In the Matter of N (Children) [2015] EWFC 37

IMPORTANT NOTICEThis 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[ren] and members of their [or his/her] 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.[2015] EWFC 37IN THE FAMILY COURT Case No: NE14C00306SITTING AT NEWCASTLE-UPON-TYNEThe Law CourtsQuaysideNewcastle-upon-TyneNE1 3LAIN THE MATTER OF THE CHILDREN ACT 1989AND IN THE MATTER OF: N (CHILDREN)Date Wednesday, 25 th March 2015
Before
HIS HONOUR JUDGE SIMON WOOD
Re: N (Children)
Transcribed from the Official Tape Recording byApple Transcription LimitedSuite 204, Kingfisher Business Centre, Burnley Road, Rawtenstall, Lancashire BB4 8ESDX: 26258 Rawtenstall – Telephone: 0845 604 5642 – Fax: 01706 870838
Counsel for the Local Authority: MISS WOOLRICHCounsel for the Mother: MR AINSLEYSolicitor for the Child, G: MRS SPENCELEYHearing Hearing dates: 10 th November 2014, 25 th March 2015
JUDGMENTHIS HONOUR JUDGE SIMON WOOD:
[1]These proceedings concern a girl called G who was born on 10th October 2002 and is therefore now 12 years 5 months old and her half brother, B, born on 26th September 2006 and therefore now 8½. The issue I have to decide is whether G and B should be made the subject of care orders with a plan of long term foster care for each or returned to the care of their mother, M. In fact, in circumstances I will outline, the mother does not seek an immediate return of B to her care but she does seek a return of G, so the focus has been acutely, perhaps even disproportionately, on her in this hearing.[2]The mother was born on 23rd October 1977 in Angola. By then the brutal civil war that shocked the outside world had been underway for two years. G was born in a refugee camp in Zambia in 2002 just after that war ended. The psychologist who reported in this case makes the point that the mother grew up and came to maturity in a war-torn country. The central province where she lived is said to have been devastated. The mother herself reports that there came a day in 1999 or 2000 when they “all ran different ways” and she thereby lost contact both with her parents and her sister. She has no idea where they might be – that is to say, assuming they are still alive – and somehow she ended up following a convoy of complete strangers that took her to Zambia. Little more than that is known, albeit the expert assessment of her presentation was consistent with her affirmative nod in answer to a direct question as to whether she had been jailed and/or tortured. She is likely to have experienced first hand, or at least witnessed, extreme brutality that has traumatised her to this day.[3]In circumstances that are also unclear, in October 2005 the mother sought asylum in the United Kingdom. She was granted indefinite leave to remain in April 2009. By then B had been born. They settled in South Tyneside and it is the Local Authority for that area which has brought these proceedings. Very little is known about G and B’s fathers. G’s is said to be F1 and B’s is said to be F2. Apart from a chance meeting with F2 in Portugal in 2011 or 2012 neither father has been seen by either child and neither has played any part in the lives of their children. There is still so little information available about each of them that even if these fathers were interested in playing a part in their children’s lives, which on present performance seems unlikely, or the children in due course wish to find their fathers, the chances of contact being made would appear to be very slight.[4]I should mention at this stage that the children’s guardian, Rachael Maclennan, supports the care plans. In G’s case that had resulted in an irreconcilable conflict and so Mrs Spenceley, solicitor, has represented G separately. At one point G indicated the desire to meet me, which I was willing to facilitate. That was then modified to an idea that she would write me a letter. In the event, she did neither but chose to communicate her views via Mrs Spenceley.[5]Before I come to the issues that this case is really concerned with, I want to say at the outset that the course that this case has taken in the hands of this Local Authority has been deeply unsatisfactory. Following a precipitating event in the middle of June 2013 the children were accommodated with the mother’s consent under section 20 of the Children Act 1989. Despite taking a decision in January 2014 that the plan was to be long term foster care and the Local Authority writing to the mother’s solicitor in March of that year to the effect that proceedings would be issued within seven days, they were not issued for another seven months on 22nd October 2014. As I observed when Miss Woolrich on behalf of the Local Authority addressed me, had the proceedings been issued when the Local Authority said that they were going to issue, they should have been concluded before the date when they were, in fact, issued. That they were not is bad enough but that bald fact ignores the period of nine months that preceded that statement of intent. Thus, these children were voluntarily accommodated for 16 months prior to the issue of proceedings and can properly be said today to have been in limbo now for 21 months.[6]It is difficult to avoid a direct application of the words of Sir James Munby P in the recent Darlington Borough Council case reported at [2015] EWFC 11 in which he described that case as being, “Almost a textbook example of how not to embark upon and pursue a care case.” A specific criticism from that case that applies directly in this case is, “The misuse and abuse of section 20”, that the President said could no longer be tolerated endorsing, as he did, the observations of the Court of Appeal in Re W [2014] EWCA Civ 1065 and Northampton County Council v AS [2015] EWHC 199 quoting with approval the remarks of Keehan J recorded at paragraphs 36 and 37 of that latter judgment.[7]This all lies entirely at the door of the Local Authority and requires addressing at the highest levels within Children’s Services and their legal advisors. That said, no parent in such circumstances is left without a remedy. Legal advice is available from the outset of notification of proceedings and it is a matter of both surprise and disappointment that the mother here was not encouraged to force the point as she was perfectly entitled, and I would say bound, to do in the circumstances of such gross delay by withdrawing her consent. I want to emphasise I do not blame this mother personally but it is the fact and a matter of regret that this did not happen long before the Local Authority belatedly got round to issuing proceedings. The effect of delay varies from case to case but in no sense could it here have been described, using the now disapproved term, as being purposeful. It served no identifiable purpose, it has delayed the outcome inordinately for young children wanting their futures decided and, as a matter of law, it has amounted to a complete and inexcusable breach of the statutory delay principle enshrined in section 1(2) of the Act.[8]Having dealt with these preliminary matters, why then does South Tyneside Council say that both children had suffered significant harm by way of emotional and physical abuse and neglect and were likely to suffer further harm in their mother’s care, not being care reasonably to be expected from a parent? Although a number of matters were alleged at issue, the Local Authority has contented itself on relying on two specific matters admitted by the mother which it is not denied on her behalf crossed the statutory threshold, namely: first of all, her plea of guilty to an offence of child cruelty in respect of an assault by her on G, a guilty plea which on 6th May 2014 resulted in her being sentenced to six months imprisonment suspended for two years as well as being ordered to perform 50 hours of unpaid work for the community and; secondly, the mother’s acceptance that she had previously left young children unsupervised at home.[9]The first of those two matters arises from the precipitating event and I go straight to it. On Friday 14th June 2013 the mother refused G’s request when she came home from school to go and stay with a school friend overnight. When G did not appear for her tea the mother discovered, with some help from B, that she had, in fact, packed a bag and left home. She did not return for over 48 hours until about 7pm on the Sunday night. A scene followed. The mother, in what she accepted went beyond chastisement, hit her with a slipper on several occasions. Dr Brewster, a paediatrician, took an account from G of her mother hitting her first when she was in bed and then being chased via B’s bedroom into the bathroom, hitting her all the while. He identified numerous scratch marks on her body, notably her right arm and right leg, which G identified as having been caused with a flip-flop slipper with diamante attached to the straps. Some of the diamante had fallen out and Dr Brewster thought that the injuries were consistent with G’s complaint and that the scratches had been caused by the empty mounts where the diamante had fallen out. Both children were received into care. As I say, the mother pleaded guilty to child cruelty on the basis of the assault.[10]Although this was the precipitating event, it was not the first Local Authority involvement. It had been involved on three previous occasions. In early 2007 it had carried out a core assessment. The mother was then said not to be coping with her newborn baby, B, and in fact became unwell with what was later diagnosed as tuberculosis. The children as a consequence of all of this were ultimately accommodated for a six month period. Then in October 2008 the Local Authority was notified that the children had been left at home alone. G was then 8 and B just 4 and the mother was advised effectively in the form of a warning. However, in June 2012 a similar incident occurred when G, by then 9 and B, 6 and the children had to be taken under police powers of protection to foster care overnight and the mother was formally cautioned by the police for another offence of cruelty contrary to section 1(3) of the Children and Young Persons Act. The children were placed on a child protection plan under the category of neglect and a social worker, SW1, was allocated, although not until after another incident when the family was found freezing on the doorstep in November 2012, locked out of the house at 1.48 in the morning. Thus, the June 2013 incident was separately and objectively serious, not just the assault but the mother’s complete failure to report to anyone at all that G, aged 10, had gone missing but it also falls to be considered in the context of a background of concerns.[11]The time since the children were received into care has not been easy for either of them. In separate placements initially because of the emergency nature of the need but increasingly thereafter due to concerns around the attachment each has to the other they have remained separate, albeit having sibling contact. There was a lack of clarity around the precise number of placements each has had. In G’s case figures of five, six and eight have been mentioned. Some, it is true, have been short term or respite placements but there seemed to the court to have been at least three significant placements. There is evidence that G is not just challenging and headstrong or wilful but manipulative and that she has learned how to break a placement that she does not like. She did exactly that with her last placement, albeit she was moved in a planned way before it formally broke down.[12]She sees her current placement as a temporary one, albeit the Local Authority thinks that it is a good one for her with experienced, firm foster carers who can deal with adolescent and teenage issued. Part of G’s reasoning behind seeing this as a temporary placement is that she wants desperately to be in South Tyneside and not Cramlington where she is now living. Her friends and her school are all in South Tyneside, so her wishes and feelings are entirely understandable. I think she would also like to be in a culturally suitable placement. Unfortunately, however, when she had such a placement and it was in South Tyneside, she took it effectively to breaking point. So giving her what she thinks she wants does not necessarily resolve issues for her.[13]B, I believe, has had one main placement but it nevertheless is a temporary one. He thinks he is going to stay where he is. He does not know that he will not and that arises from a conscious decision taken by the current social worker, SW2, not to tell him because of his anxiety and the risk of it destabilising. As the guardian observed, it would not necessarily have been a decision that she would have made but it was a decision taken with thought and she respected the social worker who knows B to have made the right call in that regard.[14]G has contact twice weekly with her mother. That was imposed at the beginning by the Local Authority, seemingly without any reference to the mother’s exclusive parental responsibility, and only quite recently has it moved into the community in a way that better meets G’s needs. B has from the outset refused to go to contact, describing his mother as “scary”. He had reported that he did not like it when his mother smacked him at home, and I emphasise the Local Authority seeks no specific finding in relation to that, and on 24th June 2013 just one week after his reception into care he was described as looking “absolutely panic-stricken” at the prospect of having contact with his mother.[15]The Local Authority did arrange contact on 18th July of that year. After looking nervous, he reciprocated his mother’s hug but then started scratching. He was noted to be called by his mother “baby” throughout. In answer to her question as to why he had not visited her, he said because he was not sure. He thereafter consistently said that he did not want contact with his mother. Attempts at encouragement via a variety of approaches, including entirely appropriate indirect contact sent by the mother, eventually facilitated a meeting in November 2014. Sadly, after 90 seconds he walked out of the room, ostensibly to go to the lavatory, and refused to come back. No discernable explanation to this day exists for B’s complete refusal to have contact with his mother. Her distress is obvious, it is palpable but she cannot explain it either and she cannot offer any reason why he would refuse contact. Thus it is that at the outset of this hearing her position was stated to be that whilst she would dearly love to have B home, realistically she knows that he will not come home for the foreseeable future.[16]The Local Authority carried out a parenting assessment of the mother. It concluded that the mother had been able to meet basic care needs well. She has a clean and comfortable home, the children are always well dressed, clean and nicely turned out, they attend school regularly. However, given the physical abuse of G and the mother’s response to G going missing aside, the Local Authority was concerned at the level of emotional abuse due to the mother withdrawing emotionally, particularly when upset or angry and a parenting course was identified called Effective Parenting. Although much criticised by mother’s counsel, Mr Ainsley, for its lack of suitability, it was felt not to have brought about any demonstrable change in parenting style. The Local Authority remained concerned as to the mother’s lack of insight into emotional needs that the children had as well as a real understanding as to how they could be met. Whilst the mother now said she understood that Angolan parenting may not always be acceptable in the United Kingdom, there was in fact little or no appreciation of the need to change it. Another serious criticism that Mr Ainsley makes of the Local Authority is the failure to access appropriate cultural support for this mother to try and bridge that gap in a woman who, on the Local Authority’s own assessment and indeed on very simple questioning in court, is both shy and isolated.[17]At the case management hearing on 10th November 2014 I concluded that a psychological assessment in this case was not just reasonably required but was necessary under Part 25 of the Family Procedure Rules to consider the mother’s cognitive functioning, her attachment to her children and their attachment to each other. The parties agreed with my suggestion that Mrs Estelle Louw might be a suitable psychologist given her own African background and considerable experience of African families. She produced a formidable and thorough report on 8th January 2015 and whilst it is not possible to do justice to that in a short space, it being a 55 page report, I do gratefully adopt Miss Woolrich’s summary in her written opening.[18]Mrs Louw found that the mother suffers from low mood. Although she was not able to make a diagnosis of depression or post traumatic stress disorder, she noted the possible effects of the war in Angola that had endured throughout the mother’s young life, the loss of her family, the unknown trauma she had experienced and would not discuss and the cultural differences between Africa and the United Kingdom. She said:
“The mother is likely to have experienced very serious emotional distress that is likely to have had a significant effect on her emotional state even if the mental health problems cannot be diagnosed.”
Mrs Louw noted that the mother had had serious health problems, including tuberculosis, malaria and chronic neutropenia, there was a possible relationship between the conditions and her long term low mood and withdrawn behaviour. Mrs Louw identified the mother as having average ability, although her emotional state and cultural differences meant that she may interpret situations differently:
“Her overall level of functioning presents as being cautious and frozen which might reflect behaviour that was part of a survival strategy in the past.”
[19]Mrs Louw went on to advise that those emotional difficulties were likely to have had a profound effect on both the mother’s manner and her child care. She considered that in the context of the culturally different approaches to parenting and the status of children as well as the trauma that the mother was likely to have suffered:
“There is no indication at this time that she has other parenting approaches she could now implement that could be more effective than physical chastisement and emotional withdrawal that apparently happened and have led to B being very much afraid of his mother and not wanting to see her.”
The absence of a diagnosis made it impossible to comment on treatment or therapy. She identified the possibility for improvement only if the mother was willing to engage with help that might be offered. In relation to advice and support, she advised the need for a social worker who understood the background, acknowledged the effects of trauma, have an understanding of African culture and she made a suggestion that a black social worker might assist.[20]Turning to the children specifically, B did not appear to have a secure attachment to his mother. G and her mother want to see each other but the attachment is, in her view, insecure or ambivalent and she noted the very different behaviour of G compared to that expected of an African child that was likely to challenge the mother openly and cause tension. Drawing together all those factors, she thought it unlikely that the mother could resume full-time care of one or both of the children. She went on to give advice in relation to contact. She endorsed separate placement of the children on the basis that the individual needs of each outweighed the need for placement together. She acknowledged the difficulty of finding sources to meet cultural issues either in terms of carers or more widely in terms of support and she did not consider that therapeutic work was required for the children, albeit some input from the Children and Young Persons’ Service might from time to time be appropriate.[21]That was the state of play when the hearing began. I heard from SW2 who has been the social worker since March 2014, from Mrs Louw, from the mother and from the guardian. It has been a relatively short case; I am certainly not going to recite all the evidence, I have touched on some of it already in passing. The Local Authority’s case remains, now reinforced by Mrs Louw’s conclusions, that set out by SW2 in her final witness statement, namely that there is a gap between this mother’s capacity and the needs of her children because despite the positives of basic care, educational needs being met and her ability to meet their cultural needs, this mother has expectations of her children that are in conflict with those of her predominantly westernised children.[22]She has demonstrated an inability to meet their emotional needs in a variety of ways ranging from the lack of information about their family history and their fathers to the lack of emotional responsiveness offered particularly to G who is a challenging and difficult child to manage. B refuses to see his mother and despite, the Local Authority says, extensive efforts continues to refuse to see her which Mrs Louw and the Local Authority link to his experiences of being parented at home. The social worker felt there is little acceptance of a need to change. Pocket money is mentioned frequently as something learnt from the parenting course as well as the prohibition on physical chastisement, albeit the Local Authority shared Mrs Louw’s concern that under stress this mother would be likely to revert to type.[23]In her evidence SW2 explained her own frustration with the delay, which she said was beyond her control, and her concern for the children. She emphasised what she saw as the positives and negatives that the mother had to offer. She explained the difficulty of finding a suitable cultural support or services. She had very recently made contact with an organisation called Freedom from Torture, having read Mrs Louw’s analysis of how the mother’s history had impacted on her emotional availability. She agreed with Mr Ainsley that the delay was wholly unacceptable and bad for the children. She agreed that the issues were now broadly the same as they were in 2013. She said that the course that the mother had gone on had not got to the core of the problem. That said, although the mother had very recently asked for another course, she said the problem all along had been the mother’s preparedness to engage, that she was now asking was an encouraging but new sign. However, she noted the timing and said:
“If she has asked prompted by wanting to do the work as opposed to being here [that is at court] it is going to be the right time for her.”
[24]She acknowledged that she had done no assessment work herself. She explained why she had not shared with B the inevitability of a move. In both children’s cases she said that she had not sought to put a limit on time to search for permanent placements for them but, nevertheless, would want this concluded within six months. She said of G that she thought her behaviours could be very difficult, much more than another girl of her age. She agreed she was articulate, bright and forceful and it was crucial that she found stability. She did have a focus on being in South Tyneside so the risk of voting with her feet maybe when she is a bit older was a real one. She described her as very headstrong, very intelligent and endorsed her current carer as a good match, well able to meet that but she nevertheless expressed her anxiety that G would not buy into the present placement because of where it is and ultimately try and sabotage it herself. Despite all that, G is going to school and doing well, not there presenting particular emotional or behavioural difficulties.[25]It was put to her by Mrs Spenceley that the real problem from G’s point of view is the disparity between what her mother thinks is appropriate for G and what G wants. She agreed and thought that work would be appropriate and it was social work but felt that it was not work that she personally could do. She was asked whether a written agreement would help and asked about risk management and she said that these would all have a role but it would not change the basic position and her lack of confidence that were G to go home, that she would be safe. She conceded that the care planning might look unclear but she said that she was looking for a placement for G in South Tyneside which presently does not exist. She does not yet know about outside agencies. She emphasised that the present placement was, as she put it, really good and she would like her to stay but acknowledged that G would need to agree.[26]She pointed to the constant of schooling and said that that would not change regardless of location. She endorsed the continuation of community based contact and that whilst it would remain at 90 minutes, when reduced in accordance with the care plan she agreed there would be scope for longer periods of contact around special occasions and it might relax in a number of ways depending on how matters proceeded. Importantly, SW2 told me she would retain case responsibility, she is willing to continue to work with this mother, remarkably perhaps to supervise contact going forwards and to provide the mother with feedback and she confirmed despite all the issues that undoubtedly exist with the Local Authority, that she enjoyed a good relationship both with the mother and each of the children.[27]Mrs Louw highlighted a number of her concerns in her oral evidence: the mother’s stress and depression and the reluctance to say anything about her early life, the isolation of this family that prevented these children when living with their mother from doing normal things like having friends round and visiting friends, the strict expectations of African parents likely to lend or lead to conflict and the risk of physical chastisement. She felt, as I have said, the mother would resort to that under pressure and in that context G would provide the pressure. The mother, she said, cannot be treated because she will not talk about the trauma, hence the lack of proper diagnosis. She would benefit from seeing people skilled in working with victims of trauma but she pointed to the efforts she had made and the near impossibility of identifying a service locally.[28]The contact that she personally witnessed appeared to be typical from the recordings she had read and she described as being “not of great quality”. She confirmed her belief that the children needed separate placements, albeit with reluctance, noting that the reasons being G’s challenging behaviour, the mother’s difficulty of managing it and B’s strong antipathy to the mother. Referring to that cocktail of issues, she said:
“I don’t see how it would work if they were in the same placement”
. Emphasising that she in her work was well used to dealing with difficult adolescents, she said that G really was quite manipulative. She agreed that G could manufacture the breakdown of foster care, hence the importance of strong enough adults around her but that was not necessarily a reason not for her to go to foster care and she acknowledged the need for stability and continuity.[29]She denied to Mr Ainsley that she was speculating about the mother’s presentation and said:
“It must have been very traumatic looking at her behaviour and intense avoidance. Something has happened to affect her.”
She would need individual work in terms of sharing values with her children, she had the capacity and intelligence to learn but the emotional block had to be removed first and she likened her to persons that she had worked with who were the children of holocaust victims. She advocated structured, befriending type work and said that above all trust had to be gained but it would be very hard to achieve that bearing in mind the circumstances in which the mother had been brought up. In responding to Mr Ainsley’s suggestion that perhaps G’s behaviour had been overstated, she said:
“Her behaviour is so challenging that the potential is for her to put the mother under such stress that she cannot cope and she will resort to previous learned behaviours.”
[30]The mother gave evidence. It was mostly given through an interpreter. She is shy, she is softly spoken, she was appropriately upset at times. She was, in many ways, an attractive and very sympathetic witness. Her love for her children is complete and unconditional. She seeks their return. She does not understand why the Local Authority thinks she cannot change her parenting. She told me that she had learned from the single occasion she had physically chastised G and from leaving them unsupervised twice. She said if they cannot come home, she wants them back together nevertheless.[31]She told me that she had learned from the parenting course, she was actually rather more complimentary about it than Mr Ainsley. She mentioned the issue of pocket money but perhaps more importantly keeping calm under stress, she had learned to talk to the child about unacceptable behaviour and ultimately using by way of sanction deprivation of a favourite toy or item. She said she could now manage G because of what she had learned. If necessary in future she would call the police. She trusts this social worker and would work with her. She said she knows why people think she needs help regarding her past and so would welcome that, albeit thinks it would be quite difficult. She apologised for her mistakes and, very movingly, she said to me:
“I know I have made mistakes but I love them from the bottom of my heart. I promise and swear it will never happen again.”
I will return to her evidence shortly.[32]The guardian provided a very close analysis, ultimately supporting the Local Authority. Her views did not change on hearing the evidence. She was critical of the Local Authority but supported its plan with robust reviewing post litigation. She had already liaised with the independent reviewing officer and wanted a prompt looked-after review after this hearing followed by another one scheduled at the moment in late July to take place before the summer holidays. The placements, she said, need monitoring. The search for permanent placements needs to be time limited and direct work with each child and the mother is required. It was her assessment that G’s primary need is for a highly experienced and skilled carer of adolescents. In B’s case, locality would take precedence over cultural needs. He needs to be maintained in his school and in his relationships. She endorsed a much higher level of contact than would be usual between the mother and G and had detailed advice about that.[33]Whilst the mother needed new parenting skills, the key in her view was the emotional needs and until she is ready to address that Miss Maclennan said that she would not be in a place to parent her children effectively. She had made contact herself with Freedom from Torture which might be a suitable organisation and had indicated a willingness, over the telephone at least, to accept a referral. She agreed that there were a number of problems. This mother did not cope easily with G. One of the issues between her and G was that they disputed what the other said and that led to conflict. She also felt that the mother was not always open and honest and agreed that it was essential for work with professionals for the social worker to have confidence that she knew what was going on at home and she described this social worker as involved, responsive and understanding of needs and felt that notwithstanding the shortcomings, the mother and children had benefited from that.[34]All that said, both children are known to fabricate and so there is a need for caution. Acknowledging the past to Mr Ainsley, she was more inclined to have confidence in the role of the independent reviewing officer to conduct proper reviews going forwards but in describing the procedure that exists for dealing with a breakdown in Local Authority care such as has occurred, she acknowledged it has not worked thus far. Whilst she agreed that cultural support should have been identified earlier, she questioned whether it would have altered the need to find out about the mother’s functioning, the key to which was in the evidence of Mrs Louw.[35]She said whilst the risk of G voting with her feet existed, she was not a girl who engaged in risk taking behaviour, it was rather manipulative behaviour that needed marrying to a skilled carer. The mother lacked that robustness, coupled with her values that were so different to those of her daughter. She did not categorise G as an unhappy child. She said she could not rule out rehabilitation to the mother eventually, albeit did not advocate it at present but she recognised that some cases do progress in a way that a child cannot be managed in foster care, hence the importance of proper post litigation support, good quality regular contact and learning along the way so that that can be managed should it arise.[36]That was the evidence. Mr Ainsley asked me to return G forthwith, or as a fallback direct appropriate focused work to enable a timetable to be drawn up to enable that to happen, acknowledging that until B’s relationship with his mother is improved he cannot come home. He was no better placed than anyone else to explain the failure of that relationship. Mrs Spenceley adopted Mr Ainsley’s submissions and told me that G wanted her mother to be given a chance and for things to be done to bridge the gap between her and her mother’s respective expectations of each other. She feels deprived of the chance of having personal time with her mother to talk confidentially, being shy about certain matters and unable to voice them in contact, that she cannot countenance being in long term foster care in her current placement, she is highly likely to return home at some point, that is at least acknowledged by the professionals, hence the importance of intense work to ensure that it will be successful when it happens.[37]I had better say something about the law at this stage. Care proceedings involve two principle questions: first, are the threshold criteria for making a care order under section 1 of the Act satisfied? Secondly, if so, what order should the court make? I posed the question set out in section 31(2) at the outset of this judgment and I do not repeat it here. In this case it is not disputed that the threshold criteria under section 31 have been satisfied by the findings which are accepted. The hearing before me has therefore concentrated on the second question, namely what order should the court make?[38]In answering that question, I apply well established legal principles. I bear in mind the rights of the mother and both children under Article 8 of the European Convention on Human Rights to respect for family and private life. Under section 1 of the Children Act, the children’s welfare is my paramount consideration in the care proceedings. Under section 1(2), already mentioned, any delay in making decisions concerning their future is likely to prejudice their welfare and section 1(3) provides a checklist of factors to be taken into account when determining where the children’s welfare lies and what order should be made.[39]These provisions have been subjected to analysis in a number of important decisions by higher courts and, in particular, by the Supreme Court in 2013 in Re B (A Child) [2013] UKSC 33and in a series of decisions by the Court of Appeal culminating in Re B-S (Children) [2013] EWCA Civ 1146, Re W [2013] EWHC Civ 1227 and more recently Re R (A Child) [2014] EWCA Civ 1625. I have had all of those decisions firmly in mind throughout this hearing. In Re B the Supreme Court, having reminded itself of the European jurisprudence, reiterated that the test for severing a relationship between parent and child is very strict so that in the words of Baroness Hale:
“It should only occur in exceptional circumstances motivated by overriding requirements pertaining to the children’s welfare, where nothing else will do. In many cases it is necessary to explore and attempt alternative solutions.”
[40]That was endorsed by the President in the Court of Appeal in B-S who noted the striking language that is required before making such orders. The order that is being sought here is not at the ultimately extreme end, the draconian order of adoption but, nevertheless, the court is required to have proper evidence from the Local Authority and the guardian addressing all the options realistically possible with an analysis of the arguments for and against each. The President also identified the importance of an adequately reasoned judgment, citing with approval the observations of McFarlane LJ in Re G (A Child) [2013] EWCA Civ 965 enjoining courts not to fall into the trap of analysing the options in a linear process which leaves the most draconian option left standing on its own but rather to take a global, holistic evaluation of each of the options available for each child’s welfare before deciding which option best meets the duty to afford paramount consideration to each and in a case such as here where the options do not include placement for adoption by reference to the welfare checklist, it is necessary to look specifically at changes in circumstances, the harm that a child is at risk of suffering or has suffered and the capability of that child’s parent.[41]McFarlane LJ said that under section 1(3)(c), consideration of the effect of any change in the child's circumstances must involve considering, in the present case, not just the prospect of returning to the mother's care but also include consideration of the effects, positive and negative, of placement in long-term foster care. Under subparagraph (e), consideration of the risk of harm obviously will include the potential for future harm from parental care but must also require evaluation of any risk of harm from the alternative option provided by any other person, namely the local authority as corporate parent, for example emotional harm as a result of long-term separation of a child from his parents. Under subparagraph (f), when considering how capable a parent and any other person might be to meet a child's needs, he suggested that alongside consideration of the parent's capacity there is a need to look at the strengths and detriments in the local authority's capacity to meet that child’s needs through long term fostering.[42]In this context and specifically looking at the question of proportionality, Mr Ainsley reminded me of the well known words of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 endorsed by the Supreme Court in Re B. The remarks of Lord Wilson and Baroness Hale in Re B were cited together with those of Hedley J recently in the Darlington case I have already mentioned. For present purposes I simply refer to Hedley J’s words that:
“Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done.”
That latter remark was specifically picked up by His Honour Judge Jack, cited with approval by the President in the Darlington case and whilst I do not repeat what Judge Jack said in that case, it is perhaps at this point important to note that the key words are the finding in that case of a lack of evidence that the behaviour of those particular parents had had any adverse effect on their children who had been in their care when the behaviour complained of had occurred.[43]I have found this case simultaneously to be very difficult, very sad and also to have made me very angry. In reverse order, the anger flows from the failure of this Local Authority to meet these children’s needs in a significant way. First, the gross, inexplicable and unjustifiable delay, the breach of statutory duty under section 1(3). Secondly, this is a family with, if not a unique background, a relatively unusual and extraordinarily difficult one, which until Mrs Louw reported does not seem to the court to have been really considered at all and even following her report I question the extent to which it was properly embraced. The search for suitable cultural support has come really very late indeed.[44]Thirdly, the likelihood of the parenting course that the mother was sent on barely scratching the surface was evident before the mother even went on it. I do not say that she learned nothing from it, she was able to explain what she had learned and spoke to me in quite complimentary terms about it, but the real difficulty identified by Mrs Louw was completely beyond its scope. Fourthly, the delay in obtaining the evidence from Mrs Louw was caused entirely by the Local Authority not identifying that need until these proceedings were issued. It was ordered at the earliest point at the case management hearing but by then 17 months had elapsed since the children went into care.[45]Fifthly, the Local Authority knows about this mother’s isolation. It is apparent on all of the evidence. She belongs to a church but does not mix with other families, at school or elsewhere. She has, on her account, maybe one or two visitors from her church to her home but she does not visit the homes of her visitors and she has no other family or friends, certainly locally. As an asylum seeker from a war-torn country but with children brought up in a western educational system, the potential for cultural issues and expectations to give rise to conflict ought to have been obvious. I do not underestimate the difficulty of finding appropriate help. Even at the end of this hearing it is not clear what does exist but no real attempt was made even to mount a search until much too late. To criticise the mother for not having learnt from five group sessions of an effective parenting course is really just not fair.[46]Sixthly, the background of being a refugee, particularly from Angola, even with an elementary knowledge of recent Angolan history and absent that an enquiry just on the internet, should have alerted the Local Authority to the likelihood that this mother had experienced real trauma likely to be of a severe kind which should have set alarm bells ringing as to her likely needs. On all of these scores the President’s textbook example of how not to conduct a care case seems to the court to have been met.[47]Concentrating on the real issue, namely a proper application of the law, whether the balancing exercise of the risk of G going home is such that despite the concerns it should be preferred to the risks associated with her remaining reluctantly in foster care, whether that is immediately or after suitable work is really a secondary question, the issue of principle is the same and depends on the analysis of the evidence. I have acutely in mind that the failure of the process is likely at the very least to create a perception, if not a reality, that the failure has brought about the wrong outcome. In a sense, there is little I can do to dispel that risk, the feeling by the mother, and G in particular, that they have been disadvantaged and had they not been, the outcome might have been different if it is not the one that they seek is a reality.[48]All I can say is that I have to be led by the evidence. If it is wanting, the solution is to balance the need for an outcome so that all can move on against the necessity, if it is so found, for more evidence to be obtained.Mr Ainsley and Mrs Spenceley on the one hand and the guardian and the Local Authority on the other here disagree, the guardian being clear that despite the shortcomings there is, in fact, no material gap in the evidence and, thus, a conclusion needs to be reached and I have to address that. Plainly, the Local Authority brings the case and must prove it and if a route to a safe return home can be found, it should be grasped, as to do otherwise would be to ignore the striking language of the cases I have so recently mentioned.[49]Addressing the evidence directly, although Mr Ainsley referred in his closing to a single precipitating event in June 2013, this is most assuredly not a single issue case or event. First, the violence was objectively serious and I accept in the face of very significant provocation by G. Secondly, in many ways the events preceding it were even more serious. G went missing, literally, for 48 hours and the mother did nothing that any parent delivering the care that it would be reasonable to expect a parent to give a child would do. She did not report it to anyone, the police, the Local Authority, her friends, her church. The only thing she did was went out on to the streets and spoke to some children. Any mother in her situation would be absolutely frantic. I am not suggesting that this mother was not but she did nothing that could be said to be an appropriate response to that situation.[50]Her fear of the police in Angola is entirely understood. I am prepared to accept for these purposes that contacting them would have been unlikely to have had a benign outcome but, despite her previous arrest and caution, the fact that her 10-year-old daughter was missing would have been expected to override all reservations to seek help, yet she did nothing. I agree with the Local Authority that it is highly likely that G had her phone with her and did not leave it behind. Most children who have phones, especially ones who are as interested in them as G plainly is, have them glued to them at all times, so the notion of going away without it is, in the court’s view, improbable in the extreme.[51]The other explanation the mother gave me for not calling help was of the fear that it may cause problems for the household where G was. Even she was constrained to accept that G’s safety was the priority, yet she failed G spectacularly in a very worrying way. That failure demonstrates a failure of instinct, the instinct to protect. It demonstrates her isolation because she simply did not know how to galvanise support. It also demonstrates a failure to act in a way commensurate with the seriousness of the situation. The incident demonstrates that G is not just a typical teenager challenging boundaries, she was not yet 11, she wilfully disobeyed her mother in a very serious way indeed. Mother’s anger on the Sunday when she came home is entirely understood in that context but G was, even then, completely outside her mother’s control.[52]The challenges G continues to present are self evident. The Local Authority says that mother’s parenting skills do not begin to match the level of conflict that is likely to arise. Asked about this, the mother agreed she was demanding but said, “I love her all the same”. Asked how she would cope she said it was difficult to answer:
“But I would just want to talk about positive things when she comes back and have a positive attitude that she will then be a different person.”
This, says the Local Authority, is really a worryingly naïve view of what lies ahead. The challenges in contact over, for example, G’s material demands, her willingness to do whatever suits her even if it does not suit anyone else, taken out of contact into a domestic setting will not survive long without serious conflict.[53]To revert to Mr Ainsley’s submission that a single precipitating event lies behind this, it needs to be stressed that this event, although serious, was not isolated. There had been three significant previous Local Authority and/or police involvement, some of which are reflected in the threshold. There had, of course, been a child protection plan and core assessment. B’s behaviour, his extreme antipathy to his mother, is not understood by anyone and, if it is by his mother, she is not saying so but it must, it would appear, reflect what his life experiences thus far have been and it is clearly evidenced by reported fear and the allegations that he has made and it seems, as the psychologist suggests, that it all has to be considered in the context of life experiences that must not have been positive.[54]Neither child is identified as having a secure, loving attachment to their mother. Albeit G’s is better than B’s, it is still insecure and ambivalent. This, says the Local Authority, all points to the issue identified by each professional of the mother’s lack of emotional availability, what Mrs Louw described as her being cautious and frozen. What the children describe is similar and others observe is the mother becoming withdrawn when displeased, G saying her mother might not hit her again but instead she will not speak to her for two days. There is perhaps little doubt that this approach has in its origins the trauma that the mother has experienced which is uncertain in extent but in presentation alone is not just more than speculative, as Mr Ainsley suggested, but likely to be extreme. It appears to be suppressed, unaddressed and not shared and it is hard at this point to say whether a more sympathetic approach would have altered the outcome, although my own assessment of the mother is that she is scarcely at a place where she wishes to address this for what are entirely understandable reasons. I have no doubt it is very painful indeed.[55]So the Local Authority says we have here a very serious precipitating event against the background of increasing concern but it also invites the court to find that there is a third element. Despite the mother having a good relationship with the social worker and despite the things the children say having to be treated with caution, there has been a lack of openness and honesty which would be key to any plan to G going home. There are several examples but I need only mention the children’s quite separate claims that rather than having gone to Leeds in November 2012, when they were locked out of the house, they had been to Belgium. These children, separated since June 2013, have told the Local Authority that in two different ways. G told the social worker on 17th June, the very day she was removed from her mother’s care, that they had been to Belgium for treatment for B’s skin condition. B gave Mrs Louw quite specific details of the trip including identifying the airport they had flown from, not an obvious airport one might have thought in Luton, talking to her in November 2014.[56]Mother has had to accept that she was not truthful about reporting that she had the school’s permission for the alleged trip to Leeds. It is difficult to accept that she is being truthful now about this in the face of the evidence, despite the evidence that neither child is consistently truthful. There are question marks that arise as to who was met, males are mentioned at different times, there are other stories of Skyping with possible grandparents and so on. The Local Authority has simply never been able to get to the bottom of these suggestions and the Local Authority say this is a very considerable obstacle to ensuring G’s safety in the mother’s care if the social worker simply cannot rely that she is being told the truth, quite apart from the conflicts that are likely to arise if G says one thing and her mother says something else.[57]It is, therefore, necessary to consider the options that exist for G. In truth, none exist for B, albeit there needs to be a much firmer structure put around his plan, the management of his expectations, the need to find an alternative carer that meets his needs, specifically identified by the guardian the need for a limit around searches within the locality as ultimately, if such cannot be found, the net may have to be cast wider, along with the enshrining of the plan as explained by SW2 in terms of support for him, work over his contact or lack of it with his mother and the continuity of her involvement.[58]The first option for G that I am asked to consider and is a realistic option, in a sense described in Re B, is a return to her mother. I have outlined her requests and expectations along with those of G’s. I have also set out Mr Ainsley’s argument that in this instance the threshold is such that to do otherwise would, in effect, be disproportionate to the risk and that with the support and help that she has lacked to date, the prospects are not just improved but realistic put in the context of Hedley J’s warnings about the role of care orders. I have also set out by way of contrast the Local Authority and the guardian’s submissions as to the evidence that this mother could not safely care for G and why. They arise in part from the findings as to the circumstances surrounding the precipitating event, its longer term background and issues of honesty and openness but it also arises from the Local Authority’s assessment of the mother’s capabilities.[59]Although much criticised, they nevertheless find significant support in the very comprehensive assessment of her by Mrs Louw as to why this mother cannot make herself emotionally available to her children. That is evident not just from the threshold findings but from the insecure or ambivalent attachments that she has with the children which point to a far more deep-seated problem perhaps best manifested by B’s extreme reaction. This, in turn, almost certainly arises from the mother’s traumatic early life experiences which remain unknown, unaddressed and yet highly significant. Thus, whilst the mother can meet basic physical needs, there is a gap of some significance in relation to her ability to meet emotional needs and to manage G.[60]So it seems to me that on the evidence, the following positives and negatives in terms of rehabilitation are identified:(i) in favour, G could have the opportunity to be cared for by her mother which would be the normal order and in most cases by far and away the best.(ii) G’s own strongly held wishes and feelings would be met in terms of both her home and location therefore increasing the chance of it succeeding.(iii) The mother undoubtedly loves G very much indeed.(iv) The mother has a good relationship with SW2 which would be a good foundation for ongoing support.[61]On the other hand:(i) there are historic and current significant concerns regarding the mother’s capability to meet G’s emotional needs.(ii) G is a wilful and challenging child who manipulates, the mother has not managed her historically and she has a naïve and simplistic view of how things will be in the future.(iii) G’s safety cannot be ensured. The conflict she is likely to create runs the real risk identified by Mrs Louw that the mother will either abuse her physically or emotionally freeze her out.(iv) The mother continues to lack insight into the concerns and has not demonstrated a real willingness to address the deep-seated issues which result in this response to G and B.(v) There is a significant question as to the mother’s honesty. Although there is a good relationship with SW2, it has not translated into openness in a way that the Local Authority would be confident that the mother would share with it and her concerns issues over G with the risk of G thereby suffering further harm. In reaching its conclusion the Local Authority, supported by the guardian, continues to hold the view that she would suffer significant harm based on its assessment of those pros and cons I have enumerated.[62]The second option is long term foster care. It is inevitable for B. For G, however, it seems that the advantages and disadvantages are as follows:(i) G is likely to stay or be placed with experienced, professional foster carers who will have been comprehensively assessed and identified as having the ability to meet the challenges that she presents in an appropriate way that will keep her safe and meet her physical and emotional needs.(ii) She will have the support of the Local Authority as a looked-after child in respect of her needs, in the wider sense overseen by the independent reviewing officer fully informed by the outcome of these proceedings with regular reviews and monitoring to ensure that needs continue to be met.(iii) She will be able to maintain her relationship with her mother in an appropriate way under a suitable contact regime fully supported independently by the guardian and Mrs Louw.(iv) There is little likelihood that she would suffer significant harm in the foster carers or the Local Authority, certainly not of the type that she suffered in the care of her mother.(v) She would be able to remain at her school which is identified by her, her teachers and the Local Authority as a significant constant and stabilising factor enabling her to maintain her relationships with her established and chosen peer group.[63]Set against that there are a number of powerful negatives, specific and generic. Dealing with the former first:(i) G does not want to be in foster care, she wants to live with her mother. Her wishes and feelings will therefore not have been respected and that is likely to have a negative impact on her welfare.(ii) The history does not give the confidence that her specific needs will be met.(iii) There is no guarantee that her cultural needs will be met by suitable foster carers, still less her wish to be in South Tyneside.(iv) Those concerns taken in conjunction with her wilfulness and manipulative behaviour run the risk that she will either engineer placement failure or vote with her feet, either of which would expose her to the risk of harm that the Local Authority and other professionals seek to avoid. The generic risks are the usual ones so:(v) she would become a looked-after child with a statutory parent who cannot replicate the love and care of a natural parent.(vi) The intrusion that being a looked-after child brings into her life in terms of observation, monitoring, meetings and so on.(vii) The risk of instability through placement change, be it by way of breakdown or change in foster carer circumstances.(viii) In addition, I am reminded of the extreme nature of separation of a child from a parent only to be considered where necessary in the child’s best interests.[64]Whilst I have not found this exercise easy and with the background concerns of failed process very much in mind, I am ultimately satisfied that the evidence does comply with the requirements identified by the Supreme Court in Re B and the Court of Appeal in B-S. The realistic options for future care have, in fact, been comprehensively analysed and the advantages and disadvantages of each considered. I cannot accept Mr Ainsley’s argument that this is one of those cases that Hedley J and others were considering because this is a case where the precipitating event, which was serious and not an isolated concern, has revealed a serious failure on the mother’s part to meet the needs of her children in the wider sense such that each has suffered significant harm. The events of that weekend in June 2013 are plain to see so far as G is concerned. Her response then, and still evident despite her wishes and feelings, points to a worrying ambivalence about her mother that is borne of her experiences to date. The response so far as B is concerned is startling and evidences a very worrying picture of life for him.[65]Whilst the gap in expectations that Mrs Spenceley highlights is undoubtedly present and real it is, I fear, not fundamental to the case. I accept that this mother could and should be better taught and has the capacity to learn. But what is fundamental is the finding of Mrs Louw as to the trauma that this mother has suffered and how it has conditioned her responses. Those responses are now played out in different ways by each child and do not arise from that weekend in 2013 but are longstanding based on the mother’s lack of emotional availability despite her deep, understandable and accepted love for her children. Until that is addressed, I can see no clear evidence of significant change emerging. So whilst the mother apologises for the admitted threshold findings and says it will not happen again, I do not consider that she really believes or understands the extent or how she has failed as a parent.[66]I accept she can meet basic needs well. These children are now of an age where that is, in fact, less important than their wider needs and ability to live as black English children in a predominantly white English community to which they are accustomed and very significantly attuned.The gap identified by Mrs Spenceley is a gap that has already led to significant conflict between G and B in his rejection of his mother and there is no sign that the fundamentals lying behind it are in a position to be addressed. It is very sad but mother’s lack of insight in saying how all will be well when G comes home is worrying clear.[67]In weighing the pros and cons, it is not a case of counting the factors in favour of each and against. Ultimately, it is reaching the conclusion that best meets the need for safety, security and stability. I acknowledge the lack of confidence in the Local Authority and it has caused me grave concern. Set against that, I do have confidence in this social worker who, it seems to me, is committing to future involvement and in doing so recognises what has gone wrong and how it can be put right. I also have confidence that the guardian’s early engagement with the independent reviewing officer has highlighted the importance of a very hands-on approach. I also intend to direct that this judgment should go to the independent reviewing officer as well as the head of service.[68]Whilst the Supreme Court has reminded us that long term foster care is, in effect, a course of last resort for children of the ages of these two, there are advantages and disadvantages as explained, but having conducted the balancing exercise, I conclude that there is no foreseeable, realistic prospect of G being returned to her mother’s care despite the disadvantages identified. It seems to me that her needs can best be met in long term foster care, suitably supported by a comprehensive care plan that needs to reflect the evidence, namely that SW2 is for the foreseeable future to be the key social worker, that there is to be a time limited search for a placement, the priority in G’s case being to find highly skilled, experienced carers with experience of adolescents as the number one and community placement following some way behind that.[69]I accept the importance of the fortnightly contact that is recommended in the community of a minimum of 90 minutes to be increased with time when available, particularly in the school holidays, so as to permit activities that the mother and G can enjoy together. That contact to be supervised regularly by SW2 who will provide one-to-one work by way of feedback and urgent efforts to be made to engage with suitable agencies, such as Freedom from Torture, to ascertain what cultural support can be made available for the mother, hopefully to reduce her isolation but also to afford the best opportunity to confront her past and thereby better meet the needs of her children.[70]There is, I fear, no merit in postponing this decision as I am satisfied that the time scales for that latter work are likely to be very long indeed and significantly beyond a time scale that G and B need for certainty after such inordinate delay. In so concluding, recognising the risks, I share the guardian’s view that G, although challenging, has not in fact engaged in risky behaviour. I cannot forecast whether she will vote with her feet. It is an argument always advanced with children of her age and she is wilful but she has not done so. Despite going to her friend’s in June 2013 has not made any attempt to do so whilst in care. The Local Authority will plainly need to be vigilant. Nor am I persuaded that G is, in fact, unhappy despite what she is saying about where she wants to be. Finding the right foster carers will be critical. I hope that despite her strong views G will, in fact, respond to the decision that has been made for her in the proper forum of this court.[71]There is little more that I can say about B other than to welcome SW2’s continued involvement and hope that work with him and his mother will in due course bring about some reconciliation. His contact with G will perhaps be even more important than it is for G as she still has contact with her mother. It needs to be nurtured. His priority is a placement in the locality, to be maintained in his school and to have his contact with G and he is going to need direct work in the very near future to explain his inevitable move with sensitivity. He is likely to feel at least some sense of having been let down or disappointed in that regard.[72]This was, as I say, very sad, very difficult and made the more so by the justified criticism of the Local Authority. Lessons have to be learned and learned fast but I am satisfied that on an application of the welfare checklist a proper and proportionate order in Article 8 terms is a care order with a plan, as I have explained, for long term foster care, the real highlights under the welfare checklist being the harm that these children have suffered and the capability of their mother to meet their needs. Although each is likely to be disappointed in their various different ways, I wish the mother, G and B well as the delayed impact of this decision is absorbed and they come to terms with what will be a new order.[73]I thank the advocates for their considerable assistance during this hearing. I direct the Local Authority to file amended care plans within 14 days. I make a disclosure order to the head of service and to the independent reviewing officer in respect of this judgment which will be transcribed as anonymised, the cost of which to be shared equally by all parties. I should say that for the avoidance of doubt for the reasons that the President gave in the Darlington case itself, I have also directed that the two social workers who have been involved should be anonymised as well because it seems to me entirely unfair that, whatever individual shortcomings may have arisen, the criticisms that have been levelled against the Local Authority should be laid at their door or that they should be identified as responsible. [Judgment ends]

Cited in 2 later judgments