Z (a child), Re [2106] EWFC B105 (05 December 2016)

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of his family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: BS15C01738

IN THE FAMILY COURT AT BRISTOL

Bristol Civil and Family Justice Centre

Before :

HIS HONOUR JUDGE WILDBLOOD QC

	Between:

	X County Council	Applicant
	-and-
	M	First Respondent
	-and-
	F	Second Respondent
	-and-
	Z (a child) by his guardian -and- MGPs	Third Respondent. Intervenors.

-----------------------------------------------------------

------------------------------------------------------------

William Heckscher for the Local Authority.

Linsey Knowles for the mother.

Henrietta MacMillan Scott for the father

Roderick Hine for the child, Z

Sarah Phillimore for the maternal grandparents.

-------------------------------------------------------------

JUDGMENT

HHJ Wildblood QC:

Introduction - For reasons that will be apparent, I have found this a deeply troubling case. The issues are straightforward. Should a three year old boy, who has been living with the maternal grandparents for the past eleven months, remain living with them or should he move to live with his father? The Local Authority contends that the boy ('Z') should move to live with the father, the guardian recommends that he should stay with the grandparents. The mother supports her adoptive parents, the grandparents (who are parties to the proceedings), and does not put herself forward as a carer. There are subsidiary issues about contact that are easily resolved.

Until he was nearly 2 ½ years old Z lived with the mother (who is in her early 20's and lives independently); during that time Z had regular contact with the maternal grandfather but not with the maternal grandmother due to the strained relationship between the mother and the grandmother. Z had very little contact with his father (who is in his late 20's and lives with his mother, the paternal grandmother) until after these proceedings started; Z stayed with the father and the paternal grandmother for about three weeks in 2014 but that was the extent of their contact until February 2016. Following the commencement of contact in February, however, the father has committed himself to contact and has built up his relationship with Z.

Until a hearing in October the position of the maternal grandparents was that they would not seek to care for Z if either of the parents were to be shown to be appropriate carers for him. However some time after positive assessments of the father were received, the grandparents decided, for reasons that I will give, that they would wish to care for Z in the long-term. At about the same time the Local Authority, which had an interim care order, had started putting in place a transition plan with a view to Z moving from the maternal grandparents to the father. By the time that I came into this case (on the day before the final hearing, after it was transferred into my list) Z was spending five nights a week with the maternal grandparents and two nights a week with the father with visiting contact to the mother. It was obvious to me that this boy needed a decision to be made about his long-term future as soon as possible.

During these proceedings the Local Authority has carried out assessments of the parents and of the grandparents. Those assessments suggest that the father has matured and is a suitable carer of his son, Z. The assessments of the grandparents by the Local Authority were also positive and, in a report filed under s 14A(8) of The Children Act 1989, the Local Authority recommended that the grandparents would be suitable special guardians of Z. The recommendations on paper of the Local Authority to the court were that, on a fine balance, it would be in Z's paramount interests to live with the father.

The guardian, critical of the Local Authority's assessments of the father, recommended, on a fine balance, that Z should live with the grandparents under a child arrangements order 'at this time' (a point emphasised by her and her counsel in evidence and submissions). The guardian does not suggest that the father, with support, would be an unsuitable carer of Z but that the grandparents would represent a better outcome for Z at present - in his closing submissions Mr Hine said: ' the guardian accepts that both maternal grandparents and the father could care for Z and the court, it is accepted, has to determine what has been described as a fairly balanced situation').

The guardian, maternal grandparents and the mother all regard the Local Authority's assessments of the father as inadequate and superficial. In Ms Phillimore's excellent closing address she identified the areas in which it is alleged that this is so. Those alleged areas are: i) the inadequacy of the assessment of the role that the father's partner ('GF') would play in caring for Z if Z came to live with the father; ii) the superficial assessment of the father as someone who has matured significantly from his criminal and violent past; iii) the lack of clarity and investigation into the living arrangements that the father would put in place for Z and, in particular, the role of his mother with whom he currently lives; iv) the father's lack of experience, commitment and understanding as a father.

The Local Authority does not share that perception of the father. It regards GF, a young woman with ambitions of her own, as someone who has never held herself out as playing a key role in the care of Z. It points to the father's commitment to the process of assessment and to contact with Z as clear evidence of his maturation. It considers that the father has been candid about his proposed living arrangements with his mother and regards his mother as a suitable and available support to him. It suggests that the father has a developing understanding of parenting and has demonstrated that he is receptive to support and guidance.

The Local Authority raises strong areas of concern in relation to the grandparents who adopted the mother just before her second birthday. Many of those concerns only came to the forefront of the Local Authority's analysis at this hearing, although some forewarning of them was given in the statement of the new social worker [C365]. The concerns relate to the reasons why the mother left the grandparents' care at the age of 13 to be accommodated by the Local Authority and also the complexity of the family dynamics between the grandfather, grandmother and the mother.

The full extent of the mother's problems when she left the grandparents' care only came to light during this hearing. The new social worker had said in a very recently filed statement at C365: ' The grandparents were previously not able to manage [the mother's] needs during her teenage years which resulted in her coming into care'. That led to Ms Phillimore asking questions about this, as she had to. It also led to me asking where I saw an analysis of why the mother had left the grandparent's care and of the current dynamics of the relationship between the mother and grandmother. I was told that there was none. It is as a result of that that the Local Authority produced evidence on those issues.

There is no doubt whatsoever that there were very grave difficulties indeed when the mother left the grandparents' care eight years ago at the age of 13. One report summarises them in this way: ' Adoptive family no longer willing to have young person in the family home. [The mother] was drinking, using drugs and possibly giving sexual favours in order to gain alcohol and substances'. The mother was also making very serious allegations of physical abuse against the grandfather at the time, allegations which have been taken at this hearing to be serious falsehoods told by the mother.

It is also very apparent that the dynamics of the relationship between the mother and the grandparents are extremely complex and that there has been very significant conflict indeed within their family. For eight years the grandmother did not have contact with the mother (and did not have contact with Z until he came to live with her) whereas the grandfather was seeing her weekly. The mother is not welcome in the grandparents' home and the grandmother does not visit the mother's flat; when the grandfather visits he does so on his own (or with Z). The mother still has a tendency to lie.

Candidly, Mr Heckscher, on behalf of the Local Authority made a very full, open and entirely genuine concession that the Local Authority's assessment of the grandparents had 'huge gaps' in it. That was an inevitable and correct concession in my opinion. The guardian took the view that it was not for her to investigate the quality of the Local Authority's assessment of the grandparents (although she did do so in relation to the Local Authority's assessment of the father). Further, she did not think that it was for her to investigate the mother's childhood, regarding it to be of no significance in the light of the fact that the grandparents have cared for Z well over the past eleven months.

As will be apparent, and notwithstanding my immense respect for this very experienced and professional guardian, I think that on this occasion her approach was wrong. In her oral evidence she said: ' I have no concerns about the background in relation to the grandparents care of the mother and that background does not affect my opinion about their ability to care for Z. I did not explore that background at all in my paperwork. We suddenly got all this stuff and the issue was raised in the balance sheet that was filed shortly before the case came to court. I did not examine the dynamics of the relationship between the mother and the grandparents in my paperwork. I did not specifically record that parenthood [i.e. the fact that the father has the status of a parent to Z) is a significant and important feature of the case although I did take it into account as shown in my recommendations relating to contact'.

Following the closure of oral submissions I received additional submissions of law about the role of a guardian in care proceedings and whether the guardian should conduct independent enquiry on matters of significance or look beyond the Local Authority assessments. I consider that it is neither necessary nor appropriate for me, as a Circuit judge, to purport to make comments about the general legal duties of guardians. For what it is worth I think that Rule 16.20 and Part 3 of PD 16A of The Family Procedure Rules 2010 say everything that needs to be said and I have carried out my own research around the point. However I do say:

i) If anybody makes a recommendation or expresses an opinion about a child it is important that the opinion is based on an analysis of the important issues. If a judge fails to take into account relevant factors then that may found the basis of an appeal even against a discretionary conclusion. If a guardian makes a recommendation without taking into account things that the evidence demonstrates to be important, common sense alone demands that the omissions have a bearing on the weight that is given to the recommendation.

ii) In this case I have to depart from the recommendations of either the Local Authority or of the guardian. In departing from the views of either of them I have to indicate my reasons for doing so. It is therefore incumbent on me to examine their reasoning and express my views about it. Having done so I have to express my own analysis and judgment based not upon a reaction to the omissions from others' opinions but upon my own judgment upon the welfare issues that arise for Z, based on the totality of the evidence.

The guardian regarded the ' crucial factor' when determining Z's living arrangements to be ' the impact on Z, at this stage of his development, of a change in his circumstances' [A39]. However she expressly foresaw that a child arrangements order in favour of the grandparents (as she recommended, rather than a special guardianship order - A42) may well not achieve permanence for Z since a later move to one of his parents was a realistic possibility. She said in oral evidence: ' I don't discount the father as being able to care for Z. If the grandparents had not come forward I would have been supporting him but with a better support plan. I am not recommending that Z should live with the grandparents permanently'.

As a result of the gaps in the evidence that was prepared on paper it has been necessary for me to hear a wide range of oral evidence and see issues litigated before me that should have been dealt with in documentation. The process that unfolded imposed an immense strain on the parties and also on the advocates. This is the first time I have ever reserved a judgment in an application for care and placement orders. However the hearing was so adversarial (with words such as 'disingenuous' and 'abrogation of duty' being exchanged between the guardian and the Local Authority) and the welfare analysis on paper so unsatisfactory that I needed to distance myself from the immediacy of the court hearing in order to reflect on where the paramount interests of this little boy lie. After such a delayed procedure there could be no merit or point in adjournment for yet further assessment and nobody suggested it.

It has invaded my own self confidence considerably when I find myself in disagreement with the analysis of a guardian as experienced and skilful as this guardian and I mean no impoliteness to her at all when I say that, as the person whose name ultimately appears on the court's order, I cannot accept that:

i) It is right to ignore the background of why this mother went into care;

ii) It is right to ignore the dynamics of the relationships within the maternal family.

iii) It is right to place such reliance on the past eleven months whilst these slow-moving proceedings have found their way to a final hearing. I have to take a long-term view as well as a short-term one.

iv) It is correct to view the importance of the father's standing as a parent as an issue relating only to contact. It is relevant also to the question of where Z should live. The fact of parenthood raises neither right nor presumption, as I set out below when considering the law. Of course an experienced guardian would normally be expected to take the fact and importance of parenthood into account but here it does not feature at all within her analysis and when asked about it she said that it was an issue that related to contact.

v) It is right not to try to achieve permanence for this little boy, if possible.

In relation to the father, I do not think that sufficient analysis had been conducted by the Local Authority before this hearing into:

i) The extent of his criminal activity and whether he has genuinely matured. Although his criminal activity was considered in the assessment at C156-8 (and I have studied those pages very carefully along with his list of convictions), I would have hoped for a greater examination of why he became so involved in criminal activity. It would have been particularly helpful to have heard about the views of probation who must have had quite a lot of involvement with him.

ii) The arrangements that he would make for Z. I raised whether the father's mother and partner were to give evidence in the light of the guardian's view that the evidence of assessment of them was inadequate. In the middle of this hearing statements were filed by them both and they both gave oral evidence. I found that evidence informative and helpful.

iii) Why the father had so little contact with Z until two months into these proceedings. Oral evidence, especially about the toxic relationship that existed between these parents at the time of Z's birth, helped me gain some better understanding of this.

Law - In determining the issues in this case the welfare of Z is the paramount consideration. Since the only options in this case are for Z to live with family members I agree with Ms Phillimore who, in paragraph 6 of her submissions, said that ' what ever the judge's decision, the Article 8 rights of all adult parties and Z for maintenance and promotion of their rights to a family life with each other, will be secured by an order that Z will be having frequent and meaningful contact with whatever adult he is not living with'.

There is no presumption in favour of the father or the maternal grandparents. This case has to be determined by a straight application of the welfare principles in Section One of the Children Act 1989. As was said by Baroness Hale in Re G [2006] UKHL 43: ' there is no question of a parental right. As the Law commission explained: 'the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child... The fact that CG is the natural mother of these children in every sense of that term, whilst raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will be best for them now and in the future '.
In paragraph 31 of the judgment in the case of Re E-R (a child) [2015] EWCA Civ 405 King LJ cited Australian authority to the effect that: 'the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the court commences its decision-making process... Each case should be determined upon an examination of its own merits and of the individuals there involved'. Similar dicta may be found in paragraphs 70 to 75 of the judgment of McFarlane LJ in Re W (a child) [2016] EWCA Civ 793, which I have read and I note the helpful citation by Ms Phillimore from that case in paragraph 5 of her excellent submissions.
In paragraph 35 of Re E-R King LJ also said: ' in the same way that the fact that a person is a natural parent does not in itself create a presumption in favour of that person in the proceedings, neither does...the fact that a child has been living with a party for a significant period; each are factors of significance which will be taken into account and given appropriate weight by a court when determining the best interests of a child'. The guardian places considerable emphasis on the effect of a change in Z's circumstances if he were to be moved from the grandparents. I agree that this is a very important aspect of the welfare balance in this case but it does also involve an exercise of judgment as to the quality of the status quo both now and as an arrangement for the future.

In reaching a conclusion concerning Z's welfare I must have regard to the welfare checklist in section 1(3) of the Act. In deciding matters of welfare I must not take only a short-term view.

Structure of this judgment - Because of the various and separate strands of evidence that I have heard I do not think that it would be helpful for me to give a straight chronological account of events. That would intertwine evidence relating to the mother and father's backgrounds in a way that would obscure rather than clarify. Therefore I want to summarise the evidence that I have heard about each of the parties and express my opinions in relation to them. I will then consider some other aspects of the evidence before analysing the case and reaching my conclusions.

The mother -Prior to the events that led to Z living with the grandparents the Local Authority had some involvement with the mother and Z but that involvement was sporadic and, in November 2015, a child protection plan was brought to an end on the basis that the Local Authority was satisfied with the mother's care of Z.

The ending of that child protection plan is obviously regrettable because it is clear now that, in November and December 2015, the mother had resumed her addiction to crack cocaine, was sex working and was neglecting Z's care in a very serious way. Very shortly before Christmas the police came to the mother's flat and found the condition of Z and of the flat to be so poor that Z was removed immediately and placed with the grandparents; the bundle contains photographs of dreadful condition of the flat as the police found it. That all occurred only eleven months ago. The mother was in no condition to care for Z having harmed herself on the day of removal.

Thus, Z's removal was due to the circumstances in which he was living with the mother. Proceedings followed very shortly afterwards and it is plain that, at the time the proceedings were started, the threshold criteria in section 31 of the Children Act 1989 were fulfilled in that Z was suffering significant harm by living in squalid and neglectful circumstances and was likely to continue to suffer harm in the future as a result of the care then given to him by his mother who was mentally and behaviourally in no fit state to look after him.

Within the proceedings assessments were carried out in relation to the mother by the Local Authority and also by a consultant psychiatrist. On 24th March 2016 the psychiatrist reported that the mother's ' emotional problems are chronic in nature and extend right back to her early childhood years. Given this history, I am not of the opinion that bipolar disorder is an appropriate diagnosis, but rather I consider her to have personality difficulties. These difficulties, coupled with a history of trauma, can best be described as complex post traumatic stress disorder'. In his second report of 4 April 2016 he said at E57: ' complex post traumatic stress disorder... is a treatable condition. Given the right help and support, her mental health may become much more stable and she may mature into a more stable and effective adult... I consider that the psychiatric staff have been somewhat incautious in attaching a label of bipolar diagnosis'. The psychiatrist regards the difference between the diagnosis he makes and that which has previously been made of bipolar disorder as important; of the latter he says ' it can only be managed and not cured'.

At the end of April 2016 the mother moved on her own to a residential assessment unit that specialises in parents with drug addiction. The placement broke down after only seventeen days as a result of the disruptive behaviour of the mother, who did not engage in the assessment process [C178]. The mother then moved to another drug rehabilitation unit and stayed there for two months before she was again asked to leave due to her behaviour and lack of engagement [C216c-d]. Although the mother says that she was not taking drugs from January to July the only expert evidence states that her hair stand tests are not compatible with abstinence during that period [C318] and her counsel, Ms Knowles, accepts that it is inevitable that I should be driven to conclude that the mother has not been truthful when asserting abstinence then.

The mother accepts that, when she came out of the second drug rehabilitation unit, she relapsed in August by taking crack cocaine and then lapsed again by taking amphetamine in September. Based on the evidence and the reports of the psychiatrist (see e.g. his report of 17 ^th November) it will be some time before there could be any confidence that the mother will remain abstinent. Her drug addiction stretches back for at least eight years, it appears.

The evidence suggests very strongly indeed that the mother has yet to achieve adult maturity although, as the psychiatrist says, with the right support she ' may mature into a more stable and effective adult'. Having observed the mother in this court for six days I can well see why it is thought that she has not yet achieved that state of maturity. Her behaviour at the two drug rehabilitation units is a very clear example of the sort of immature behaviour in which she tends to engage.

A particular further feature of the mother, I find, is that she has a very longstanding difficulty with speaking the truth. In the 2010 and 2012 assessments by the Local Authority it is plain that she was regarded then as highly inventive in a way that could have caused very serious difficulties for others. In the assessment by the psychiatrist she gave a seriously untruthful account in paragraph 6.8 of her report (and I do not accept her explanation of this in evidence). Her mother said in evidence: ' she is still lying. We have not thought about that. If she does continue to lie it is going to have a big effect on both of us and Z...In 2003 the problems started and they were that she was telling really serious lies about me and my husband; they have continued over the past 13 years'. The maternal grandfather said in evidence that the mother had told a 'pack of lies' and recognised the risk that the mother 'could tell lies against me in the future'.

I accept that the mother loves Z deeply. Her observed twice weekly contact with Z (on Mondays and Thursday) has been positive and she has shown insight into how her behaviour affected Z (so said the first social worker to give evidence). My own opinion of the mother in evidence on issues of fact was that she was a completely unreliable witness. I would not believe anything that she said unless it was corroborated. Examples in evidence were: a) her evidence about drug abstinence between January and July 2016 and b) her allegation that the father's girlfriend made very serious racist remarks about Z (I only have the mother's evidence and the girlfriend's denial and, on that balance, easily prefer the girlfriend's evidence).

In my opinion the mother's immaturity and propensity for untruthfulness raise very important issues in this case. I accept that she has not undermined the grandparents over the past 11 months. However, there has been no conflict between them. If conflict arose I would expect very real difficulties indeed for the grandparents and also for Z. On this point it is relevant and understandable that the mother wishes to be in a position to care for Z in the future - possibly in two years, she said (' I will be trying to get my son back as soon as possible, wherever he will be. I will be available for my son as much as is allowed. I have made it clear to my parents that, twelve months clean I will not be seeking the return of Z but once I have got myself clean, in two years or so...and have something to give him...I will do so').

Another feature of the mother's circumstances is the very different relationship that she has with each of her parents. Not only do they not visit each other's homes; the grandmother said in evidence ' I feel that I was forced into making contact with the mother because of Z...until the mother has persuaded us that she has changed she will not be welcomed back in our home'. The fact that the grandmother has not allowed the mother back into her home suggests very clearly that the mother has not yet persuaded the grandmother that she has changed.

By contrast the grandfather said that he has been visiting the mother every week from the time that she left the first drug rehabilitation unit and has been taking Z with him. The grandmother said this in evidence: ' I was told by the contact supervisor that my husband was taking Z to his mother's home and I said: 'you can't do that' - before that I did not know he was taking Z to our daughter'.

From the very inception of the difficulties with the mother (i.e. when she was aged 8, I was told) the grandparents have taken very different approaches to the mother. The grandmother withdrew from her (e.g. she spent much of her time in the conservatory when the mother was living with them) whereas the grandfather has involved himself with her.

I am deeply concerned about how that will translate into the care that would be offered to Z in the grandparents' home once these proceedings have ended and the Local Authority is no longer involved. There is a very significant risk that the mother will once again put these grandparents under considerable pressure if she does not get her way. The grandfather himself said that he accepts that the mother ' could wrap me round her little finger - not this year so much but in the beginning she could - yes'.

A feature of the arguments in this case is that it was suggested that the experiences of the mother when being moved as a child give a good demonstration of why Z should not be moved now. The guardian submitted in closing that ' she is concerned about the impact of change on Z at this time. This is reinforced in her mind by the experiences and problems suffered by the mother at a similar age when she was moved from foster parents to adoptive parents'. I accept that the change of circumstance that would arise from a move to the father raises very important issues for me to consider. However, I think that the suggestion that the circumstances of the mother before the age of two can be equated with those of Z strain logic too far since:

i) The mother was moved repeatedly both within her family and to foster carers that she did not know previously.

ii) When she moved to her adopters, the grandparents, she went to people who were then complete strangers and lost all previous relationships;

iii) Z has an existing relationship with the father and will maintain his relationships with family members.

I now need to go on to say more about the grandparents.

The grandparents - The grandparents have been married for over 25 years. They have another child who has not known any of the difficulties experienced by this mother. The grandmother is in her mid-50's and the grandfather is in his early 60's; their age is not a relevant factor in my opinion. The grandfather is generally fit (he cycles a long way to work) and the grandmother is getting fit having taken steps to reduce her weight. They attend church and came across as living a fairly quiet life together.

There can be no doubt that they have committed themselves to caring for Z. Z has thrived in their care and he has spent nearly eleven months with them during these unduly long proceedings. I also have no doubt that they love Z and have found these proceedings agonisingly difficult. I therefore accept that they have cared for Z well during the past eleven months although I do not wish to descend into the near meaningless terminology of whether they provide 'better than good enough' care for Z; my own terminology is to describe their care as the loving care of committed grandparents in complex circumstances.

I accept Ms Phillimore's submission that ' all the issues of concern or doubt about their ability to care for Z should have already been examined, investigated and assessed fully, whether or not they were putting themselves forward as his permanent carers'. She has not sought to contend that the enquiry into the grandparent's background was inappropriate but she has rightly complained about how the issue arose and the lack of enquiry before the case came on for this final hearing.

I have read the special guardianship report, dated 25 ^th July 2016, twice - once superficially to understand its overall content but then very thoroughly. The social worker who prepared the report came across in evidence as an intelligent man who is committed his work. The gaps in his analysis of the grandparents only came to light after he had left the witness box and Ms Phillimore was understandably asking the current social worker why she was making reference to matters relating to the grandparent's background when the author of the report had not. The points about the omissions from his report were not raised with him in evidence and he has not had the opportunity to deal with them (and Ms Phillimore was entirely right not to ask him about this herself - it was not for her to do so).

Having spent so much time on the issue I regret that I have to accept the Local Authority's own analysis that its analysis in relation to the grandparents had 'huge gaps' in it. I have not seen the fostering assessment that was carried out in relation to the grandparents but I understand that the Local Authority accepts that this, too, had the same huge gaps in it. I now want to summarise what I have read and been told so that the extent of the problem is apparent.

Prior to the mother being adopted by the grandparents she had a very unsettled first two years of her life in which she lived with family members and foster carers. By the time that she was eight she was exhibiting very disturbed behaviour which posed considerable challenges for the grandparents who said in evidence that they feel that they had very little help in dealing with her. From the evidence that I have heard, especially the reports of the psychiatrist, I accept that the mother's difficulties appear to have their origins in her very early years, before she came to the grandparents.

But it is also a matter of not inconsiderable concern that the grandparents dealt with the issues that they faced in the manner that I have now heard. That is, by the grandmother withdrawing and the grandfather seeing himself caught in the middle between the mother and the grandmother. It is very plain that the difficulties that the mother posed were way beyond the abilities of the grandparents - for instance the grandmother said: ' someone from social care did come out and [the mother] said that we meant nothing to her. I said: 'it that's how you feel then take yourselves to the social services'. It is also apparent that the grandparents responded to the difficulties very differently in a way that put immense pressure on their relationship. The grandfather said in evidence: ' I was certainly caught in the middle of it; it put a strain on our relationship...my wife did not reject [the mother]. [The mother] rejected my wife'. If the mother's difficulties did become manifest when she was aged eight it means that they continued for five years when she was with the grandparents.

I am concerned that, if Z posed difficulties on these grandparents, they may respond with the same dynamics. They both said that they would not do so but I do note that they continue to respond to the mother differently. If the same family dynamics did reappear (e.g. under pressure from the mother once these proceedings are over), the risks for Z would be considerable. The guardian accepts that she did not examine those dynamics in any of her written evidence and in oral evidence expressed the view that they were not relevant.

In considering the position of the grandparents I now want to move the clock forward to the time just before Z came into their care. During the grandfather's evidence I wanted to understand what he knew of the difficulties that the mother was having at that time. I had understood him to say that he was visiting once a week at the time. Ms Phillimore rightly drew to my attention that the Local Authority itself had withdrawn its child protection plan in November so, she suggested, the grandfather could not be blamed for not noticing things that the Local Authority did not notice either. When this issue was being explored with the grandfather in evidence, after a long session in the witness box, he suffered an anxiety attack and an ambulance had to be called for him. A point that emerged later was that the grandfather was having an operation on his knee at about this time and was unable to drive (so I was informed by email after the end of closing speeches); therefore, I accept, he was not visiting for at least part of the two months before Z left the mother's care.

On the basis of the evidence that I heard I do not think that there is any basis for laying any blame on the grandfather for not alerting the Local Authority or others to the difficulties that the mother was suffering during those two months. It remains deeply worrying, however, that a then 2 ½ year old boy was living for two months in the circumstances that I have described without anyone doing anything about it.

An issue arose as to whether the grandparents had been allowing the mother to have more contact than was agreed with the Local Authority. The grandparents say that the first social worker who gave evidence told them that, if the grandfather was present when the mother saw Z, that would be acceptable to the Local Authority; the social worker denied having said that. Whatever may have been the precise exchanges between the grandfather and that social worker, I accept that the grandfather thought that it was permissible for him to take Z to have contact with the mother if he was present.

However, what I am concerned about is whether the grandfather would be able to regulate the mother's contact in the long-term future. He described how the mother would ring him and ask him to take her to the shops or ask if he would mow her lawn. He said that, unless shift work precluded him from doing so, he would do as she asked. He said that, when he was mowing her lawn Z would be with the mother in her flat. He sought to suggest that he could see what they were doing by looking in through the window. Even if the first social worker to give evidence did state as the grandfather suggests, I consider that it must have been obvious to the grandfather that he was expected to exercise more supervision than that.

I think that it is highly unlikely that the grandfather would be able to regulate the mother's contact with Z in the long term once these proceedings have ended and the Local Authority has withdrawn. I think it highly likely that this mother will put him under pressure to do as she would like and that he would find it impossible to resist her demands. I also think that the grandmother would find it difficult to maintain long term regulation of the mother's contact; in her evidence she said that the mother and father should have equal amounts of contact. The grandmother was asked by counsel for the Local Authority: ' doesn't what you have read mean that the mother should not have staying contact?'. She replied: ' If supervised contact is advised then so be it. She should have Z on her own when she is well enough'. Her answers left me very doubtful of her resolve on this issue.

I combine my doubts about the grandparents' ability to regulate contact with the mother's lack of emotional self-regulation and immaturity and I am left with a picture where there are real risks to Z's emotional stability if he lives with the grandparents. That is a relevant welfare issue in my opinion. Again, it did not feature in the guardian's analysis.

Until the 18 ^th October 2016 the grandparents were saying that they would not wish to stand in opposition to either parent if there was a positive recommendation that either parent could care for Z. Understandably, the father feels somewhat aggrieved that, despite the positive assessments of him by the Local Authority, the grandparents now stand in opposition to him. For the purposes of my judgment I do not think that it matters greatly why they did change their minds. The fact is that they did so and I now have to determine what is best for Z. It also has to be borne in mind on that issue that they are supported by the guardian. Further, I have no doubt that they are genuine in their wish to care for Z and genuinely think that it is the best thing for him.

The grandparents say that they changed their minds after they had taken legal advice and due to their growing concerns about whether the father really understands the demands of looking after Z full time. I therefore do not think that there is anything of relevance to the welfare analysis that I have to perform in the fact that they changed their minds. The most that can be said is that it does suggest that they did not think that there was anything greatly wrong with the care that the father would offer Z. Indeed, as the guardian herself said in evidence: ' I don't discount the father as being able to care for Z. If the grandparents had not come forward I would have been supporting him but with a better support plan. I am not recommending that Z should live with the grandparents permanently'.

Another reason that they gave for maintaining their change of mind was that they were increasingly concerned about the father's willingness to support the mother in having contact with Z. I do not accept that aspect of their reasoning since:

i) The father has been generally supportive of the mother's contact since the transition plan has been in place.

ii) The father is genuinely supportive of the grandparents' having contact on alternate weekends if Z comes to live with him and I do not think that there is any realistic chance that he would seek to prevent them arranging for contact with the mother whilst Z was with them.

The father - The father lives at the other end of the county where the mother and her parents live. His upbringing was difficult. His parents never lived together and his father died when he was quite young. His mother struggled to manage the father's behaviour as a child and regarded him as having been a strong willed child. When his mother married, the father says that he experienced violence from his step-father [C156]. The paternal grandmother, his mother, told a social worker at C155 that he got in with the wrong crowd when in his teens and started drinking heavily.

The father's first criminal conviction was for disorderly behaviour at the age of 17. Shortly after that he was convicted of robbery, affray and criminal damage. At the age of 18 he committed a serious act of arson being reckless as to whether life would be endangered and was sentenced to four years in a young offenders institution; he set fire to a caravan and the threatened a group with a starter pistol (for the latter offence he received a concurrent sentence of 2 years duration). On release on licence from that sentence the father was supposed to live in a bail hostel but found the environment there so unpleasant that he absconded and was not 'picked up' for breach of licence for about six months. He then returned to custody for about six months.

On release he committed offences of criminal damage, battery against his brother and battery against the paternal grandmother during an argument over the fact that his brother had occupied his room in the paternal grandmother's house and a laptop got damaged. A community order was made by magistrates for those offences and there was also a restraining order by which the father was not supposed to go to his mother's house. It appears that the restraining order was ignored by everyone involved and was never enforced. However, the father moved about 100 yards down the road to live with his god mother but maintained contact with his mother.

About two years ago, in 2014, there was an incident when the father's partner, GF, was out with some friends and had drunk too much. She was about to accept a lift home in a car that was being driven by someone who was also drunk, apparently. The father sought to persuade GF not to go into the car and there was a struggle in which GF was pushed by the father into a bush and was scratched. GF's father informed the police but GF did not pursue a prosecution and their relationship continued.

Then, in October 2015, the father was convicted of being drunk and disorderly and was fined £200.

I was disappointed to be told that there had not been any liaison with the probation service when considering the assessment of the father. Given the extent of the father's criminal conviction probation might well have been able to give helpful information. However, on what I have heard and read, I accept that it is not enough to think of the father as having been just a bit wild or rebellious. There have been some deep-seated difficulties in the father's past, although they are nothing like the sort of problems that the mother has had to face. I therefore consider the father's background to be important and that it has to be taken into account as a relevant feature of the welfare balancing exercise in this case, particularly when considering whether the father has matured sufficiently to care for Z.

I now need to consider the involvement that the father has had with Z. The mother and father did not have a stable relationship and did not live together. At C158 it is stated that the father ' was recorded as a suspect of rape against the mother on several occasions'. I heard no evidence about that allegation and therefore can only approach it on the basis that it is not substantiated against the father. However, I do think that the fact that the father was facing allegations of that nature from this mother goes a significant way to explaining why he did not have involvement with Z when Z was in the mother's care.

It was suggested by the guardian and the grandparents (but not by the Local Authority) that the father had not shown appropriate commitment to Z during the first two years of his life and that this should be taken into account against his wish to care for Z now. I accept that the father did not show the commitment that he should have done to Z during those years but I qualify the strength of any adverse remarks against him over this having regard to the very real difficulties that there must have been in any communication between him and the mother during that time. I accept that the mother invited the father to attend mediation and, indeed, arranged a mediation session with a firm of solicitors. Having seen the mother and read so much about her I can imagine that discussions with her about contact would have been extremely difficult indeed and very highly emotionally charged.

The assessment of the Local Authority is that the father has matured. I do think that all the negatives that I have heard about him have to be qualified by the following:

i) He has committed himself to contact with Z and, since he has been looking after Z for two nights a week, he has cared for him well.

ii) When I deliberately extended his contact to five days during a period of adjournment he cared for Z well then.

iii) He committed himself to the difficult process of assessment by the Local Authority and engaged properly with it over a very long time.

iv) His commitment to Z has now been tested since February and he has maintained it. Although he did say at one point that he had felt guilty about not having been in contact with Z before February 2016 I do not accept that he is motivated by guilt and I reject the submissions that were made to that effect.

v) He has maintained a working relationship with the maternal grandparents (and they with him) and has transported Z for weekly contact with the mother during the time when Z has been with him.

vi) The social worker who assessed him was clearly impressed by the way that the father had been prepared to learn and develop his parenting skills. I accept that the father has made real efforts to prepare himself for caring for Z and would so-operate with supervision.

vii) He has kept out of trouble since October 2015. That is only a period of 14 months but I do take into account that there are no current suggestions of any criminal activity since then.

viii) He has restored his relationship with his mother and is now living with her. She is supporting him in the care of Z.

The guardian was critical of the Local Authority and of the father about the evidence relating to the role of the father's partner if Z came to live with him. I accept that there was a time when the father and his partner split up and so the assessing social worker did not assess her. I also accept that they are now back in a relationship together. The father's partner, GF, is a young woman. She has a responsible job but wants to go to university. She does not live with the father (she lives with her parents) and has no intention of doing so, at least yet. She and the father have been going out together for four years but, having seen her in evidence and listened to what both she and the father are saying I accept that it is far too soon to regard her as a permanent feature of the father's life.

In my opinion, GF has been very sensible to keep some sense of distance from Z and act in a supportive role, as the father's girlfriend, in his wish to look after his son. I accept that when GF does spend time with the father and Z, GF gets on well with Z and behaves responsibly. Whether she plays a long-term role in his life is impossible to say in my opinion. I accept that the father puts forward his case on the basis that he wishes to be the primary carer of Z and will not delegate this to his girlfriend.

I saw the father's mother in evidence. She came across as a quiet woman who lives in family modest circumstances in Local Authority housing. She is also a woman who is committed to her grandchildren and spends a lot of time looking after her two other grandsons. She has suffered from depression and also has limited mobility but is perfectly capable of caring for her other grandchildren when they are with her. The clear impression that I have is that she sees herself as supporting the father in his wish to care for Z. It is not her intention to take over Z's care nor is it the father's intention that she do so either. I found her to be a truthful and impressive witness who did not overstate the content of her evidence.

Therefore, I accept that there are signs that the father has now achieved some greater maturity. Indeed, it would be surprising if he had not, given the involvement that he has now had with his son over the past ten months in which he has learnt to act like a father. Like many other aspects of this case, his maturation is not an absolute phenomenon and there are risks that he could revert to his former way of life. However, I was very impressed by the efforts that he had made over the past nine months of his involvement with Z. I accept that he loves Z and is genuinely committed to him.

Mother's prognosis and contact - The consultant psychiatrist, who frequently gives evidence in the family courts relating to drug addictions, was asked to express his opinion about the mother's contact and whether it should be supervised. Emails were being exchanged with him during the currency of the hearing and, at the end of closing speeches he was still recommending that the mother should not have unsupervised contact with Z until she had been abstinent from drugs for twelve months. The emails continued after closing speeches and I have received an email from him which included this: ' Although I suggest a 12 month period, a case could be made for this to be shortened if [the mother] presents in a consistently settled fashion. The 12 month time frame relates to the DSM 5 definition of sustained remission, and is not 'set in stone'. I am concerned that crack cocaine is not a drug that can easily be used in a controlled fashion. Use very readily turns into dependent use and this is associated with a chaotic life and a need to generate large sums of money. If there is any suggestion that this picture has returned, I would still consider that a prolonged period of abstinence would be required before there could be consideration of there being unsupervised contact. If, however, the mother is functioning as well as is suggested, then the 12 month time might be shortened, if all parties felt confident that she was functioning well, that contact was going well and that there were responsible adults able to monitor the situation. With these things happening, then perhaps 6 months might be a reasonable period, and this I accept might help to motivate the mother to remain abstinent.

In her evidence the mother said that she would like unsupervised contact because she has really missed doing things with her son, like curling up on the sofa and watching Disney films. She said that she feels the setting for supervised contact is unnatural. She gave very good reasons why she could not have contact in the town where the father lives and it was agreed by all that any supervised contact would have to take place in another specific location (that was clearly identified within the hearing but which I do not name in this anonymised judgment).

I will return to the mother's contact later after expressing my conclusions about where Z should live.

Balance sheet - father. It seems to me that the following are the main balance sheet factors in relation to the father:

Pros	Cons
He is the father. The fact that he is a parent is important and significant.	He lacks experience as a full time carer of a child. This is a relevant factor that I do take into account. I accept the guardian's point that this is a relevant consideration - she refers to it at A37 para 4(ii). However, he has gained considerable experience in this regard over the past nine months.
He has shown clear evidence of maturation.	His maturation is recent and there is a risk that it may not be sustained. The guardian questions whether the assessment of the father has been sufficiently robust. I have expressed my analysis on this issue in the body of the judgment.
He has an established relationship now with Z and has been shown to be able to care for him. Z is used to spending time with him.	A move to him will involve a major change in Z's circumstances. Z has already experienced a disrupted upbringing (when with the mother and then moving to her parents). A move to the father could have an impact on his ability to form attachments in the long-term.
He is committed to caring for Z (as I accept he is).	The guardian submits that it is one thing to care for a child for periods of contact and another thing to care for the child constantly. I accept her point but the same thing could be said about any non-custodial parent wishing to care for a child. I accept that he understands the implications of what he is doing although no arrangement is ever entirely risk free.
A placement with his father, if successful, would give him permanence, whereas a placement with the grandparents would be subject to the real possibility of future major change.
He has the support of his mother, who has been assessed positively by Local Authority and who gave evidence as described above.
He is offered support and supervision from the Local Authority with which he co-operates.
He has supported the mother's contact recently despite the very poor relationship that has existed between them in the past. He will be supported by the Local Authority and by the grandparents in supporting and arranging her contact.	There is a risk that he will not support the mother's contact in the future. I think that this is now a low risk and that he can be supported with this by Local Authority supervision. I accept that he understands the importance of the mother to Z.

Balance sheet - maternal grandparents. I consider that the following are the main balance sheet factors in relation to the maternal grandparents:

Pros	Cons
They have cared for Z well over the past eleven months.	The family dynamics and background of their care of the mother raise considerable concerns about their ability to protect and sustain Z's emotional wellbeing in the long-term for the reasons that are set out above.
Z is settled with them now and a change in circumstance would cause him disruption and could affect his ability to form attachments in the long-term. The status quo is an important factor in this case.	A change in circumstance may well occur in any event because Z may well move from them to live with one of his parents. Further he would be moving to a father with whom she is used to staying contact. However, the impact of a change of circumstances is an important factor that I do take into account. I do not regard it as decisive on its own.
They will support contact to the mother and father.	Their ability to regulate the mother's contact in the long-term is doubtful.
Supervision by the Local Authority is not recommended if Z remains with them.
They would be able to protect Z against conflict between the parents.	If the mother and father did engage in conflict over Z they could still do so if Z is living with the grandparents. I have profound doubts about their ability to protect Z against pressure and conflict from the mother. I do not accept that the past eleven months provide evidence of their ability to do so in the long-term.
The guardian regards the grandfather as the one consistent adult in Z's life, apart from his mother.	The grandfather did see Z once a week for much of the time before he came to live with him and the grandmother. However, the position now is that the father also has an established and important relationship with Z. Involvement at the level of once a week (with gaps) prior to February 2016 would only have been of limited impact, I consider, for a child of his age.
The grandparents are experienced parents (see the guardian's statement at A38, para v). Their other child has not encountered anything like the difficulties of this mother.	The dynamics of their family are extremely complex, especially their relationship with the mother.
The special guardianship report of the grandparents was positive.	It had 'huge gaps' in it.

Welfare determination - On the basis of the evidence that I have heard there are clear risks to Z of emotional harm whichever of the two available options I adopt. I also realise that, whichever option I adopt, the dissenting parties will say that they have been vindicated if any risks do materialise. There is no entirely risk free option here from the point of view of Z's emotional welfare and I have had to conduct a very careful balancing exercise. Having done so I am left of a very clear opinion.

In my opinion the father is now better able to meet the welfare needs of this little boy. I accept that the father is committed to Z and is able to provide lovingly for his emotional and physical welfare I do not base that on the fact that he is a parent to Z, although I do take parenthood into account. I do so on the basis of Z's overall welfare.

I have expressed my doubts about whether the grandparents can meet Z's emotional needs in the longer-term or if faced with the almost inevitable conflict that will come from the mother. I think that this boy needs to be given the opportunity of finding a final and permanent home and the only party who offers this now is the father. Despite the risks that the father may not continue on his journey of maturation I consider that it is likely that he will do so once he has the responsibility for the son to whom he has committed himself so clearly over the past nine months.

I accept that the father will be supported in meeting the needs of Z by the Local Authority (and intend that there should be a supervision order to ensure that he is so supported), by his mother and, to a lesser extent by GF. I accept, however, that the father will be the primary carer of Z and will not delegate that role to others. I am satisfied that his resolve has been very significantly tested over the past nine months and that he has done everything that could be expected of him to show his commitment to Z.

I accept that a move to the father will present a significant change in his current circumstances and that this boy has a background of having moved from the primary care of his mother and will now move from the primary care of his grandparents. I do take that into account but do not afford it the emphasis given to it by the guardian. I accept the Local Authority's evidence and submission that the impact of the change of circumstance is mitigated by the extent of the father's current relationship with Z and by the paternal family environment into which Z will be moving. I also think that the guardian's analogy with the harm done to the mother's attachments by the disruptions that she suffered when she was young does not bear scrutiny.

Z is now three years old and I think that, if he is to find permanence, he should find it as soon as possible. I do not share the guardian's view that permanence cannot be achieved now and that an arrangement should be made which recognises the real possibility of a move at a later stage (see the capitalisation of the words 'at this time' in paragraph one of the closing submissions of the guardian's counsel). By way of example only, if a change of circumstance, moving him from the grandparents, were to occur when Z was aged five, why would that not be more damaging than a move now (bearing in mind school arrangements, the fact that Z would have been with the grandparents for three years by then, etc)? I therefore think that his age is important. He has a chance in his pre-school years of settling into a way of life that will remain throughout his minority and into adulthood.

Z has experienced emotional harm through disruption of his circumstances and experiencing neglect in his mother's care. He now needs permanence in my opinion and I think that the father is best able to provide that. I have expressed the balancing risks of harm in the future within the above tables and have concluded that the greater risk to Z's emotional well-being would arise if he continued to be cared for by the grandparents.

I accept that the father is capable of caring for Z. I accept that the grandparents have cared for him appropriately over the past eleven months but I consider there are significant risks that they will not be able to do so in the long term.

I depart from the recommendations of the guardian for the reasons that I have expressed. I wish to emphasise yet again my respect for this guardian and her work. I hope that she will accept that two minds can differ on the same subject and that is the unfortunate position here.

The range of powers under the 1989 Act by which I am asked to regulate the living arrangements of Z is confined to orders under section 8 of the Children Act 1989. I order that Z shall live with his father. The transition plan will be that which was agreed at the end of closing speeches in the event that I did make orders in favour of the father - Monday to Thursday with the father (this week of 5 ^th December and the week of 12 ^th December). Then from the afternoon of 18 ^th December Z should live with the father. The grandparents should have the agreed staying contact on alternate weekends, the first such weekend being 29 ^th to 31 ^st December.

I accept the Local Authority's recommendation that a supervision order should be in place. My intention in ordering that is to ensure that the transition is as smooth as possible, there is regulation and oversight of the mother's contact and that the father is assisted in adjusting to full time care of Z. It would be wrong to suggest, therefore, that I am making the supervision order only due to the need to provide support for the father.

I accept the recommendations of the guardian and of the Local Authority that the mother must have supervised contact with Z once a week but that the need for supervision should be reviewed by the Local Authority after six months and then kept under review every three months thereafter. The mother will understand, I am sure, that the Local Authority may well request that she gives a drugs test if she is to demonstrate abstinence. That supervised contact should not take place in the father's home town but in the agreed location.

In addition I accept that the grandparents should be free to arrange for the mother to have contact with Z during and around the time of church services on Sundays when he is with them for alternate weekends (as is agreed).

Final remarks - This has been a very difficult case to try for reasons that I have explained. I hope that if Z should ever read this judgment in his later life he will accept that a great deal of thought has gone into deciding his welfare. I would also ask the father, by way of request of course, to keep me informed from time to time about how Z is getting on. I will never forget this case and would welcome some news about Z in the future. The father now has the most difficult and rewarding job of all - being a full time carer to his son. I wish him well with it.

I have anonymised this judgment entirely. I have done so because I think that there is a very significant risk of jigsaw identification if any details are given in this judgment, which is likely to be published. I also wish to avoid causing any embarrassment to anyone arising from the disagreements that this case has seen. I invite submissions on whether this judgment should appear on the Bailii website but think that this judgment falls clearly within the President's guidance on publication.

HHJ Stephen Wildblood QC

5 ^th December 2016.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Z (a child), Re [2106] EWFC B105 (05 December 2016) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2016/B105.html Cite as: [2106] EWFC B105

England and Wales Family Court Decisions (other Judges)