Leicestershire County Council v AB & Ors [2018] EWFC 58

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.Case No LE18C00247[2018] EWFC 58
IN THE FAMILY COURT
Venue SITTING AT THE ROYAL COURTS OF JUSTICEDate 31/08/2018
Before
MR JUSTICE KEEHAN
Between
LEICESTERSHIRE COUNTY COUNCILApplicantAB1 st RespondentCD2 nd RespondentIJ5 th RespondentKL1 st Intervener
Ms N Butt (instructed by Leicestershire County Council) for ApplicantMr B Roche (instructed by RP Robinson Solicitors) for 1 st RespondentMs K Brown (instructed by Dodds and Partners Solicitors) for 2 nd RespondentMs P Thomas (instructed by Emery Johnson Astills Solicitors) for 3 rd and 4 th Respondent ChildrenMs S Haider-Shah (instructed by Northampton Family Law Group) for 5 th RespondentKL, the 1 st Intervener appeared in person for in personHearing Hearing dates: 20 th– 24 th August
JudgmentThe Hon. Mr Justice Keehan :Introduction
[1]On two occasions in February 2018 a young boy, EF, who was born on [a date in] 2014 (4), was admitted to hospital with various marks and bruises. The treating clinicians considered all, or the majority, of these injuries to be non- accidental inflicted injuries.[2]EF has a half sibling, GH who was born on [a date in] 2015 (3).[3]On 26th February 2018, the police were notified and exercised their powers under s.46 of the Children Act 1989 and both children were placed together in foster care where they remain to date.[4]The local authority issued these care proceedings in respect of both children on 28th February 2018. They were made the subject of Interim Care Orders on 1st March 2018.[5]This combined fact finding and welfare hearing was listed to determine: i) whether some or all of EF’s injuries were non- accidental inflicted injuries; ii) if so who is the perpetrator or who are the perpetrators of the same; and iii) with whom should the children live, with whom should they each have contact and how often.[6]The mother of both children is AB who is 23 years old. She is the First Respondent and is represented by the Official Solicitor.[7]The father of EF is IJ who is 26 years old. He lives with his current partner, MN, and her daughter OP who is 6 years of age. IJ is the Fifth Respondent.[8]The father of GH is CD who is 28 years old. He lives with his current partner, QR, and her daughter ST who is 4 years of age. They have a child of their own, UV, who is six months of age. CD is the Second Respondent.[9]The intervener in these proceedings is the mother’s partner, or as the case may be, former partner, KL who is 19 years old. He has a child from a previous relationship who is 2 years of age.[10]It is now accepted by the Official Solicitor on behalf of the mother and by KL that: i) all or the majority of EF’s identified marks and bruises are non-accidental inflicted injuries; and ii) the only possible perpetrators are the mother and/or KL. The mother and KL, however, both deny they caused EF’s injuries. Further neither of them seeks to care in the future for EF or GH.[11]On behalf of the mother, the Official Solicitor would be content for the court to make a Lancashire finding that the perpetrator of these injuries was either the mother or KL. KL[12]The mother and KL were in a relationship at the time EF sustained his injuries in February 2018. Subsequently they separated. Recently they have recommenced their relationship.[13]On 13th April 2018 I made KL an intervener to this proceedings in accordance with his expressed wishes because he was in the pool of potential perpetrators of EF’s injuries. He had instructed solicitors who applied for public funding. He was ordered to file and serve a narrative statement.[14]At a hearing on 11th June 2018 I was informed that KL had been refused public funding and was now acting as a litigant in person. He failed to file a statement and failed to attend this or any other subsequent directions hearing despite having been ordered to attend.[15]He did, however, attend this final hearing. He appeared as a litigant in person supported by a member of the Personal Support Unit. KL was provided with a copy of the bundles. I am most grateful for Ms Butt, counsel for the Local Authority and Ms Thomas, counsel for the Children’s Guardian who over the course of the first day explained the case against him to KL and assisted him in the preparation of a narrative statement. I was told and accept that they clearly explained to KL that he had the option of giving evidence, in an attempt to exonerate himself as the or a perpetrator of EF’s injuries, or he could accept, as the Local Authority sought, a Lancashire finding that he and the mother were in the pool of possible perpetrators. KL asked for time to consider his position, not least because he wanted to seek the advice of his father. I granted him the time he requested.[16]The following day I, once again, explained to KL the options open to him and the potential adverse consequences for him of Lancashire finding. KL told me he had spoken with his father, had reached a decision and did not require more time to consider his position. He confirmed that: i) he accepted the expert medical evidence that all or the majority of EF’s injuries were inflicted non-accidental injuries; ii) he did not wish to give evidence or to seek to exonerate himself; iii) he accepted the court making a Lancashire finding against him and the mother; and iv) he fully understood the potential adverse consequences of such a finding in respect of his relationship and/or contact with his child.

The Law

[17]In relation to the fact-finding element of this hearing the burden of proof is throughout on the Local Authority. The standard of proof is the simple balance of probabilities: Re B [2008] UKHL 35.[18]In relation to the welfare element of this hearing the court’s paramount consideration is the welfare best interests of EF and GH: s.1(1) of the Children Act 1989. I have regard to the provisions of the welfare checklist set out in s.1(3) of the Children Act 1989.[19]I take account of the Article 6 and Article 8 rights of the adults and of both children but bear in mind that where there is a tension between the Article 8 rights of a parent or adult, on the one hand, and Article 8 rights of either child, the rights of a child prevail: Yousef v The Netherlands [2003] 1 FLR 210.[20]As Ms Haider-Shah, on behalf of IJ, rightly conceded there is no presumption in favour of a natural parent to care for a child: see Re W (A Child) [2016] EWCA Civ 793 where at paragraph 71 McFarlane LJ, as he then was, said “The repeated reference to a right for a child to be brought up by his or her natural family or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such right or presumption exists. The only right is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any Article 8 rights which are engaged.”

Background

[21]In 2011, at the age of 16 the mother was involved in a very serious road traffic accident. She suffered multiple serious injuries including a severe head injury. The consequences of those injuries have been described by various medical experts as follows (I record my gratitude to Mr Roche, counsel for the mother, for the very helpful synopsis of these opinions set out in his position statement):(i) “In a report dated 5th May 2015, commissioned as part of the civil action against the MIB, Professor Norris, Neurologist, stated that AB would be unable to live on her own. He also suspected that she may have suffered damage to the frontal lobes of the brain.(ii) In a report dated 20th May 2015, Dr Christopher Plowman, Consultant Clinical Neuro-psychologist, described AB as a poor historian, who had considerable difficulty recounting her own history and also some difficulty regarding current circumstances. AB told him that she got easily confused and would pretend to understand things so that she did not look stupid. He referred to concerns regarding AB’s medication regime, epilepsy and ability to care for young children in the absence of a partner.(iii) In a report dated 16th June 2015, Dr Lachlan Campbell, Consultant Forensic Neuro-psychiatrist, wrote that AB’s persistent cognitive problems, particularly forgetfulness, were likely to be permanent and would impair her quality of life and her capacity for independence.(iv) In her report dated 28th September, the care expert, Susan Lewis RGN, noted that AB had been fitted with bilateral hearing aids that she was extremely reluctant to wear. She also noted that AB was a poor historian who found it difficult to stay on task.(v) In the certificate of incapacity dated 30th April 2018 Julie Leather, psychologist, wrote that AB presents with poor emotional self-regulation and impulsivity; there are limitations to working memory which compromise her ability to retain or retrieve information; there are difficulties associated with verbal reasoning, memory, conceptualisation and comprehension, such that she is unable to weigh information in order to make informed decisions. Difficulties making considered judgments also arise due to her short attention levels, low tolerance for frustration and tendency for impulsive responding. If matters of discussion need to address the potential loss of her child then she may become distressed and may act impulsively.(vi) In her report of 2nd May 2018, Julie Leather wrote: She saw the mother on 27.4.18 and mother told her that she had thoughts of ending her life the day before and that she self-harms to take the pain away; She is taking three forms of medication. Mirtazapine antidepressant, Olanzapine antipsychotic for anxiety and PSTD and Lamotrigine anticonvulsant medication for epilepsy triggered after the RTA. Although some days she forgets to take them all; Her compensation is in a Trust as she cannot manage her money; She is supposed to wear glasses because of difficulties with her eye; She is supposed to wear two hearing aids; When she reads or is told information “I can remember one thing”. She said this is usually the thing that “grates on me the most”. She said that most days when she is on her own she cannot step outside of the house because she gets panic attacks. She said “I always have to have someone with me, glued to my hip”. Her full-scale IQ is 72 which places her at the lower range of borderline ability, however there is 95% probability that her actual IQ falls between 68-77 which would indicate her being learning disabled; Her working memory is an area of weakness; Her tolerance for frustration when she becomes irritated by tasks that are difficult or becomes bored when at the limits of her concentration span, would be likely to compromise her in making sense of the information presented during Children Act proceedings and would make attendance during the court process effortful and both cognitively and emotionally challenging. She does not have capacity to litigate due to cognitive impairment almost certainly due to brain injury which appears most likely to be a permanent impairment; She would be unable to adequately understand written or verbal information relevant to the court process to sufficiently weigh that information to allow her to make informed decisions; In addition there are difficulties with emotional regulation and significant vulnerabilities to mental health which Julie Leather is not able to conclude is as a result of the brain injury or the effect of her life circumstances. Her acknowledgement of suicidal thoughts including a plan of how she might have ended her life using her medication highlights her emotional vulnerability and adds to my concerns, beyond matters of capacity, that it would not be in her best interests to maintain the responsibility for instructing her solicitor.”[22]The mother had a relationship with IJ in 2013 which lasted a matter of weeks. She then began a relationship with CD in October 2013. When she was aware she was pregnant with EF, the mother told IJ that the father of the unborn child was CD. EF was born in [a date in] 2014 and CD treated him as his son.[23]IJ did not have any contact with EF. It is a matter of contention between the parties as to the extent to which IJ did not seek to play a role in EF’s early life or the extent to which the mother and/or CD sought to prevent him having any role in EF’s life. I note that the mother’s antipathy towards IJ continues to date and she is, I am told, viscerally opposed to IJ’s application to care for EF.[24]GH was born in [a date in] 2015.[25]In August 2016 the mother and CD married.[26]Prior thereto between February and April 2016 the children were on a Child Protection Plan instituted by Northamptonshire Children’s Services under category of neglect because of parental domestic abuse. I have not been invited to resolve these allegations and counter allegations of domestic abuse between the mother and CD, not least because they are not material to the issues I now have to determine.[27]In early 2017, the relationship between the mother and CD deteriorated to the point where they separated. CD left the family home but had staying contact with the children every weekend. There is a dispute between the parties about the date when CD left the family home but what is not in dispute is that CD very shortly after his separation from the mother began a relationship with his current partner QR. Within weeks of their relationship commencing QR was pregnant with their daughter UV: it was an unplanned pregnancy.[28]In April 2017 a referral was made to Leicestershire Children’s Services’ First Response Team relating to the mother’s ability to manage aspects of the children’s care. The mother had moved with the children from Northamptonshire to Leicestershire after her separation from CD. An assessment was undertaken. It was concluded that the mother appeared to feel more able to cope with caring for the children and the case was closed.[29]The mother began a relationship with KL in early January 2018 and he moved in to live with the mother and the children.[30]The issue of injuries sustained by EF arose in February 2018. At 1.10pm on Wednesday 7.2.18 EF was presented at nursery by his mother with multiple bruising to his neck, forehead, side of head and both ears and graze under his chin. The mother told the nursery that EF had spent the weekend at his father’s home and that EF had told her that his Nana had caused the injuries. He also appears to have said to the nursery that Nana smacked him.The nursery made a referral and a strategy meeting took place between social care and the police. EF was seen at nursery during the joint section 47 enquiry and he told the social worker that ‘daddy hurt him at Nana’s’. Mother said that she didn’t notice the bruises until that morning even though EF had returned from his father’s home on Monday 5.2.18.[31]At a child protection medical on 8.2.18, EF’s injuries were deemed to be non-accidental by Dr Elias-Jones, Consultant Paediatrician. Mother said that the bruise to EF’s forehead was caused by him jumping off the sofa at home. The bruise to the forehead and graze to the chin could be consistent with mother’s explanation about the fall from the sofa or part of the original assault that caused the other injuries. All the other injuries (including bruising to inner and outer ears) were deemed to be obvious non-accidental injuries probably the ears by pinching and bruise to neck and forehead by blows. GH had no injuries.[32]Given EF’s injuries he was admitted to the Leicester Royal Infirmary for bloods, Ophthalmology and full Skeletal Survey. During the night of the 8.2.18 it was reported by nursing staff that EF said ‘oww’ when his genitals were wiped during a nappy change. A Paediatrician examined EF the following day and he was not seen to have any marks in his groin area. On 11.2.18 the social worker Hayley Brooksby attended the hospital and undertook direct work using pictures and words with him. He repeated that daddy had hurt him and curled his hand in a fist shape and moved it towards his head. Daddy was identified as being CD and mother’s boyfriend was identified as KL. It was considered that there was no direct evidence to suggest that the injuries had been caused in the care of mother or KL and so EF was discharged on 12.2.18 to his mother’s care. The children were seen by a social worker at home on 13th, 14th and 16th February 2018. An initial child protection conference was due to take place on 27.2.18.[33]The mother then cancelled appointments with the social worker on 20th and 21st February. She also failed to take EF to nursery on 19.2.18 and only took GH telling them that EF was unwell. It appears that she led the nursery to believe on 19.2.18 that bruising had been found to EF’s groin area whilst he was in hospital and that it was non-accidental and caused by his dad. On 21.2.18 EF was presented at nursery with what appeared to be a fading bruise in his groin area. By 23.2.18 it was said by the nursery that this bruise was still present and visible during a nappy change. Mother was asked about this bruise and said that it had been present when EF was in hospital on 8.2.18 (which was untrue) and therefore the nursery did not make any further referral.[34]On 26.02.18 AB took EF to Northampton General Hospital with severe bruising and swelling to his genitals and bruising to his face. AB was advised that EF would require admission upon review by the Paediatrician. However, AB refused for EF to be admitted and left the hospital abruptly. GH was in the car with mother’s partner KL and the 10-month-old child of the maternal grandmother (who had told the mother to take EF to hospital but then left her child with them and went to work). This was reported immediately to the police and AB, her partner KL and the children were located at maternal grandmother’s house. The Police evoked section 46 powers and the children were returned to the hospital under Police Protection. Mother told the nursery that the new injuries had happened that morning when they rang her.[35]Upon medical examination EF was found to have significant bruising and swelling to his penis, groin area, back and bruises to each of his facial cheeks and forehead. These injuries are considered to be non-accidental as set out in the report of Dr Hewertson, Consultant Paediatrician dated 28.2.18. There were 19 bruises and he was tender over the lower abdomen, scrotum and penis. Bloods were all unremarkable. Most, if not all the bruises were deemed to have appeared since his medical on 9.2.18. Bruises to his cheeks could represent fingertip marks, bruises to his scrotum, lower abdomen and groin suggested blunt trauma and the appearance of the penis would be in keeping with the circumferential application of pressure sufficient to cause proximal bruising such as an application of a ligature. The bruising to the back would have required force. All of the injuries would have been painful for EF.[36]After a period of indirect introductions EF first met his father in late May 2018. The contact was very successful. The speed with which EF and IJ established a relationship surprised all of the professionals. Since then EF has had weekly contact with his father IJ and EF and GH have continued to have weekly contact with CD.

Evidence and Analysis: Fact Find

[37]Dr Ehrhardt, a consultant paediatrician, was jointly instructed to provide on opinion on the causes of EF’s marks and bruising. His report is dated 31st May 2018 and he responded to a supplemental question by email on 12th June 2018. In his oral evidence he confirmed the contents of his report.[38]On the issue of causation Dr Ehrhardt opined that:
“In my opinion, the bruising at and near the genitalia is clearly an inflicted injury. I struggle to comprehend any possible accident which could cause such an injury, particularly in a child still in nappies. Similarly, the injuries at the uppermost part of the thighs (Dr Hewertson injuries 11 & 12) in my opinion are clearly inflicted. It is difficult to see how a child could suffer, at much the same time, accidental injuries in both these locations, especially a child still in nappies. In my opinion, the injuries to both ears on 07.02.2018 represent inflicted injuries. Bruising at the ears is not common as a result of an accident; it would be astounding if a child were so unlucky as to have an injury at one ear which was accidental, and, at the same time, an injury to the other ear which was also accidental. The same applies, in my opinion, to the injuries to the cheeks on that date. Regarding the other injuries; EF had only one, or a very small number, of these injuries, and no other injuries elsewhere, it would be reasonable to consider that that injury, or that small number of injuries, might be accidental. The combination, however, of multiple injuries, including some clearly inflicted, makes it probable that all, or the great majority, of his injuries, seen of the two occasions in February, were inflicted. The person or persons who inflicted the injuries can say how they were inflicted.”
The person or persons who inflicted the injuries can say how they were inflicted.”[39]On this issue of EF’s genital injuries, he responded to the supplemental question he was asked as follows:
“However – if Dr Hewertson is clear that, when he saw EF, there was a clear demarcation on the shaft of the penis, separating more normal penis proximally, from swollen and more abnormal penis distally, then I would entirely agree with him that a ligature could cause that appearance and, further, that there is a clear likelihood that a ligature or similar was used. In brief, therefore, my position is not that no ligature was used. A ligature may have been used. A ligature could not cause all of the genital injury. If there is a clear demarcation, then a ligature is a very real possibility. Other trauma was occasioned to the genitalia, as well as any ligature.”
Other trauma was occasioned to the genitalia, as well as any ligature.”[40]Dr Hewertson confirmed he had seen clear demarcation on the shaft of EF’s penis. In his evidence Dr Ehrhardt said that if Dr Hewertson saw clear demarcation and was of the view that this was caused by a ligature “this was fine by me”.[41]No party nor KL, the intervener, took issue with this medical evidence. I accept the evidence of Dr Ehrhardt and Dr Hewertson. Accordingly, I find that EF sustained injuries identified by Dr Ehrhardt as set out above. On the balance of probabilities and taking account of the constellation of injuries that all of these injuries were non-accidental inflicted injuries.[42]Given the mother’s disabilities and difficulties and the learning difficulties of KL no party urged me to hear evidence from either of them in order for the court to determine whether it could identify the perpetrator or, as the case may be, the perpetrators of EF’s injuries. On the basis that neither the mother nor KL sought to care for either of the children, I agreed. I considered it would be disproportionate, unnecessary and, most likely, a fruitless exercise to require the mother or KL to give evidence, and/or for the court to be in a position to identify one or the other, or both, as the perpetrator(s).[43]They both accept that the only possible perpetrators are themselves although both deny having injured EF. I therefore find that the perpetrator of all of EF’s injuries is either the mother and/or KL.[44]I should add that at an earlier stage in these proceedings the Local Authority included CD and the paternal grandmother in the pool of possible perpetrators. At the hearing on 2nd May 2018, and with the agreement of all parties, I excluded both of them from the pool.

Evidence – Welfare

[45]I have heard evidence from: i) Mrs Sharpe, the author of the parenting assessments; ii) Ms McKenzie, the social worker; iii) CD; iv) QR; v) IJ; and vi) the children’s guardian, Kailash Chudasama.[46]Mrs Sharpe described the parenting assessments of both IJ and CD, and their respective partners, as positive. She raised a number of issues about CD and QR in her report about them. The principal matters were: i) CD’s past role in caring for EF and GH when they lived with their mother; ii) their failure to provide her with written details of their finances; iii) their failure to provide her with written details of their proposed parenting plan; iv) their need to move to a larger rented property – their current home only has two bedrooms; v) QR’s changing view about her ability to care for and connect to EF; and vi) CD’s initial response to QR’s expressed view that she could not cope with the care of EF.[47]Notwithstanding these matters she came to the conclusion that they would be able to care for GH and for EF but was of the view that in a household of four young children there was a risk that EF’s needs, or some of them, could be overlooked or unmet. She told me that a placement with IJ and MN provided ‘certainty’ that EF’s needs would be met, whereas a placement with CD and QR provided only ‘near certainty’.[48]One could take issue with the use of the word ‘certainty’: in this life nothing is certain but death. I am clear, however, about what Mrs Sharpe intended to convey to the court when she used this term.[49]Like Ms McKenzie she introduced the term EF’s ‘enhanced’ needs during the course of this hearing. The use of the term ‘enhanced’ had no material bearing on the identified needs of EF as set out in paragraph 71 below. I shall not use that term in this judgment. I shall simply and accurately refer to his needs as identified by the social worker. Further just as the social worker had done, Mrs Sharpe referred in her report to EF’s right to be cared for by his biological father. In the concluding paragraph of her report in respect of IJ and MN she wrote “It also had to be questioned if a child should be denied his right to live with a birth parent, in the absence of a mother, this is a question that the Courts (sic) will have to decide on.”[50]On this issue of the separation of EF and GH, Mrs Sharpe did not, in my judgment, consider and take full account of the potential short and long term emotional and psychological harm that EF and/or GH would suffer if placed to live in separate households. She took the view that the consequences of separation could be ameliorated by regular contact. This is a serious omission.[51]Ms McKenzie appeared to recommend EF living with IJ and MN on the basis that as the carers of just two children, namely OP and EF, they could meet all of EF’s identified needs. Whereas although CD and QR could meet the needs of ST, UV and GH, they would struggle to meet the needs of EF, as a fourth child under 5. It would be a struggle for them to do so she said with the concomitant risk that EF’s needs, as a quiet reserved child, could be missed and overlooked.[52]The social worker had in her sibling assessment referred to and relied on IJ’s right to care for his biological son and EF’s right to be cared for by his natural father. She was wrong to do so.[53]Equally worryingly, whilst Ms McKenzie recognised that separating EF and GH would cause them some upset but which, in her view, could be ameliorated by regular contact, she neither knew, nor in my judgment had she considered, i) the extent of the harm either child might or would suffer on separation; ii) whether this would be short term or long term; and iii) what the consequences of this harm might be for either child. This is a serious omission.[54]CD spoke with complete sincerity about his love for and commitment to EF and GH. He readily admitted past mistakes including the children being exposed to domestic issues between him and the mother and having failed to address the inadequacies of the mother’s care of the children once he and she had separated.[55]Throughout these proceedings CD has never wavered in his commitment to care for EF and GH. These proceedings have had a profound emotional and psychological impact on him, not least when he had to leave his partner and two week old daughter UV, in February 2018 at the request of the police and of children’s services. The toll on him has been obvious watching him throughout the directions hearings and, most importantly, at this hearing.[56]CD means a very great deal to EF and vice versa. I find it almost inconceivable that this committed and loving psychological father would overlook or not meet the needs of his ‘son’: whatever the other calls or demands on his time.[57]QR was a most impressive witness. She warmly spoke about all of the children and was obviously keen to have a better understanding of what she and CD could do to meet EF’s emotional and psychological needs. Her view that Mrs Sharpe, in the course of their parenting assessment, had painted an overly negative picture of EF and his needs was seized upon as evidence that she did not accept that EF has certain emotional and psychological problems which require particular attention from his carers. I reject this suggestion. It was plain from her evidence, taken as a whole, that she accepted EF’s needs as identified by the social workers but as a lay person, as opposed to a professional, who loves this little boy she, quite understandably, had a more optimistic view of EF and his needs. This view will not, in my judgment, result in her ignoring or not being alive to the care and attention EF will require to address his emotional and psychological issues.[58]She denied being under pressure from CD to agree to care for EF as well as GH. The strength of CD’s genuine desire to care for both children must have had some impact on her decision making process but this is no more than frequently occurs in the ordinary course of human relationships.[59]Watching QR during the time she gave her evidence and on the days when she attended this court hearing, the emotional toll upon her of these proceedings was obvious. This observation applies with equal force to IJ and MN. It is regrettable but understandable that a contested hearing could not have been avoided.[60]IJ was an impressive witness. He spoke with real warmth of his love for EF and of how he and EF had formed such a close relationship in so short a period of time from their first ever contact in May. It is a testament to his qualities as a man and as a father that EF felt so very comfortable with him and very much enjoyed being with him from the start.[61]He told me of his worries about whether all of EF’s identified needs would be met if he lived with CD and QR in a household of four young children. He sincerely believed that he and MN were in a better position to meet all of EF’s needs.[62]Nevertheless he told me with obvious confidence that whatever the court’s decision he and CD would co-operate together to ensure: i) EF moved easily between the households to enjoy contact with the non-residential carers; and ii) EF’s needs were met. I have no reason to doubt IJ’s evidence on this issue.[63]IJ made an application during the course of this hearing to change EF’s surname to “J”. In response CD told me in his evidence that he agreed to a name change but suggested EF’s new surname should be “J-D” in order that he and GH had the same final surname. I completely understand CD’s child focussed approach. IJ told me he accepted the proposal for EF’s surname to include both his and CD’s surnames but that he, for wholly understandable reasons, would prefer EF’s surname to be “D-J”.[64]In the first instance I consider it appropriate to give IJ and CD the opportunity outside of the court arena to see if they can agree on EF’s new surname. If, sadly, they cannot then I will have to adjudicate on the issue. There is merit in the surnames contended for by both of these fathers.[65]In her report the guardian supported the case for the local authority namely that EF should live with his father IJ and his partner and GH should live with CD and his partner. Her final analysis report was dated and filed on 16th August 2018. This hearing commenced on 20th August 2018.[66]In her final analysis the guardian commented in two passages as follows:
“If EF and GH are separated there is a likelihood that they will be impacted on as they have a very close bond with each other”
And a little later “If EF was placed with his biological father, there is a likelihood that it would impact on his relationship with GH as they would be separated. There is a clear bond between GH and EF hence there would be a need for EF to receive support to enable him to cope with the separation.” That is the extent of the analysis on this vital issue. There is no mention or reference to: And a little later i) what would be the extent of the impact of separation on both children; ii) whether the adverse impact would be of short duration or long duration; nor iii) the long term emotional and/or psychological effect on EF or on GH.

And a little later

[67]At the outset of her evidence the guardian said that having heard the evidence over the previous three and a half days she had identified a gap in the evidence namely: i) that the needs of the children appeared to be greater or, at least, different from that which she had understood when she wrote her report; and ii) it was not clear what the adverse effect of separating EF and GH would be. She advised that the court should adjourn the matter part heard to allow for the instruction of an independent expert, a psychologist, to report and advise on these issues.[68]When I pointed out that if the court permitted the instruction of an expert it would lead to a delay in finalising this matter by, at least, 5 months and, potentially, 8 months, the guardian confirmed her revised view and application.[69]I was so surprised, to put it mildly, that I rose for forty-five minutes to allow the guardian to reflect on this application and its consequences and to consider what, if any, her recommendations would be if I refused her application for an expert report.[70]After the short period of reflection the guardian confirmed: i) she sought an adjournment for the instruction of an expert; and ii) if I refused the instruction of an expert she stood by her original recommendations as set out in her report.[71]I do not begin to understand the reason or reasons why the guardian identified gaps in the evidence which she heard less than a week after preparing her final report. First, the oral evidence of EF’s and/or GH’s needs was no different from that set out in the written evidence. GH had no needs other than that which any three-year-old would have for love, support, security and stability from her care givers. EF has a stammer for which he receives speech and language therapy, he is developmentally delayed and currently functions at the level of a three-year-old – his educational needs will be assessed when he starts primary school. Further, when first received into care he was observed to demonstrate some sexually inappropriate behaviour towards his sister but latterly had exhibited behaviour which would not be considered unusual in a four-year-old boy but which required supervision. Moreover given his past history of parenting he flinched if an adult approached him – fearing he was going to be struck or harmed.[72]In the premises I find the guardian’s assertion that there is a gap in the evidence on this issue to be unfathomable.[73]The second limb of the so called ‘gap in the evidence’ was contributed to by the guardian in her own wholly inadequate assessment and evaluation of the potential adverse consequences and harm of separating EF and GH into two separate households. The oral evidence neither added to nor detracted from the written evidence from the local authority on this issue and yet in her report the guardian had raised no issue or concern: still less did she identify ‘a gap in the evidence’. Worse, the inadequacy of the guardian’s consideration of this issue merely compounded the failure by all of the professionals to engage with and consider sufficiently the adverse impact and harm of separating EF and GH.[74]If matters could not get any worse they did so during the course of the guardian’s cross examination. To say her evidence lacked a logical basis or lacked a child focused analysis would be to put matters very mildly. I give just three examples: i) when asked whether she would agree with the social workers assertion that IJ had a right to care for his son and EF had a right to be cared for by his father, she replied she neither agreed nor disagreed. She appeared to be ignorant of the fact that no such right was recognised in law; ii) when first put by counsel for CD that no amount of contact could rectify the harm to EF of being separated from his sister, she agreed. Later when first put by IJ’s advocate that regular contact between the children could ameliorate the risk of harm, she agreed. When I asked the guardian why she had given what appeared to be contradictory answers, she could not give a reason. When I said that absent an explanation I said I would find she has given contradictory evidence, she said, after a pause, that is what I would have to do; and iii) when pressed why when having now identified a so called ‘gap in the evidence’, her recommendation remained as set out in her report if the court refused her request for an expert, as opposed to, for example, making no recommendation, the guardian could provide no coherent answer.[75]I very much regret to find that: i) the guardian’s written report was inadequate; ii) the reason for her request for an adjournment and the request for an expert report was unfathomable and totally without merit; iii) an expert report is wholly unnecessary; iv) the adjournment would have caused unconscionable delay; v) the decision to stand by her original recommendation having identified ‘a gap in the evidence’ was irrational; and vi) the guardian’s oral evidence was woeful.[76]In light of these findings I have put the report of the guardian and her evidence to one side. I attach no weight to either.[77]This guardian has 25 years experience as a social worker but just 14 months experience as a guardian. She had never previously seen a case through to final hearing. Why local Cafcass managers thought it appropriate to appoint so inexperienced a guardian to such a complex case, I do not know.

Analysis – Welfare

[78]It is agreed that GH should be cared for by her father CD, and his partner, QR with her daughter, ST and their baby daughter, UV.[79]I note that the issues raised by Mrs Sharpe in her parenting assessment of CD and his partner are not of such moment that they impede still less prevent the placement of GH with her father. On the contrary I am told that all the professionals are agreed that CD and QR can meet the needs of the three girls, namely that they can provide all three children with a loving, secure and stable home.[80]The substantive issue for me to determine is whether EF should live with his psychological father CD, or with his biological father, IJ.[81]It is right at the outset of this analysis that I make the following observations and findings: i) EF is a very lucky boy to now have IJ in his life as his biological father; ii) IJ greatly loves and is greatly committed to EF. The extent to which each has established a warm and accepting relationship over such a relatively short period of time is a testament to IJ’s love for EF; iii) I have no doubt that IJ and MN would care for EF very well and to beyond a good enough standard of parenting; iv) EF is very lucky to have CD in his life as his psychological father and GH is very lucky to have him in her life as her biological father; v) CD greatly loves and is greatly committed to EF and to GH; vi) IJ and CD will do everything to facilitate contact between the family with whom EF is to live and the family with whom he is to spend time; vii) the desire of both IJ and CD to care for EF is entirely sincere and genuine. The reference, at points in this hearing, to either of them adopting a ‘tit for tat’ approach towards the other is entirely misplaced and erroneous; viii) EF and GH are very emotionally and psychologically close to each other. They have never, hitherto, spent a night apart in separate homes; ix) whatever the outcome of the issue of where EF should live, it is agreed that GH should be involved in the contact arrangements made for EF; and x) all parties are agreed that EF’s and GH’s foster carer has provided both children with a quite excellent standard and quality of care for which she should be thanked and congratulated.[82]I am in no doubt, as I have noted above, that IJ and his partner, MN, would provide a loving, secure and safe home in which EF would thrive. The essential issue for me, as I indicated at the outset of this hearing, is whether the facts of this case merit and justify the separation of EF and GH?[83]The parenting assessor, the social worker and the guardian are all of the professional view that the answer is yes. I disagree. I recognise that in reaching a conclusion contrary to that of the professional witnesses in the case I must have, and give, good and cogent reasons for my decision.[84]I regret to find that, with great respect, Mrs Sharpe, Ms McKenzie and the guardian have fallen into error in their assessment of the respective placements for EF. Ms Sharpe and Ms McKenzie, have referred to and/or taken account of the ‘right’ of EF to live with a biological parent and/or IJ’s ‘right’ to care for his biological son. As the Court of Appeal in Re W (A Child) [2016] EWCA Civ 793 (at paragraph 20 above) have made crystal clear no such right or presumption exists in English law. The sole test is the welfare best interests of the child.[85]Mrs Sharpe and Ms McKenzie’s assessment of the risk of EF’s needs being missed or unmet in the CD/QR household is flawed. They have placed too much weight on the challenges of caring for four children under the age of 5 and too little weight on the parenting abilities of CD and QR and on their demonstrable commitment to meet the needs of all four children.[86]Further all three have underplayed and give insufficient weight to the adverse impact on EF and GH of being separated. It is suggested that regular contact between the siblings could ameliorate the children’s upset or distress of living separately.[87]In evidence neither Mrs Sharpe nor Ms McKenzie could predict what the impact of separation would be for either child nor for how long it would endure. Ms McKenzie justified the step of separation on the basis that the children were ‘resilient’ which in my judgment is tantamount to saying they will each have to put up with it.[88]EF and GH have lived together the whole of GH’s life. They have never stayed apart in separate places before. They have both sadly experienced abusive and/or harmful parenting in the care of the mother and her partner. They have a close bond with each other. Having settled in their foster placement they, of course, spend part of the day away from each other – as any ordinary siblings would do so. In my view the fact that they both spend time on separate activities (e.g. nursery) gives no indication whatsoever of their ability to cope with being separated and living in two separate homes. It merely demonstrates that they have a normal and healthy sibling relationship.[89]No account appears to have been taken or, at the least, insufficient weight has been accorded to the fact that sibling relationships are most likely to be the most enduring relationship a child may have in his or her life.[90]In my judgment the suggestion that regular contact between EF and GH will ameliorate the adverse consequences of separation is pure speculation with no evidential or forensic basis for asserting the same.[91]On the totality of the evidence I am satisfied that separating EF and GH between two different households will have a profound effect (or, at least, is most likely to do so) on both EF and GH which could cause them significant and long-term harm.[92]Can the causing of such harm to EF and/or GH be justified?[93]It is asserted by the Local Authority, supported by the guardian and IJ, that the latter can better meet the needs of EF in a home where he is one of two children, as opposed to being one of four children CD’s home. It is said that there is a risk that EF’s needs will be missed and unmet in this busy household.[94]I note that most of the issues raised by Mrs Sharpe in respect of CD and QR (e.g. failure to provide details of their finances, failure to provide a written child care plan and CD’s past role caring for EF and GH when they lived with their mother) are not a bar to him and QR caring for GH. If these matters are not a bar to him caring for GH, I do not see how they can be relevant factors in determining whether he can care for EF.[95]There are, however, two issues raised by Mrs Sharpe which need to be considered. First QR’s view expressed to Mrs Sharpe that she did not think she could cope with caring for EF and that she had had difficulties ‘connecting’ with him and second CD’s outburst on hearing this comment that he would leave QR and care for the children by himself.[96]In the parenting assessment and in her evidence Mrs Sharpe had considered QR’s expression of her doubts about caring for EF as a positive and a sign of QR’s openness and honesty. What particularly troubled Mrs Sharpe was that two days later QR had changed her mind and believed she could care for EF.[97]A little time after the conclusion of the parenting assessments, a meeting took place between QR and IJ and MN this June after they had all attended a educational planning meeting for EF. There are differences between QR and IJ in their respective accounts of what was said at this very short meeting. I do not consider it necessary or helpful to resolve these differences, suffice it to say that IJ and MN left the meeting with the view that QR still had reservations about caring for EF.[98]As I have already recorded I was impressed by QR in evidence. I accept she and CD had endured an emotionally traumatic few months earlier this year very shortly after the birth of their daughter. In light of the injuries to EF and the police investigation, CD had been required to leave the home he shared with QR, ST and UV, who was only two weeks old. Although she was fully co-operative she understandably found the process of being assessed intrusive and daunting. Coming from a family of four daughters and having two daughters of her own I am not surprised she doubted her ability to care for EF as a boy with his particular needs. She had reflected on her position, she had spent more time over the last two months with EF in contact and she was now confident she could care for EF and the other children. I accept her stance is genuine and that QR is determined and committed to care for this little boy whatever her past reservations may have been. I am satisfied she is not and has not been under any undue pressure from CD to agree to care for EF.[99]In respect of the second matter, I accept the evidence of CD that his outburst was an ill-considered knee-jerk response to QR’s comment which he had no intention of putting into effect. I accept he had felt under considerable emotional pressure from the parenting assessment and from these proceedings when he spoke as he did. Further I accept his expression of regret at what he had said was a wholly genuine expression of remorse. In taking this incident into account the local authority have blown it up out of all proportion from its true significance which in my judgment is minimal. It was a demonstration of CD’s occasional impetuous response to events. Of greater importance it was a graphic illustration of the deep love he has for EF and for GH and of his sincere desire and commitment to care for both of them.[100]Accordingly I am wholly satisfied that CD and QR are wholly committed to care for EF and their other three children and are more than capable of meeting his and their needs. I accept that running a household and caring for four children under the age of five will be difficult and will present challenges to QR, who will be the primary day to day carer, and to CD who works full time. I am satisfied, nevertheless, that they have the commitment, the support and their wherewithal to meet these challenges. Both come from large, loving and supportive families who will be on hand to assist them.[101]In my judgment there is no appreciable risk that EF or any of the children’s needs will be unmet. If I am wrong, I am satisfied the risk is small and manageable. In any event any such risk ‘is ameliorated’ by the fact that EF will be having very regular and extensive contact with IJ and MN. I am in no doubt that IJ would take all necessary and appropriate steps to raise any concerns he may have in the future with CD and/or QR to ensure all of EF’s needs are met.[102]I am satisfied the parenting assessor, the social worker and the guardian’s assessment and analysis of this issue of risk is flawed. In any event they have accorded too great a weight to this issue and have failed properly to balance this risk against the harm which, I have found, will, or is very likely, to result from separating EF and GH.[103]The answer to my question as paragraph 92 above is an emphatic no.

Conclusions

[104]All or most of the injuries suffered by EF, as recorded by Dr Ehrhardt were inflicted non- accidental injuries. The perpetrator of those injuries was either the mother or KL.[105]The threshold criteria of s.31(2) of the 1989 act are satisfied on the basis of my findings in respect of EF’s injuries because, at the relevant date, EF was suffering significant and both children were at risk of suffering significant harm.[106]The guardian’s application for an adjournment to obtain an expert report from a psychologist is refused. I do not consider such an expert report necessary. If I had acceded to the application the resolution of these proceedings would have been delayed for a period of between 5 to 8 months: such a delay would have been wholly contrary to the welfare best interests of both children and unconscionable.[107]I am wholly satisfied that it is in the welfare best interests of EF and GH that I make a child arrangements order in favour of CD and QR that both children shall live with them. CD and QR will thus acquire parental responsibility for EF and GH.[108]I shall make a child arrangements order in favour of IJ that EF shall spend time with him and his family. I am in no doubt that IJ has and will have a vital role to play in EF’s life which will be to this child’s singular advantage and benefit.[109]I recognise, all too well, that my decision will be a painful blow to IJ, MN and to the wider paternal family – some of whom were by agreement, in court last Friday to hear my decision. As I emphasised then and do now, my decision that EF should live with CD and QR is no adverse reflection whatsoever on them as people or as parents. I have no doubt about their many fine and positive qualities. My decision was ultimately based on the harm which would result to EF and to GH if they were separated to live in separate households.[110]I am confident that IJ and CD will be able to reach an amicable agreement about: i) what EF’s new surname should be; and ii) what contact EF should have with his father and his father’s family. In any event, in the first instance, it is right they should be afforded the opportunity to reach an agreement. If, sadly, they cannot do so then I will determine the outstanding issues.[111]I shall make a parental responsibility order in favour of IJ.[112]The mother sought to have contact with EF once every two weeks and accepted it would remain supervised initially, at least, by the local authority. The local authority and CD submitted the appropriate frequency of contact was once per month. In light of: i) The mother’s difficulties, which cause her to exhibit behaviours and presentations which can distress EF; and ii) The importance of EF enjoying and improving his positive contact and relationship with his father which must be accorded priority status, I am satisfied it is in EF and GH’s welfare best interests to have contact with the mother once per month which must be supervised. I do not consider it to be in either child’s welfare to have contact with the mother separate from one another.[113]CD and IJ will doubtless require assistance and support from the local authority in effecting the transition plan for both children moving from foster care to CD and QR and in establishing and effecting the pattern of contact between EF and his father, MN, OP and his family. Moreover, the mother’s contact requires professional supervision for the foreseeable future. The local authority submitted a Child in Need Plan would be sufficient. I considered the length of the need for such plan of a few months as suggested by the local authority to be inadequate and I do not agree.[114]In these circumstances I shall make a supervision order for a period of 12 months in respect of both children in favour of the applicant local authority.