“AND UPON the Court considering it not necessary for the uncle to participate in the final hearing (as an intervenor or otherwise, save if there is an application for him to be called as a witness following receipt of his statement to be filed on behalf of the grandparents, if so advised), in the absence of the Local Authority seeking specific findings against him, noting that his underlying position/views have been clearly recorded in the assessments of him and which can be put to relevant witnesses via the Paternal Grandparents regarding risk in the household generally.”
“135. The primary focus of this Judgement and this hearing has been around the risk of harm arising from the previous convictions of the grandfather and the behaviour of the uncle.” “141. … I share the views of Ms Sensicle and the Guardian that it is extremely worrying that not one, but now three generations of the same family have had concerns raised about inappropriate sexual behaviour. 142. I accept that the grandparents have complied with written agreements around care arrangements with the home for the children, that they have cooperated with the Family Support Worker visits and engaged well with Ms Goddard. Since Ms Sensicle gave her evidence, the uncle has also moved out of the family home. All of this is positive in terms of risk management. 143. However, I am concerned that the grandparents, despite extensive evidence of the concerns and views of the professionals have not shown a great deal of their own initiative in taking protective steps and are overly reliant on being told what to do.” “146. It is clear that the uncle does continue to play a significant role in supporting his parents care for the children, indeed as he always has. However, what was of concern to this Court was that despite the clear concerns expressed about the risks from the grandfather and the uncle, these two adults have been left alone with the children by the grandmother. How can she protect the children if she is not there to oversee where they are and what they are doing. She is reliant on what the grandfather and the uncle say that they are doing. 147. I must be clear I am not suggesting that anything has happened to the children during this time, but the point is that it increases the risks, it does not decrease them. I am concerned that in allowing this to happen the grandparents have demonstrated to this Court that they do not fully understand the concerns and have insight into these. 148. I cannot with confidence accept the assertion that the uncle moving out of the home removes that risk, because he continues to play a significant role in the lives of the children. 149. … In any event the grandparents were in Court to hear the evidence of Ms Sensicle and needed to demonstrate to this Court that they can come up with safety strategies themselves without reliance always on being told what to do. 150. If I make a special guardianship order, the grandparents gain enhanced parental responsibility. On making such an Order, I would expect the grandparents to be able to make decisions and act protectively for the children on their own. The Local Authority cannot be in the background for the rest of the children’s minority to tell the grandparents what they can and cannot do. 151. In respect of the grandfather, I accept that he has not offended since his convictions nor have any concerns been raised about inappropriate behaviour by him towards any child. Dr Parsons confirming that this reduces the risk. This was acknowledged by Ms Sensicle as well, albeit she highlights that the children being in his care brings the risk to low-medium. 152. One then must turn to consider the grandparents’ understanding and insight into the risk that the grandfather, (and uncle) pose and how this sits with protective capacity and risk management. 153. During these proceedings the risks have been managed, but with a high degree of monitoring, certainly since the Family Support Workers were put in place and the scrutiny of the Court. However, as I set out above, there have been concerns around R’s behaviour, which I do consider to be significant and very concerning in the context of the family’s background. 154. I do agree with the evidence of Ms Sensicle that without insight, the grandparents cannot act protectively. I also agree with the Guardian that having listened to the evidence of the father and the grandparents, I was not left reassured that there has been any change in that regard and in particular from the grandmother, who would be the adult in the home with primary responsibility to protect. The grandmother said that she did not understand what the risk was from the grandfather and did not agree that the uncle was a risk.”
“157. The father has demonstrated in contact that he can meet the children’s needs well during contact and he makes family time an enjoyable experience for them. The father also acknowledges that he is not able to care for the children full time, which is to his credit, but clearly, he has an important role to play in their lives. 158. No-one has sought to argue that the grandparents have not met the needs of the children to a high standard. They certainly have. The grandparents have given the children stability, consistency, love and nurture. They have cooperated with the Local Authority and the support that has been put in place.”
“159. … these would be to make Special Guardianship Orders, with, if necessary, a Supervision Order if I felt the circumstances of this case met the exceptional test. In the alternative, I make a Care Order approving the Local Authority care plan. I cannot instead make a Care Order with the children in the grandparents' care, because I cannot tell the Local Authority what their care plan should be, what would be open to me would be to refuse the Care Order on the current care plan and place pressure on the Local Authority to consider a Care Order at home, but if they refuse it becomes stalemate. In any event, I consider it would be unlikely that given the facts of this case the grandparents would be approved under the placement regulations for a Care Order at home. The law is also clear that Care Orders should not be made with children at home to provide monitoring and support.”
“An appeal would have a real prospect of success. This was a single issue case. Apart from the risk of sexual harm, all other factors strongly pointed against the children’s removal. It was therefore important for the court to clearly identify the factual foundations upon which its risk assessment, and that of the expert witnesses, rested. The grandfather’s offending dated from 40 years ago. The recorder does not appear to have made any findings of fact about the uncle’s past behaviour, he having admitted only one incident when he was aged 11. It is understandable that concern would be felt about other allegations prior to 2015 (see 31(5)), but the court’s risk assessment had to be based on proven fact and not on concern or suspicion, even if expressed by experts. It also appears that the recorder impermissibly relied on an allegation about R’s behaviour without making any finding of fact about it: 51, 137-141 and 166-167. It is further arguable that the welfare assessment was overwhelmed by a requirement to keep the children ‘100% safe’ (97) and an assumption that foster care is risk-free (161), but welfare decisions do not require the elimination of all risk. Finally, it is arguable that the recorder dismissed the option of a supervision order without fully considering its protective potential in a case where the family had a history of co-operation with professionals.”
“The starting point here is that courts act on evidence. They reach their decisions on the basis of the evidence before them. When considering whether an applicant for a care order has shown that the child is suffering harm or is likely to do so, a court will have regard to the undisputed evidence. The judge will attach to that evidence such weight, or importance, as he considers appropriate. Likewise with regard to disputed evidence which the judge accepts as reliable. None of that is controversial. But the rejection of a disputed allegation as not proved on the balance of probability leaves scope for the possibility that the non-proven allegation may be true after all. There remains room for the judge to have doubts and suspicions on this score. This is the area of controversy. In my view these unresolved judicial doubts and suspicions can no more form the basis of a conclusion that the second threshold condition in section 31(2)(a) has been established than they can form the basis of a conclusion that the first has been established …. At trials … the court normally has to resolve disputed issues of relevant fact before it can reach its conclusion on the issue it has to decide. This is a commonplace exercise, carried out daily by courts and tribunals throughout the country. This exercise applies as much where the issue is whether an event may happen in the future as where the issue is whether an event did or did not happen in the past… Then, but only then. can the court reach a conclusion on the crucial issue. A decision by a court on the likelihood of a future happening must be founded on a basis of present facts and the inferences fairly to be drawn therefrom. The same, familiar approach is applicable when a court is considering whether the threshold conditions in section 31(2)(a) are established. Here, as much as anywhere else, the court's conclusion must be founded on a factual base. The court must have before it facts on which its conclusion can properly be based. That is clearly so in the case of the first limb of section 31(2)(a). There must be facts, proved to the court's satisfaction if disputed, on which the court can properly conclude that the child is suffering harm. An alleged but non-proven fact is not a fact for this purpose. Similarly with the second limb: there must be facts from which the court can properly conclude there is a real possibility that the child will suffer harm in the future. Here also, if the facts are disputed, the court must resolve the dispute so far as necessary to reach a proper conclusion on the issue it has to decide.”
“It is, of course, open to a court to conclude there is a real possibility that the child will suffer harm in the future although harm in the past has not been established. There will be cases where, although the alleged maltreatment itself is not proved, the evidence does establish a combination of profoundly worrying features affecting the care of the child within the family. In such cases it would be open to a court in appropriate circumstances to find that, although not satisfied the child is yet suffering significant harm, on the basis of such facts as are proved there is a likelihood that he will do so in the future.”