Birmingham City Council v FM & Ors [2025] EWFC 381 (B)

IMPORTANT NOTICE This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2025] EWFC 381 (B)Case No BM24C50045
IN THE FAMILY COURT AT BIRMINGHAM
33 Bull Street
Venue BirminghamDate 17 September 2025
B4 6DS
Before
DISTRICT JUDGE PARKER
BIRMINGHAM CITY COUNCIL Applicant
Between
FMAWFS(4-8) CHILDREN(By their Children’s Guardian, Caron Davenport)
Between
NM Respondents
MR CURTIS BALL (instructed by Birmingham Children's Trust) for ApplicantMISS EMMA WILLIAMSON (instructed by Harringtons Legal LLP) for First RespondentMISS CAROL CLELLAND (instructed by Glaisyers Solicitors LLP) for Second RespondentMS RUTH HARRISON-BYRNE (Solicitor of Carvers Solicitors) for Third RespondentMR GEORGE SMITH (instructed by Evans Derry Solicitors) for Children’s GuardianMS JANE WITHINGTON (instructed by The DM Partnership) for Ninth Respondent
JUDGMENT
Digital Transcription by Marten Walsh Cherer Ltd2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HPTel No: 020 7067 2900. DX: 410 LDEEmail: info@martenwalshcherer.comWeb: www.martenwalshcherer.com
[1]I am concerned with five children: NB, who is 16; NW, who is 15; NS, who is 13; M, who is 10, and F, who is 3. The father for the four eldest children is AW, and for the younger one is FS. The children have been in the care of the maternal aunt (NM) since November 2022 under an interim supervision order and child arrangements order. Contact has been taking place with the mother and with the fathers. The Local Authority threshold primarily relates to neglect and contains the following.[2]As far as the mother is concerned, that the children were left home alone in November 2022, and there was an incident in December 2022 where the mother was driving erratically in a car with the children and was arrested for drink driving.[3]The children were of poor presentation and failed to attend at school.[4]Mother's mental health was also poor. She was admitted to Heartlands on 11 December 2022 and was due to be sectioned under the Mental Health Act but absconded on 28 December 2022. She was admitted on 30 December 2022 and sectioned on 3 January 2023 until 8 April 2024. On being discharged, she did not engage with mental health services, and there was a view that she was suffering potentially from substance-induced psychosis.[5]There is also a history in relation to alcohol. She was seen by the school on 12 July 2022 intoxicated and was reluctant to engage with CGL. She has refused hair strand testing.[6]There were also concerns in relation to domestic abuse and mum's propensity to enter into abusive relationships.[7]Insofar as the fathers were concerned, there appears to be a lack of consistency in their children's lives.[8]With respect to AW, he denies domestic abuse, although the children allege he was abusive towards them. He was living at the time in a house of multiple occupation.[9]There are also concerns of domestic abuse in relation to FS. He too was living in a house of multiple occupation, and there were concerns as to his ability to meet his daughter's needs.[10]All parenting assessments were negative.[11]The maternal aunt, however, was subject to a positive assessment, and she sought to care for the children long term, albeit her housing and finances presented a challenge.[12]In my order of 24 February 2025, I directed a sibling assessment, and for the Local Authority to provide a schedule of expectations in relation to the parents if the children were to be placed in their care, and the work that would need to be undertaken by them, with appropriate signposting, as the case may be.[13]A Local Authority statement was also directed to set out the work undertaken with the children in re-establishing contact with their respective fathers, and proposals for contact going forward, including a working agreement.[14]At the Issues Resolution Hearing on 12 June 2025, both fathers agreed to the Local Authority's plan, which was that the children should remain placed with their aunt. However, the mother does not agree.[15]A final threshold document was agreed, including in respect of the parents' contact proposals, subject of course to mum's position, and provision was made for the aunt to consider whether she sought to be joined as a party or to rely on the Local Authority putting her case on her behalf. Provision was also made for a witness template and position statements.[16]The aunt subsequently applied for party status, which was granted by my order of 8 August 2025. She was also permitted to file a statement, if so advised.[17]In relation to the evidence of the Local Authority, the social worker contends that at the outset neither father has shown commitment towards the children. The mother has no insight into her mental health, substance misuse and domestic abuse. There was a lack of engagement with CGL or engagement and support in relation to her mental health, and there was no motivation to effect any change. The children wished to remain with their aunt.[18]The schedule of expectations put forward detailed the following in relation to the mother: i) She should engage with mental health services and take her medication; ii) She should engage with CGL; iii) She should be consistent in contact; and iv) Engage with the Families Together team and undertake the recommended work.[19]In regard to AW, he too should complete work with Families Together and engage with family time consistently and with the Local Authority.[20]In relation to FS, he too was to complete work with Families Together, be committed to family time, and again engage with the Local Authority.[21]Contact was ultimately re-established between the children and their respective fathers, and going forward, depending upon what order I make, the issue as to contact and its potential progression is agreed.[22]The together or apart assessment recommends that the children should remain together as a sibling group. The care plans therefore are for the children to remain with their aunt under a child arrangements order, the Local Authority not seeking any public law orders. It is also, as I said, agreed in relation to the contact proposals in respect of each parent, such being agreed at the Issues Resolution Hearing on 12 June 2025 and confirmed today.[23]In their final evidence, the Local Authority refer to the fact that mum was arrested for being under the influence of alcohol in April 2025, although there is no evidence in relation to that per se.[24]Effectively, the issues remain in relation to mum's mental health; possible alcohol abuse (no mention being made of substance misuse, there being no evidence to establish that); historic domestic abuse with the children's respective fathers, and neglect.[25]In relation to AW, it is asserted that he abuses alcohol to a chronic level, displays emotional dysregulation, and that none of the parents have engaged with CGL or demonstrated change.[26]Accordingly, they maintain their stance that the children should remain with the aunt, and it is not safe for any of the children to return to the mother's care. The Local Authority remain concerned as to her lack of insight and the impact that her periods of mental health instability would have on the children. The children's wishes are for them to remain with their aunt.[27]I note that a risk assessment was undertaken in relation to SM in relation to his past criminality. He was assessed as a low to medium risk, and that there should be no unsupervised contact between him and the children.[28]In relation to the mother, there is a cognitive function report dated 11 September 2024. For the purposes of assessment and court proceedings, information needs to be presented to her in simplified language, and an advocate was recommended. It also set out various advice given to professionals who were working with her as well as suggested participation directions during the court process.[29]There was a parenting assessment of the mother on 29 April 2024. It is negative. It prays, in essence, potential substance misuse; the effect of her mental health; lack of insight as to its effects on her parenting capacity and erratic behaviours; inconsistent engagement and lifestyle choices; limited capacity and motivation to effect change, and limited appreciation of domestic abuse. It goes on to set out a number of recommendations.[30]There was a further addendum parenting assessment on 18 November 2024. That too was negative. It reiterates again, that there is no insight into her behaviours or understanding of risk or accountability for her actions. There are concerns as to her partying lifestyle, and little evidence of seeking support regarding her mental health, substance misuse or domestic abuse.[31]Accordingly, it was adjudged that she would be unable to meet the children's needs at that time without supervision and repeated many of the recommendations as before. It also cited that the children were still clear in their wish to remain with their aunt with whom they are happy and settled.[32]Although I am not invited to consider threshold today because the Local Authority do not seek public law orders, the mum's initial response to the threshold showed limited concessions, and of course in any event she sought the return of the children to her care.[33]Mother, in her written evidence, believes she is now in a position of being able to have the children returned to her care. Although she did not accept the threshold, she accepts there has been a lack of engagement within the proceedings. She accepts her mental health deteriorated and she was sectioned, but she is now better. She accepts that there has been unintentional neglect. She accepts she did drink alcohol, but she was not dependent on this and has now ceased. She denies any drug misuse. She accepts she has been a victim of domestic abuse. She is no longer in a relationship. She does not accept that the children should be placed with the aunt long term and annexes a proposed parental support plan to her evidence.[34]There is a toxicology report of 2 April 2025 which confirms that there is no evidence of substance misuse and no evidence of excessive alcohol. A further report of 14 April 2025 states that it is not possible to detect whether she has consumed excessive alcohol.[35]There is a report of CGL which details that she has had minimal involvement with them.[36]There is a GP letter that states that she has a history of schizophrenia, she is currently stable, and her compliance with her treatment plan is good. A further, more recent, hair strand test of 16 August 2025 records that there is no excessive consumption of alcohol.[37]Her position for the final hearing today is that she accepts that she was unwell during 2022 and 2023 and her illness, along with domestic abuse and alcohol abuse, exposed the children to significant risk of harm, but she says she has made significant progress in addressing her issues, and seeks the return of the children to her care. If that is not possible, then she would wish to have good quality contact with the children, which is not contested. She reiterates that there is no evidence of excessive alcohol use, and her mental health remains stable.[38]In relation to FS, he was subject to a parenting assessment on 12 March 2024. There are significant concerns as to the level of care afforded to his child by him. It appears that he is at the pre-contemplation stage with regard to prioritisation of the child's needs, and he is not consistent with contact. There is evidence of domestic abuse, despite his denials, and he needed to engage in the pre-proceedings process.[39]In his response to the threshold, he denied physical abuse, he accepts verbal and emotional abuse, and denies misusing drugs or alcohol. At that stage he sought to be assessed to care, but if negative he supported the child remaining with the aunt.[40]As for his position for this hearing, he has not filed any additional evidence and therefore does not put a positive case forward for his child. He supports her remaining in the care of the maternal aunt and, as I say, there is an agreed plan in relation to the progression of his contact. He has given no recent instructions to his solicitors.[41]With regard AW, he too has had a parenting assessment, dated 12 September 2024. He accepts the children would be at risk if returned to mother's care. He has not been a consistent presence in the children's lives, and he needs to re-build his relationship with them. In his response document, he denies domestic abuse and physical abuse to the children. He expresses concern for the mother's mental health and accepts he has not been consistently available for the children post-separation but maintains that the mother did not allow it. He accepts that he is not currently in a position to care for the children and supports their current placement.[42]He accepts the children should remain with their aunt, but he wishes to have contact, which is now agreed. He accepts the hair strand test results with regard to excessive alcohol consumption, reducing to moderate. He said he drank due to the stress of the proceedings as a coping mechanism. The hair strand test dated 24th March 2025 shows a minimum to moderate alcohol consumption from February to March, and thereafter excessive consumption, by way of nail clippings.[43]The Guardian's position was that at the outset she supported continued placement with the aunt. The children are thriving in her care. She identified a number of safety issues with regards to the mother: her lack of engagement with professional support and taking on board advice, and lacking insight; lack of adherence to a safety plan; substance misuse; poor mental health; her association with risky adults; poor home conditions, and lack of commitment to contact.[44]In relation to her final report she reiterates, as far as mum is concerned, her poor lifestyle choices. Her mental health is intrinsic to her capacity to meet the children's needs, which has been longstanding. She has not meaningfully engaged in work around domestic abuse and displays limited insight.[45]With regard to AW, it is recorded that the children do not wish to live with him.[46]In relation to FS, there has been minimal engagement, and they have not seen him since March 2025.[47]Overall, the children have made great progress in the aunt's care and wish to remain with her. Although mother has begun to make changes, these are recent and need to be sustained over a long period.[48]She supports the Local Authority's plan, albeit she has some concerns as to putting too much responsibility on the aunt with regards to managing family time. This will need to be kept under review as part of the child in need process.[49]As a side note, it is recorded that the elder three children have litigation capacity and have very clear wishes to remain with their aunt.[50]There is documentation from police disclosure which refers to domestic abuse and an incident on 10 December 2022 when the children were left at home, and on numerous occasions over the course of the summer holidays. There were concerns with regard to mum's mental health. She was arrested on 11 December 2022 due to her aggressive behaviour.[51]In an updated case summary for this hearing, it is recorded that the Families Together service accepted a further referral from the mother in order to afford her another opportunity to engage with support around how to appropriately co-parent with the aunt and understand the effect of trauma and domestic abuse on the children. Sadly, due to the subsequent lack of engagement, that has now been closed.[52]I also note that since the last hearing neither father has adhered to the proposed contact arrangements and therefore contact has not progressed as originally recited in the issues resolution order.[53]I note from the minutes of the advocates' meeting that none of the children have expressed a wish to meet me, nor have they written a letter, but their views are fully expressed via their solicitor, through their Children's Guardian.[54]At the outset of this case there were a number of preliminary matters to address, the most pressing of which was that I was informed that there was a potential disclosure that mother was in fact now in a new relationship. This had been disclosed to the social worker by one of the children. The mother had subsequently been spoken to about this by the social worker.[55]Accounts differ (and I will deal with that later), although it appears that the child, NS, said that she had met the mother's new partner and that, on further discussions with the mother, she reported there were troubles in the relationship and there was potentially a separation. ORAL EVIDENCE THE SOCIAL WORKER EXAMMINATION IN CHIEF

ORAL EVIDENCE

[56]She provided a brief update. In relation to the engagement with the Families Together service in relation to work regarding healthy relationships and co-parenting with the aunt, she indicated that this was extremely limited and ultimately the service was closed.[57]Regarding the disclosures as to mother potentially having a new partner, she said that the subject was introduced as to the fact that this was her new husband. It was a casual relationship, but they had been Islamically married. Her words were that he was currently giving the mother "a lot of bullshit", adding "you know what men are like". The social worker commented that the mother's past relationships had been a cause of concern.[58]It is recorded that the mother also informed the social worker that she had seen the support the children had received and are receiving, and that they seemed to be well cared for, and that she recognised the difficulties she had previously had.[59]It is important to note that the issue of mother's potential relationship was initially disclosed to the social worker by NS, and the social worker ultimately then raised the subject with the mother.[60]With regards to contact with the fathers, this has not occurred as envisaged at the last hearing. There has been no engagement. With regards to the mother, contact is flexible. There is no set schedule as such, other than Mondays, but it did include overnight contact. She believes that the aunt and the mother can work together going forward in relation to this.

CROSS-EXAMMINATION BY MOTHER’S COUNSEL

[61]She was asked questions in relation to the contact arrangements, which included Monday and additional contact weekends, and with F in the week, when the children were at school. It was put to her whether she was aware that some of this had not been happening. She was not aware of that. She said the contacts have been supported rather than supervised and it is informal. There have been no issues. She was asked about the progression to unsupervised contact if mum continues to improve. She said it has not been considered at this time. However, she was concerned that the mother has not completed the Families Together work, and there is a lack of insight in relation to her various issues.[62]With regard to the mother potentially having a new partner, it was put to her that the mother denied having a new partner. It was put to her that when she had this conversation, the mother did not have an advocate present, and the conversation took place just with the mother.[63]She accepted that there appeared to be some level of insight with regards to the children being settled and realising her past difficulties in relation to mental health but, notwithstanding that, she felt that the mother still needed the intervention proposed.[64]She was asked about the proposed intervention from Families Together. It was put to her that the mother had undertaken the Freedom Programme. However, she responded that this was undertaken when her mental health was not that good and therefore needed to be undertaken again but by way of a more in-depth piece of work now her mental health had improved.[65]It was put to her that the mother has previously provided good care for the children prior to her mental health difficulties in 2022. Her attention was drawn to the two parenting assessments, that the subsequent assessment in November was effectively a paper-based assessment. She said, however, that she did speak to the mother informally. It was put to her that the assessments read more as a chronology of recent events, as opposed to an in-depth assessment. She replied that there was not much to add from the previous assessment.[66]She was asked about the referral being made for an advocate, and when that was made. She was not able to comment. It was put to her that the referral came post the initial assessment and indeed the previous assessment, and that the cognitive assessment of the mother confirmed that she needed an advocate. She herself observed in the initial assessment that the mother struggled to retain and relay information. She was asked why it was that the Local Authority did not consider a PAM’s bases assessment. She said it was discussed but the cognitive functioning report did not recommend one, merely the use of simplified language and other recommendations, plus the fact that she may benefit from an advocate when meeting with professionals. Rather than being a recommended course of action, it was only considered an option.[67]She was asked about the recommendations she had made in relation to mother resuming the care of the children. It was put to her that the mother's mental health is now stable. There has been no evidence of drug misuse or excessive alcohol intake, and therefore there was no reason for her to engage with CGL. The social worker said that this, however, was fairly recent.[68]It was put to her that mum has been consistent with contact.[69]In relation to the mother's non-engagement with Families Together, it was put to her that mother has nevertheless undertaken a course with Solihull Approach, an online course, in relation to understanding a child's mental health and wellbeing. It was put to her that the mother’s basic parenting prior to 2022 had never been an issue. However, the social worker was of the view that there may need to be some updating work as the children have not been in her care since then. She also raised concerns as to potential issues with a new partner.[70]It was put to her that if her views with regard to this are not correct, then there will be no issue in relation to that. She also has the benefit of family support and support from the Local Authority, and if the children were to be returned to her care that support will continue under the auspices of a supervision order.[71]The social worker was concerned that mother's engagement had been superficial. Although she has tackled her mental health, there are still issues of engagement, particularly with Families Together.[72]It was put to her that there were no issues with mum's accommodation, although the social worker observed that the children still had bad memories in relation to this and their wish was to remain with their aunt, despite there being some question of overcrowding.[73]It was put to her that the parenting assessment undertaken does not reflect the improvements that she has made in relation to her mental health and her alcohol misuse. This was accepted. It was put to her that the mother has changed. However, she also said that mother has still not demonstrated her ability with regards to her parenting capacity. It was put to her that this therefore needed to be reassessed. She responded that her insight needs to change, her engagement was regarded as superficial as work still needs to be undertaken which has not carried through.[74]With regard to the sibling assessment, it was said that F and M are closer than in relation to their other siblings, being younger (I note there is still a seven-year age gap) It was put to her that if the three elder children were to remain with the aunt, that does not preclude the younger two being rehabilitated to the mother's care. In principle she accepted this. It was proposed that any negative effects would be mitigated by the grouping of the siblings, and the sibling relationships would be maintained through contact in any event. However, the social worker indicated that this was not the same as living together.[75]She was challenged that there had been no assessment of the ability of the mother to care for the younger children. The social worker said that she felt that this was not in their best interests because of the sibling bond and, moreover, they had never been separated.[76]She was challenged that the children had said to her mother that they wished to return to her care. The social worker was of the view that they had conflicted loyalties. She has spoken to the children herself away from adult influence within their school environment. The caveat she applied to that was that one could never say never, but she felt that the return of the children to the mother’s care would not be in their best interests at this time.

CROSS-EXAMMINATION BY THE CHILDREN’S COUNSEL

[77]The social worker confirmed that she had been involved with the family for a considerable period of time and knows the mother and the children very well. She is well aware of the mother's limitations and the need to revisit any work and discussions with her. She accordingly felt, despite there not being an advocate and one not being recommended per se, that her assessment is not deficient in any way as a result. She indicated that even after all this period of time, she still has concerns because there is work still outstanding, for example with CGL or an alternative. There is a lacuna therefore in her potential for alcohol relapse work. The mother also needs in-depth work in relation to Families Together, which needs to be bespoke and one-to-one work with her, which has not been adhered to. The work was to be undertaken in her home, and she had concerns as to mother's motivation and insight. She felt that the mother was still in the pre-contemplation stage of change, and the prognosis currently is guarded.[78]In relation to the disclosure with regard to a potential partner of the mother, she said this came from NS, and mum backed this up when she spoke to her about it, which gives a concern now as to lack of openness and honesty, and a potential risk given the fact that the mother has not undertaken any domestic abuse work.[79]With regards to the children's views, F is happy and thriving in her placement. M wants to stay with the aunt. NS wants to live with her mother but displayed a degree of nervousness. NW wants to remain with the aunt. NW accepts he said he may want to live with his mother at some time in the future (he is the eldest) Overall, the separation of the siblings is not in the children's best interests.[80]At the end of the social worker's evidence, an oral application was made for an adjournment for the purposes of further assessment of the mother. I dismissed that application and gave a short ex tempore judgment at that time. THE MOTHER EVIDENCE IN CHIEF

THE MOTHER

[81]She confirmed that she has not drunk alcohol since January 2025. She denied being in another relationship. She has been single for 18 months and wants to concentrate on her children. She does not know why NS said what she did. She did bump into a friend with M and said hello to them. She did meet with the social worker but made no disclosures as to any relationship. She accepts she did speak to the children about their wishes and feelings and told them that they do not need to choose, but they said they would not mind coming home, and she believes that that is their wish.

CROSS-EXAMMINATION BY COUNSEL FOR THE LOCAL AUTHORITY

[82]It was put to her that she had said that the children said they would not mind coming home, but she was challenged that she had been asking them repeated questions. She was also challenged that the children told the social worker otherwise. The mother responded that she knows the children more than the social worker. It was put to her that the children also disclosed similar wishes to the Children's Guardian. The children are therefore saying different things to her than those to the social worker and Children's Guardian.[83]With regards to her potential new relationship, she was asked:
"Why would NS say such a thing?"
She responded that she did not believe that NS did say this. She denies her discussing matters with the social worker. She is single and she does not know why the social worker would say these things about what the mother purportedly said to her, and indeed what NS had purportedly said to the social worker.[84]With regards to her mental health, she accepts her past difficulties. It was put to her that her GP says that she has had intermittent support from community mental health team. She was asked what that support was, and she reiterated it was a drop-in centre. She gave details as to her engagement and when she saw her GP.[85]She was asked about her historic alcohol issues. She accepts she did not engage with CGL, but she was able to stop drinking of her own accord and so was unsure of the purpose of CGL. It was explained to her that this would address the reasons why she drank. She is involved with no other organisations. She says she has got her own determination to remain sober. She has only had difficulties with alcohol in the preceding three years. It was put to her that there is a risk of relapse due to her not having undertaken any work. She accepts this. She said that this was not explained to her but will accept this work if offered to her now.[86]In relation to domestic abuse, she says she was never subject to physical abuse but accepts she was subjected to domestic abuse. She, in her evidence, accepted that undertaking some work would be of benefit in relation to healthy relationships. She gave evidence about the fact that she has done some work with the Freedom Programme namely various sessions in relation to trauma-based work. It was put to her that the social worker believes that she needs to undertake a more tailored programme for her bespoke needs. She accepted that.[87]She did not understand what work the Families Together team was to undertake. It was put to her that throughout these proceedings, and before the proceedings commenced in 2023 onwards, there had been a number of referrals and only partial engagement. As recently as this year a further referral had been made. She says she was not aware of its importance. She did not engage, which she accepts she should have done. She accepts that there is more for her to learn with regards to healthy relationships, including trauma and its effect on the children, and co-parenting with her sister. She says she is willing to do this.[88]She was asked about children living with their aunt - were they settled in her care? She said yes. It was put to her that the children have stability and routine, and this should be maintained. She was asked, if the children moved to her, how she would maintain that stability, and she gave an example as to the care plan that she had exhibited to her statement.[89]She was asked questions about the children’s education and routine in relation to that. It was put to her that there had been a history of non-communication with the school in April 2022. She said she had moved at that stage during Covid, and she fled domestic abuse. Homework was undertaken online. Her attention was drawn to a police referral in January 2022 in relation to the school, which reflected poor school attendance and punctuality. She said her mental health was declining at that stage. It was put to her that there is a history of her struggling to get the children to school. It was put to her that during these proceedings, on the first day of the hearing she arrived at court late as she had overslept due to her being stressed and the impact of her medication. However, she indicated that this would not impact on the children because that would not be repeated. It was put to her that she is still being prescribed medication. She accepted that. However, she said there would be no issues if all the children were to be returned to her care.[90]With regards to the impact of separating the children from one another, she said:
"We will always be and remain a family"
.

CROSS-EXAMMINATION BY THE CHILDREN’S COUNSEL

[91]She had very little understanding of what CGL would actually do for her. She believes that they no longer need to see her because her drinking has stopped, but she would do it if it helps.[92]She spoke about what she had learnt from the Freedom Programme and explored her difficulties and understanding of the reason why it was suggested that she undertake work with the family support worker. It was put to her that she had not given these matters the priority they perhaps needed. She was referred to an incident in March 2025 when there was an altercation at the aunt's house and the police were called. She said this was due to shouting and arguing with a nephew, and the children were not present, it was not that serious. However, she was challenged that it was serious enough for the police to have attended.[93]With regards to her alleged partner, it was put to her that her daughter is clear that she met them. She said it was not true and does not believe her daughter ever said this. She found it disturbing and believed the social worker was not telling the truth. She was challenged as to why the social worker would make this up. She responded that the social worker has not helped her at all.[94]With regards to discussions with the children, she said she had spoken to the children about coming home every now and then. She wanted to know what their wishes are, and she cannot see what was wrong with asking that. She then said the children are feeling guilty of being asked to choose between her and the aunt. She did not accept that M is clear he wants to stay where he is. She thinks he wants to come back home. With regards to NS[95], it is recorded that she would want to come home but not now. She accepts this. She was asked if she tells the truth. She said:
"They all tell the truth. They do not lie"
. CHILDREN’S GUARDIAN EXAMMINATION ON CHIEF

CHILDREN’S GUARDIAN

[96]She said that she saw the children recently and none of them wanted to see the judge or write a letter. F was happy in her placement. M clearly wanted to stay with the aunt. NS would like to move back home at some point in the future. NW wanted to stay with the aunt. NB would like to move back eventually but was a little reticent in that respect. The Guardian's overall recommendation remains the same.

CROSS-EXAMMINATION BY THE LOCAL AUTHORITY’S COUNSEL

[97]She felt that the children's routine may be difficult to replicate by the mother. A separation of the siblings would have an impact, as the relationship between the children was very strong. She indicated that in her opinion NS was not prone to telling lies. If mother was involved in a relationship, there would be a concern. She was also concerned at the lack of engagement with family support.

CROSS—EXAMMINATION BY MOTHER’S COUNSEL

[98]The Guardian had not seen the child in need plan. However, support for the aunt had been minimal. The children's needs are being met. The only support would be in relation to contact, and a child in need plan in any event is voluntary. When parents are not well, they may not appreciate the need for support.[99]It was put to her that the mother is now engaging in relation to her mental health, she is free from alcohol abuse and has previously been able to meet the children's needs. She has some family support, although the Guardian says that there have been some issues in that respect.[100]It was put to her that her parenting capacity has improved, but the Guardian remained concerned as to the mother's lack of insight around her mental health and its impact. She was challenged that there had been no up-to-date assessment with regards to that.[101]In relation to the separation of siblings, it was put that M and F are closer than the other children, and that a separation of the sibling group would be mitigated by extensive contact. She agreed, but at present she said the children want to remain together, and separation would be a significant loss for them and reunification with the mother in any event is premature.

CROSS-EXAMMINATION BY COUNSEL FOR AW

[102]She was asked questions with regards to the progression of contact. She responded that this needs to be consistent and felt that no order was necessary. SUBMISSIONS THE LOCAL AUTHORITY

SUBMISSIONS

[103]All the children are thriving in the aunt's care, and a child arrangements order should be made in her favour, including the elder two who are 16.[104]There is a broad agreement in relation to spend time with arrangements between the family. Mum is to be given credit in making progress in addressing her mental health, which has been longstanding. There is cautious optimism, but there are still concerns, at present she remains stable. She also remains abstinent from alcohol, albeit no relapse prevention plan or work has been undertaken. It is accepted problems surfaced in 2020 onwards, culminating in 2022. Sadly, however, there has been no minimal engagement with the family support worker, and a lack of insight into the need for such work with regards to parenting, healthy relationships and co-parenting with the aunt. None of the recommended work in relation to that has been undertaken.[105]In relation to the issue of care by a parent or non-parent, the test is one of welfare, and welfare only. With regards to the exceptionality criteria in relation to NB and having regard to section 9(7) of the Children Act 1989, it is contended that such an order should be made in relation to him to last until he is 18 as it would provide enhanced security for him.

MOTHER’S COUNSEL

[106]Mum clearly loves her children, that is a given and is not in doubt. The mother has made significant changes since the children were taken into their aunt's care, which the mother is contending has been sustained, particularly with regards to her mental health and alcohol issues. There are some issues with regards to CGL, but she is now alcohol-free. The Families Together work could still be done with children in her care under a child in need plan. The trigger for intervention was mother's mental health. Prior to then, she was able to meet the children's needs, and her insight has now improved.[107]It is disputed she has a partner albeit she has made a number of substantial concessions in relation to other matters within the proceedings. The disclosure with regards to such a partner has been based on the words of a child and is potentially open to misinterpretation, including discussions with a social worker, and therefore caution should be exercised in relation to this in light of the mother's cognitive functioning.[108]A significant factor is that she is the children's mother, albeit the children have spent a significant period of time with the aunt. Contact is largely agreed if an order were to be made that the children remain with the aunt, however, the mother's primary position is to seek for all or some of the children to be returned to her care.

COUNSEL FOR AW

[109]He supports the children remaining in the aunt's care but expressed his concern that the mother had not engaged in work to build on the foundations to maintain the changes she has made, which it is contended is an essential framework, and that any return of the children at this stage is premature.[110]He seeks no formal order in relation to his contact.

COUNSEL FOR FS

[111]His last position was set out at the issues resolution hearing. He has not played a formal part in this hearing.

COUNSEL FOR THE AUNT

[112]The children have been in her care for nearly three years, and she will continue to promote the mother's relationship with the children. Diplomatically, she is neutral as to the outcome of these proceedings.

COUNSEL FOR THE CHILDREN

[113]The mother should be praised for the journey she has undertaken so far. However, it is not complete. She lacks insight and she is still at the pre-contemplative stage. She needs to undertake work with regards to domestic abuse. There are concerns as to her openness and honesty. The children overall should not be separated. In relation to the contact, the court should be cautious against a prescriptive order.

THE LAW, ANALYSIS OF THE EVIDENCE, FINDINGS AND JUDGEMENT

[114]I am fully aware that the children reside and have resided with their aunt for nearly three years. Up until that point they had been cared for by their mother.[115]Latterly, there have been two approaches to the weight accorded to genetic and non-genetic parenting. Firstly, that there is no presumption in favour of a natural parent (the ‘no presumption’ approach). Secondly, the ‘natural parent presumption’, namely that the child has a right to an upbringing by their birth parent.[116]In the case of Re G (Children) [2006] UKHL 43 the court said this:
"In this case, as in all cases concerning the upbringing of children, the court seeks to identify the course which is in the best interests of the children. Their welfare is the court's paramount consideration. In reaching its decision the court should always have in mind that in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child's best interests, both in the short term and also, and importantly, in the longer term."
The fact of parenthood, whilst raising no presumption in a party's favour, is undoubtedly an important and significant factor in determining what will be best for a child now, and in the future.[117]In Re E-R (a child) [2015] EWCA 405, the court held that the welfare of a child was the paramount consideration and there was no question of a parental right, or broad natural parent presumption which might override that consideration:
"I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process… Each case should be determined upon an examination of its own merits and of the individuals there involved"
[118]In Re B (a child) [2009] UKSC 5, the Supreme Court held that the child's welfare is the dominant and overriding factor which determines such disputes:
"All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child's best interests. This is the paramount consideration. It is only as a contributor to the child's welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim."
[119]The fact that a child has been living with a party for a significant time (often called the ‘status quo’ argument) does not of itself create any presumption in that person’s favour. Each is a factor of significance which will be given appropriate weight when determining the child's best interests. Whether any such factor is determinative depends on the unique facts of each case.[120]So far as the children's own wishes and feelings are concerned, clearly the importance of a welfare determination of a child's wishes and feelings will increase proportionately with the child's age and level of understanding. However, the word used in the Children Act concerning wishes and feelings is "ascertainable", not "expressed". "Ascertainable" often means that the court has to look at actions rather than words. Moreover, their wishes and opinions are not themselves determinative; their welfare is. Wishes and feelings are secondary to their welfare and must be tempered by the overarching requirement to afford paramount consideration to their welfare.[121]Mum clearly loves her children. That is a given. She has done exceedingly well to address her mental health problems and her alcohol issues. However, there are a number of risk factors.[122]Firstly, as the Children's Guardian states, if the mother were to be in a relationship, this would be concerning. In relation to the disclosures made by NS, I have to say that the evidence of the social worker on this issue is to be preferred to that of the mother. I have no reason to doubt the account given by NS to the social worker, bearing in mind that NS is 13 and litigation-competent, and what the social worker said in her evidence and in her subsequent discussions with the mother in relation to this matter I find are correct. In my view, mother still has her vulnerabilities. At this stage, reunification is premature for any of the children.[123]In addition to this contentious issue, there were less contentious issues - the non-engagement, for example, with the Families Together team. This, in my view, is a significant gap in the mother's journey of recovery and needs to be completed before any rehabilitation plan is considered, and the work bedded in, as this will build on the foundations already laid in relation to enhancing mother's ability to effect and sustain change, and provide evidence to that effect. Her oral evidence before the court appears to me to show that she is still at the pre-contemplative stage and it is very much a work in progress.[124]I am also of the view that separation of the sibling group at this time is not in any of the children's best interests. They have been with their aunt for nearly three years. They are settled and happy in her care and have thrived as a result. Of course, that may change over the course of time as each child gets older and mum continues to complete the journey that she has started.[125]I pay particular attention to certain aspects of the evidence, particularly with regards to the social worker. She concedes that clearly mum has made improvements with her mental health and alcohol and substance issues, but there are still issues to be addressed in relation to risk.[126]There are also questions as to mother's insight, specifically with regards to work with the Families Together service.[127]The issue of her being in a new relationship raises questions as to her openness and honesty - this matter only having been initially disclosed by the child and not the mother. This points to vulnerabilities, given the previous history and the fact that she has not undertaken any domestic abuse work. To reiterate, the social worker feels that the mother is at the pre-contemplation stage and the prognosis of work that she needs to undertake needs to be guarded.[128]Separation of the siblings, although a possibility, is not recommended when focusing upon their holistic welfare needs. They have always lived together. Of course, I appreciate that one can never say never, but not at this juncture.[129]With regards to the mother’s evidence, it is clear that she has asked the children repeatedly what their wishes are in relation to with whom they would wish to live with. Clearly and understandably, they have divided loyalties and are unlikely to tell their mother something that she does not want to hear. By repeatedly asking them this question puts them in a difficult position and in itself shows a degree of lack of insight.[130]In her evidence she clearly has vacillated in relation to appreciating the fact that further work needs to be done and struggles to appreciate the necessity for it. Of course, I take note of her cognitive functioning difficulties, but I do feel that she seems to regard this as a tick-box exercise rather than truly buying into it. Her journey of recovery has only just started and further work needs to be done, which at this stage is not within the children's timescales or timeframe for these proceedings. She also, in my view, minimised the police incident in March of this year, and continues to dispute the evidence provided in relation to her having a partner.[131]Accordingly, the order I make is for there to be a live with order in relation to the aunt, until further order. In relation to NB, I am satisfied that this is a case in which, despite his age, an order should be made, notwithstanding section 9(7) of the Children Act, so as to provide enhanced security in the exercise of parental responsibility being granted to the aunt, which she shares with the mother. It also provides parity with the other children and shared perceptions for them as a sibling group.[132]I am invited to back up the child arrangements live with order with a child arrangements (spend time with) order, specifically in relation to the mother.[133]The potential seeds were sown during the submissions as to whether I should make such an additional order with the Guardian saying that I should be cautious in relation to making such a prescriptive order.[134]However, I understand that the professionals, particularly the mother and the aunt and the Local Authority, with input from the Guardian, have reached a consensus with regards to the arrangements going forward on relation to the mother.[135]Of course, under sections 1(1) of the Children Act, the court must have regard to the general principle that it is usually better to make no order unless it can be established that it will be better for the child if an order were to be made. This does not equate, however, to a principle of no order. No presumption exists one way or the other, but the court should make the least intrusive order necessary.[136]The court has to ask itself: would it be better for the child to make the order than make no order at all? There has to be something in the making or operation of the order which makes it better for the children for an order to be made.[137]An order should not be made unless there is evidence to establish that the order would lead to an improvement from the point of view of the children's welfare, and there must be some tangible benefit from making an order rather than leaving parents - in this case the aunt or mother - to sort things out for themselves.[138]I have heard very carefully what the parties have to say with regards to this, and the Guardian is now adopting a more or less a neutral response. I am therefore persuaded to make such an order. I believe it provides a framework in which the mother can be assured that her relationship will continue, which is not objected to by the aunt, and, more importantly, that the children themselves will be reassured.[139]Of course, no such orders are ever written in stone. It will have the provision that it can be varied by agreement between the parties, but as a baseline, and due to the fact that these proceedings have only just concluded, I think that an order is better than no order at all, and therefore I will make one. Digital Transcription by Marten Walsh Cherer Ltd 2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Tel No: 020 7067 2900. DX: 410 LDE Email: info@martenwalshcherer.com Web: www.martenwalshcherer.com