In the Matter of H (Care Order: Designated Local Authority) [2016] EWFC 39

IMPORTANT NOTICE

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 children and members of their 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.

[2016] EWFC 39

Case No LE15C00646

Date 10 th June 2016

IN THE FAMILY COURT SITTING AT LEICESTER

HIS HONOUR JUDGE BELLAMY

sitting as a Judge of the High Court

Re: H (Care Order: Designated Local Authority)

Transcribed from the Official Tape Recording by

Apple Transcription Limited

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Hearing Hearing dates: 6 th, 7 th and 10 th June 2016

Counsel for the Leicester City Council: Judy Claxton

Counsel for the Mother: Julia Gasparro

Counsel for the Father: Karen Kabweru-Namulemu

Solicitor for the Children: Alison Humphrys

Counsel for Coventry City Council: James Cleary

JUDGMENT APPROVED

[1]On 23rd June 2015 Leicester City Council (‘the local authority’) issued care proceedings in respect of four children: SH, now aged 8; TH, now aged 6; DH, now aged 5 and; VH, now aged 1. The children’s parents are MH (‘the mother’) and YM (‘the father’).

[2]The parents accept that the threshold set by section 31(2) of the Children Act 1989 is satisfied in respect of all four children. All parties agree that the children should continue to live with the mother. The parties are not agreed about whether that placement should be under supervision orders (as contended by the local authority), or under care orders (as contended by the Children’s Guardian). The parents take a neutral position concerning that issue.

[3]Since November 2015 the mother and the children have been living in the area of a neighbouring local authority, Coventry City Council. Whether the court makes care orders or supervision orders, Leicester City Council contends that Coventry City Council should be the designated authority. Coventry City Council disagrees.

[4]The family originates from Slovakia. They are a Romany family. They began living together in England in 2013. Both parents have a borderline level of learning difficulties. Although within these proceedings both have been assessed as having capacity to instruct solicitors, the mother has been assessed as requiring the assistance of an intermediary. Neither parent speaks English. Both parents have required the assistance of interpreters at all court hearings.

[5]There had been difficulties in the parents’ relationship before they arrived in England. Local records suggest that the mother was the victim of domestic violence whilst living in Slovakia. She separated from the father. She took the children with her. She obtained custody orders from her local court.

[6]The father has a longstanding problem with alcohol abuse. He has convictions for alcohol related offences in Slovakia. Alcohol abuse and domestic violence have continued to be features of the parents’ relationship since they arrived in England.

[7]Notwithstanding the fact that they had separated whilst living in Slovakia, upon arriving in England it appears that they lived together as a family. They arrived with no money and no accommodation. They were dependent on food parcels.

[8]In April 2015 the father was accused of sexually abusing a child outside the family. The parents separated. With the assistance of the local authority, the mother and the children moved to live in bed and breakfast accommodation in Leicester. They have lived separately from the father since that time.

[9]In June 2015 the children were made the subjects of child protection plans under the category of neglect. The following week the local authority issued these proceedings. Both parents accept that this court has jurisdiction to deal with these proceedings on the basis that the children are habitually resident in the United Kingdom.

[10]The local authority’s first care plan for the children proposed that all four children should be made the subject of interim care orders and that they should be removed from the care of both parents and placed in foster care whilst a community based assessment was carried out. The justification for that care plan is set out in the first statement of the then allocated social worker, SL. After setting out a brief overview of the history she concludes, “I am of the opinion that should the children remain in their mother’s care all children would remain at risk of emotional harm, physical harm and neglect. Despite a high level of intervention from a range of professionals, the children’s basic care needs are not being met and I am of the view that there will be a risk of ongoing neglect and significant harm. The parents have stated that if they can resume their relationship, they would be in a better position to meet the children’s basic care needs as the father can get work and provide for his family. I am of the view that although this may resolve some of the financial difficulties the family face, the evidence of domestic abuse, alcohol misuse and the allegation of sexual abuse against the father would place the children in a heightened, vulnerable position living with both parents and it is not a safe option for any of the children. Given information held in respect of the father’s family, I would be concerned that the children would suffer the same level of neglect in their care also and is not deemed a safe option for the children. Therefore, my view is that local authority’s care would be the only safe option for the children at this given time to enable further assessments of extended family members whilst the children are in a safe and secure environment where their basic care needs are met.”

[11]On behalf of the mother it was proposed that there should be a residential assessment at a unit in Coventry. I agreed. I made an order on 15th July 2015 that the mother and children should undergo that assessment.

[12]Whilst at the residential assessment unit a PAMS assessment of the mother was undertaken. The outcome of that assessment informed the residential assessment itself. The outcome of the residential assessment was positive. The local authority agreed that the children should remain in the mother’s care.

[13]The two major problems faced by the mother since separating from the father in April 2015 have been housing and money. The local authority has assisted with both, though has required a degree of prompting by the court in order to do so appropriately. The mother and the children left the residential on 27th July 2015. The local authority arranged for them to live at a hotel in Coventry. They remained there for four nights. The local authority met the cost of £753.38. From the hotel the local authority arranged for the family to live at what is described as a self-catering house in Coventry. They moved there on 27th November and remained there until 21st December 2015. Again, the local authority met the costs, totalling £4,162.40.

[14]On 21st December 2015 the family moved to their present address, a privately rented house in Coventry. There was to be a six month shorthold tenancy. From the limited papers disclosed in these proceedings, it appears that the tenancy agreement was taken not in the mother’s name but in the name of the Leicester City Council. The rent is £600 per month. A deposit of £1,000 was required. The local authority paid the deposit and agreed to pay the rent and the cost of utilities. It also provided essential household furniture, including white goods. The local authority agreed to pay the mother £80 per week for food and other housekeeping necessities.

[15]The care proceedings were listed for final hearing in February 2016. The local authority’s then final care plans were dated 26th January 2016. As a result of the residential and other assessments that had been carried out, the local authority had moved some significant way in its thinking. It proposed that the children should remain in the mother’s care, subject to supervision orders for a period of twelve months. As part of the support package, the residential assessment unit’s community outreach support workers were to take the children for their medical appointments and were also to help the mother to access local resources in the community such as nursery and stay and play sessions at the local children’s centre.

[16]Despite the local authority’s changed position, there remained some real concerns. The parents still wished to reunite. The father continued to deny that he had abused the mother. There were still concerns around the father’s chronic alcohol abuse. There were obvious concerns for the safety and well-being of the mother and the children if the parents were to reunite.

[17]Whilst the local authority’s final care plans indicated that it was prepared to take a risk by proposing supervision orders rather than care orders, the children’s guardian has been less sanguine. In what was intended to be her final report, she came to the opposite conclusion to that reached by the local authority. At paragraphs 47 to 50 of that report she said:

“the mother and the children have demonstrated great improvements in their lifestyles. The residential assessment unit have afforded this family a great deal of support and should be commended for this. The issues in this case are whether a supervision order, which would advise, assist, support and befriend a child, is proportionate. It is my opinion that there is a real risk that the children could be exposed to a level of harm whilst the mother and the children continue to wish to be reunited with the father. The mother’s views, when unchallenged, that the father is a good husband and asking if he can move in with her and the children would suggest that she has not fully understood the risks of domestic violence to her and the children. My recommendation would be that the mother re-visits work in domestic violence and that work with the two older children on domestic violence is provided. In addition, some form of assessment of the father’s risk to others is undertaken and a community assessment be completed by the local authority. The above work is, in my view, indicative of unresolved, serious child protection matters. I have read the final statements of both parents and I note the father’s repeated denials of any violence and the mother’s continued silence in respect to this issue. I will listen carefully to their evidence at the final hearing and consider my recommendation further at that point, if necessary. In the best interests of the welfare of the children, I recommend that the local authority continue to exercise their powers under the auspices of care orders and such orders are made in respect of all four children.”

[18]Shortly before the final hearing began on 16th February 2016 the local authority became aware that the mother and the father were in contact with each other. That evidence flew in the face of the mother’s assertions in her written evidence of 9th February 2016 where she said this:

“I accept that the professional advice is that the father and I should remain separated. I am willing to follow this advice and will not consider reconciling with the father until I have been advised that it is safe to do so. I am putting my children first but hope that one day we will be able to be reunited as a family.”

[19]At the hearing in February, the local authority again changed its position and indicated that it now intended to seek care orders in respect of all four children and that it would file amended final care plans. The hearing was adjourned. A few days after the adjournment a report from Lextox, concerning the father’s alcohol use, provided some support for the guardian’s caution. The report concludes that:

“Overall, as a result of the analysis for alcohol markers in the hair and blood, the findings suggest that the father has consumed chronic, excessive levels of alcohol in the approximate time period from the middle of November 2015 to the middle of February 2016.”

[20]As I have said, the hearing in February was adjourned and it was re-listed to take place on 6th June 2016 with a time estimate of four days. The court gave permission for an independent social worker, Catherine Bennett, to undertake an assessment. Miss Bennett was asked to undertake a risk assessment – that is to assess the risk which the father posed to the mother and the children, to assess the mother’s ability to protect the children against that risk and to assess the nature of the parents’ relationship with each other.

[21]At the time of Miss Bennett’s report the father still denied that he had abused the mother and continued to minimise his abuse of alcohol. Miss Bennett reports that:

“The father consistently maintained with simplicity and apparent sincerity that “he has done nothing wrong” and that the allegations of sexual abuse levelled against him were made as a reprisal for him threatening to expose the fraudulent benefit claims made by his father and wife… He also maintains that whilst he may have drunk more heavily when living in his father’s household, he has not done so since moving to live with his mother and sister, which I believe was in March/April 2015. They support that assertion. I believe that this is not borne out by the hair strand testing I have seen for the period November 2015 to February 2016.”

[22]I note in passing that shortly after Miss Bennett had completed her report there was a further updated analysis by Lextox. That report concluded that:

“Overall, as a result of the analysis for alcohol markers in the hair and blood, the findings suggest that the father has consumed chronic, excessive levels of alcohol in the approximate time period from the end of February 2016 to the end of April 2016.”

[23]Miss Bennett’s recommendations are clear. She says:

“There is evidence before the court that indicates that the father does pose a risk to his children and to the mother, specifically when misusing alcohol. The father’s reticence and inability to engage openly inevitably raises concern that this will not change without some dynamic intervention. The mother wishes to reunite with him, she misses him but also is afraid of living alone and would prefer for him to be with her. Reunification can only be done safely if the father can make and sustain change. There are indicators, such as his humble and respectful approach to the mother in the joint meeting, that these relationships are of such importance to him that he will be prepared to work with professionals as long as he understands what is required of him. I have detailed the programme and interventions I feel should be arranged for the parents earlier in the report: repeat of the hair strand test, the recovery partnership, Antabuse medication and SCRAM for the father, joint attendance at Triple P, continued involvement of the residential assessment unit for the mother, attendance at English courses for both of them.”

[24]At some point between the receipt of the independent social work report at the end of April and the date of the new allocated social worker’s final report dated 9th May 2016 the local authority held a legal planning meeting. The decisions arrived at that meeting are reflected in the social worker’s final statement and in the amended final care plans. The local authority proposed that all four children should be made the subjects of final care orders.

[25]In his final statement, the present allocated social worker, FM, sets out the local authority’s reasons for its changed position. He says:

“The local authority is seeking full care orders. The parents have indicated that they now want to be assessed as joint carers and want to resume their relationship. However, there has been a history of domestic violence and concerns about the father’s alcohol use. The father has all along denied domestic violence and it was only late in proceedings that he acknowledged the domestic violence. No work has been done with the father in relation to domestic violence and therefore it is felt that he continues to pose a high risk of significant harm to the children should he be reunited with the mother. The father’s alcohol tests indicate excessive alcohol use. This further poses a risk of significant harm to the children should the father be part of the household. The benefit of a care order for these children is that such an order will enable the local authority to share parental responsibility with parents and, in my assessment, it is the only way of ensuring the needs of the children are met on a consistent basis in the long term and the only way to ensure that they are provided with a stable environment where they are able to meet their full potential. Full care orders would enable the local authority to protect the children from any further significant harm and would enable the local authority to… undertake further work with the father whilst assessing his level of risk. It will also ensure that a planned rehabilitation plan is implemented over a period of a year. The disadvantage of a care order is that the children will continue to be “Looked After” by the local authority and it can be argued that this can lead to stigma and intrusion. However, this will only be for a short period until the rehabilitation plan has been completed. In my assessment, the advantages of a care order far outweigh the disadvantages for the children.”

[26]The final care plans, or what were intended to be the final care plans, at paragraph 1.4 say this:

“Therefore, the local authority’s proposed care plan is for the children to remain in the care of their mother under a full care order in order for the local authority to oversee the care she provides for them as a safety net and before any decision is made for the father to return to the family unit.”

Those final care plans reflect the local authority’s position, or accurately reflected the local authority’s position, for precisely nine days. On 18th May the local authority served further amended care plans which were themselves yet again amended on 2nd June.

[27]Before I turn to the amended final care plans, I must first take a detour. As I noted earlier, since 15th July 2015 the mother and the children have lived at a residential assessment unit, at a hotel, at a self-catering establishment and currently in privately rented accommodation. All four of these are in Coventry within the area for which Coventry City Council has responsibility. The local authority contends that whether the court makes care orders or supervision orders, Coventry City Council should be the designated local authority. Coventry disagrees. Coventry City Council has been made a party to these proceedings and has been represented by counsel at this hearing. I shall deal with the issue of designation later in this judgment. For the moment, I want to concentrate on the dialogue between the two local authorities.

[28]On 12th May, prompted by the court, the two local authorities held a joint care planning meeting. Both local authorities produced their own notes of that meeting. The notes are not identical. Coventry’s notes record these matters:

“Discussion was held around the need for a care order as mother has had a positive parenting assessment, good attachment to the children and the IDSW also highlighted mother’s good level of parenting. Mother has been compliant with written agreements and although she and father speak on the telephone, there is no evidence that they have broken agreements. Mother is agreeing to continue her domestic violence work and is stating that she does not want her husband back into the home if he is drinking. Father is also agreeing to domestic violence and parenting work as well as working with the Leicestershire Partnership. The orders that both authorities seek are a twelve month supervision order. The court may be asked to extend the non-molestation order in respect to father in addition to this. The housing situation for mother needs to be resolved as the tenancy on the current property is due to expire in June 2016. Leicester City Council are named on the tenancy agreement. Mother will need support in obtaining her own accommodation in the future and again the importance of benefits to support this was discussed. The process of obtaining council housing in Coventry was explained, as to what would happen after the tenancy with Leicester expires, and this might result in a short period of time of the family living in temporary accommodation before being allocated their own property. Mother will need to be proactive in attending all her appointments. A working agreement will be formulated which mother will need to adhere to.”

[29]Leicester’s notes suggest that it was Coventry which took the lead in advocating supervision orders rather than care orders. Leicester’s notes read:

“Coventry City Council disagree that it should be a care order and placement with parents and therefore we should do a schedule 3 and that would be PWP. We should do it, the schedule 3. Don’t agree that there a care order, not the order that they would propose. Where do we see the benefit of care order or anything under a supervision order? Coventry City Council, no evidence that they haven’t complied so not sure what a care order would give addition to a supervision order.”

Like the Coventry minutes, the Leicester minutes also go on to deal with the housing situation. The minutes record:

“Coventry City Council advise we need to give notice. They have to be homeless to go into temporary housing. Coventry City Council can then assist with the mother’s housing.”

[30]Leicester now proposes supervision orders for the children, supported by a tight written agreement. It is clear that it has changed its mind as a direct result of its discussions with Coventry on 12th May. Until this hearing began on 6th June, there was no evidence from Leicester explaining its reasons for changing its care plans. At court on 6th June the allocated social worker, FM, prepared a handwritten statement. He confirmed that the change in care plan resulted from the joint case planning meeting. In particular, Leicester had been influenced by reports from Coventry that the mother has re-engaged with the residential assessment unit, that the children’s school reports positive engagement with the mother and that her engagement with the Coventry social worker was also positive. He goes on to say:

“When we looked at the parenting, as well as both local authority assessments of the couple, including the ISW report which identified that the mother was offering good parenting to the children. We also took into account the needs of the children and reflected on the intrusion that a full care order would mean for the children and jointly agreed that the work with the family could continue under a supervision order and that the non-molestation order would serve in keeping father away from the family until the independent work was progressed.”

[31]FM confirmed this position in his oral evidence.

[32]The local authority has no concerns about the mother’s basic care of the children or about attachment issues. The older children are attending school regularly and there are no concerns about neglect. In the circumstances, supervision orders would be a less intrusive way of working with the family. Under supervision orders the practical plans for support would not necessarily be any different than they would be under care orders. That is why the local authority has once again changed its care plans.

[33]The dialogue between the local authority leads me on to the issue of housing. As I have already noted, there is a difference between the two sets of notes of the joint meeting between Leicester and Coventry on 12th May. In his oral evidence, FM said that at the meeting Coventry’s position had been that if the mother gave notice to terminate her current tenancy and the mother then became homeless, Coventry would have to re-house her and the children. He said that he was instructed by his more senior colleague, KC, to terminate the tenancy. On 25th May he emailed the letting agents saying:

“Good afternoon, G. You were right on time with your reminder. I actually discussed the case with my team manager and she advised me that we have to put in a written notice to terminate the tenancy. I am therefore formally putting in a written notice to advise you that Leicester City Council is putting a notice to terminate the contract with effect from 25th May 2016. I have been advised that the local authority is prepared to pay the rent for the next coming two months up until the end of July 2016.”

[34]On the second day of this adjourned final hearing, there was handed up to me an updated statement by the advanced practitioner, KC. She says:

“In order to clarify the local authority’s position with regards to the housing situation for the H family, the decision to give notice on the property was suggested by Coventry City Council at the case planning meeting in Coventry which took place on 12th May 2016. It was suggested that in order for the mother to become independent and be able to claim housing benefit she would need to be made homeless in order that investigation could be made into securing permanent housing for the family through Coventry City Council housing department and we were asked to give two months’ notice on the property. There was a long discussion between the professionals which made clear the view that the main concern was for the children’s welfare and the proviso in this discussion was: should the family be designated to Coventry, then the responsibility for maintaining the family’s needs would be picked up by Coventry City Council. Equally was the position for Leicester City Council. The view was that neither authority would wish for children in their area to be living in poverty and there was no decision about the family being made to live in bed and breakfast accommodation. On 25th May 2016 FM informed me that he had been contacted by the Letting Company who informed that the tenancy agreement was approaching the end date of 21st June 2016. Following discussion with the team manager, SQ, and on the basis of the discussion that had taken place with Coventry, the letting agents were advised that we sought to give two months’ notice. The letting agency did advise that if Leicester City Council is seeking to continue, then we could have the option for the contract to automatically go into a periodic tenancy with a month’s notice being given of any end date. In my statement dated 1st June 2016, paragraph 1.12, I advised of the local authority having given notice on the property and confirmed that Leicester City Council will continue to pay the rent. Until this time the agent has informed that this is an ongoing contract to be advised by the designated local authority dependent on the family’s changing needs.”

[35]The effect of all of this is simple. In six weeks’ time the tenancy of the property currently occupied by this mother and her four children will come to an end. They will be homeless. They will be at the mercy of a local authority to re-house them. As Miss Humphrys pointed out on behalf of the children’s guardian, the mother does not speak English, she does not drive, she walks the children to school each day, she is able to do so because her present home is within walking distance of the school. If she is made homeless, there is no certainty that her new home will be within walking distance of the school or even on a bus route to the children’s present school with the result that the children would have to change schools.

[36]All of these serious problems have been visited upon this family by the very same local authority that is supposed to be acting in the best interests of the welfare of these children. The local authority’s decision to terminate the tenancy was, in my judgment, unnecessary, inappropriate and ill-judged. By the end of this hearing I was not left with any degree of confidence that this local authority has even begun to apply its mind to the urgent question: where is this family to live when their present tenancy ends?

[37]What I do have a degree of confidence about is that a key driver in seeking to take a step back from its present responsibilities towards this family is money. As I have noted, the local authority has said that it will pay the rent until the end of July. It makes the point that it is paying out £600 per month in rent, £80 per week for housekeeping and all of the utility bills. It is clear from the evidence of KC that the local authority sees this as being very much a short term commitment. In her statement of 1st June she says:

“In order to support the family whilst they have been in a situation where they have had no recourse to public funds, currently the local authority provides the mother with a weekly payment of £80 for her food and clothing. Further financial support is provided to cover childminding services when the mother attends sessions at the residential assessment unit and court attendance. The local authority pays for all of the mother’s utility bills and other bills, interpreting services have been provided to assist appointments with the social worker and transport to and from all appointments is also provided. The local authority is currently paying the rent on the current family home in the amount of £600 per month. The local authority has given two months’ notice on the current property which is due to end in July 2016. …it is hoped that in this time the mother will be in a position to sustain herself and her children financially. Leicester City Council will continue to pay the rent until this time. The agent has been informed that this is an ongoing contract to be revised by the designated local authority dependent on the family’s changing needs. The tenancy can be extended if the family need longer time to become self-sufficient if they are being proactive. Prior to the local authority having become involved with the family, the parents would have had at some point to identify appropriate accommodation for themselves and their children and this would have formed part of the family’s decision to come to the United Kingdom. It would be unrealistic to believe that the local authority will continue to cover housing costs on a long term basis.”

[38]Let me try and put into context the sums which the local authority is currently paying out. I asked the local authority for information about how much it would now be costing the local authority had these children been placed in foster care. I was told that the cost would have been between £200 and £300 per week, per child, if the children were placed with in-house foster carers. That is somewhere between £800 and £1,200 per month. If placed with agency foster carers, the cost would be significantly higher. I was told that the cost would then be between £600 and £800 per month, per child. That is between £2,400 and £3,200 per month.

[39]Whilst talking about money, it is also appropriate to say something about the mother’s entitlement to state benefits. Although very little evidence has been produced, all parties appear to accept that as an EU migrant the mother is entitled to claim certain benefits for herself and the children. It is now almost 14 months since the mother became the sole carer for her children and since the local authority accepted responsibility for ensuring that the mother and her children have a roof over their heads. In her report dated 9th February 2016 the guardian said:

“A longstanding issue is the child benefit and child tax credit entitlements to the mother. It has been known to the local authority since July 2015 that the paternal grandfather has been claiming the entitled benefits for this family. I am at a loss to understand why this matter remains unresolved. What is difficult is that the mother has to prove to the Department of Work and Pensions that she is eligible for work by accessing computers at the local library. Here lies the first obstacle, as the mother has no knowledge of computers and given her limited understanding of English, this will not improve in the near future. The benefits delay impacts upon SH’s right to a free school meal.”

[40]In her report the independent social worker said:

“It is not beneficial in the long term to simply exclude the father from the lives of his wife and children. There should be positive moves to assist them in making the necessary changes and also to establish them on more independent lines. Resources should be made available for them to attend to make benefits claims accompanied by translators so that these can be expedited before the current payment system from Leicester City Council ceases.”

In the penultimate paragraph of her report, Miss Bennett says:

“The mother needs assistance to get their benefits claims definitively sorted out with the assistance of interpreters to ensure that there is no ambiguity about the information supplied. A lot of money has had to be made available to the mother from Leicester City Council children’s services to support her and the children in the absence of a valid benefits claim. The use of translators will increase that cost slightly but may shorten the delay and so be cost effective. Similarly, using translators during visits will serve to make those visits much more effective and prevent what the mother described as needing to smile whilst feeling stupid inside because of the struggle to understand what is being said.”

[41]In my judgment, it is a matter of great concern that the mother still does not have her claim for benefits resolved. The picture that emerges is one of this local authority failing to prioritise the importance of resolving this issue. The local authority, understandably, wants this family to become financially independent but that cannot happen whilst the benefits claims remain a work in progress.

[42]The local authority’s proposal for supervision orders is premised upon the willingness of both parents to sign and comply with a robust written agreement. The guardian makes the point that responsibility is accepted by the local authority in respect of the father and the requirements placed on the father under the terms of the written agreement suggest that little progress has been made since the care proceedings were issued. I agree with that analysis. Indeed, the guardian submits that this written agreement would not have been out of place had it been filed along with the social worker’s initial statement. Again, I agree with her.

[43]The guardian’s final position is set out in a position statement prepared for this hearing. In it the guardian makes the following point. She says:

“Three fundamental areas of concern remain: the ongoing risk presented by the father, particularly when he has been drinking (which tests confirm he continues to do); the ability of the mother to protect herself and the children from the father; and the ability and commitment of the mother to providing herself and the children with a safe and stable environment. The mother remains almost entirely dependent on the local authority and the evidence suggests that she is disengaging with support services that are intended to assist her into independence. She is not attending language classes regularly and she has failed appointments with the Benefits Agency. Both are crucial if the mother is to have any prospect of becoming self-sufficient in the UK. The mother has been compliant with the decisions that the local authority has made for her and for the children. There is no real sense that she has actively chosen to separate from the father and to live in Coventry with the children. Before the local authority intervened, the mother was wholly dependent on the father. She has not achieved assertiveness or independence.”

[44]In the assessment of the guardian there is a real risk that if the local authority loosens its control, then the mother will once again look to the father for direction. The guardian supports the plans for the children and she is pleased to see the financial commitment to the family set out in the written agreement but she does not consider that it is yet safe for the local authority to relinquish parental responsibility for the children. Once there has been sufficient progress in the remaining areas of concern, then it may be appropriate for the authority to seek to discharge the orders but for the present the guardian considers that full care orders are needed.

[45]Before I consider the appropriate order it is first appropriate that I should set out the approach that I must take when determining that issue. The finding that the threshold set by section 31(2) of the Children Act 1989 is satisfied in respect of all four children is the gateway to the making of orders in respect of each child. In determining the right order to make in respect of each child the court must follow the approach set out in section 1 of the Children Act 1989.

[46]Section 1(1) provides that when the court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration. Section 1(2) requires the court to take account of the general principle that any delay in resolving the application is likely to prejudice the child’s welfare. In determining what is in the best interests of the child’s welfare the court must have regard to each of the factors set out in the welfare checklist in the section 1(3). Section 1(5) provides that when a court is considering whether or not to make an order under the Act with respect to a child, it shall not make the order unless it considers that doing so would be better for the child than making no order at all. In public law cases this means that the level of state intervention should be no greater than is necessary and proportionate in order to secure the child’s welfare.

[47]The court must also have regard to the Article 8 rights of each of these parents and each of these four children. The court must endeavour to arrive at an outcome that is both proportionate and in each child’s best welfare interests.

[48]The court must also have regard to any relevant guidance set out in the authorities. In this case it is particularly important to have regard to the guidance given by the Court of Appeal in Re B-S (Children)

[2013] EWCA Civ 1146

. As that case makes clear, the judicial task is to undertake a global holistic evaluation of each of the realistic options available for the children’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to each child’s welfare. It follows, therefore, (§84):

“That what is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.”

In order for the court to be enabled to undertake that analysis effectively (§34):

“There must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option.”

[49]The original time estimate for this final hearing was four days. At a hearing on 11th May it became clear that there was relatively little in issue. The time estimate was reduced to one day. It was agreed that this final hearing could be dealt with on submissions only. Had it not been for the local authority’s decision to terminate the tenancy of the mother’s home, that is how this hearing would have proceeded. That decision needed to be explained. It was that which led to the filing of the handwritten statement by the allocated social worker, FM, to which I referred earlier and to him giving oral evidence at this hearing. He is the only witness to have given oral evidence.

[50]There are, as I said earlier, two issues to be resolved. Firstly, should there be supervision orders as the local authority contends or care orders as the children’s guardian contends? The parents are neutral. The second issue is that of designation. Leicester City contends that whichever orders are made, supervision orders or care orders, Coventry City Council should be the designated local authority. Coventry City Council disagrees. The other parties are neutral on that issue.

[51]I deal first with the issue of what order should be made. I begin with the welfare checklist. I have in mind, of course, all of the factors set out in the welfare checklist, though four seem to me to be of particular importance in this case.

[52]Section 1(3)(b) requires the court to consider each child’s physical, emotional and educational needs. The older three children are all in school. The older two children have been to more than one school so far. These children, like all other children of their ages, require stability in their education.

[53]Section 1(3)(c) requires the court to consider the likely effect on the children of any change in their circumstances. There are a number of significant changes which may affect these children over the coming months. I noted earlier that the report of the independent social worker, accepted by all parties, advises that reunification of this family can only be done safely if the father can make and sustain changes. She outlines the changes required. It is not necessary for him to have completed all of the recommended work before reunification takes place, though clearly there would need to be some good evidence that the father is engaging with and benefiting from the work proposed. His return to live with the family, a family from whom he has already been separated for more than a year, will inevitably impact on the children. The impact of reunification may well be greater if he returns too soon or if, having returned, his engagement with the local authority diminishes. The early months of reunification are a critical time for these children.

[54]The other major change these children face relates to housing. The local authority has taken steps designed to ensure that this family moves on within a matter of weeks. Moving house is stressful. These children have already had five home moves in the last 14 months and a sixth will occur soon. At best, this will be an unsettling time for these children. At worst, it could be traumatic and destabilising.

[55]Section 1(3)(e) requires the court to consider any harm which the children have suffered or are at risk of suffering. The children have been brought up in a household in which their father has been abusive towards their mother. That domestic abuse is linked to the father’s excessive and chronic alcohol abuse. Although there is no evidence that the children have suffered physical harm as a result of having been caught up in the domestic violence in the past, it is likely, in my judgment, that they will have suffered emotional harm. Although there is no professional evidence to indicate that these children have suffered significant emotional harm, it is appropriate to have in mind the definition of harm set out in section 31(9) of the Children Act 1989 which provides that “harm” ‘means ill-treatment or the impairment of health or development, including impairment suffered from seeing or hearing the ill-treatment of another’.

[56]There is a very real risk that if, having been reunited with his family, there is any repetition of the physical abuse in evidence in the past or of excessive, chronic alcohol abuse that these children could suffer harm. That harm could be physical harm, if the children were to be caught up in any physical conflict between their parents, or emotional harm from hearing or seeing such conflict.

[57]Section 1(3)(f) requires the court to consider how capable each of these parents is of meeting their needs. The mother has undergone a number of assessments during the last twelve months. She has demonstrated that she is able to meet the day-to-day physical care needs of her four children. However, there are some areas of these children’s care needs where the mother’s abilities are as yet untested. These include, for example, her ability to protect the children from physical and emotional harm if, following reunification, the father were again to be violent towards her or to abuse alcohol.

[58]The father will only be able to meet the children’s care needs if he successfully completes the various programmes recommended by the independent social worker. It would, in my judgment, be unwise to underestimate the challenges that lie ahead for this father. At the moment there is no doubt that he is not capable of meeting these children’s needs. If reunification occurs before the father has completed the various programmes recommended, it is more likely than not that he will be returning to his family at a time when his ability to meet the children’s needs is, at best, uncertain and variable.

[59]It is against that background that the court has to undertake a global holistic evaluation of the two realistic options: supervision orders or care orders. Supervision orders would be less intrusive than care orders. They would be time-limited, initially just for twelve months. The children would not be looked-after children. They would not be subject to the stigma which is often said goes with being a looked-after child. They would still be children in need and likely to receive ongoing support from the local authority even after the supervision orders have come to an end.

[60]Against that, under supervision orders the local authority would no longer share parental responsibility. The local authority would have neither the rights nor the responsibilities which go with care orders. As the children would not be looked-after children, there would be no need for LAC reviews to take place every six months. If the situation at home were to deteriorate, for example if there were further domestic violence or alcohol abuse by the father, they would not be able to remove the children as of right. They would need to apply for an emergency protection order or to issue new care proceedings. Of particular importance, the local authority’s ability to oversee the father’s return to the mother’s household and to exercise control over the timing of reunification would be severely diminished.

[61]The advantages of care orders largely mirror the disadvantages of supervision orders. Similarly, the disadvantages of care orders largely mirror the advantages of a supervision order.

[62]So which is it to be, supervision orders or care orders? This is a Slovakian family. The parents speak very little English. Whatever their hopes and dreams may have been when they arrived in the United Kingdom, the reality is that their time here so far has been a very difficult time. There has been domestic violence and abuse. There has been alcohol abuse. There have been significant problems with housing. There has still been no resolution of their entitlement to and claims for state benefits. So far as these children are concerned, there has been instability where they have needed stability. The welfare checklist analysis demonstrates clearly, in my judgment, that that instability is unlikely to end once these proceedings have concluded. Indeed, given the risk of impending homelessness, it is quite possible that in the short term that instability could get worse.

[63]I agree entirely with the children’s guardian’s analysis of the position. This is not the right time for shared parental responsibility to come to an end. It is, in my judgment, essential for it to continue for the sake of ensuring that the welfare needs of these four children are fully met. The final care plans before me propose supervision orders. I reject those care plans. I am in no doubt that in the circumstances of this case care orders are both necessary and proportionate. I invite the local authority to reconsider its position in the light of this judgment.

[64]I shall adjourn this case until 22nd June at 10am. If the local authority changes its position in the light of this judgment, then further amended final care plans must be filed and served by four o'clock on 17th June. If the local authority does not change its position, then I require the local authority’s Head of Service to file and serve a written statement responding to the concerns set out in this judgment and explaining why the local authority is unwilling to abide by the decisions of the court.

[65]One remaining issue for me to determine is the question of which local authority should be the designated local authority to be named as such in the care orders which, in my judgment, as I have said, are the appropriate orders to be made in this case. The starting point for determining that issue is to consider the relevant statutory provisions. Section 31(8) of the Children Act 1989 provides that:

“The local authority designated in a care order must be— (a) the authority within whose area the child is ordinarily resident; or (b) where the child does not reside in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the order is being made.”

Section 105(6) provides, so far as is relevant, that:

“In determining the ‘ordinary residence’ of a child for any purpose of this Act, there shall be disregarded any period in which he lives in any place… (c) while he is being provided with accommodation by or on behalf of a local authority.”

[66]The precise meaning of those two provisions has been the subject of a number of decisions of the senior courts. In Re BC (A Minor) (Care

[67]Her approach was subsequently approved and followed by the Court of Appeal in Northamptonshire County Council v Islington Borough Council

[1999] 2 FLR 881

. Giving the leading judgment, Lord Justice Thorpe made the point that the attraction of the construction favoured by Mrs Justice Bracewell in Re BC was its simplicity. He said that:

“The ordinary residence immediately preceding the commencement of the period of disregard is deemed to continue uninterrupted. The court is relieved from what may be a contentious and disputed investigation of what other circumstances have changed within the period of disregard. Any construction of section 105(6) can be said to produce anomalous results. We should not be over impressed by anomaly arguments where the court’s function is simply to determine which authority is to be designated in the care order. I am convinced that section 31(8) was never intended to be a gateway to extensive judicial investigation of a number of relevant facts and circumstances as the prelude to the exercise of some discretionary choice. It was surely intended to be a simple test to enable the court to make a rapid designation of the authority upon which is to fall the administrative professional and financial responsibility for implementing the care order and the care plan. Where the child has connections with more than one area, ordinary residence determines on the basis that almost every child will have an ordinary residence, if not a presence, in some local authority area. In the rare case where a child lacks an ordinary residence in a local authority area, the court designates the area in which occurred the events that carried the application over the section 31 threshold. On that approach I lean towards Bracewell J’s inclination to hold that the area of ordinary residence immediately prior to the commencement of the stay to be disregarded should be notionally extended throughout that stay. I would not say that developments affecting the family during the period to be disregarded cannot in any case be considered but I would say that such cases should be exceptional.”

[68]That approach has been reaffirmed by the Court of Appeal as recently as April 2016 in Re W(AChild) (Designation of Local Authority) [2016]EWCA Civ 366. The factual basis of that case was more complex than that in either of the two cases to which I have already referred. However, whilst every case must be decided on its own facts, the underlying principles to be applied remain the same in every case. Giving the leading judgment, Lord Justice Ryder first set out the obligations on a local authority to provide accommodation for certain children. He said:

“13. Once a child is received into the care of a local authority or is provided with accommodation by them, that child is a 'looked after child' as defined in section 22(1) of the Children Act 1989. Looked after children are subject to a regulatory scheme for their care planning, placement and case review. In England the detail of that scheme is to be found in part in primary legislation (see, for example, section 26) and in part in secondary legislation (see, for example, the Care Planning, Placement and Case Review (England) Regulations 2010, as amended). 14. A local authority is under a duty to safeguard and promote the welfare of a looked after child by section 22(3)(a) and to provide accommodation for a child in their care by section 22A. The ways in which that latter duty is to be exercised are described in sections 22C to 22G, inclusive. In essence, there is a priority of choices to which the local authority must have regard beginning with a parent and ending with a placement which is otherwise 'the most appropriate'. What is appropriate is in part defined and constrained inter alia by that which is consistent with a child's welfare, that which is reasonably practicable and that which is in accordance with regulations made for the purposes of the section. 15. Section 22D of the Children Act 1989 imposes on a local authority providing accommodation for a child an obligation to do so in consequence upon a review of the child's case in accordance with the regulatory scheme unless the arrangements are made as a matter of urgency.”

[69]After referring to passages in the judgment of Lord Justice Thorpe in the Northampton case to which I have referred, Lord Justice Ryder went on to make the point that that approach, “Has been consistently applied for 17 years”. He went on to refer to the judgment of Ward LJ in Re D (A Child)

[2012] EWCA Civ 627

and in particular to paragraph 19 where Ward LJ said:

“If one asks which local authority is to bear the burden of responsibility for implementing the care order and care plan, it seems to me that the answer is fairly obvious. For the section 31 threshold to be crossed the child must be suffering, or be likely to suffer, significant harm at the time the local authority initiated the procedure for the protection of the child concerned. Where the child is ordinarily living, or where the relevant threshold events take place, is the relevant locus which provides the best identification of a practical, temporal and physical connection between local authority and child. The burden of the eventual responsibility for implementing the care order should then fall on the local authority having that connection. The designation of the appropriate local authority under section 31(8) seeks to do just that.”

[70]Let me stand back and take stock. The chronology is undisputed. From their arrival in England in 2013 until April 2015 the mother and the oldest three children had lived at addresses in Leicester. The youngest child was born in Leicester. The mother and the father separated in late April 2015 after the father had been accused of sexually abusing a child. There cannot be the slightest doubt that up to that point in time these children were ordinarily resident in the area served by Leicester City Council.

[71]When the parents separated in April 2015 the local authority arranged for the mother and the children to live in bed and breakfast accommodation. That bed and breakfast accommodation was in Leicester. The local authority issued care proceedings on 23rd June 2015. There can be no doubt that at the time those proceedings were issued the children continued to be ordinarily resident in Leicester.

[72]On 15th July 2015 the court made interim care orders. On that same day the mother and the children went to live in Coventry for the purpose of a residential assessment under section 38(6) of the Children Act 1989. Up to the point at which the court made interim care orders the children were still ordinarily resident in Leicester. The time this family resided at the residential assessment unit is clearly subject to the disregard provision set out in section 105(6). It follows therefore, in my judgment, that on the so called “stop the clock” approach, throughout the period of assessment at Dudley Lodge although the children were residing in Coventry they were ordinarily resident in Leicester.

[73]For Leicester City Council, Miss Claxton relied heavily upon the decision of Bodey J in Sheffield City Council v Bradford City Council

[2013] 1 FLR 1027

. In that case the judge considered the effect of the replacement of section 23 of the Children Act 1989 by the new section 22C, an amendment brought about by the coming into force on 1st April 2011 of the relevant provisions of the Children and Young Persons Act 2008. With all due respect to Miss Claxton’s argument, it seems to me that the point made by Mr Justice Bodey in that case has no relevance to the circumstances of the case with which I am concerned.

[74]In Sheffield City Council v Bradford City Council the court was concerned with a 14-year-old boy, CM. Until 9th April 2011, just days after section 22C came into force, CM lived with his mother in Bradford. Following a serious argument between CM and his mother, CM moved to live with his aunt in Sheffield. Bradford City Council was involved in the life of this family, having undertaken an investigation under section 37 of the Children Act 1989. Bradford became aware of CM’s move to Sheffield two days later. Six weeks later, on 19th May, Bradford issued care proceedings in respect of CM and his younger half sibling, JM. On 8th June it applied for interim care orders in respect of both children. No interim order was made in respect of CM because, as the order recited, the mother consented to him being accommodated by the local authority under section 20 and remaining with his aunt in Sheffield.

[75]The issue for the determination of the court in that case was whether during the period from 9th April to 8th June CM lived with his aunt as a result of being placed there by Bradford. If he had been placed, then the disregard set out in section 105(6) would apply and the designated local authority should be Bradford, not Sheffield. Bodey J held that:

“The local authority was not the provider of accommodation for CM during the two month period up to 8th June 2011 with the result that the section 105(6) disregard does not apply for that period, although it applies thereafter.”

Having arrived at that conclusion, the judge went on to consider where CM was ordinarily resident during that period. It is unnecessary to refer in detail to the judge’s analysis. It is sufficient to note that he concluded that during that period CM was ordinarily resident in Sheffield and that Sheffield City Council should therefore be the designated authority.

[76]In the case with which I am concerned, these children lived with their parents in Leicester from 2013 until April 2015. Until April 2015 there can be no doubt, as I have said, that these children were ordinarily resident in Leicester. However one characterises the basis upon which the mother and the children lived in bed and breakfast accommodation from April until 15th July (when they moved to the residential assessment unit) the fact remains that they were living in Leicester during that period. It is irrelevant whether Leicester placed them in bed and breakfast accommodation. Either they were ordinarily resident in Leicester until April 2015 and the disregard applies to the period thereafter, or they were ordinarily resident in Leicester until 15th July. The point is that at all relevant times up to the placement in the residential unit, no matter what date one takes, these children were ordinarily resident in Leicester. At the latest, the clock stopped the day when the children moved with the mother to live in the residential assessment unit.

[77]Once the clock has stopped, does the court have to go on to consider whether the clock has re-started? Being more specific, must the court also consider the position since the children left the residential assessment unit? Is it possible that since leaving the residential unit they have become ordinarily resident in Coventry? I have heard no argument on that point. My preliminary view is that for the purpose of section 31(8) once the clock has stopped it remains stopped for the purpose of any care order made within those proceedings. However, lest I am wrong on that point, I go on to consider what the position has been since the children left the residential assessment unit.

[78]The children have continued to be the subject of interim care orders. Leicester City Council arranged and paid for the children to stay at a hotel in Coventry for four nights. The local authority then arranged and paid for the family to stay in self- catering accommodation, also in Coventry, for a period of around a month. The local authority then arranged for the family to move to live in their present privately rented house. Since moving into that property the local authority has paid the deposit, the rent and the utility bills. The tenancy agreement was not between the landlord and the mother as tenant, under the agreement it was Leicester City Council that became the tenant. This family has lived where the local authority has decided that they should live. At the relevant time the children were and are looked-after children. In respect of each of the three addresses at which these children have lived since they left the residential assessment unit it is appropriate to conclude, in my judgment, that they have been placed there and that the disregard set out in section 105(6) continues to apply.

[79]For all of these reasons, I am in no doubt that Leicester City Council must be the designated local authority.

[80]There are two final short issues for me to determine. The first relates to parental responsibility. It is common ground that the father does not have parental responsibility for the younger two children. There is uncertainty about whether he has parental responsibility for the older two children. All parties are agreed that I should make parental responsibility orders in respect of all four children. I agree that that is appropriate. I make those orders.

[81]The final point relates to a non-molestation order made in favour of the mother at an earlier stage in these proceedings. Both parents say that it has served its purpose and that it should now be discharged. Whilst not providing a remedy that can be enforced, both the local authority and the guardian accept that the provisions set out in the written agreement should provide adequate protection for the mother. Again, I agree. The non-molestation will be discharged.

[82]To assist the local authority in the considerations that it must now undertake, I shall direct that there should be an expedited transcript of this judgment prepared at public expense. I hope that judgment will be available well before the end of next week. I shall also direct, in view of my criticisms of this local authority, that once transcribed a copy of this judgment be provided to the Director of Children’s Services.

Order

Appropriate Local Authority) [1995] 3 FCR 598 Mrs Justice Bracewell outlined the problem with which she was faced. She said that: “This child last lived with the mother in Manchester at the time when the proceedings were instituted by Manchester City Council. Thereafter the child has been the subject of various interim care orders to date. Those orders and the period of time involved have to be disregarded under section 105(6) when determining the ordinary residence of the child. The mother in the meantime has moved to Cheshire and it is in Cheshire where the child is going to be rehabilitated with the mother. The mother argues that she has continued to determine the ordinary residence of the child, although there have been various interim care orders since she last had the physical care of the child.” Her resolution of the problem was very straightforward. She said: “I find that having regard to the statutory requirement to disregard the period of interim care, the child’s ordinary residence must be determined by reference to where he was living before being placed in interim care. The answer is with his mother in the Manchester area and therefore I find that the appropriate authority is Manchester City Council who are the applicants and they have reached agreement with Cheshire County Council in relation to the carrying out of the care order. Therefore it is to Manchester City Council that I make this order.”