ZH (A Child), Re [2017] EWFC 14

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 no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment may be identified by name or location and that in particular the anonymity of the child and members of 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.

Case No BS15C01627

[2017] EWFC 14

IN THE FAMILY COURT

Venue At Bristol, Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20 th February 2017

Before

THE HONOURABLE MR JUSTICE BAKER

Between

A LOCAL AUTHORITYApplicant

MH (1)Respondents

AM (2)Respondent

ZH (by her children’s guardian) (3)Respondent

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF ZH (A CHILD)

Fiona Farquhar (instructed by Local Authority solicitor) for Applicant

Sarah Pope (instructed by Duncan Lewis Solicitors) for First Respondent mother

Charlotte Pitts (instructed by Simpson Miller) for Second Respondent father

Helen Kelly (of Thursfields Child Care LLP) for Third Respondent child, by her Children’s Guardian

Hearing Hearing dates: 5 th, 6 th 7 th and 16 th December 2016

Judgment

MR JUSTICE BAKER :

[1]These care proceedings concern an 8-year-old girl, hereafter referred to as “Z” who has been in the interim care of the local authority following an incident when her mother, suffering from a mental illness, took her to Heathrow with a view to travelling to the Middle East. At first, it was suspected that this might be a case involving allegations of so-called “radicalisation”, and for that reason the case was considered suitable for allocation to a Family Division judge. In the event, it transpired that radicalisation was not an issue.

[2]It has been agreed that the threshold criteria for making an order under s.31 of the Children Act 1989 are satisfied. The issue which now falls to be decided is what order to make in the interests of Z’s welfare.

Summary of background

[3]The mother is a Sunni Muslim whose family originated in India although the mother was born in this country and has always lived here. She alleges that at the age of 8 she was sexually abused by an uncle, but it seems that this incident was not reported and so far as I am aware she subsequently received no therapy or other help. On leaving school she went to university where she met the father, a Shia Muslim, who had come to this country from India on a student visa. The parties had a brief relationship as a result of which the mother became pregnant. Shortly afterwards the relationship ended. According to the father, the mother told him that she would have an abortion, to which he raised a strong objection. In the event, the mother continued with the pregnancy and gave up her course, but initially her family disowned her and she moved to London to have the baby, Z, who was born on 28 November 2008. Afterwards the mother became ill and returned to live with her family. Thereafter, until 2015, Z was brought up by her mother in the maternal grandmother’s home.

[4]The father had contact with Z on one occasion when she was a few months old. When his student visa expired in 2009, he initially remained in this country unlawfully but was removed at the end of 2009. Subsequent applications for entry clearance visit visa were refused.

[5]In 2015, the mother’s mental health began to give rise to concern, and her GP referred the family to social services. When the social worker visited the home, the mother did not come out of her room and the grandmother expressed concerns about her health. A strategy discussion was convened and further support allocated. The social worker visited Z at school where teachers had expressed concern about her attendance. Z told the social worker that her mother said unusual things to her. The mother started filming people visiting the house.

[6]In June 2015, the mother was detained under s. 136 of the Mental Health Act 1983 following a scuffle with a social worker after she had assaulted her mother and tried to hide in the lavatory with Z. She was later detained in hospital under s.2 but discharged in July 2015 There were, however, ongoing doubts as to whether the mother was taking medication. During home visits, she told the social worker that her mother and sisters were controlling her and practising witchcraft.

[7]On 1 December 2015, the mother and Z left the family home without warning. The police were informed and they were later stopped at Heathrow departures area trying to board a flight to Turkey without documents. The mother was again placed in hospital under s. 136 and Z was taken into police protection and transported back to her home area where she was placed in a foster placement where she remains to this day. An assessment of the mother concluded that she was fit to be treated in the community but subsequently she returned to Heathrow again and tried again to buy a ticket for Istanbul. It was at this point that social workers and police became concerned that she may have become “radicalised”.

[8]On 3rd December, Z was placed under an emergency protection order. Subsequently proceedings under s.31 of the Children Act 1989 were started and Z made subject to an interim care order. Because of the concerns about radicalisation, the case was considered suitable for allocation to a High Court judge and listed before me.

[9]Initially, the mother’s mental health continued to give cause for concern. An independent assessment carried out in March 2016 by a consultant psychiatrist, Dr. Milner, for the purposes of the proceedings concluded that she was suffering from paranoid schizophrenia. I shall consider this assessment below. A family group conference involving the maternal family was convened and it was proposed that Z be placed with the maternal grandmother. Due to the mother’s ill-health, contact between Z and her mother was restricted to one visit in the hospital. Z repeatedly said that she did not wish to see her mother. A parenting assessment was carried out by the social worker Ms Stewart in April 2016. At that point, the mother was still in hospital. I shall consider this assessment further later in this judgment. In May 2016, the mother was discharged from hospital and returned to live with the grandmother. Thereafter, her mental health steadily improved.

[10]Meanwhile, attempts were made to contact Z’s father. He took part in a number of case management hearings by telephone from India. In March 2016, he participated in Skype contact for the purposes of assessment. The social worker reported that he presented as genuinely concerned for his daughter’s welfare. Consideration was given as to whether it would be possible for him to look after his daughter. At one point the mother said that she would prefer the father to look after Z rather than anyone from her own family.

[11]At a hearing on 6th May 2016, the local authority proposed that Z remain in her foster placement on a long-term basis. At that stage, the mother, who was still in hospital, agreed with this proposal but the father, who at that stage was acting in person and took part in the hearing by telephone from India, indicated that he wished to be assessed to look after her and was seeking to obtain permission to enter UK to participate in the proceedings and assessments. His application for an entry clearance visa had earlier been refused, and permission was therefore given for the instruction of an immigration lawyer to advise as to his status and prospects of being permitted to enter the country. On 4 July 2016, the father applied for parental responsibility and contact orders. Subsequently he also filed an application for a declaration of parentage so that his name could be recorded on Z’s birth certificate.

[12]At a further hearing on 11th and 12th July, it was agreed by all parties that the threshold criteria under s.31 of the Children Act were satisfied on the following basis:(1) The mother’s mental health had deteriorated in early 2015 and she had received a diagnosis of paranoid schizophrenia. As a result, when unwell, the mother has not consistently been able to meet Z’s physical and emotional needs.

(2) During times when the mother’s mental health has deteriorated, and Z has been exposed to her mother’s behaviour, Z has been exposed to and suffered emotional harm.

[13]At that hearing, however, there was a change in the mother’s position. She asserted that her health was now much improved, and therefore indicated that she wished to resume care of Z. On that basis, I listed the matter for a final welfare hearing in December 2016 when all outstanding applications would be determined. A series of further case management directions were given, including a direction for a supplemental psychiatric report from Dr. Milner, and a direction the local authority conduct a further parenting assessment of the mother. The order also recorded that the local authority would make “all possible attempts” to facilitate contact between Z and her mother, no contact having taken place since the start of the proceedings save, as stated above, for one visit while the mother was in hospital.

[14]Thereafter, some attempts were indeed made to start contact, but there were a number of difficulties. Z consistently expressed a reluctance to see her mother or her father and said she wanted to stay living with her carer. The carer reported that Z had become very distressed when the possibility of contact had been mentioned and had spoken of difficulties between her mother and grandmother at home. Nevertheless, a number of contact sessions were arranged with Z and her mother and members of the maternal family. On some occasions, Z refused to get out of the car and on the occasions when contact took place it did not go particularly well. In September a number of contact sessions were cancelled when Z refused to go. On 20th November, a contact was arranged for Z with her maternal uncle and grandmother, and on this occasion the mother attended unexpectedly. In the event, Z did not leave the contact and the supervisors reported that the visit had gone well.

The issues and hearing

[15]The final hearing took place before me in Bristol in December 2016. Both parents attended the hearing, the father having been granted permission to enter the country for that purpose. Prior to, and during the course of the hearing, the issues between the parties narrowed. The mother agreed that the father should have parental responsibility and that there should be a declaration of parentage. The father in turn conceded that it was not in Z’s best interests to be placed in his care. It was further agreed by all parties that the father should continue to have visiting contact with Z.

[16]The remaining issues to be determined, as summarised by Miss Pope in her admirably clear and focused closing submissions were therefore(1) whether the evidence relied on by the local authority is sufficiently robust and the care plan sufficiently certain to justify the making of a care order in respect of Z at this stage;

(2) if they are not, what further work and information is required to inform the court’s welfare determination;

(3) if they are, what arrangements should be made for Z’s contact to enable a meaningful consideration of the possibility of rehabilitation to take place and how and by whom should such work be undertaken. There is also an issue as to how the father’s contact should be defined.

[17]The final position of the parties on these issues as expressed in closing submissions after the conclusion of the evidence is as follows.

[18]The local authority proposes that Z should be made the subject of a full care order, on the basis of a care plan which provides that she will remain with her current carers. Importantly, however, the plan underwent significant alteration in the course of the hearing. The plan filed after the evidence and before written submissions was substantially different from the plan filed prior to the start of the hearing. The most important change is that the local authority has now committed to support the mother’s contact and to assessing the prospect of rehabilitation. I shall consider these changes in more detail below.

[19]The mother’s first wish would be for Z to be returned to her care now. She recognizes, however, that the damaged relationship between her and Z requires repair if there is to be a successful rehabilitation. The mother is opposed to this taking place under a final care order. She submits that, in the light of concerns about the quality of the local authority work so far, it would be in Z’s best interests for the proceedings and interim care order to continue while a further assessment takes place. To that end, towards the end of the hearing, the mother filed an application under FPR Part 25 for an assessment by an independent social worker, Ms Karen Singer, to consider(a) what steps should be taken now to improve the relationship between Z and her mother,

(b) the mother’s ability to meet Z’s long-term needs, and

[20]The children’s guardian supports the making of a final care order. She does not support a further adjournment of the proceedings to allow for a further assessment of the mother.

[21]So far as contact is concerned, the mother’s case is that, whether the matter proceeds on the basis of a final or an interim care order, contact should be fixed at a level of once a week, at least whilst the assessment is ongoing. The local authority and guardian propose fortnightly contact. In respect of the father’s contact, the local authority proposes that there should be contact six times a year, in school holidays and half term holidays, with the first three visits to be supervised and thereafter consideration given to contact being unsupervised. The father seeks contact once a month, and that it should be “supported” rather than supervised. The guardian supports the local authority’s position on this issue.

[22]The hearing took place over four days in December 2016. Oral evidence was given by Catherine Stewart, Steve Dawkins, the father, the mother, the guardian, Dr. Milner (whose evidence had to be taken on a later date than originally planned because of an administrative error) and then the guardian again. During the hearing, arrangements were made for Z to have another contact visit with her mother and, separately, a visit with her father. The case was then adjourned, after which a final version of the care plan was filed and submissions were delivered in early January 2017. Technical problems meant that the submissions did not reach me until some days later and as a result this judgment has unfortunately been delayed. I am grateful to all advocates for their helpful submissions and for their assistance during the hearing.

The law

[23]In deciding what order to make following a finding that the threshold criteria under s.31 are satisfied, the court must apply s.1 of the Children Act. Z’s welfare is my paramount consideration and, in assessing where her welfare interests lie, the court must take into account the relevant matters in the welfare checklist in section 1(3), in particular her ascertainable wishes and feelings, her physical, emotional and educational needs, her age and background (including her cultural background as a member of a Sunni Muslim family), the likely effect on her of any change in their circumstances, the harm which she would be at risk of suffering in her mother’s care, and the harm which she is likely to suffer if she is placed away from her mother, the capability of her mother to meet her needs, and the range of powers available to the court.

[24]In reaching its decision, the court must have regard to

Article 8 of ECHR

– the right to respect for family life. It is a fundamental principle that wherever possible a child should be brought up by her natural parents: Re B

[2013] UKSC 3

. The court recognises that “society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent”, per Hedley J in Re L(Care: Threshold Criteria)

[2007] 1 FLR 2050

. In Re B-S (Children) (Adoption: Application of Threshold Criteria)

[2013] EWCA Civ 1146

, Sir James Munby P identified two essential requirements:(1) comprehensive evidence and analysis from the local authority and the children’s guardian addressingthe realistic options for the child and the arguments for and against each option and

(2) an adequately-reasoned judgment that contains a global, holistic evaluation of each of the options leading to the ultimate decision as to which option best meets the duty to afford paramount consideration to the child’s welfare. Although these comments were made in the context of a case involving a care plan for adoption, they seem to me to be applicable to all care proceedings where there is a dispute as to the order to be made following a finding that the s.31 threshold is crossed.

[25]There is a duty on a local authority when making plans for the future of a child in these circumstances to consult with all relevant persons, in particular the child’s parents, and to carry out all necessary assessments. As part of the evidence, the court will normally be provided with a parenting assessment of the mother and/or father. On behalf of the mother, Miss Pope reminds me of the following dicta of HH Judge Bellamy, sitting as a deputy judge of the Family Division, in Re Z (A Child: Independent Social Work Assessment)

[2014] EWHC 729 (Fam)

"In any case in which a local authority applies to the court for a care order, the assessment of a parent is of critical importance. That assessment will be a key piece of the evidential jigsaw which informs the local authority's decision-making, in particular with respect to the formulation of its care plan. If the assessment is deficient then that is likely to undermine the reliability of the decision-making process. It follows, therefore, that any assessment of a parent must be, and must be seen to be, fair, robust and thorough"

The evidence (1). Evidence as to the mother’s mental health

[26]In the course of the proceedings, the mother was assessed on two occasions by a consultant psychiatrist, Dr. Gabrielle Milner. Her first report was based on an assessment carried out in March 2016 when the mother was still in hospital. Dr. Milner noted that she had been diagnosed previously with an acute and transient psychotic disorder and subsequently with a severe depressive episode, but concluded on the basis of her own examination that the symptoms were more consistent with a diagnosis of paranoid schizophrenia. This diagnosis was based on the mother’s history of delusions of persecution and hallucinations and false ideation. Some of the delusions centred around food, and Dr. Milner noted that there were reports that she had in the past prevented Z eating food that had been prepared for her. She advised that the mother was likely to need medication for the foreseeable future. At the time of her initial examination of the mother, when she was still an in-patient, Dr. Milner advised that her current symptoms would have an impact on her ability to take care of her daughter and that the history, including the Heathrow episode, demonstrated that her mental disorder gave rise to a risk that she might cause physical and emotional harm to Z.

[27]By the time of Dr. Milner’s second examination in September 2016, the mother’s health had considerably improved. She reported that she was not suffering from any psychiatric symptoms and was taking her antipsychotic medication regularly. Dr. Milner adhered to her diagnosis of paranoid schizophrenia and expressed the view that her relapse in her condition in the latter part of 2015 and early 2016 had been attributable to her stopping taking her medication. She concluded, however, that the mother herself did not clearly recognise that link and that her relative lack of insight into her diagnosis and her recognition of the need for continued, long-term medication were “poor prognostic factors in terms of her future relapse”.

[28]By the time Dr Milner came to give evidence at the hearing, there had been further progress in the mother’s condition. A report from her treating psychiatrist dated 15 December reported that, in view of her progress and stability, contact with her “care coordinator”, which had previously been taking place weekly, had been reduced to every 2 or 3 weeks. The psychiatrist further reported that the mother had not displayed any signs of a lowering of mood, nor had there been evidence of any thought disorder or psychotic symptoms. Her overall mental health was stable on her current medication. The mother reported taking medication on a regular basis and the psychiatrist had no reason to question that she was complying with the treatment plan. She further reported that the mother was happy to continue with the treatment for the foreseeable future and able to talk objectively about her periods of ill-health. In the psychiatrist’s view, she had good insight into her paranoid thoughts. In the light of this improvement, Dr Milner advised that the overall risk of non-compliance with medication had reduced and that as a result there was less risk of a relapse. She stressed that the consequences of a relapse would be serious for any child in these circumstances but the likelihood of relapse had reduced as a result of the mother’s improved insight into her illness and the consequences of stopping taking her medication. (2). Parenting assessments

[29]The first parenting assessment was inevitably limited because the mother at this point was still in hospital. Ms Stewart was able to conclude, however, that there was significant evidence that, before the mother had been admitted to hospital, she had been caring for Z in a chaotic and haphazard way. There was further evidence to suggest that Z had experienced some degree of trauma which she was internalising. The relationship between mother and daughter had deteriorated and at the time of the assessment contact was not being pursued because of the mother’s presentation. Z was clear that she did not want to see her mother. Ms Stewart reported that the hospital believed that some of the mother’s presentation was due to delusional beliefs created by mental illness but other aspects were attributable to indoctrination by her family. Mental health professionals felt that the mother’s experiences in the family home had exacerbated any underlying mental health issue and that she might do better were she to live elsewhere. There was evidence that the family were unable to seek appropriate help for her when she was ill and that she was regarded as being “possessed”. Ms Stewart concluded that Z was in a difficult situation. At that point, the mother was not practically able to offer her a safe home. On the other hand, Ms Stewart described it as “unfair at this stage” to rule out the mother in the future because she had been unwell and unable to participate in a meaningful and thorough assessment. Although it was clear that the mother was unable to care for Z at that point, Ms Stewart thought it was too soon to completely rule her out as a long-term carer. Meanwhile, Ms Stewart recommended that ongoing work with Z was needed from specialist services able to assess her emotional well-being and her experiences of trauma and open up an understanding of her feelings about her past and her family.

[30]The second parenting assessment was based around contact sessions between Z and her mother and grandmother in September 2016. The assessment was carried out by two assessors, Ms Susan Hart and Mr Steve Dawkins. It was conceded in their report that the assessment was neither full nor comprehensive because it had not taken place in the family home and further because Z had refused to attend one of the contact sessions. The assessment concluded that Z had limited attachment to her mother; that the mother did not have the insight and skills to parent Z safely; that there were concerning observations of controlling behaviour by the grandmother; that the mother displayed a low level of confidence and status within the family; that the contact had been stressful and likely damaging for Z; and that, in he circumstances, continually trying to force her to attend contact would be emotionally abusive. Overall, the assessors concluded that there was currently no evidence that returning Z to the family home would be in her best interests. On the basis of this assessment, as well as the other evidence, the local authority formed its final care plan based on Z’s long-term placement away from the family.

[31]During the hearing, however, this assessment – and the local authority’s reliance on it in formulating its final care plan – were the subject of significant criticism. Although the assessors had been sent a detailed referral form, it seems they did not have the opportunity to read it. Perhaps for that reason, Mr Dawkins in the course of his evidence was unable to recall any specific aspect of the mother’s background, including the fact of magnetic importance that she had suffered from mental health problems. This disadvantage was made even more alarming when Mr Dawkins informed the court that, although he had carried over 100 such assessments in previous cases, he had never knowingly dealt with a parent with mental health difficulties.

[32]It is, to my mind, wholly implausible that none of the parents whom Mr Dawkins has previously assessed in the course of his 100+ assessments has had a history of mental health difficulties. I was left with the distinct impression that Mr Dawkins was not equipped to discern whether a parent had mental difficulties, nor to evaluate the impact of such difficulties when carrying out an assessment. It is to say the least surprising that the local authority commissioned a report from an assessor lacking this important skill, given the significance of the mother’s mental health in this case.

[33]On behalf of the local authority, Miss Farquhar frankly accepted that this factor affected the reliability of the assessment. She submitted, however, Mr Dawkins’ observations were not without value; that they were no different from those cases in which content recordings are regularly provided in proceedings; and accordingly were part of the evidence which the court should take into account. I accept that the assessment forms part of the evidence but, in view of Mr Dawkins’ lack of understanding about the impact of mental health problems on parenting, and his lack of awareness of the mother’s own history, I must treat this assessment with very great caution.

[34]On behalf of the mother, Miss Pope submits that it is difficult to see how the court can safely rely on either of the assessments carried out to date when considering a care plan of long term foster care. Furthermore, she submits that the court should have no confidence that any future assessment by the local authority would be of any better quality. It is her case that the issues requiring assessment are complex – the dynamics of the relationship between Z and her mother, the dynamics within the maternal family, and a balance of harm analysis regarding where Z’s best interests lie in the long-term – and, as such, should be considered by an experienced independent expert. It is this argument which underpins the application now made under Part 25 for a further assessment by an independent social worker. (3). Local authority evidence

[35]On behalf of the mother, Miss Pope also draws attention to what she describes as the marginalisation of her client by the local authority. She submits that the extent of the local authority’s failure to inform, consult and engage with the mother is striking. She draws attention to evidence that the mother’s phone calls to the social work to enquire about Z’s well-being had not been returned; that the mother had been discouraged from writing to Z; that the mother had not been invited to LAC reviews, including a meeting which took place shortly before the hearing; that she had no opportunity to meet Z’s foster carers; and that there had been no attempt by the social worker to meet the mother to discuss the final evidence and care plan. These complaints feed into the submission made on behalf the mother that the court could not have confidence in the local authority’s proposals for a further assessment of the prospects of rehabilitation of Z with her mother.

[36]Miss Pope characterises the local authority’s attitude to contact between Z and her parents as “a complication in her care arrangements which was best avoided”. She points out that the social worker Ms Stewart was sceptical about the value of contact between Z and her father. As for the mother’s contact, the local authority’s approach was driven largely by Z’s expressed wishes and feelings but Ms Pope submits that there was a failure on the part of the local authority to analyse the reasons behind Z’s expressions. She draws attention to the fact that the unplanned visit in November had turned out to be a positive experience for Z and submits that this raises questions over the extent to which the child feels she has permission from the local authority and/or her foster carers to enjoy a relationship with her mother. Miss Pope contends that it is difficult in the circumstances to see how the court can have confidence in the local authority proactively and effectively promoting contact in future.

[37]In her evidence, Ms Stewart disagreed that the social work team had not been proactive about contact. It was clear, however, that the local authority had focused on Z’s wishes. She described how Z had hid from her because she didn’t want to talk about it. A student social worker had been allocated to work with Z about these issues. It was Ms Stewart’s evidence that she had made all attempts possible to build the relationship between Z and her mother and she was at a loss to see what additional steps could have been taken. Ms Stewart thought that Z needed therapeutic support to come to terms with the loss of her relationship with her birth family. She described Z as delightful and talkative, but added that, when she talks about her parents, she shuts down. As a result, the local authority had not got a clear view of what her life had been like when she was living at home, nor did it know the chain of events that led to this presentation. It was Ms Stewart’s evidence that, given the difficulties with contact, and the identified risks and concerns with the maternal family, there was not a level of support that could be put in place at present to make it safe to return Z to the family at this stage. Given the length of time that had elapsed since she was removed, Z needed a decision to be taken now about her future.

[38]Another element of uncertainty is the intention of the foster carers. At the time when the local authority was formulating its care plan before the final hearing, they had indicated that they did not wish to be considered for a special guardianship order, and the authority had therefore put forward its plan for long-term fostering. Subsequently, it had emerged, partly from the guardian’s inquiries, that the foster carers were interested in being assessed for special guardianship. (4). Parents’ evidence

[39]In her evidence, the mother was calm, coherent and lucid. She spoke warmly about her recent contact visits with Z. The mother did not accept that she lacked insight. She stated that she realised the impact of her behaviour on Z. Contrary to what had been said on her behalf at an earlier point in the proceedings, she now accepted that her behaviour had caused Z some emotional harm. She described how Z had felt afraid as a result of her behaviour and what she had told her. She said that when Z had visited her in hospital she had tried to apologise to Z for her behaviour, but Z had not wanted to engage with her

[40]The mother was critical about a number of the actions of the local authority. She said that she had been discouraged from writing to her by the social worker, and also from meeting the foster carers who were, she was told, not equipped to dealing with people with mental illness. She had some criticisms of the foster carers and was concerned that Z was calling the female foster carer “Mummy”. She had asked the social worker if she could go on a parenting course but been told that because Z was refusing to see her she was not eligible, and was not offered any alternative. She had also not been invited to LAC reviews. It was her view that the social worker had used her mental ill-health as an excuse not to talk to her. Her emails and requests for return calls had gone ignored.

[41]The mother described herself as stable now. She did not think there was any risk of relapse. She said she was happy to take her medication, even though there were some side effects. She accepted that she had got worse again when she stopped taking the medication. She said that she had discussed this with her community psychiatric nurse.

[42]In his evidence, the father spoke warmly about the contact visit that he had had with Z during the hearing. He described how he wanted to be involved so that he could know something about what is happening in her life. He runs a freight-forwarding business in India and is married with two daughters – who are of course Z’s half-sisters. He thought it important for Z to know more about his family. He wishes to see her on a regular basis and suggests that visits could take place once a month. He stressed in his evidence that he would not jeopardise Z’s placement with her current carers. (5). Guardian’s evidence

[43]In her final report, the Guardian noted that the mother’s health had improved, but concluded on the basis of her own discussions the mother that she showed little real insight into how events over the past year had impacted on Z and how her poor mental health had affected her daughter. The guardian considered that there was a risk that the mother’s mental health may relapse thereby exposing Z to further erratic and inconsistent parenting. It was her view as expressed in her report that Z could be placed at risk of emotional and physical harm if she were returned to her mother’s care. The guardian noted that Z had developed a very positive relationship with her foster carers and expressed the wish to continue remaining living with them. The guardian acknowledged that Z’s cultural needs were not completely matched the current placement – whereas Z is a British Sunni Muslim from a Gujarati-speaking family, the foster family is of Pakistani origin and speaks Urdu – but added that the foster carers ensured that Z regularly prays and attends a madrassa. The conclusion reached by the guardian at the end of her report was that it was in Z’s best interest to remain living in her current placement. Furthermore, it was the guardian who took the lead in proposing that there should be a special guardianship order in favour of the foster carers.

[44]The guardian gave oral evidence in two stages – the first after the parents’ evidence and then when she was recalled following Dr. Milner’s evidence, (which, as explained above, had to be rescheduled because Dr. Milner failed to attend when expected because of an administrative error). In her first session of evidence, the guardian expressed the opinion that Z needed a permanent placement and explained that this had prompted her to encourage consideration of a special guardianship order in favour of the foster carers. She had spent a long time with the foster carers and did not agree with the mother’s perception of them. Z had had a traumatic experience followed by a very stable placement. However, in cross-examination and in answering questions from the court, the guardian acknowledged that the recent contact visit had been positive, that, whatever the outcome, Z needed to have a positive relationship with her mother, and that, if rehabilitation was a realistic option, there needed to be a wider parenting assessment.

[45]When she returned to give evidence the following week after hearing Dr. Milner’s evidence, the guardian had plainly had time to marshal her thoughts and evaluate the various developments during the hearing. It had been helpful to hear that the mother had greater insight and that the risk of a relapse had reduced. The guardian said that she had considered the mother’s application for a further assessment, and also had evaluated the contact visit that had taken place between the two hearing dates. Z had been very anxious and things had been a lot easier when the maternal uncle had arrived during the visit. Overall the visit had been positive, but in the guardian’s view it had demonstrated that there was a long way to go to build a relationship between Z and her mother. For that reason, she did not favour an adjournment for an assessment by an independent social worker as proposed on behalf of the mother. The guardian did consider that the local authority was under a duty to look at reunification in LAC reviews and consider a parenting assessment after a period of time during which contact had been re-established and the mother’s progress and stability in her mental health had been maintained. At the same time, the option of a special guardianship order in favour of the foster carers should be considered. In making this recommendation, the guardian acknowledged in cross-examination by Miss Pope that no assessment of the mother had taken place in the knowledge of her mental illness. She conceded that there had not been sufficient effort to get contact going in the past and said she was heartened by the contact visits that had now taken place. She had reflected on whether there should be an adjournment, but concluded that Z’s need for stability required that there should now be a care order, with the care plan providing for consideration of the prospect of rehabilitation in due course, and also consideration of the option of special guardianship. (6). The amended care plan

[46]The care plan filed before the final hearing was couched in simple terms. As to contact between Z and her mother, it said:

“currently Z is saying she doesn’t want to see her mother so it would be unethical to force her. Contact under a care order will be set at bi-monthly for one hour and this contact would need to be supervised.”

With regard to contact between Z and her father, the plan stated:

“contact with father via Skype remains open but he has reason to not pursue this. Z has shown interest in speaking to her father …. The local authority proposes no formal arrangements for contact with the father but would encourage him to send letters and photos to Z, although he has not taken this offer so far.”

Under the heading “arrangements for reunification” plan simply said: “not considered”. The plan stated that the parents would be consulted and kept informed about decisions during the care order, but no mention was made of either parent being invited to attend LAC reviews.

[47]After the conclusion of evidence, the local authority filed an amended care plan. It was strikingly different in a number of ways. It continued to state that the plan was to achieve permanence for Z through remaining in her current foster placement under a care order. It repeated that currently Z is saying that she does not want to see her mother but, instead of stating that it would be unethical to force her, the new plan states that she “will need continual support to attend contact and rebuild her relationship with [the mother]”. Although contact remained at one hour every two weeks on a supervised basis, the amended plan added that it would be managed and supported by the local authority’s “child champion”, Sian Miller, who “would be able to visit Z before each contact, prepare her for the sessions, ensure consistency of staff and lead the direction of the contacts”. The plan continues by providing that that contact would be reviewed after 6 months. “Every effort will be made to encourage Z to attend contact but if she becomes distressed or contact becomes harmful, then consideration will be given to reducing it.” On the other hand, “if contact is successful and reunification becomes a realistic option, then contact may be increased.” Under the plan, the maternal grandmother will attend contact six times a year during school holidays and half term holidays.

[48]The most dramatic change in the plan concerned the question of reunification. Whereas the previous plan had simply said that this was “not considered”, the latest plan contains the following passage:

“The local authority suggests that reunification remains a ‘live’ issue for the review process and further assessment of [the mother] and her family is completed by the six month review. This would be dependent on the mother remaining stable on her medication and in her recovery from mental health. It would also be dependent on how contact between [the mother] and Z progresses and whether their relationship improves. The local authority suggests that, six months into the care order, a professionals’ meeting is held to include the independent reviewing officer, social worker, advocate, contact team and mental health professional to consider the reality of reunification. Prior to this meeting, further assessments should be completed under the care order so that the best decision can be made for Z’s future ….”

The assessments anticipated include an update from the community mental health team, dealing with her compliance with medication and adherence to any treatment plan and an assessment of her family situation to consider whether the mother and her family are able to provide a safe, nurturing and stable home for Z. The plan stipulates that this latter assessment should be completed by an independent social worker. In addition, reports would be obtained from the contact team as to the progress of contact, and Z’s own views on reunification would be sought. Linked to this are further provisions in the amended plan for services to be provided for Z herself, in addition to the “child’s champion”. A referral will be made for Z to have an independent advocate from Barnados so that her views can be represented fairly within decisions about her future. A further referral will be made for a consultation with a psychologist to assess her mental and emotional health. Consideration will be given to further therapeutic work, if recommended by the psychologist. Finally there will be a family support worker to build a relationship with Z with a view to starting life story work.

[49]The amended plan also contains a provision that there should be a special guardianship assessment of the current carers, and states:

“if reunification is not considered a safe option, then consideration should be given to whether the current carers should be supported to obtain a special guardianship order.”

[50]The amended plan also contained altered arrangements for the father’s contact. Instead of proposing no direct contact, the local authority now proposed contact six times a year in school holidays, plus indirect contact. The “child champion” would again be able to support Z to attend visits with her father. After six months, there will be a review to consider whether contact could move to an unsupervised basis within the community.

[51]It is further provided that both parents will be kept informed of major decisions about Z. The mother will be invited to the reviews, and it is intended that the first one will be held at a neutral location so that the mother and foster carer can meet. If she cannot attend a review, she will be given an opportunity to put her views forward to the meeting. Similar provision is made to facilitate the father’s participation in the review process.

Submissions on whether the court should make a final care order

[52]Whilst accepting that reunification remains a ‘live’ issue, the local authority says that there is no prospect of it taking place in the short term. The authority relies on three principal matters in support of its position:(1) Z’s clear wishes and feelings;

(2) the concerns about the mother’s mental health and her lack of insight into the extent of the problem and its impact on Z, and

(3) concerns about the wider maternal family.

[53]It is submitted that Z’s wishes have been consistent for some time. She does not wish to return to her mother, and has exhibited extreme apprehension and distress at that prospect. The guardian and social worker both consider it likely that Z has undergone some traumatic experience, as yet undisclosed, which has contributed to the extreme nature of her feelings about returning to her mother’s care. It is important to avoid speculation but whatever the cause there is no doubt as to the nature and strength of Z’s wishes and feelings. It is of course possible that over time those feelings may abate and even change, but it is the local authority’s case that for the time being and for the foreseeable future her position is clear. Although the wishes and feelings of a child of this age are not decisive, they are an important factor in the analysis, particularly where the wishes and feelings are so strongly held and expressed. Z’s attitude to her mother has become more entrenched and contact has until recently been extremely difficult. The local authority accepts that recent contact visits between mother and Z have been more positive but contends that this is insufficient to eradicate concerns as to their relationship which, in the view of the local authority, may take a considerable amount of time to rebuild.

[54]As for the mother’s health, the local authority invites the court to accept the opinion of Dr. Milner as to the diagnosis and risk of recurrence. A crucial component of the risk is the mother’s lack of insight which, in Dr. Milner’s view, heightens the risk of relapse. The local authority submits that there is plenty of evidence – from the established history and from Z’s own comments – to show that she has been badly affected by her mother’s health in the past. Dr Milner accepted that the longer the mother engages with the mental health team and her medication and the more insight she has into her mental health diagnosis, the more the likelihood of relapse is diminished. The local authority submits, however, that at this point the risk remains real. It is submitted that the mother has not been open and honest about her stopping her medication on previous occasions and that this lack of candour is further evidence that the risk of relapse remains real.

[55]The local authority acknowledges that the mother seems to be in better health now, and it is not suggested that she would pose an immediate risk were Z to return to her care. However, given the diagnosis of paranoid schizophrenia, the seriousness of her previous episodes, the impact of those episodes on Z, the lack of insight and the overall risk of relapse, the authority contends that there is a likelihood of significant emotional harm were Z to be placed back in her mother’s care and the mother were then to suffer a relapse.

[56]A further concern for the local authority is the mother’s relationship with the maternal family, in particular the maternal grandmother. The mother has made allegations that she has been at risk of honour-based abuse, subjected to ‘black magic’ or witchcraft, and controlling behaviour by the maternal grandmother. She now asserts that these allegations were untrue and that she uttered them at a time when she was suffering paranoid delusions. The local authority, however, remains concerned about the extreme nature of the allegations which were sustained over a prolonged period and repeated to a number of people. It is submitted that the mother has been unable at times to distinguish between paranoid ideations and genuine experiences in the maternal family home and that not all of the mother’s allegations can be simply dismissed. Whatever the cause, there is, in the local authority’s submission, a difficult and volatile relationship between the mother and her family which has impinged adversely on Z and could do so again were she to be returned to her mother’s care.

[57]The local authority accepts that the mother has not been invited to LAC reviews but denies that this is an indication that she was being marginalised. It is not accepted that the social worker did not communicate with the mother, and failed to answer her emails. The local authority accepts that there were deficiencies in Mr. Dawkins’ evidence but submits that there is still considerable value in his observations. It is submitted that the local authority has taken on board the criticisms made in the course of the hearing and made some significant adjustments to its care plan as described above. The local authority contends that the amended plan provides Z with the stability she needs by maintaining the current foster placement under a full care order, but at the same time creating the opportunity for regular contact with her parents and a process for assessing whether there should be a rehabilitation with her mother at a later date.

[58]On behalf of the mother it is submitted that, for a variety of reasons, the court should be slow to commit Z to the care of the local authority under a full care order at this stage. The oral evidence of Dr Milner and updating letter of the treating psychiatrist present a far more positive picture of the mother’s likely future mental health prognosis and compliance with medication than appears from the papers in the court bundle. The local authority has failed to consult with the mother during the currency of these proceedings, failed to make its own enquires with her treating doctors, inadequately assessed her parenting ability and, ultimately, overlooked her in its care planning process. In those circumstances, the best option in the interests of Z and her mother would be to direct a further social worker assessment before making a final decision. Given the criticisms of the local authority up to now, it is submitted that the court cannot have confidence that such an assessment would be carried out competently or fairly if it was conducted within the authority. It is acknowledged that the amended plan includes provision for this assessment to be carried out outside the authority. It is argued on behalf of the mother, however, that if this is left to the authority under the aegis of a full care order, without the oversight of the court, the other parties will have no input into who is selected, which questions will be asked and, most importantly, how the recommendations will be acted upon. It is therefore submitted that the instruction of an independent social work assessment within these proceedings is “necessary” to enable the court to reach decisions in Z’s best interests before a final order is made.

[59]Notwithstanding the inclusion in the amended care plan of a proposal to allocate a “child’s champion” to work with Z, it is submitted, again, that the court should have little confidence in the local authority’s assertion that it is now committed to contact. It is submitted that too much weight has been attached to Z’s expressed wishes and insufficient time and resources to understand the reasons for her apparent objections to seeing her mother and identifying ways in which her apparent antipathy can be overcome. Whatever conclusion the court reaches as to the frequency of contact – and the mother contends that it should be weekly, not fortnightly, at least while the assessment is ongoing – it is argued that the arrangements should be incorporated into an order under s.34.

[60]In closing submissions on behalf of the guardian, Miss Kelly indicated that the guardian did not consider that there was a gap in the evidence so as to justify another assessment before a final order is made. She further submitted that any further assessment of the mother at this stage would be unfair to the mother who is only at the beginning of the process of recovering from her health problems and re-establishing her relationship with Z. At this stage, Z is a long way from rebuilding the positive relationship with her mother that would be required for her to be successfully rehabilitated into her care. Any assessment at this stage would be likely to be negative.

Further discussion and conclusion

[61]The only realistic option for Z’s care at this stage is to remain in her current foster placement. The preponderance of the evidence, which I accept, is that she has thrived with her current carers. Although they are by no means a precise cultural match, they have been able to support Z in following her Muslim faith and in all other respects have plainly provided her with excellent physical and emotional care which has helped Z to recover after the harm which she had previously suffered, at least during the latter period of her time at home when her mother was unwell, behaving erratically, and in conflict with other members of the family.

[62]The issue for the court is whether to make a final care order at this stage or to adjourn the proceedings for a further assessment of the mother and, possibly, a special guardianship assessment of the current foster carers.

[63]The principal arguments in favour of an adjournment are as follows. Wherever possible, a child should be brought up within her natural family. All parties are agreed that the prospect of rehabilitation of Z with her mother is, to use the description in the amended care plan, a “live issue”. Although it is accepted that this is not something that could take place immediately, it is conceivable that it could take place at some point within the next few months. The mother’s application is for an assessment by an independent social worker now, alongside a programme of more frequent direct contact visits. There is nothing to suggest that, prior to her illness, the mother was not caring for Z properly. She is now in much better health, with greater insight into the nature of her health problems and the impact of those problems on Z, and is expressing commitment to continuing her medication. Although the local authority has clearly stated in its amended care plan that it is committed to carrying out an assessment of the prospects of rehabilitation, and to supporting extended direct contact, there are grounds for believing that the local authority has not been as proactive as it should have been in promoting contact in the past, and that, in some respects, it has marginalised the mother when making plans and decisions about Z’s future.

[64]The principal arguments for making a final care order now are as follows. Z has been waiting for over a year since the start of these proceedings and needs a decision about her future as soon as possible. Although recent contact visits have been more positive, Z is still reluctant to seek her mother. There is a considerable way to go before their relationship is fully restored, and indeed no guarantee that it will ever be restored to a level at which rehabilitation is possible. The local authority has now, albeit belatedly, identified a raft of resources to support Z – the “child’s champion”, an independent advocate, a psychologist and, if necessary, therapy, and a family support worker. With these resources in place, the prospects of a restoration of the relationship between Z and her mother are much improved. There is, however, no guarantee of success. In addition, although the mother has demonstrated greater insight into the impact of her psychiatric illness upon Z, and the importance of keeping well by taking medication and complying with her treatment, there is still a risk of relapse, albeit not as high a risk as previously identified.

[65]Although the previous parenting assessments carried out in the course of the proceedings have, in various ways, been inadequate, I accept the evidence that the local authority is now fully committed to an assessment of the prospects of rehabilitation by an independent social worker and a process of reviews which will involve all relevant professionals, Z, and both of her parents.

[66]In my judgment, the balance plainly comes down in favour of making a full care order at this stage. Rehabilitation remains a live issue. This is recognised by all parties, including, I am satisfied, the local authority. I find that the local authority is being genuine in acknowledging this and in its commitment to an assessment at the appropriate time. It is plain in my judgment that rehabilitation is not feasible in the short term. The relationship between Z and her mother is still extremely strained. Z is still reluctant to have contact. She will need careful support and encouragement of the sort now proposed by the local authority. Indeed, the extent of the resources now identified as necessary to support Z is indicative of the difficulties. It is plainly in Z’s interests for a relationship with her mother to be restored if possible but there is sadly no guarantee that this will happen. The process of building up contact, addressing the difficulties in the relationship between mother and daughter, and the carrying out of a further assessment of the prospect of rehabilitation is going to take time. In my judgment, this programme cannot take place within the ambit of these proceedings. In earlier times, courts not infrequently adjourned cases for months to allow for further assessments as proposed on behalf the mother in this case. It is now recognised that such a course is not appropriate.

[67]A central plank of Miss Pope’s argument on behalf of the mother is, to put it bluntly, the local authority’s actions in this case to date demonstrate that it cannot be trusted to put the amended plan into effect without the court retaining a supervisory role. I accept that, in a number of respects, the local authority’s actions in this case have been less than satisfactory. But I have been impressed by the willingness of the local authority to address the deficiencies in its actions and the inadequacy of its original final care plan by drawing up an amended plan that is, in my judgment, comprehensive, meticulously detailed and focused on Z’s needs. On balance, I conclude that I can rely on this local authority to implement the amended plan. I stress, however, that, in Z’s interest, it is of fundamental importance that the social worker who will be taking over the case from Ms Stewart and the independent reviewing officer who is named in the care plan must do everything they can to ensure that the plan is implemented in full. A number of resources and steps have been identified in the plan as summarised above leading in due course to the assessment of the prospects of rehabilitation by the independent social worker and, possibly, an assessment of the merits of a special guardianship order in favour of the current carers. Implementing this complex plan will require careful attention and monitoring.

[68]So far as the mother’s contact is concerned, I conclude for the time being it should take place once per fortnight as proposed by the local authority. In my judgment, this is the right level at this stage when attempts are being made to restore Z’s relationship with her mother. Plainly there will be scope for increasing contact if all goes well. I endorse the other arrangements for contact specified in the plan, together with the contact repose for the maternal grandmother.

The father

[69]It is greatly to Z’s advantage that, after a number of years, her father has become involved in her life again. It was the court, rather than the local authority, that took the lead in promoting face-to-face contact during the hearing. It seems that this visit went well. The father says he is committed to seeing Z and wishes to be involved in her life and consulted about decisions concerning her future. He proposes contact should take place once a month. Given the history of his involvement to date, and the fact that he will be living in India, it seems to me possible that he may find it difficult to maintain such commitment, and it is important not to establish a pattern of contact which cannot be maintained. In addition, the focus during the next few months must be on the mother’s contact leading up to the point at which the prospects of rehabilitation can be evaluated. I therefore conclude that the right frequency of contact between father and Z at this stage is six times a year in school holidays and half-term holidays. On behalf of the father, Miss Pitts invited the court to make an order for contact. I do not consider an order for contact under s.34 to be necessary, although the final order should contain a recital as to the level of contact that is proposed under the amended care plan. Equally, I do not think it necessary to impose any order as to whether the contact should or should not be supervised. Plainly in the early stages it should be supervised, but in due course, as the amended care plan envisages, there should be scope for flexibility if all goes well.

[70]In due course, there may be scope for contact with the father to be increased, and I hope that ways can be found of including his other daughters in the contact. They are, as noted above, Z’s half-sisters and it is important that some contact is established between the siblings.

[71]I therefore conclude, applying s.1 of the Children Act and having regard to all the circumstances, that Z’s welfare requires the court to make a care order on the basis of the amended care plan. In answer to the principal question as formulated by Miss Pope, I conclude that the evidence relied on by the local authority is sufficiently robust and the care plan, as amended, sufficiently certain to justify the making of a care order in respect of Z at this stage.

[72]I would be grateful if Ms Farquhar would draw up an order reflecting my decision and submit it to the other parties for agreement.