A London Borough v A & Ors [2013] EWHC 96 (Fam)

Case No AL11C00030Neutral Citation Number: 2013 EWHC 96 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/02/2013
Before
THE HONOURABLE MR JUSTICE PETER JACKSON
Between
A London BoroughApplicantMrs A (1)RespondentsMr A (2)RespondentC, J and M (3)Respondent
Cleo Perry (instructed by local authority solicitors) for ApplicantKate Hudson (instructed by Edwards Duthie) for First Respondent motherNeelim Sultan (instructed by Charles Allotey & Co) for Second Respondent fatherGiles Bain (instructed by Lawrence and Co) for Respondent childrenHearing: 15-16 January 2013; Judgment 15 February 2013
JUDGMENT

Introduction

[1]This is a third judgment in proceedings that began as long ago as 18 February 2011, and concern three siblings: C (a boy aged 6), J (a boy aged 2) and M (a girl aged 1). It should be read in conjunction with a first judgment given on 11 November 2011 and a second given on 27 July 2012.[2]The local authority, supported by the Children's Guardian, now seeks care orders in relation to all three children and placement orders in respect of the younger two. The care plan for M is adoption, which is likely to be achievable. The plan for J is that there should be a search for adopters for six months, failing which he will be found a long-term foster home, separately from C because of the extent of each boy’s needs. C would remain with his foster family, where he is doing very well.[3]These plans are strongly opposed by the parents, who seek the children’s return to the sole care of the mother on the basis that the father will play no part in their upbringing, unless by way of supervised contact.[4]The proceedings began after the violent death of J’s twin brother B in February 2011. C and J were placed with a relative (Aunt J) until June 2011, since when they have been in a foster home together.[5]Soon after B’s death, the mother became pregnant by the father and in May 2011 they married in a civil ceremony. In August 2011, a coroner’s inquest concluded that C (then aged 4) was responsible for B’s death.[6]In the first judgment given in November 2011, I found that the father was responsible for B’s death. I exonerated the mother, who was not present, and C, who was present but who I found not to have caused B’s injuries.[7]On 11 December 2011, the mother separated from the father in the sense that they have since lived apart and have had no contact with each other, except unavoidably at meetings and hearings about the children.[8]On 13 December 2011, there was a pre-birth case conference and on 29 December 2011, M was born. She was removed into foster care at the time of her birth.[9]On 18 July 2012, the father's appeal against the finding of fact against him was dismissed by the Court of Appeal.[10]At the outset of the intended final hearing, which took place between 23 and 27 July 2012, I reviewed the finding of fact against the father in the light of evidence about an incident in May 2012 when C had kicked and injured his school transport assistant. For reasons given at the time, I found that this did not affect my conclusion.[11]At the hearing in July, in a finely balanced decision, I adjourned the local authority's applications so that the mother could have further time to receive therapy to help her to adjust to the predicament in which she found herself. A final hearing was fixed for January 2013. I acknowledged that this created undesirable delay that particularly affected the younger children, but balanced this against the mother's undoubted strengths. The adjournment had some support from Dr Asen and Ms Obe, but was opposed by the social worker, Ms Stephens, and by the Guardian, Ms Shepherd.[12]The father sought to appeal out of time against the ruling about the incident involving C in May 2012. His application for permission to appeal was refused by McFarlane LJ on 14 December 2012. He then applied to renew it orally.[13]In the meantime, the final hearing took place before me on 15-16 January 2013. I heard evidence from Dr Asen, Ms Stephens, the mother, five friends of the mother, and the Guardian. The father did not give oral evidence. The parties lodged written submissions following the hearing and did not seek to add to these orally. I postponed delivery of this judgment to await the outcome of the father’s renewed application for permission to appeal. That was dismissed at an oral hearing on 11 February 2013. This judgment is given on 15 February.

Principles

[14]The decision that must now be taken is governed by the best interests of each of the children, taking into account the matters that appear in the welfare checklist. I have regard to the rights of the children and the mother to respect for their family life; as was said during the course of the hearing, this is not a contest between the mother and the foster carers. I likewise have regard to the father’s Art. 8 rights in relation to the question of contact.[15]Although the reasons why the proceedings have taken so long can be explained, given the exceptional nature of the case, it goes without saying that the children now need a decision.[16]Having been involved continuously with the children’s case since February 2011, I have reviewed all the factors that are relevant to the welfare determination. Although I gave the mother strong encouragement to reflect on her position when adjourning the matter last summer, I stress that the decision does not hinge on the events of the past few months alone.

The evidence

[17]I will identify what seem to me to be the key features of the evidence, most being either undisputed or no longer open to argument.[18]The core event is of course the death of B. This was a terrible incident and the reasons for the father’s behaviour remain unexplained. Although he clearly loves the surviving children, the risk of serious physical harm that he poses to them can never be forgotten.[19]The next central feature (as I recorded in paragraph 23 of the second judgment) is that the mother is in many respects an exemplary parent. She was not in any way responsible for B’s death and there were no concerns about her parenting, or indeed that of the father, before that time. She knows and cares deeply for the children. Her abilities are clearly seen during almost daily contact, where her enormous commitment, practical care and emotional warmth can be clearly seen. When discussing the children’s wider needs, she shows unselfish understanding of their different and special qualities, including C’s autistic spectrum disorder and J’s developmental delay.[20]Since the hearing in July, the mother has attended for ten therapy sessions at the Marlborough Family Service and is described as having made good use of them. She and the father have maintained their physical separation and she has attended contact faithfully. At a practical level, she has worked cooperatively with professionals throughout. She has no history of criminal behaviour or substance misuse.[21]The mother has faced a number of acute burdens, described more fully in my second judgment (paragraphs 42-49): the death of B and the loss of the other children, including the removal of M at birth, and the physical separation from the father. I also acknowledged the unhelpful influences she has faced from the father, family members, the Coroner’s verdict, and the police liaison officer. Appeal proceedings have also been pending for much of the past year.[22]In the second judgment (paragraphs 27-31) I set out the significant disadvantages for the children of the local authority’s plans: the loss of an upbringing within their own family, the impossibility of an exact ethnic and cultural match, the splitting up of the children, and the difficulties for C and probably for J in growing up as black children in foster care.[23]These factors point strongly in favour of the children being returned to the mother, and they persuaded me to postpone a decision in July. I also resolved one issue in the mother’s favour, by concluding that it was possible that “a substantial and genuine acknowledgement that the father may be dangerous, combined with a genuine emotional distancing from him, would be sufficiently protective.” I preferred this criterion, sometimes referred to during the hearing as "healthy ambivalence", to the full and unqualified acceptance of the court’s findings that the local authority and the Guardian advocated.[24]The issue that remained of concern, and that now has to be assessed, is the mother's stance concerning responsibility for B’s death, and the consequences for the children’s physical safety and emotional well-being. I concluded over a year ago that the mother had not faced up to the risk posed by the father: see paragraphs 181-183 of the first judgment. I also found that she had not been truthful about an incident in 2010 when the father had assaulted her: see paragraph 163.[25]The mother’s position up to the hearing in July was that she did not believe that the father was responsible for B’s death, but at the hearing itself, she accepted the offer of therapy.[26]On 19 November 2012, the mother's therapist reported to a professionals meeting within the limits of proper confidentiality. She said that the mother had been open about her reluctance to engage in therapeutic work but had shown commitment and was open to attending more sessions. The mother "is clear about what the judgment said and understands she will have to talk to the children about this later. [She] however feels she cannot say for sure what happened as she wasn't there and feels this is true for anything that she has not been present for in life. [She] believes that ‘seeing is believing’ and this is where she is at and cannot go beyond this perception." The therapist said that she had been working with the mother on her beliefs but that the possibility of change would take perhaps a year or more and without any certainty of a shift in her belief system.[27]On 21 November, the mother met Dr Asen, who discussed her understanding and acceptance of the risk posed by the father with her. In his report at paragraph 3.1, he records what she said:
"I can't know what happens if I wasn't physically there ... but I believe that he did not do it ... there is nothing else apart from the Judgment that shows me what happened ... Judges have the power to make a Judgment ... but the coroner found something different ... I wasn't physically there, so I don't know what happened."
She added, "it is not fair that I have to say what one person (i.e. the judge) has said". She repeatedly stated that, as she had "not been there", "I do not know" what had happened. When I put to her that none of the professionals involved in the case had been ‘there’ either, but had nevertheless arrived at different conclusions from her, she replied, with a smile on her face:
"but you don't know K… - they don't know K…"
She said she knew K… very well and therefore "I know he could not have done it."[28]The mother accepted that this note is accurate with the exception of the two passages I have underlined, which she denies saying. Dr Asen explained that he keeps a contemporaneous note during interviews such as this and he confirmed that the mother spoke in the way he records. I accept his evidence about this.[29]In his report, Dr Asen concludes that nothing has changed with regard to the mother's internal understanding and acceptance of the risks posed by the father to the children and herself. "Essentially her current position is no different from how she presented earlier this year when I first assessed her ..."[30]He advises that the mother is able overall to provide a psychologically nurturing environment for children, but that in relation to C there is one major limitation in that, when he had the ability to understand, she would "tell him what the judge said ..." When Dr A pointed out that C would in all likelihood pick up her own underlying views, namely that she does not believe that the father could have killed B, and that he will ask questions, leading to C and his siblings coming to the conclusion that his mother believes that he actually killed his brother (even though he was not legally or morally responsible), the mother replied that she would not be able to tell C that his father had caused B’s death, repeating:
"I don't know what happened -- I wasn't there."
[31]Dr Asen concludes that this position is also unchanged and it is his opinion that the consequences for C and his welfare remain a major concern for the reasons set out in paragraph 5.5 of his first report. I will not repeat that passage, which lays out the implications for all the children of there being two conflicting stories about such an important part of the family history, and for C, who would pay a very heavy penalty for something the court had found he did not do.[32]Dr Asen also discussed the mother’s support network with her. He gained the strong impression that she had not discussed the risks the father poses with her friends and that they could not at this stage contribute to the protective network that needs to be in place.[33]Dr Asen’s opinion is that the changes made by the mother, if any, are not sufficient to reduce the risks posed to the children’s future welfare if returned to the mother’s full time care now or in the medium term future. Plans should be made for the children and the mother should continue to be offered therapy.

The hearing

[34]Dr Asen amplified his report when giving evidence at this hearing. He considers that the mother had not emotionally separated from the father, to whom she remains married. He agrees that the mother’s friends, whose statements had just been filed, are clearly well-meaning and supportive, but he describes the letter from Dr O (to which I will refer below) as concerning. He believes from long experience of such cases that there is a high probability that the mother’s resolve will weaken and that, with the reality of caring for children with considerable needs while seeing her separation from their father as enforced, she will sooner or later let him back in. Although she has maintained separation up to now, and has much integrity, the situation with the children at home would be very different.[35]Ms Stephens, the children’s social worker, who has been involved throughout, was once again a fair and thoughtful witness. She had in general stepped back to allow the mother to take advantage of therapy, but she had tried to work with her in encouraging her to bring forward people who would be able to be supportive if the children were returned. Like Dr Asen, she found the mother to be reluctant to engage in this process, and she did not succeed in meeting anyone proposed on the mother’s behalf, let alone assessing them. There had been no approach from the mother’s aunt (Aunt C) or from the father’s sister (Aunt J), who had fostered the children for several months after B’s death.[36]Ms Stephens said that she has reached the view, independently of Dr Asen, that the mother’s proposals were not protective enough for the children. The mother does not accept that the father had caused B’s death and Ms Stephens is also concerned about the emotional effect of this on the children as they grow up.[37]The mother filed a brief statement on the first day of the hearing. In it, she confirmed that she was aware of the court’s findings about B’s death and said that “… regardless of any beliefs that I may have, I am absolutely determined to act in a way required of me if the children do return to my care.” Referring to friends and family, she said:
“some of them, like me, do find it difficult to accept that my husband could have killed B. Nevertheless, they are all willing to help and support me.”
[38]Giving evidence, the mother said that she did not know what had happened to B but that if the judgment is correct, she would have to treat the father as a risk. However, her cultural and religious beliefs prevent her from divorcing him. She could not allow unsupervised contact, and would agree to all manner of safeguards by way of orders and inspections to ensure that she did not weaken. Social services asked her for details of her friends and supporters, but she did not progress this as she did not want to be a burden to them.[39]The mother was then asked about a letter circulated on 17 December 2012 by Dr O, who holds an honorary title and is the local co-ordinator of the Traditional Rulers Union of the parents’ community. This letter, entitled “Community Support” and running to three pages, was sent to the mother’s solicitor and copied to the therapist, to Ms Stephens, to the Guardian and to Dr Asen. In it, Dr O is highly critical of the judgment that the father was responsible for B’s death, and of many aspects of the proceedings. He refers to C as having been up and about “mischievously” on the night and he draws attention to the Coroner’s verdict. He states that “the couple have been made to separate” and that the process, including therapy, is “psychological warfare… professional blackmail” in that it attempts to persuade the mother that her husband killed the baby. He variously describes the process as prejudicial, racist and insulting, and says that the social workers are seeking to destroy the parents. Dr O then sets out a practical programme which he would coordinate for visits to be made by members of the community to the mother and children.[40]The mother was asked about this letter. At my request, her evidence in reply to questions from Ms Perry (for the local authority) has been recorded in a note.[41]She said that Dr O is the leader of her community. M: I have known him for over 5 years. I am aware of him through a friend/relative. Don’t see him often. LA: How often have you seen him in the last 12 months? M: In the last 12 months I haven’t spoken to him personally, but I know he is aware of my situation. LA: When did you last speak to him? M: I am not sure when I last spoke to him, it was not in 2013. I can’t recall, I would have spoken to him in 2012, once or twice. After the summer. I can’t tell you where I saw him. There’s a church that when you have a problem you can go there, but I haven’t personally gone there. Maybe I was at home. He doesn’t visit my home. I don’t remember [where I saw him].[42]At that point I told the mother that I needed her to do her best, and asked to describe the last time she had spoken to him. She then said: M: I think I may have been at my aunt’s house, Aunt C. It was at my solicitor’s office.[43]That meeting must have been between 19 November and 17 December and the mother was giving evidence on 16 January.[44]After some more questioning the mother explained that the meeting at the office had lasted about an hour, that Dr O had come with her for moral support, that a note of the professionals meeting of 19 November had been discussed, that Dr O had a copy, that she knew through her aunt that he would be coming to the meeting and that by prior arrangement she travelled with him to the meeting by bus. The mother said that she had also spoken to Dr O once or twice at the community centre since the July hearing.[45]I asked the mother to read the letter carefully over the lunch break that followed. She returned to say that she totally disagreed with it:
“Those are his views, not my views”
. She said that the letter was the first she knew of Dr O’s views. After the meeting at the solicitor’s office, she was expecting a letter from Dr O about community support, but she was not expecting the kind of letter that arrived.[46]In general, the mother said that her situation is not an easy one, with a lot of people forming their own views and opinions. Her community is very aware of her situation right now. At the end of her evidence, asked about her feelings towards the father, she said that she had moved on:
“I’ve been in this situation through no fault of my own and my children are suffering and I am suffering. I’m not thinking about him, I’m thinking about myself and my children. I’m concentrating on that.”
[47]At the outset of the hearing, the mother presented statements from a number of friends, five of whom gave brief evidence. From their own perspectives, they all promised to support the mother if the children were returned, to strengthen her resolve to keep the father away, and to report any lapse to social services.[48]The Children’s Guardian has also been involved throughout. Having heard the evidence of the mother and her witnesses, her opinion remains unchanged. She did not think that the mother’s position has changed since July, and the supporting witnesses have come forward frustratingly late. The children will become attuned to a belief system and will ‘live’ the outcome. Ms Shepherd is pessimistic about any further movement on the part of the mother, and says that the children need a decision now. She did not think that the local authority could put protections in place throughout their childhoods.

The parties’ submissions

[49]I have taken account of the written submissions filed by the parties.[50]The local authority says that there is no acceptance, no ambivalence and no real co-operation on the part of the mother. There has been no shift in her position.[51]For the mother it is said that she has moved forward positively in engaging in therapy and that the evidence shows that, regardless of her beliefs, she is determined to act in the way required of her. She has dissociated herself from Dr O’s views. The many positive features of the mother’s plan, as recorded above, are emphasised. The risk of physical harm can be mitigated by supervision by the authorities, the community and friends. Any risk of emotional harm is insufficient to deprive the children of an upbringing in their own family. There should be a further family group conference to co-ordinate support systems.[52]The father calls for a period of testing for the mother and her support network, saying that what she offers far outweighs the risks from non-acceptance of the judgment. He would himself comply with any conditions so as not jeopardise the placement.[53]The Guardian endorses the submissions of the local authority. She submits that the mother continues to minimise crucial issues, denying domestic violence and the nature of the risk the father poses. Her views have not progressed and may, in some respects, have gone backwards. Such support network as the mother proposes comes too late to be assessed.

Discussion and conclusion

[54]This is an undeniably sad and difficult case. In reaching a conclusion, I take account of all the welfare checklist factors referred to in my second judgment.[55]An assessment of the mother’s ability to protect the children physically and emotionally remains to be made. In my second judgment last July, having fully described her strengths, I said this:24. The problem is that there is serious doubt about whether she can meet the children's physical need to be kept safe and their emotional need to understand their family history.25. There is unanimous professional advice that the mother is not currently able to do these things. Even the mother herself does not argue with that. I am clear that the children cannot be returned to her care now. The risk is far too high. The mother’s good intentions cannot protect the children over time while she genuinely believes that the father is the victim of a miscarriage of justice. If a decision is to be taken now, it must be to approve the care plans.26. The only remaining question is whether the mother has the capacity to meet the children’s needs within their timescale. The only possible way that this could be achieved is if she were able to participate in and benefit from psychotherapy.[56]Since then, the mother has given a further account of her thinking to professionals and the court, and has produced evidence from friends and from her community.[57]Having listened carefully to the mother and being conscious of the intense difficulty of her position, I find that her views have not moved on in any meaningful way since she undertook therapy. I assess her as being deeply sceptical about the father’s responsibility for B’s death, and in my view it is this, and not only cultural or religious considerations, that explains her decision to remain married to him.[58]The mother’s witnesses, most of whom do not form part of her immediate cultural and ethnic community, are clearly excellent people. They have an appreciation of the court’s findings and of the risks posed by the father, and I am sure they could be relied upon to do their best to support the mother and children. However, it is striking that even this body of opinion has not enabled the mother to move on in her own thinking. She did not involve them over the past months in planning the future with social services. I do not accept that this is because she did not want to trouble them: it is more likely that she did not involve them because their views do not coincide with her own.[59]Instead, it is to her family and her community, including her church, and to Dr O, that the mother has turned. The view of the family and significant community members is that C was probably responsible for B’s death. The views contained in Dr O’s letter reflect this and it is to be noted that the mother has not chosen to call evidence from the people upon whom she most depends.[60]Making all allowances, I cannot accept the mother’s evidence about her present beliefs. I do not believe that she has even reached the point where she has an open mind about what happened to B. Her nature is not militant, but I find that she has a quiet belief that the father is probably innocent. She was not frank about Dr O when first asked about him in evidence, and I was not persuaded by her attempt to dissociate herself from the views he expresses.[61]Setting these conclusions against the many other factors in this case, and weighing up the children’s individual interests, I have concluded with real sadness that they cannot be returned to the care of their mother. The nature of the risk in this case is of the utmost gravity and there are no effective measures that could guarantee the children’s physical safety over time. Like Dr Asen, Ms Stephens and Ms Shepherd, I find that despite any current good intentions, the mother would not be reliably able to exclude the father from her life or the life of the children over the long period of years that would be necessary for their safety and wellbeing. She does not have the inner belief to enforce separation, and she would come under increasing pressure from her own thinking, from the father, from the community, and no doubt in time from the children themselves, to let him back into their lives once the intensity of the current professional interest was in the past. Moreover, even if the father was kept at a distance, I accept the evidence of Dr Asen about the likelihood of emotional harm to the children that would arise from being brought up in an environment in which the prevailing belief was that the father was innocent. The consequence is that C would learn that he was thought to have harmed B, and yet none of the children could see the father or be given a good reason why they could not.[62]I accept the unanimous professional evidence and therefore approve the local authority’s plans for the three children’s future placements. I shall make care orders and, having considered the terms of the Adoption and Children Act 2002, make placement orders in relation to M and J. In M’s case, adoption is clearly in her interests, and in J’s case, a time-limited search for adopters is in my view right, while at the same time seeking a long term foster home. I dispense with the parents’ consent to making placement orders because the children’s welfare requires it. If an adoptive placement is not found, the placement order will have to be discharged in a timely fashion – the application can be made to me.[63]So far as contact is concerned, I do not make any orders. I approve the amended care plans, which justifiably differentiate between the mother and father’s contact. My only observation is that if the placement order in relation to J has to be discharged after six months, the local authority will be obliged to provide reasonable contact to the parents. Through no fault of the father, there has been real difficulty in his contact with J since last summer; however, I am not sure that the court would grant the local authority permission to refuse all contact under a care order unless all efforts had been made to facilitate it in a way that could be beneficial to J. If he is to grow up in long term foster care, it may be in his interests to have some contact with his father, particularly if the parents were to reunite. It may therefore be sensible for efforts to be made to support occasional brief contact between the father and J, even during the search for adopters.[64]That is my judgment.