to the above, RB was also receiving support from within the refuge through DG and had the benefit of a referral to DeafHope which enabled her to attend a survivors group and receive weekly support from DeafHope.

 

At no point during the period after Dr O’Rourke’s report and up to 7^th May 2015 did RB raise concerns about the way in which the parenting course and support were being provided to her.  All of the professionals involved with her gave me very clear evidence that not only were interpreters used but RB gave them no indications of not understanding or of dissatisfaction.  More significantly, as was noted by social workers and highlighted by the Guardian when she gave me her evidence, the fact that she understood the parenting course and subsequent support offered during contact sessions was demonstrated by how well she was able to parent the children until they were returned to her daily care.  I am therefore satisfied that, although the parenting course in particular was not one specifically tailored to deaf parents, it was a course appropriately tailored to meet RB’s needs and was in accordance with the recommendations of Dr O’Rourke and WA.  The evidence of her successful progress up to 13^th April 2015 shows this.  There was also an apparent change in her understanding about domestic violence and risk as a result of the work undertaken by WA - as noted in WA’s report (E52-59). This successful progress led to the planned rehabilitation of the children to her care on 13^th April 2015.

 

After the children returned to her care, the local authority allege that she did not demonstrate an ability to consistently sustain good enough parenting for the children.    It is important to note that prior to the rehabilitation plan being implemented, the local authority undertook a parenting assessment which concluded “there are concerns about how RB would  manage in reality if the children were returned to her care and there are also concerns about her not feeling quite ready, which she has acknowledged” (C94).  Therefore, although the progress made by RB up to that point was positive, there were still issues around her ability to safely and consistently parent.  During the process of rehabilitation the local authority worked closely with staff at the refuge and DeafHope to support RB.  Rehabilitation was phased with contact increasing gradually prior the children being placed with RB at the refuge on 13^th April 2015.  As DG told me in her evidence, there was a marked change when the children returned to RB’s care and there are emails from 24^th April in the Bundle showing that the refuge were concerned about the children’s behaviour and were seeking support as a result.  At the LAC review on 29^th April further support was discussed but the events of 7^th May 2015 intervened.

 

At this point I think it is appropriate to deal with the events of 7^th May 2015 and the issues raised by what happened on that day and in relation to the telephone calls on 27^th April and 6^th May. 

 

It is no longer disputed by RB that on 27^th April 2015 and 6^th May 2015 JR had telephone contact on her mobile phone with ST.  She told me that JR was playing with her phone on each occasion and managed to dial ST’s number by accident, the number having been stored at the top of her contact lists as it was blocked.  She also told me that the reason the phone was unlocked was because it had been used shortly before on each occasion for the children to speak to the foster carer.  She did accept that she did not tell anyone about the telephone call on 27^th April and only accepted that it had been made when at court on 12^th May 2015.  On 7^th May she told DG about the telephone call made on 6^th May 2015.  The local authority seeks a finding that either:

 

a)         Having been equipped to realise the risks of unauthorised contact between the children and ST, RB telephoned ST and allowed JR to speak to him on the telephone on 27^th April and 7^th May 2015; or

 

b)      Having been equipped to realise the risks of unauthorised contact between the children and ST, following the telephone call on 27^th April 2015 RB failed to take adequate steps to ensure JR could not telephone the Father again.

 

I am afraid that I did not find RB to be a credible witness about these phone calls. She has given inconsistent accounts and accepts that she lied to DG and LJ on 7^th May about there being no previous contact; she also told me that it was JR who told DG that he had phoned ST accidentally when DG told me that RB was the one who told her this; she did not previously mention that the phone had been used to ring the foster carers as an explanation for JR being able to make a call, mentioning this for the first time on the witness stand.  Whilst the evidence to support the first finding sought by the local authority is largely circumstantial, there is a lot of circumstantial evidence in this regard and it is, I find, particularly significant that her call logs and a large proportion of her messages had been deleted when DG interrogated her phone on 7^th May.  I am afraid that her explanations simply are not credible and, coupled with her inconsistent and dishonest evidence leads me to conclude that, on balance of probabilities, she made contact with ST in order for JR to speak to him.  It also, I am afraid, leads me to doubt the extent to which she appreciates the risk that ST poses.

 

There is also a dispute of fact about what actually happened on 7^th May with regard to whether or not the local authority were led to believe by the refuge that they could no longer offer a place to RB as a result of the telephone contact between ST and JR on 6^th May 2015.  It does seem clear that there was a lot of communication backwards and forwards on that day between several individuals so the scope for confusion was ample.  However, both NB and LJ made their statements on 8^th May 2015 and HE made clear case recordings on the day in question.  All three were very clear that they were led to believe as a result of the conversations had with staff at the refuge that the refuge was no longer in a position to offer a place to RB on 7^th May 2015.  DG, in contrast, wrote her account on 4^th June 2015 (C125-126).  It is also written with the benefit of hindsight and, as she told me in her evidence, the decision whether or not RB and the children could stay was not hers to take as it was a decision for her manager.  I do not therefore have direct evidence from the refuge decision maker as to what the decision was when they spoke to social services on 7^th May 2015.  I also noted that DG was very clear that it was her understanding that the decision was not taken until after LJ arrived at the refuge late in the afternoon on 7^th May 2015.  If that was the case, I cannot understand how the recording of what was going to happen and why at G70 which was drawn up by LJ for KW to translate for RB was not challenged by DG who told me that she was present during both the discussions before they met RB and when they met RB.  By the time of the hearing on 12^th May 2015, it was presented to me that RB could remain in the refuge but only with a daily risk assessment which I recall meant that I found the stability of the placement was therefore under threat – of course, that was at an interim stage.  Having heard fuller evidence, I am satisfied on balance of probabilities that the evidence of the social workers is more reliable about the 7^th May 2015 and that therefore the local authority were presented with an emergency situation on that date which meant that they had to remove the children.  I am also satisfied that the local authority did inform RB’s solicitors in a timely fashion on 7^th May about the proposed removal.

 

Finally, I will consider the remaining welfare checklist headings as they apply in this case.  In terms of the children’s physical and emotional needs there is, I find, a concern relating to RB’s ability to protect the children and hence to meet these needs.  Throughout the contact notes since the children were removed from her care there are recorded instances of her failing to manage JR’s behaviour.  This is the case despite the suggestion that children of deaf adults will use tactics involving physical contact and throwing objects to get their parent’s attention.  What is described in the contact notes with regards to JR’s violent behaviour towards RB and in relation to his behaviour at the refuge as noted by DG goes far beyond a child simply trying to get the attention of his deaf parent, I find.  In addition, RB is recorded on numerous occasions as failing to respond to JR’s violent or aggressive outbursts in these contact sessions and RB did not dispute that she did nothing when she gave me her evidence - as she said she had simply lost confidence. 

 

In terms of likely effect on the children of any change, it is clear that whatever my decision there will be a further change for these children potentially.  If they return to the care of their mother, however, I find that the likelihood is that this placement would breakdown due to her inability to apply the required parenting skills to a good enough standard.  This option therefore carries the very real risk of more upheaval for the children than a planned move to a permanent placement under the local authority care plan.

The next relevant heading is that of risk of harm.  Given my findings about RB’s lack of understanding about the risks posed by ST despite the intensive support and work undertaken with her, and my finding that she has been unable to consistently parent the children once they were returned to her care or since their removal, if the children were to be returned to her care there is a real risk of harm to them arising from the two issues of domestic violence and lack of ability to consistently and safely parent them.  This also links to the capabilities of RB to parent the children.  Sadly, she has not been honest with professionals and in her evidence to me accepted that she had lied and that she did not trust professionals.  Whilst that lack of trust may have been justified prior to Dr O’Rourke’s report, the provision of appropriate services and support since then and the fact that she made good progress up to a point no longer justifies such a lack of trust, I find and the only conclusion I can draw is that she is simply not capable of working openly and honestly with the local authority in the best interests of her children.  She also showed no insight whatsoever into the issues surrounding her management of the children’s behaviour when she gave me her evidence.  She repeated several times that she was managing the behaviour and told me that she had implemented time out with JR but at the same time accepted that this was simply JR taking himself off to a corner so would not be a parent-led time out as she had been taught.

 

As is submitted by Ms Zabihi, a return to the care of their mother would be a second attempted rehabilitation for these children.  The stakes are therefore very high indeed for them and the risk of them suffering further disruption and emotional harm is, as I have found, high.  As the Guardian told me in her evidence and as she has noted in her report the children’s parenting experience up until they were placed in foster care in July 2014 have impacted on them in terms of their physical, emotional and behavioural development (E181).  Their timescales therefore require that a decision as to permanence is taken sooner rather than later to avoid them being exposed to further such harm, and I am satisfied that enough time has been allowed for RB to address the areas of concern around her ability to parent safely and consistently.

 

Conclusions

 

In light of my findings, I am satisfied that all efforts to secure the return of these children to the care of their mother have been made and, despite the provision of appropriate services and support taking into account her deafness, she has been unable to sustain any of the parenting changes which she demonstrated prior to the children returning to her care in April.  Problems emerged within a very short space of time and, coupled with the crisis occasioned by the telephone calls in April and May, led to the children being justifiably removed.  I am also therefore satisfied that all options short of a care plan for placement outside of the birth family have been explored and that this is the only realistic option remaining for these children.  It is clear to me that RB does love her children and therefore it is even more unfortunate that she was unable to sustain the changes which she had undoubtedly started to make prior to the children returning to her care.  However, my paramount consideration has to be the welfare of the children and they simply cannot wait any longer for her to attempt to make changes and sustain them.

 

I will therefore grant care orders in respect of both children in this case.  In relation to contact, the Guardian has endorsed the local authority plans for contact to reduce (as set out at D41 for JR and D48 for K) – I can find no evidence to justify departing from this recommendation and would therefore accept that this is the appropriate plan for these children in relation to contact pending the conclusion of the placement proceedings.

 

Appendix A – Composite threshold document

 

THE FAMILY COURT SITTING AT READING                                                                                                                                                                                                                            CASE NO: OX14C00068

 

The Local Authority asserts that at the time protective measures were taken, namely 9th July 2014, there were reasonable grounds to believe that JR and K were likely to suffer significant harm, the likelihood of harm being attributable to the care likely to be given to them, that care not being what it would be reasonable to expect a parent to give to them.  The Local Authority asserts that the threshold criteria are met on the basis of the matters set out below.

 

FINDING SOUGHT	EVIDENCE IN SUPPORT	MOTHER’S RESPONSE	FATHER’S RESPONSE
1.       There have been concerns in respect of domestic violence between the couple going back to 2011:	a.       In her statement to the Court applying for a Non-Molestation and Occupation Order dated 7 March 2014 the mother describes ST shouting, hitting his hands on her chest, and throwing an ironing board, toys and the highchair at her. (H8)	AGREED – DOMESTIC VIOLENCE HAS BEEN A LONGSTANDING FEATURE OF THIS RELATIONSHIP. THIS SHOULD BE OBVIOUS GIVEN THAT MOTHER IS NOW RESIDINGAT AT A PLACE OF SAFETY AT A SECRET ADDRESS	This is denied. The Mother withdrew her statement.
	b.       Professionals have observed ST being aggressive and verbally abusive to RB from 2012 onwards.  (e.g C12, G17.)	AGREED. FATHER HAS ANGER MANAGEMENT ISSUES ESPECIALLY WHEN THINGS ARE NOT GOING ACCORDING TO HIS PLAN	I accept arguing which can be seen as verbally abusive but not aggressive.
	c.        RB has made allegations in respect of violence and abuse from ST but later retracts the allegations and returns to live with him. (e.g C18.)	AGREED. THE ALLEGATIONS ARE TRUE AND WITHDRAWN EITHER AS A FUNCTION OF RECONCILLIATION OR FEAR OF CONSEQUENCES	Accepted.
	d.       ST has sent abusive text and Face book messages to RB and her family [C58-62]	AGREED	This has happened from both parents.
	e.        On 8 December 2014 ST dragged RB into the road during an argument causing cuts to her face and bumps to her head [F111]. RB stated that in the weeks prior to this assault, ST had been drinking more and had made threats to kill her if she ever went into a refuge again [C64-65]	AGREED – MOTHER STANDS BY HER VERSION OF EVENTS	Denied and awaiting trial.
2.       The children have been exposed to the domestic abuse between their parents and their father’s aggressive behaviour:	a.       In her statement in respect of the Non-Molestation and Occupation Order dated 7th March 2014 RB records that every time ST would shout and be abusive JR would start screaming and put his fingers in his ears. (H8)	AGREED	Please see answer 1a (This is denied. The Mother withdrew her statement.)
	b.       JR has stood still by his mother and professionals when ST has been shouting and swearing. (C12).	AGREED	I had an argument with the health visitor because she came without a sign language interpreter which both parties were upset about. JR was watching TV
	c.        K was in the social worker’s arms when ST was shouting and swearing in March 2104 (C12.)	AGREED	Denied
	d.       In September 2012 JR was described as standing in front of his mother and the health visitor as if to protect them. (C17.)	AGREED	Denied see 2b (I had an argument with the health visitor because she came without a sign language interpreter which both parties were upset about. JR was watching TV)
3.       RB has failed to take steps to protect herself and the children from domestic violence from ST, for example:	a.       RB indicated that one reason she was applying to revoke the Non-Molestation and Occupation Order was that she felt she could not manage on her own with the children.  (CH8)	DENIED – WILL ACCEPT THAT HAVE FAILED TO TAKE SUCH STEPS ‘ON OCCASIONS’	This is a matter for the first respondent.
	b.       RB has refused the offer of an alarm in her property and has refused the support of an independent domestic violence advisor (C23)	DENIED. I WAS GIVEN AN ALARM. IT WAS NOT THE RIGHT TYPE OF ALARM. IF SOMEONE KNOCKED ON THE DOOR IT WOULD GO OFF. WHEN I WAS SLEEPING IT WOULD BE WITH ME. THERE WAS ALSO A PROBLEM WITH THE SIGNAL ON THE ALARM I WAS GIVEN.	This is a matter for the first respondent.
	c.        In addition she has not always been honest with social services, for example, initially saying that ST had been living back with her for one month at the end of June 2014 and then saying her medication caused memory loss which is why she had said this.  (C23 and C15.)	AGREED – BUT ALSO NOTE THE LEVEL OF CONTROL FROM FATHER AND THE LEVEL OF FEAR FROM MOTHER. THERE WAS ALSO NO INTERPRETER WHEN I HAD THE DISCUSSION AND WE HAD TO COMMUNICATE MY WRITING THINGS.	This is a matter for the first respondent.
	d.       RB entered refuges in 2012 and 2013 and was provided with emergency B&B accommodation in 2014, but returned to ST [C18-19, C13].	AGREED – BUT ALSO NOTE THE LEVEL OF CONTROL FROM FATHER AND THE LEVEL OF FEAR FROM MOTHER. IT WAS LIKE I LOST MY MIND	This is a matter for the first respondent.
	e.        RB refused to enter a refuge at the initial ICO hearing on 17 July 2014. [B26]	AGREED – BUT ALSO NOTE THE LEVEL OF CONTROL FROM FATHER AND THE LEVEL OF FEAR FROM MOTHER.	This is a matter for the first respondent.
4.       ST has 21 convictions and 48 offences including four offences against the person and 27 of theft and kindred offences.  He was imprisoned in 2008 for violence disorder and a Restraining Order was put in place which he subsequently breached. He was also in prison for one month in 2008 for common assault.	(C2-9)	AGREED	Accepted but no further conviction for the last 10 years.
5.       There have been serious concerns in respect of ST's older children. Two have been placed for adoption. ST's other two children were placed on the Child Protection Register at birth under the category of physical abuse and it is believed they now live with their mother.	Sections I and J. [J27 – 45]	AGREED	Accept that this has happened but I did not accept the findings.
6.       ST has a diagnosis of Borderline Personality Disorder.	[J66]	AGREED	I disputed this at the time and still do. In any case the diagnosis is out of date.
7.       There are concerns that RB’s vulnerabilities place herself and the children at risk. RB appears to have limited social or family support.	For example in 2013 RB was having suicidal thoughts and was prescribed anti-depressants and sleeping tablets due to being exhausted (C18).	THE FACT THAT THERE ARE CONCERNS IS ACCEPTED HOWEVER IT IS DENIED THAT ANY SUCH VULNERABILITIES CURRENTLY PLACE MOTHER OR THE CHILDREN AT RISK OF SIGNIFICANT HARM (IF THAT IS WHAT IS BEING IMPLIED). PLEASE NOTE THAT THE LA HAVE BEEN TOO QUICK TO OVERREACT TO MOTHER’S PERCIEVED VULNERABILITIES	This is a matter for the first respondent.