A Local Authority v E [2007] EWHC 2396 (Fam)

[2007] EWHC 2396 (Fam)

Case No FD 05 PO1625

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

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

Date 19/10/2007

Before

SIR MARK POTTER

THE PRESIDENT OF THE FAMILY DIVISION

Between

A Local AuthorityClaimant

E1 st Defendant

D2 nd Defendant

Between

A3 rd Defendant

Mr Robert Cameron (instructed by A Local Authority Legal Services Department) for Claimant

Ms Jakens (instructed by Messrs Stevens Drake Solicitors) for 1st Defendant

Mr Serugo Lugo (instructed by John Itsagwede & Co) for 2nd Defendant

Mr Nick Armstrong (instructed by Fisher Meredith LLP) for Official Solicitor

Hearing Hearing dates: 12-14 June 2007

Judgment

SIR MARK POTTER THE PRESIDENT OF THE FAMILY DIVISION

[1]These proceedings brought by a local authority (“The Council”) concern the welfare of A, a young Ugandan woman born 24 August 1987 and now almost 20 years old. She has a severe learning disability and a possible diagnosis of Rubinstein Taybor Syndrome. She currently resides in a supervised long term residential unit owned by the Council (“the Unit”) In March 1997 A was diagnosed as having Lymphoblastic Leukaemia which condition was ameliorated by a course of chemotherapy and has been in remission since June 1997. She requires assistance in every aspect of her self-care. She does not have manual dexterity to undertake a number of tasks. In others, she requires verbal prompting. She has poor fine motor skills, which adversely affects her independence. She uses Makaton sign language with a good range of signs which she employs to assist her spoken words. Her presentation is lively and sociable and can mislead one to believe that she understands and has greater perception and ability than is in fact the case.

[2]Her mother E (“the mother”) and her father D (“the father”) brought her to the United Kingdom in 1989 from Uganda, where she had been born and where the family were resident as Ugandan citizens, together with her elder brother AAK, born 14 January 1986, who is now 21. They were concerned about A’s developmental delay and wished to seek advice and help for her which was not available in Uganda. A younger sister AK was born in the United Kingdom on 20 March 1993. The mother had returned to Uganda in 1991 to care for dependent extended family members with whom A had previously been living, but the father took up residence here, having been granted limited leave to remain in the UK with the two children to access medical treatment for A. He remained here in work, looking after the children until care proceedings were started on 9 March 2001. The first of a series of interim care orders was granted in respect of A and AK on 15 March 2001. In December 2001, the mother arrived back in the United Kingdom to live with the father at a time when difficulties were developing in the course of the care proceedings. In mid-2002, contact between A and her parents ended because they refused to attend contact which was supervised by the Council.

[3]On 18 November 2002 His Honour Judge Lloyd granted full care orders in respect of both A and AK to the Council, the approved care plans providing for A and AK to be looked after in long term foster care. They remained in a joint foster placement until 19 August 2003 when A was moved to O House, a residential care facility for children with special needs (“the children’s facility”). Unfortunately, since mid-2002, when the parents first refused to attend contact supervised by the Council, no direct contact took place between A and her parents for 3 years. This was the unhappy position until June 2005 when the father made a contact application which was settled by agreement, the Council agreeing to provide as much contact as possible between A and her parents. At that time A was happy living in the children’s facility, attending a special needs school adjacent to it.

[4]On 15 August 2005, shortly before A’s eighteenth birthday, the Council issued proceedings under the inherent jurisdiction in order for the court to decide A’s future residence and contact with her family because the Council would no longer be able to exercise parental responsibility through the medium of a care plan, albeit it appeared that in adulthood A would continue to need twenty-four hour, seven day a week care and attention and, if A remained in an institution, she would need to move to long term accommodation, her then current placement in the children’s facility being for young persons up to age 19 only.

[5]By their claim, the Council sought a direction that the Official Solicitor should be invited to act as Litigation Next Friend for A, which he subsequently consented to do so. The Council sought declarations that(1) A lacks capacity to make a decision as to where she should reside or who should supply her day to day care needs;

(2) that it was in A’s best interests that she should continue to reside at the children’s facility for the time being and thereafter for her to move to a long-term residential unit nearby which catered for young people over the age of 18, the Council being at liberty to move her to such a unit upon giving 28 days notice to E and D;

(3) the contact between A and her parents should be at the discretion of the Council in accordance with the commitments of the Council to promote contact between A and her parents;

(4) that the Council should be able to consent to any medical treatment which A requires, subject first to having attempted to consult with E and D about such treatment;

(5) the Council should make all other decisions in respect of A as are necessary and in her best interests subject to consulting E and D.

[6]The above is the briefest possible introduction and background to these proceedings. It would not be complete without making clear the following matters which have coloured, complicated, and extended the proceedings, because they have instilled into the father in particular a deep suspicion and resentment of what he regards as unwarranted past and present interference by the Council with his parental rights and his desire, with the mother, to care for A.

[7]A’s early illness was potentially terminal and the father brought her and her siblings to England so that A could have the treatment she required. Unhappily it appears that the family did not receive the support which it required from Social Services for reasons which remain unclear but may well reflect badly upon the relevant local authority. Because of his position as family breadwinner and the absence of the mother in Uganda, the father was obliged to resort to maladaptive strategies to help him cope with his three young children, including relying heavily on the help of friends, the lodgers in his house, and A’s more able younger sister. The care proceedings were brought after allegations were made to Social Services by the younger sister against her father, causing the removal of the children from the family home. The father alienated Social Services by his behaviour and attitudes following A’s removal. He was and remains convinced that he is the subject of cultural misunderstanding and racial discrimination and he has an entrenched attitude of mistrust towards the Council and its social workers with a wholly negative and un-cooperative attitude towards any supervision or “interference” on its part. Having heard from him and the mother in evidence, it is plain that the mother is devoted to the father and supportive of his position. I am satisfied that, independently of those considerations, she would herself be more amenable to co-operate with the Council. That is not to say, however, that she does not share the father’s personal convictions and cultural influences which lead both of them to be mortified at the position taken by the Council and the Guardian, supported by all the experts who have assessed A and given evidence, that A’s particular circumstances and welfare interests would be best served by a “shared care” arrangement, whereby A is primarily looked after and encouraged, in so far as possible, to lead a relatively independent life among a peer group in the Unit, attending college during the week, with generous contact to her parents, principally through spending the weekends at home. This has unhappily led the mother and father to declare in evidence before me the extreme position that, if the court does not make an order that A should reside whole time with the father and mother, they will cease contact with A altogether.

The History of the Proceedings

[8]On 19 August 2005, supervised contact having been established for no more than two months, Kirkwood J directed the obtaining of two independent expert reports, from a Consultant Clinical psychologist (subsequently identified as Ms Annabel Poate-Joyner) and an independent social worker (Stewart Sinclair), both to report on A’s capacity and best interests.

[9]Further to agreed instructions of 21 September 2005 interim reports were prepared by Mr Sinclair dated 6 December 2005 and by Ms Poate-Joyner dated 14 December 2005 and 13 January 2006.

[10]Their first assessments of A included a meeting with the parents and observation of a contact session. Although contact had only recently been resumed after three years it was apparent that A recognised her parents, was delighted to see them, interacted with them well, and was relaxed in their company. It was also clear that A had flourished in her current residential and educational settings, that the Council’s social work professionals were highly motivated to continue that social and educational progress, and they were concerned that returning her to the care of her family at that point would not be in her best interests.

[11]Ms Poate-Joyner and Mr Sinclair both found that A lacked the capacity to make informed decisions in relation to her community care provision, residence or contact with her parents but recommended that it was vital to proceed slowly at that stage, recommending that it would be best for A to remain where she was, secure for up to a year, while she explored the possibility of developing her relationship with her parents. The parents should be allowed to know the location of her placement and have the option of visiting her there unless she indicated otherwise. Any move would need to be carefully managed to avoid causing confusion for A and her carers at the time of renewed contact with the family. The best course would be for A to remain living at the children’s facility pending the identification of a suitable adult residential care home and that contact should initially begin outside the parents’ home with a view to later home contact, such contact gradually increasing over a six month period. The strained relationship between the parents and the local authority was recognised as an important factor in the case, but neither expert could confirm at that stage which long term model of care was in A’s best interests i.e. full-time residence with the parents, full time residence in a residential unit, or a “shared care” model, to which the experts were inclined.

[12]On 3 July 2006, at a directions hearing by Munby J, it was confirmed that supervised contact had taken place on a weekly basis, resulting in the successful development of the relationship between A, the parents and the Council. At that hearing the Official Solicitor supported the view of the professionals and experts that contact could be increased but that it should for the time being remain supervised. The Council was keen that the court should order that A should move from the children’s facility to the Unit in order to avoid risk of loss of a possible placement there and to ensure that A could become settled there, the key issue of contact with her parents being monitored in the new setting. The mother’s position was that contact should at once be extended to include unsupervised staying visits for A in the family home and the father’s position was that A should not be moved to the Unit at all, but should be moved permanently to the parents’ home, with much increased contact to that end meanwhile.

[13]Munby J ordered that the Council should serve an adult services plan setting out its plans and proposals for providing the parents with support, training, and assistance in caring for A and ordered the Official Solicitor to convene a meeting prior to a further directions hearing on 19 July 2006 to address the issues. At that meeting the three options were explored, the experts being in agreement that it would be in A’s best interests to live with her peers during the week, during which time she would attend college, while spending weekends and perhaps some holiday time with her parents. The father said that he did not want the shared care option, though he would be willing to accept it if it was “forced” on him. Both he and the mother said that they were prepared to agree to the proposal of shared care on a trial basis but they eventually wanted A to be returned to their full time care.

[14]At the directions meeting on 19 July 2006, Munby J directed a further meeting to take place on 20 September to address outstanding concerns and the Council agreed to keep open A’s place at the Unit until the final hearing directed to take place on 20 and 21 November 2006. Meanwhile A should remain at the children’s facility, visiting the Unit for increased durations in the run up to the final hearing. Parental contact would take place twice weekly with contact at the family home from mid-August to include overnight stays.

[15]By 20 September 2006 A had started to visit her parents’ home and overnight stays were proving successful. Both experts took the view that it was in A’s best interests to move to the Unit and to adjourn the final hearing, so that overnight and weekend contact could become fully established with A’s family. At this stage, in position statements filed for the hearing still set for 21 November, the mother took the position that she opposed the proposed adjournment and wished A to be returned home at once as she was dedicated to providing full time care for her and to that end was more than willing to give up her part time employment working with physically disabled people. She opposed any move to the Unit as against A’s best interests. She proposed A’s return home full-time on a trial basis, the arrangement to be reviewed in six months. She expressed concern that the Council had yet to provide training for her in respect of caring for A, speech therapy and sign language as suggested in the adult services plan they had provided. The father also resisted an adjournment and sought a declaration that A should live permanently with him and the mother and not at the Unit. The experts strongly opposed the full parental model, at least at that stage.

[16]On 21 November 2006 Bennett J ordered that the final hearing should be adjourned to 8 and 9 March 2007, a further meeting of the parties to take place on 10 January 2007 with final experts reports to be filed by 2 February 2007. He also ordered that A was to move to the Unit and that contact should continue between her and her parents.

[17]On 4 December 2006, A moved to the Unit and weekend staying contact between A and her parents was started with a view to assessing how shared care arrangements would work. In effect, the arrangement was for A to spend four nights a week at the Unit and three nights with her parents. Having seen A at the Unit and interviewed her, both experts were satisfied that her preference was to live there, staying with her parents on a regular basis. A seemed to be happy and settled at the Unit and indeed had settled in a remarkably short space of time, early indications being that she could cope well with living there with one visit to her parents overnight mid-week and the other longer at the weekends.

[18]In early 2007 there took place two unhappy incidents when A displayed reluctance, and indeed outright refusal, to return to the Unit after weekend contact at the family home. It is these two incidents in particular which have conditioned and confirmed the parent’s view that A is unhappy in her day to day living at the Unit and should be subject of an order for her return forthwith to her parents as her full time carers, subject to suitable support from the Council.

[19]On 28 January 2007 the mother returned to the Unit with A in the car at the end of weekend contact and A refused to get out of the car, becoming very upset and shouting her refusal. She became increasingly resistant as a member of staff tried to assist in getting her back into the Unit, but in order to avoid any further upset it was agreed she should return home with the mother. She did not attend college on the next day, but did so on the Tuesday and remained with her parents until the Thursday which was the next day of agreed contact, at the end of which Caroline, a social worker and A’s trusted friend and carer from the children’s facility, was able to reason with her and persuade her to return to the Unit. It was agreed that A would stay at the Unit for at least two weeks with no home or outside visits with her parents who could visit the Unit twice during the week and at weekends having giving notice that they would be coming. A thereafter settled down and resumed the apparently happy existence at the Unit, going to and from college during the week on her usual basis. During that period the parents did not seek to have contact at the Unit as anticipated.

[20]On Friday 2 March 2007, A attended college in the usual way without problems and went home for her first weekend after the cooling off period. On Sunday 3 March, her mother telephoned the Unit to say that A was refusing to return and on the Monday telephoned the college to say that A would not be attending college as she associated it with returning to the Unit and was becoming traumatised. However, on Tuesday 6 March, the mother took A to college from where she was collected by Caroline and taken back to the Unit without any apparent distress.

[21]This incident occurred two days before the final hearing date which had been ordered by Bennett J.

[22]Meanwhile the father was becoming increasingly agitated with the situation. He dispatched to the court as an enclosure to an e-mail sent to Munby J on 16 February 2007 a statement apparently of his own composition in which he complained of persistent racial discrimination, lack of understanding by the Council and the experts, as well as the attitude of the Official Solicitor. He complained that he was being asked to forget the past and move forward, but said he was not prepared to forfeit the past. In the e-mail to the judge he stated that he was being forced to co-operate with racial criminals, and he complained of advice from his solicitors (whom he shortly thereafter discharged). The e-mail included a paragraph which stated:

“Please, I do not wish to kill someone at my house or anywhere or go to prison. This is what the parties are looking for. The High Court must save me!”

[23]In the face of these developments, the Official Solicitor, supported by the Local Authority, sought an adjournment of the final hearing on the basis that resumed home visits were not yet under way, the earlier disruptions having made it impossible for the experts to complete the assessment process and to see whether they would maintain their view that the “shared care” model of care favoured hitherto was viable.

[24]At the hearing before Ryder J on 7/8 March 2007 the father appeared in person. He stated that, if care were shared, he would not take part in any handover of A to the Council or with the removal of A from his home. He said that he could not guarantee how he might react and would therefore not take part in any such exercise; if the court imposed supervised contact then in practice he would have no contact; but he would not seek to obstruct the mother from having unsupervised contact. He stated that the present proceedings were not about the care of A but about racial discrimination. He also revealed that he was undergoing treatment from a psychiatrist. A detailed note of his evidence and attitude before the judge is attached to the statement of the Official Solicitor dated 11 June 2007. Its content is illuminating in that it is entirely consistent with the father’s evidence and attitude before me.

[25]After careful examination of the situation Ryder J adjourned the final hearing to 12 June 2007, ordering meanwhile that the father should file and serve his own psychiatric assessment and should be enjoined from having contact with A unless such contact was supervised by a person approved by the Council, with liberty to the father to discharge the injunction following service of the psychiatric assessment. Ryder J also gave permission to the parents to rely on their own expert in addressing A’s best interests in respect of her care arrangements with permission to assess A both at the parent’s home and at the Unit. The lengthy report of Mr Clifford Robins, Consultant Psychologist dated 8 June 2007 consequent upon that order is before me. Ryder J also ordered final expert reports from Ms Poate-Joyner and Mr Sinclair addressing A’s best interests. Their final reports dated 11 June 2007 and 7 June 2007 respectively, are now before me. Ryder J also ordered that the Council should supply to all parties the daily notes from the Unit, which form a useful running record (with some gaps) relating to A’s life at the Unit from the time she arrived, including contact difficulties.

[26]Unhappily, since March 2007, neither the father nor the mother have sought contact with A, save that the mother has maintained contact by telephone and there was uneventful contact within their home on 26 May 2007, the occasion of Mr Robins’ assessment (see para 50-52 below). However, both parents have maintained the position that they will not engage in further contact unless the court orders the return of A to their full time care.

The evidence

[27]The evidence with which I have been principally concerned in coming to my decision is that relating to the history of events and the progress and welfare of A since summer 2005 when the parents first resumed supervised contact. It is clear that until that time A had been happy and well looked after at the children’s facility, attending school nearby and having progressed into the school independence unit where she was likely to remain for another year. She had also started to go to special college on two days a week. She was developing well towards adulthood. The history of proceedings and state of play at that stage, following one supervised contact session and a pause while A’s wishes as to further contact were obtained, appears well summarised in the letter of instruction to Ms Poate-Joyner on behalf of the Official Solicitor dated 21 September 2005 pursuant to the order of Kirkwood J referred to at paragraph 8 above. As to events since, the progress of those events, (as to the facts of which there is little dispute,) and their rival interpretations by the parties up to the present time can be traced through the Official Solicitor’s letter of instruction to Ms Poate-Joyner dated 5 June 2007 and the parties’ Position papers filed for the various hearings to date.

[28]In addition, so far as the father is concerned, I have before me his undated statement referred to at paragraph 22 above, essentially replaced by a statement dated 30 May 2007 which was plainly drafted with the benefit of advice for the purpose of the final hearing. In that statement he recounts the earlier history relating to the care proceedings by way of background and states his view that A has capacity, because she is able to say or indicate her preferences. He also states that, since she started coming home for contact, she “always refuses” to go back and that this is “proper indication that she prefers to be at home instead of staying at the Unit.” He also refers to the serious adverse effect upon his health and his family of the problems he has faced with Social Services.

[29]I heard from the father in evidence. He stated that his relationship with the Local Authority was not reconcilable in the light of the effect of the past conflicts upon himself and his family. He stated that he accepted that he now had limited capacity to look after his children, with whom he said he had a good relationship. He agreed that in August 2006 (i.e. following the receipt of the Council’s Adult Services Plan pursuant to Munby J’s order of the previous month) he had rejected the Council’s offer of help with A’s speech and language problems through a qualified therapist and of his sessional sessions with Community Nurses, declaring himself totally suspicious of all local authority offers after ten years of bad experience. It emerged in the course of his evidence that the parents were substantially in arrears with their mortgage, which arrears were mounting. Proceedings by the mortgage company had been suspended on learning of the father’s ill-health and that the mother had given up work in January 2007 in order to present herself as a candidate for the full time care of A. He stated that the mortgage would be rescheduled. So far as he was concerned, there was no cultural shame in A living in the Unit nor in any shared care arrangement. What concerned him was the distress to A which he knew would occur if she was obliged to return weekly to the Unit after her contact at home. However, even if that were overcome with time, he would still not accept any shared care solution as he did not wish A to have two homes. The father stated that, if the court were against him, he would not deal further with the Council or go to the Unit. A would have to settle down there and lead her own life, he ceasing contact with her. However he said the mother could do what she wished, so far as contact with A was concerned.

[30]The evidence of the mother was contained in a short statement dated 8 June 2007, in elaboration of which she gavelengthy oral evidence. She expressed support for her husband making clear that he loves A and stating that he posed no threat or danger to her. She asserted that, despite his belief in strict parenting, he was warm and loving towards his children. She stated her own firm belief that A did not like living at the Unit and wished to live with her and the father. She stated that she had not had contact with A since March 2007 because the business of returning her after outings was too painful; she never wished to put A through that again. She telephoned her every week and could tell from her tone of voice that she was unhappy, constantly stating that she wished to go home. She had lost faith in the experts in the case whom she said had not seriously taken account of her complaints about the Unit and did not realistically reflect what they saw in the home when they visited it.

[31]She emphasised her qualifications as a nurse/midwife with experience working as a support worker with people with learning difficulties. She asserted her capacity and ability to look after A and provide her with care which she did not feel she would receive at the Unit, complaining of the standard of care there particularly in relation to A’s hair care and the distance from the toilets which could lead to bed-wetting. She challenged the assertion of the Council and experts that A appears to have friends at the Unit. She accepted that A was not easy to handle and could have tantrums and be disruptive, describing her as stubborn and difficult to manage, but manageable, making clear that she had asked for support and training because of those difficulties. She denied that she had asked for the presence of a full time support carer in her home (c.f. the evidence of Dr Robins below), but admitted that she had said that she would need support in her home and a lot of it. She also said that she would need financial help, in particular with the mortgage. She asserted that such was the solution which the court should provide and that, if the court failed to declare that she should be the full time carer with that appropriate support, she too would cut off all contact with A. However, at another point she stated that, if A stayed at the Unit and asked to see her, she would take A out.

[32]For the Council I have received evidence from the following.

[33]Marc Sowden, a well qualified and experienced social worker in the Council’s Community Team for people with learning difficulties and responsible for A’s care. He gave evidence as to what he described as A’s complex needs, including the need for a routine and structured day. He made the point that her attendance at college was part of the structured regime which presented no complications when organised as part of the daily routine of her peer group at the Unit but prepared to present difficulties when A was staying with her parents. He spoke of his initial good relationship and discussions with the parents when A was at the child care facility and the move to the Unit was contemplated. That relationship had deteriorated when it became apparent that the Council advocated her transfer to the Unit rather than into the care of the parents. He emphasised that, as a result of her transfer to the Unit, A had continued to flourish and develop into young adulthood, being a popular resident at the Unit with other friends there and still being in contact with some of the children and staff from the children’s facility. He made clear his view that it would be in A’s best interest to live at the Unit whilst having as much contact as could be agreed and arranged with the parents.

[34]Mr Paul Davies, Mr Sowden’s Team Manager also gave evidence in support of his undated statement. In the light of the parent’s developed reluctance to work with Mr Sowden, he had himself become involved in the case when difficulties over A’s staying contact developed. He had himself procured the assistance of Caroline from the children’s facility when trouble had developed at the end of January and had been present when Caroline had asked A about her problems and the reason for her upset. A had said that there were two teachers at college which she did not like and she had been unhappy the night before when her mother had cooked pies for dinner. She said that she had been upset by a car crash she had seen on the way back to the Unit and she was also upset because her television at the Unit was broken. When they returned to the Unit the problem with the television was sorted out and A appeared to have settled down and is happy to stay at the Unit.

[35]His opinion was that A clearly loved her parents and was very much loved by them but there was a risk of her opting out of activities such as college and leisure time with her peer group because she was hard to motivate and would rather be doted on by her family than do things that took more effort. She was happy at her parent’s house, at the Unit and at college but could be difficult to motivate to move from one place where she was happy to another, finding transitions difficult. His opinion was it would be very difficult to organise a model of shared care on a long term basis, the Council lacking resources to be able to get the arrangement back on track each week should it continue to break down. He believed that it would be in A’s best interests if she were to reside full time at the Unit with as much contact with her parents as could be arranged or could be agreed, in which respect the Unit was highly co-operative.

[36]I also had an important witness statement from Caroline, a Principal Child Care Officer from the children’s facility. I say “important” because it is clear that, as A’s key worker who had befriended her when she was there, and who had retained an interest in her, visiting her at the Unit after her move, Caroline was recognised by all concerned, including the parents, to have special skill and empathy in handling A, particularly if she was upset. After the move to the Unit, Caroline was first involved in contact arrangements on 16 November 2006 when, having been in bed at the parents’ home for several days, A was refusing to get out of bed and attend college. Thereafter Caroline was again involved on occasions of difficulty in getting her to return to the Unit. So far as her visits to A at the Unit were concerned, she stated that she has always appeared happy, smiley and looking well presented, and has also been very vocal which in the past has been an indication of her being settled. Her statement concluded with the view that A appeared well settled and happy at the Unit. Caroline had also seen A happy while spending time with her parents, but considered that they had difficulty in settling her boundaries with her and to word conversations and questions carefully when seeking to ascertain her wishes or likely responses. She stated her clear view that it was in A’s best interest to have a balanced life style, best achieved by living at the Unit and having good contact with her parents.

[37]The expert evidence before me was as follows.

[38]I heard from Dr Ewa Oboho, a Consultant Psychologist, who gave evidence in support of his psychological report on the father pursuant to the order of Ryder J. He expressed the view that the father has been severely traumatised by the whole experience of losing the care of his two daughters and nursed the feeling that he and his family had been treated unjustly. He confirmed the father’s physical ill-health, his inability to walk properly and weakness of body muscle without assigning the cause of this. He assessed the father’s IQ at 89 (i.e. at the top of the ‘below average’ range). He described the father as having a personality profile which was emotional and tended to react strongly, finding it difficult to get back to an even keel after an emotionally arousing experience. He is inclined to react in an irrational and sometimes rigid way. He had significant underlying psychological distress, being pre-occupied with thoughts of his experience of his prolonged ordeal in the United Kingdom and (as it was put) “the possibility of his losing his daughters should his current appeal be unsuccessful.” Dr Oboho expressed the view that the father had the ability for meaningful contact with A and that, given the presence of the mother in the home, in spite of his disability, the father would be able to provide balanced care for both his daughters. He stated that the father exhibited underlying symptoms of severe levels of psychological distress conditions, including anxiety/ insomnia, and severe depression with some suicidal inclination and social dysfunction. However, there were clear signs of improvement in his condition as a result of the current treatment programme he was receiving from his psychiatrist and he was complying well with the medication prescribed. Dr Oboho expressed the view that the father’s ability to have contact with and provide care for A in the home had not been affected and his condition was now stable.

[39]So far as the father’s letter to Munby J was concerned, Dr Oboho said that it expressed frustration, despondency, and depression in relation to his traumatic experiences. However he was unlikely to pose any risk to his family members or A.

[40]On that last matter, his view was not challenged in cross-examination.

[41]I have heard at length Ms Poate-Joyner and Stewart Sinclair on behalf of the Official Solicitor and the Local Authority in support of their reports. In her final report Ms Poate-Joyner states that she considers that it is in A’s best interests to live full time at the Unit. She stated this with some regret as the likely and preferred model which had been under review was for weekdays to be spent at the Unit with A attending college from there and returning to her parent’s home on Friday to enjoy a relaxed weekend with no particular external demands and pressures on A and the parents, returning to the Unit on the Sunday ready for college the next day. She regarded that as a model not only suited to A’s needs but in line with that adopted by families of learning disabled adults as meeting the individuals needs for family contact with appropriate levels of adult independence and social contact and support for all concerned. She did not regard the fact that A had shown herself to be happy at home with her parents was or should be decisive.

[42]It was her view that they did not, as a domestic unit, have, and were not likely to develop, behaviour management skills to deal with the demanding aspects of A’s behaviour and to maintain the day to day routine and contact with a peer group which were necessary for her development but would need determination to keep up. She also expressed the view that the father was seeking to prevent the mother from co-operating with the Unit and the Council to make a shared care option work, she having a more open-minded attitude towards that approach and being prepared to have a greater level of contact with A throughout the assessment period than she had actually done. If A were to be returned to live with her parents the family would require intense outreach support to enable it to learn to manage A’s care on a permanent basis, probably including live-in support, at least at first. However the father was likely to find this support difficult to accept even if he agreed to it in the first instance. A change to parental care would be likely to prevent participation with the wide ranging calendar of social events enjoyed at the Unit such as going out for drinks or a meal, to discos, on holiday and generally making the most of opportunities for social contact with her peer group. Ms Poate-Joyner stated her view that A had made extraordinary progress during the period she had known her.

[43]On a recent visit to the Unit on 6 June, Ms Poate-Joyner was struck by the level of conversation in which she could now engage with A. It was clear that A made good use of the facilities such as the garden, and she chose where she wanted to spend her free time inside and outside her own room, interacting confidently with her peers and showing increasingly competent and effective social skills with service users, staff, and professionals alike. Given the disruptive time endured over the previous year, she had shown herself to be astonishingly adaptable and settled, to a degree which had exceed Ms Poate-Joyner’s expectations. Asked where she would like to live, A said that home was “here”, indicating the Unit. She agreed she would like to see her parents. She said that rather than live at the Unit for ever she would like to go to live where there was a disco. It was noteworthy that she did not say that she wished to live at her parents’ home instead. Ms Poate-Joyner expected A’s improvement to continue to be observable for the foreseeable future as she settled and her confidence increased. Should she return to live with her parents full time, her current development could be expected to reduce due to lack of stimulation appropriate to her particular needs and of lively interactions of peer-group contact. Her attendance at college would again be likely to become sporadic.

[44]Her opinion was that the father had been, and is, unable to move on from his personal grievances against the Council and is incapable of putting his own issues aside in order to consider A’s best interests over his own beliefs. This taints all efforts that are made to engage with him for the purpose of furthering and developing A’s arrangements gradually and he finds it particularly difficult being in his own home. The mother is a more moderate woman who has behaved with dignity and restraint, although negative about the process to date. She is capable of more tolerant and co-operative tendencies than her husband but, whether through his domination or her own loyalty, will not function independently of him in respect of A. The position has been reached whereby extending the assessment period would simply prolong the uncertainty without bringing any realistic prospect of reconciliation on the part of the parents to any regime other than sole home care. Instead of the position moving, as the experts had hoped, to a situation where A could benefit from the shared care model, it has now moved to a situation where it is clear that A is blossoming in the environment of the Unit and that her parents are unwilling or unable to co-operate with the shared care model in order to meet the ideal welfare situation. If the care of A were entrusted to the parents it was the conviction of Ms Poate-Joyner that they would not be able to manage their daughter at home full time while maintaining the standard of education and social interaction on which A is thriving. The parents having now adopted the position that the full time return of A to their care will require to be supplemented on a permanent basis by a package of care. Ms Poate-Joyner does not consider that course viable on the basis that there will be likely to be a fallout with those assisting in the care package, and that the situation would deteriorate.

[45]That position, as stated in her final report, remained Ms Poate-Joyner’s position in cross-examination. She stressed the importance of good contact with A’s parents, so that A could have the benefit of both worlds. It remained her view that would best be embodied, and with co-operation from the parents could be embodied, in the five day/ two day split advocated. However, if the parents’ position of “all or nothing” remained, she had no doubt that A should reside in the Unit. The benefit of mingling with her peer group and attention of the staff was what was increasing her conversation skills through banter, jokes, conversation, and the level of stimulation achievable at meals and on outings which could not be achieved in the home. She plainly enjoyed being with friends as much as possible and the input of a number of carers, getting love and care from her parents, but little stimulation, her activity being largely colouring and magazines, her trips out not amounting to group activities.

[46]Mr Sinclair, an independent social worker of considerable experience and expertise in cases where issues of best interests and capacity have arisen in the context of learning disability and learning disorders, gave evidence in support of his reports.

[47]In his final report of 7 June 2007 he reiterated the views he had earlier expressed, namely his belief that, while the mother and father were devoted to their daughter, there appeared to be an intransigence on the part of the family with regard to compromise and negotiation which, for whatever reasons, had effectively demolished his early optimism of establishing a working relationship between the family, the Council and the independent professionals. The position was effectively that they had now chosen to freeze contact with their daughter, regardless of any impact it might have on her, rather than being seen to weaken their own dignity and belief system. He expressed the view that the available evidence overwhelmingly indicated that A was happy and settled in her placement at the Unit, regularly attending college and that her earlier problems with regard to balancing family life and institutional care had evaporated since the parents had removed themselves from the equation. At the same time it was equally clear that A loves her parents and misses contact with them although they are only a few minutes away. On 4 June 2007 A was able to have a conversation with Mr Sinclair in which, rather than merely agreeing with questions as to her situation as they were put, she was able to select answers to questions put in interrogatory rather than leading form. Asked if she was happy at the placement, she replied “yes”, as she did when asked if she would be happy at her parents. However asked if she wished to leave the Unit, she replied “no”. Asked where she would like to see her parents she replied “I want to see them here and I want them to visit here, and I want to stay one night in my room at [the parents’ home] and I want to see them when they go shopping and would like them to come and watch the TV with me here and I would like to see mum and dad at K2 [the local Leisure Centre].” Mr Sinclair found A’s recent language development startling as an example of progress made.

[48]Mr Sinclair was satisfied A had expressed a firm and unshakable desire to stay in contact with her family and have overnight stays, whilst also expressing a firm wish to remain for a majority of the time in the Unit. Having now known A for nearly two years, his opinion was that the placement itself was of limited significance to A; what is crucial to her is the contentment and stimulation she receives from her peer group, as was also noticeable in her previous placement at the children’s facility. While benefiting from stable staffing groups, she is essentially a growing and developing young woman who, within her limits, is enjoying her youth and her peer group, as is positive and natural. He regarded A as having quite conventional aspirations, in that she would like her parents to visit her at the Unit to show them how well she is doing and to demonstrate to them that she is growing up and forming relationships of her won. So far as her college activities were concerned, she was content with those activities.

[49]He stated that he no longer supported the shared-care model which he had advocated for so long because, for what ever reasons, the parents appeared unable to sustain a working relationship with Social Services and prolonging the assessment process might now actually make things worse by delaying a final decision. Thus, his views essentially coincided with those of Ms Poate-Joyner and he did not move from them in his oral evidence. He made clear in cross-examination on behalf of the mother that, before reverting to a shared care solution, it would be necessary to have a willingness on the part of the parent to co-operate, a renewed assessment of the position on the unsettling nature of return of A at the end of the weekend, satisfaction as to college attendance, and that the parents were co-operating in drawing boundaries and setting routines for A.

[50]Mr Clifford Robins, the experienced Consultant Psychologist instructed by the parents, reported upon the assessment he conducted pursuant to the order of Ryder J, having studied the papers and reports in the case and having conducted a day long assessment on 26 May 2007 when he saw A both at the Unit and in the home of her parents which she had not visited for three months. He was asked to assess the detailed nature and quality of the institutional care of A in the Unit as compared to that offered by A’s parents; how to put in place the best quality support for the parents in caring for A if she were to return home; what input training or expertise would be needed to ensure that in future social workers could work or engage with the parents on a level where they felt that their ethnic, cultural and religious background were understood and respected; how a person might be identified who would in future be able to take decisions for A in accordance with Re S; and the advantages and disadvantages of the competing alternatives from A’s point of view.

[51]I do not propose to refer to Dr Robins’ report in detail, though I bear all its contents in mind. It makes clear that A was cheerful and co-operative both in the Unit, and the home, demonstrating happy and easy relationships in each. Asked by Dr Robins in each place and before others whether she would like to live at the Unit she said “yes” and gave the same reply in relation her parents’ home. Both the parents and the staff at the Unit were given an opportunity to report upon her behaviour and to give their views on what was best for her. While stating that it was not clear from her answers where A would actually prefer to live, Dr Robins was satisfied that A could say “no” to choices if she wished, and that she appeared to think about her answers as she gave them, rather than just responding with what she thought he might wish to hear. Like Mr Sinclair, he concluded that it was right to take both her answers at face value; he concluded that, from her observable behaviour, A was happy both to be at the Unit and to visit the parental home. Dr Robins agreed with the view of Ms Poate-Joyner that, if A only saw her parents infrequently, then a significant and stable relationship would be unlikely to be fully achieved and the opportunity for A to make any kind of informed choice of home would be thereby diminished. He also agreed that, if A moved full time to the parental home, she was likely to present behaviours of the challenging kind recorded in the Unit notes and that, if A was to spend a period of time in the care of her parents similar to that spent at the Unit, she would need to have an appropriate care package provided through social services in place from the outset, accompanied by a prior assessment of the parent’s individual needs in relation to that support. In this respect he noted that the parents had asked that an independent carer for A should be present in the home with and for A at all times, including weekends and nights. (I note at this point that the mother denied that such a request had ever been made).

[52]Dr Robins concluded:

“The evidence is that she appears happy and settled at [the Unit]. Equally she appears happy to go to her parents’ home and appears settled and at home there…. Given that both settings offer appropriate level of support for [A] (if [the parents] are provided with the appropriate level of support when she is at the parental home) I would recommend that [A] be given the opportunity to settle into a routine of sharing her time between the parental home and Park Lodge. [A] could, for example, reside at Park Lodge from Monday to Friday, and attend her day programme. She could be taken to her parents’ on Friday evening and leave her parents on Monday morning for college, returning to Park Lodge in the evening. I am aware that this model has been tried before; nevertheless I think that it is important for [A] to be given the opportunity to live in both places to see if that shared care model works. If this is put in place, then [the parents] would need support with [A] during the weekend. [The parents] have said they would welcome a carer and that they could stay with [A] at the house. Perhaps this could be part of the care package. It would provide the practical support for the parents over the weekend, and there would be a carer there to help [A] for her return to college on the Monday [para 12.17] …. At the present time [the parents] expressed the view that they would be willing to work with the Social Worker who could be seen as being independent. They say they have lost “trust” in the local social services. [The parents] said that person should be “English” and that they would not need to be of Ugandan ethnic origin. They feel that perhaps they could learn more about British parenting practices and Social Services’ needs from someone who is completely familiar with the British system. As long the individual was also cognisant of the cultural necessities and needs of the …. family and was acting in the best interests of [A], [the parents would be ready to work with them to support [A]. [12.19]”

Dr Robins went on to make clear that, if A were to return home and live for any significant period of time, the support package to be provided should be one to meet the needs agreed in a Joint Assessment carried out by a Carer Manager and a representative from Health Services or the Community Team for People with Learning Disabilities. He expressed the view that it should not take a specific level of expertise for suitably qualified support workers to be culturally sensitive and aware. They should be expected to have similar levels of training as the support workers at the Unit. If it were not possible for social services to provide an independent social worker there would have to be an agreement between the family and social services as to who might be acceptable for the role of overseeing the care of A.

[53]He recorded the statement of Mr Davis that there were advocacy services available to provide independent support to people with learning disability for all aspects of their lives who should be able to provide advocacy support to A as required. He also recorded the parents had stated that they were willing to accept an “English” social worker to help them work with the local authority. His final conclusion was to the effect that, even though there had been reports of difficulties with A returning from her parents home to the Unit, A appeared to be happy when at the Unit and when at her parents home and he considered that A would accept a model of care where she was able to spend time in both places.

Post-hearing developments

[54]Having completed the evidence, because the time was insufficient for final submissions, I directed that they should be delivered in writing. I indicated my reluctance to order that A should live solely at the Unit without the parties having renewed their efforts to agree an appropriate way forward on contact, were I to conclude that it was in A’s best interests to continue her weekday residence at the Unit. I emphasised how important I considered it to be that contact should continue between A and her parents.

[55]In the light of those observations, a meeting was arranged for 25 June 2007 attended by the representatives of the Council, the Official Solicitor, and the mother, together with the mother in person, a representative from the Council and two employees from the Unit. Unfortunately neither the father nor his representative attended. Discussion proceeded upon the basis that mother would take A out from the Unit for the day on the following Saturday with the view to establishing overnight contact within a month if all went well as a method of thereafter re-establishing weekend contact. Regrettably, shortly thereafter, on 4 July 2007 the mother’s solicitors informed the Council and the Official Solicitor of her firm instructions that unless A was returned to her she would not participate in contact arrangements.

[56]Having heard and considered the evidence, a summary of my assessment of the parties is as follows.

The Father

[57]The father is a man of limited intelligence, said by Dr Oboho in his report to have an IQ of 89 (i.e. at the top of the “below average” range). Despite this, at the time he came to England and had the care of three children he had the intelligence and drive to engage in a demanding employment as a flight engineer to support his family. Unhappily, the history of the matter and the bitterly fought care proceedings in which, until late 2005 he, rather than the mother was the main protagonist, fighting what he saw as unjust proceedings which sough to impose unacceptable arrangements for A’s care, now colour all his day to day feelings and thoughts. His health has broken down; he has muscular difficulties and walks with a stick. He is unemployed and is receiving anti-depression medication for his mental state, namely one of trauma and agitation over his experiences, which he is convinced result from racial prejudice and discrimination. While he undoubtedly feels a real love and concern for A and expresses his desire to promote her welfare, it has driven him prior to the hearing to take up, and throughout his evidence to maintain, the extreme position that, if A remains in the Unit rather than being made the subject of a declaration that she reside permanently and solely with her parents, he will cut off all further contact with her. Despite what he appears to have said to Dr Robins (see pare 52 above), he adopts the position that supervision by the Council in relation to any aspects of his and the mother’s parental care is inappropriate and unnecessary and would not receive his co-operation. He says that he will deal with any Council employees only through an independent intermediary who should be “a mature white social worker”. In that respect I regret to say that, were such intermediary to be found, I have little doubt that he or she would rapidly become an object of criticism and hostility from the father to the extent that the intermediary proffered advice, ventured any suggestion, or conveyed any message from the Council with which the father disagreed.

The Mother

[58]The mother is a registered as a nurse/midwife in Uganda. She is fit and active. She is an apparently intelligent woman and there are no significant professional concerns about her personal ability to provide the requisite level of care for A, provided she receives appropriate guidance and training from the Council to develop her skills to care for A and to assist in her development in the light of A’s particular problems, the need to establish boundaries for A, and the necessity for suitable support for the mother in the home. Unfortunately, albeit she has wavered in her attitude at various stages of her evidence, the mother has, like the father, set her face against the proposal for shared care, though she acknowledges that, if she ceased working to look after A full time, as she states she would do, she would need assistance in the home and respite care from time to time. Despite the willingness to co-operate in the shared care regime which she apparently expressed to Dr Robins, she has ultimately supported and adopted the “all or nothing” position of the father, namely that an order should either be made transferring the care of A to the parents or that A remain in the care of the Council at the Unit. In the latter event, although the mother’s position in evidence varied and at one point she indicated, with great reluctance, that she would herself continue contact with A at the Unit or by taking her on outside expeditions, the position finally reached in her evidence was that unless I now declare that A should move to permanent care in the family home she too would withdraw from all contact with A. Since then, as indicated at paragraph 55 above, after a meeting at which she was plainly prepared to contemplate an agreement as to contact, she has now reasserted her position of ‘standoff’. It is my assessment that, left to her own decision and independent of the necessity (as she sees it) to support the attitude of her husband, she would be prepared to co-operate redeveloping contact, given her love and concern for A who plainly derives benefit and pleasure from such contact.

A’s Capacity

[59]My conclusions as to A’s capacity can be stated shortly. All the experts who have assessed her conclude that A lacks the capacity to make decisions in respect of her welfare, contact with her family and accommodation. With assistance, she is able to make some simple choices and express some preferences in her day to day living but she is unable to comprehend the consequences of her choices or properly to weigh information in the balance. Since the institution of the proceedings the court has made interim declarations based on the assessment of the various experts. These began with the declaration on 19 August 2005, based on the opinion of Dr Nicholas Barry that A was “incapable of reliably making any important informed decisions” and of managing her property and affairs, which views were refined and affirmed by Ms Poate-Joyner in her subsequent reports, culminating in her final report dated 11 June 2007 in which she made clear her views that A would have little or no insight into what her best interests might be in terms of safety and her welfare and well-being and that, even where she has the capacity to make some choices, she will be reliant upon others to take responsibility for considering all the important factors and ensuring that her best interests are served.

[60]The mother has at no stage taken issue with those conclusions and, in the final submissions of her counsel has clearly and unequivocally accepted that A does not have the capacity to make decisions as to where she should live permanently for herself. She nonetheless submits that the court should pay regard and give serious weight to the evidence as to A’s expressed desire to be in care of her family and her reluctance to go back to the Unit after staying contact as evidence supporting her argument that A’s best interests would be met both subjectively and objectively by return to her parents’ care. Nor, prior to the final hearing, has it been suggested by the father or on his behalf that A has capacity. However, in his final position statement dated 12 June 2007 he first argued that A had the capacity to make a decision as to where she should reside for the rest of her life. That said, no attempt has been made to produce any alternative expert evidence on the issue of capacity. The test to be applied as developed by the courts is clearly set out in Re MB(Medical Treatment)

[1997] 2 FLR 426

at 433-4, to the effect that incapacity is established in a situation where the individual is unable to comprehend and retain the information material to the decision to which he or she is faced and is unable to use that information and weigh it in the balance as part of the process of arriving at the decision.

[61]These proceedings were commenced and heard before the coming into force on 1 October 2007 of the Mental Capacity Act 2005: see The Mental Capacity Act 2005 (Transitional and Consequential Provisions) Order 2007. The test in Re MB therefore applies. For the sake of completeness however, I record thatthe statutory test laid down in the Mental Capacity Act provides in section 2 (1) that for the purposes of the Act, “A person lacks capacity in relation to a matter if at material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” And by section 3(1) that, for the purposes of section 2, “.. A person is unable to make a decision for himself if he is unable – (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) communicate his decision (whether by talking, using sign language or any other means).” It is further provided by section 3(4) that:

“The information relevant to a decision includes information about the reasonably foreseeable consequences of – (a) deciding one way or another, or (b) failing to make the decision” making the decision, or language or any other means).”

[62]I have no hesitation in finding that upon the evidence before me and applying the relevant criteria, whether as stated in re MB or the Mental Capacity Act, A lacks the capacity to make decisions about her future and in particular about her residence, educational and community care provision and the nature and extent of the contact she should have with her family.

Risk from the Father

[63]I do not consider that there is any established risk to A from her father, who is undoubtedly very fond of her. It seems clear that in the original care proceedings before His Honour Judge Lloyd, in which judgment was given on 18 November 2002 that the father admitted smacking A when she wet herself and refused to acknowledge any of the concerns of the Council regarding his disciplining of his other children whom he was found to have kicked and whipped upon occasion. However, so far as A was concerned, the judge’s criticism of the father was mainly directed to the fact that he had left her in the care of unsuitable carers and with inappropriate levels of responsibility imposed upon her sister; that his interaction with his children had been austere, with very limited affectionate interaction and a degree of emotional neglect; and that he adamantly refused to modify his view of appropriate parenting.

[64]The father denies those findings, but I am obliged to accept them. Further, they are supported by the account of A’s sister given in her undated letter “To Whom it May Concern” written in October 2006. However, whatever may have occurred as between the father and A prior to her being taken into care at the age of fourteen, I do not now regard him as presenting any significant current risk. On A’s visits home they have plainly related well and I accept the father’s evidence that he loves A and genuinely wishes her to return home to the care of her parents. Not only is the mother now living with him and thus is available to oversee A’s day to day care when she is at home; A is now a physically strong and lively young woman, however immature. It seems to me that the more likely tendency of the family, with the father in his present condition and state of mind, would be one of over-indulgence, and a failure to draw or apply careful boundaries to A’s conduct or tantrums on her part. The likelihood is that the parents would tend to give way to A’s wishes in respects contrary to her welfare interests. It is in A’s best interests that her unreasonable wishes or tantrums should not be indulged and that, despite occasional displays of resistance, distress or anger, she should be encouraged to do things, like attending college regularly, which will develop her character and encourage her to develop relationships with others, learning so far as possible to stand on her own feet, in which respect her position is already well advanced, but is yet capable of much progress and improvement.

A’s welfare interests

[65]The approach of the court in cases of this kind is to balance all the relevant factors relating to the situation of a mentally incapacitated person unable to make his or her own decision and to decide what solution or order is required in order to promote their best interests and, in evaluating those best interests, to conduct a welfare appraisal in accordance with the ‘balance sheet’ approach espoused by Thorpe LJ in Re A (Male Sterilisation)

[2000] 1 FLR 549

; see per Munby J Re S (Adult Patient) (Inherent Jurisdiction: Family Life)

[2003] 1 FLR 292

[2002] EWHC 2278 (Fam)

and per Wall LJ in Re S (Adult’s Lack of Capacity: Carer and Residence)

[2003] EWHC 1909 (Fam)

paras 9-251. In the second-named case, the jurisdiction of the court and the considerations to be applied in applications of this kind were carefully examined and authoritatively set out by Munby J.

[66]I start, as did Munby J in Re S, from the position that, while there is no presumption that mentally incapacitated adults will be better off if they live with a family rather than in an institution, however benign and enlightened the institution may be, and however well integrated into the community, it is nonetheless the normal assumption that mentally incapacitated adults who have been looked after within their family will be better off if they continue to be looked after within the family rather than by the state. (See para 48).

[67]In that case, unlike this one, Munby J was concerned with the welfare of an incapacitated adult who had, until the proceedings, always lived at home with his father, a matter which caused Munby J to comment:

“.. commonsense surely indicates that the longer the family have looked after their mentally incapacitated relative without the State having perceived the need for its intervention, the more carefully must any proposals for intervention be scrutinised and the more cautious the court should be before accepting too readily the assertion that the State could do better than the family. Other things being equal, the parent, if he is willing and able, is the most appropriate person to look after a mentally incapacitated adult; not some public authority, however well meaning and well equipped to do so.”

Ultimately however:

“…. This commonsense approach is in no way inconsistent with proper adherence to the unqualified principle that the welfare of the incapacitated person is, from beginning to end, the paramount consideration.”

[68]Munby J also made clear that this position is in no way inconsistent with the rival considerations arising under

Article 8 of the ECHR

in cases of this kind which require the court to take into account not only the rights of the parents to respect for their family life (paras 18-28), but also the Article 8 rights of the incompetent adult child whose right to respect for her private life includes her rights to develop without outside interference, her personality in her relations with other human beings. In furthering and protecting this right, the court is the adult’s surrogate decision maker with the responsibility to take a decision which is in her best interests: see paras 29-45 of Re S and the observations of Sedley LJ in Re F (Adult: Court’s Jurisdiction)

[2001] Fam 38

at 57H-58B.

[69]In her final written submissions, Ms Jakens on behalf of the mother founds her case upon the starting point identified by Munby J in Re S and asserts that the evidential burden is squarely upon the Council to establish that it is the more appropriate body to look after A. I accept that she properly locates the burden in this case, subject to the observation that in this case the parents have only comparatively recently resumed a role in the life of A, having withdrawn entirely during the period 2002 to 2005 and that things have moved on so far as A’s developmental needs are concerned. Ms Jakens rejects the case for ‘shared care’ advanced by the Council and espoused by the experts as having an “institutional ring” to it and as failing to take into account what, she submits, are the crucial factors from the mother’s point of view, namely(a) that such an arrangement goes beyond the cultural boundaries to which the family adheres and which are A’s own birthright and

(b) that the parents have for so long been excluded from any meaningful exercise of their parental responsibility in taking decisions for A, that they have been alienated from any notion of ‘sharing’ with the Council. Ms Jakens also rejects shared care on the basis of the mother’s criticism of the poor quality of care given to A at the Unit. Finally, the mother rejects it because of her radically held belief that the stress and trauma suffered by A at ‘handover’ is too damaging to be a regular part of A’s experience. She asserts that the primary reason why the mother has chosen not to attempt to continue with contact is in order to avoid the distressing scenes which have occurred.

[70]Ms Jakens seeks to justify the extreme position of ‘no contact’ which the mother, like the father, has adopted, on the grounds that they have been badly treated and misunderstood in the past by the Council, who have failed to accommodate ‘cultural imperatives’ by failing to call upon social work professionals with experience with African families to reduce the situation of deadlock which has developed. She relies upon these matters as justifying the stance of the parents in putting the court to the sword of deciding on an “all or nothing” basis whether to order care by the parents alone, or care by the Unit alone without benefit of parental contact. She contrasts the alternative pictures of loving and attentive family life with the parents on the one hand and retention in the ‘institutionalised cheerfulness’ and ‘routine-driven’ group life of a care home, where, as she submits, individuals working in shifts will inevitably fail to attune to A as an individual or to develop a sensitive set of responses to her needs. She submits that with a creative and co-operative approach by the Council in the form of a package of support in the home, training in looking after A, and respite care provided as needed, an outright transfer of A’s care from the Unit to the home is appropriate. Her final submission is that A should be returned home promptly, such return to be swiftly followed by an assessment under s.47 of the Community Care Act 1990 for the purposes of providing the appropriate support package. The submissions of Mr Serugo-Lugo on behalf of the father are on similar lines.

[71]I have no doubt whatever that, leaving aside the intransigent attitude of the parents in relation to contact, the solution in respect of A’s care which would be in her best interest would be a solution which shared care, in the sense that A should live at the Unit during the week, with the benefit of expert care and communal encouragement to stand on her own feet and to develop her education, individuality and articulacy by attendance at college and engagement in as many group activities as possible; at the same time, she should be gradually introduced to a resumption of family life at the weekends and (assuming it could be achieved without unsettling her) an additional overnight stay at home from time to time if that is what she wants. Like the experts, I attribute A’s difficulties and unhappiness shortly after her move to the Unit to a sudden surfeit of change in her routine, a natural enjoyment of being thoroughly indulged at home and a testing of boundaries which her parents were not ready or trained to cope with. I can well understand the parents’ concern at her apparent unhappiness at returning to the Unit. However, I consider that the mother has not been willing to persist in the gradual development of the regime proposed by the Council and the experts out of a combination of concern for A and a basic unwillingness to accept the validity of institutional care as a principal feature of A’s life or an appropriate instrument to develop her personality and independence.

[72]After careful thought, I accept the burden and reasoning of the expert evidence, including that of Dr Robins, instructed for mother, that it is in A’s best interests to continue living at the Unit while continuing to seek to develop contact with the parents as contemplated at the post-hearing meeting. The aim should remain an eventual progression to shared care.

[73]Unfortunately, this is not a case where a straightforward ‘balance sheet’ exercise can be conducted, depending in part as it does upon my view as to the reality of the threat of the parents in relation to the cessation of contact. Despite their ostensibly united front as things presently stand, I consider that there is a considerable difference of willingness to co-operate for A’s ultimate benefit as between the mother and father. In his judgment in the care proceedings in 2002, HH Judge Lloyd observed regretfully that the mother was ‘unable or unwilling to oppose the stance taken by [the father] and I find he will be dominant in any decision taken concerning the children.’ As things presently stand, that appears to have been a perceptive comment. However, given the love which I am satisfied both parents have for A, it is difficult to believe that, if I find in favour of the Councils’ solution, they will carry out their threats to cease contact all together. On the other hand, despite the father’s expressions of willingness to work with persons not connected with the Authority (viz the ‘mature, English, independent social worker’ referred to in Dr Robins’ report), there has been no sign of any real thaw in the position of the father who adopted the uncompromising stance in evidence which I have described. Less so the mother, as I have also indicated above.

[74]I am forced to the view that both the parents believe that, if they adopt this uncompromising stance, they are more likely to procure a favourable order from me. However, it is my duty to do what is in A’s best interests. I am firmly of the view that the wholly parental model of care upon which they insist is not in A’s best interests in the short or medium term, and certainly not while her education continues.

[75]First, I am satisfied that the parents do currently lack the experience and sureness of touch necessary to bring the best out of A and guide her in relation to her development, and more work is needed in this respect. Quite apart from the parents’ firm rejection of the advice and views of the Council, the Official Solicitor and the experts, the father is currently thoroughly unwell and the family’s financial stability is under threat. The parents have made clear their requirement for substantial skilled help in the home and, currently at least, there is real doubt as to how the parents could or would work with such assistance.

[76]Further, and importantly, if A were to cease to live at the Unit, she would lose the substantial social activities and opportunities which she enjoys there. It is the clear view of the experienced experts that, far from being an unfriendly or institutional atmosphere there, the Unit is a very happy small community with devoted staff in which A is thriving and developing at encouraging pace.

[77]While it is plainly in A’s best interests to preserve her contact with her family (and there is nothing to prevent this but for the currently declared attitude of the parents), and while she may on occasion be unhappy if that contact does not take place when she is reminded of its deprivation, I reject the suggestion that she lives in a state of unhappiness at the Unit or that there are any serious lapses in her care. Rather, it appears that she is happy at the Unit and, while wishing to have contact with her family, it is largely a case of “out of sight, out of mind” when there is no contact. While denial of such contact is a regrettable and unnecessary deprivation of an advantage which A can and should enjoy, it would be a far more serious step, and a far greater deprivation from the point of view of her overall welfare and development, if she were obliged to lose her place at the Unit at this stage of her young adulthood, when she is so clearly benefiting from its facilities and the care and social interaction which she enjoys as a result.

[78]Given that the parents have currently set their face against a shared care model and thus a decision from me is necessary, I consider that it is in A’s best interests to have a full time placement at the Unit, while holding open and encouraging contact to be re-established if, as I hope will be the case, the parents relent. This will allow, and I would encourage, a later shift towards a shared care solution in the future if all goes well. As I have indicated, I reject the criticisms made of the Unit or the standards of care there. It may well be that there have been problems with the care of A’s hair and, on occasion, oral hygiene. However, these are recorded in the notes from the Unit, as are the efforts to alleviate the position and provide appropriate treatment thereafter. These incidents are no basis for A’s removal from the Unit. Both the Official Solicitor and the experts, who have considerable experience of care facilities of this kind, plainly think well of the Unit and the standard of care and social activity afforded there to A.

[79]In the light of the Official Solicitor’s carefully formed view, supported by the local authority, a draft form of order has been submitted to me as an attachment to the Official Solicitor’s final submissions, which set out the detailed reasoning underlying the order. As will be apparent from the body of my judgment above, I accept and endorse the reasoning in paragraphs 11 and 12 of those final submissions as to where A’s best interests lie.

[80]The order provides for A to live at the Unit, but with machinery set out for the development of contact, with shared care as the ultimate aim on the assumption of future co-operation and commitment. The order is upon lines made clear at the post-hearing meeting to which I have referred and may, it is earnestly to be hoped, prove acceptable to the mother and the father once the dust of this litigation has settled. In the interest of showing trust in the parents, the contact provided for in the order is to be unsupervised from the outset. The terms of the order are in accordance with the spirit and aspirations of the expert evidence and the final paragraph of the schedule to the order makes clear that nothing in it prevents the father and mother and the Council agreeing additional ad hoc contact as desired, which again I would encourage. I endorse the terms of the draft order, save that in the second sentence of each of paragraphs 1, 3 and 5, the words “Her parents” should be replaced by “One or both of her parents”. And the word “as” should be deleted from line 2 of paragraph 8. If necessary, I will entertain arguments upon any alteration to the detail of the wording of the order once the parties have had time to consider the terms this judgment.