Birmingham City Council v AB & Ors [2014] EWHC 3090 (Fam)

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Neutral Citation Number: [ 2014] EWHC 3090 (Fam)

Case No FB13C00056

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue BIRMINGHAM CIVIL & FAMILY CENTRE

The Priory Courts

Venue 33, Bull Street, Birmingham

Date Friday 18 th July 2014

Before:-

HIS HONOUR JUDGE CARDINAL

(Sitting as a High Court judge)

B E T W E E N :-

Between

BIRMINGHAM CITY COUNCILApplicant

AB & OthersRespondent

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J U D G M E N T

JUDGE CARDINAL:

[1]The court is concerned with the future of three young children, two girls named X, date of birth 19th March 2009 who is, therefore, aged five, and Y, born on 13th May 2010 who is, therefore, aged four, and a boy, Z, whose date of birth is 22nd August 2011 and who is aged two and three quarter years. I shall refer to them from time to time by their first names or else by the collective expression “the children”.

[2]The parents of the children are the late BB, the mother, and AB, the father. The mother was murdered by the father in the summer of 2012 and he is serving a life sentence with a minimum of 22 years to serve before being considered for parole. He was sentenced some 6 months later and is incarcerated in Long Lartin Prison. Owing to difficulties in arranging his attendance at court he has viewed the bulk of this case via video link to which his solicitor has not objected. I am satisfied that the disadvantage of not being present has not in any way impugned his right to a fair trial.

[3]The children had been living with the maternal grandmother, CD (“the grandmother”) and, indeed, were staying with her at the time of the mother’s death. In the proceedings before me the Birmingham City Council seek Care and Placement Orders for each of the children. It therefore behoves the court to examine the case with great care and, following the important decisions of Re: B [2013] U.K.F.C. 33 and Re: B-S [2013] EWCA. (Civ.) 1146, inter alia, to examine anxiously whether this is a last resort case where the only viable and appropriate solution in the interests of the welfare of the children is one of adoption.

[4]How did these proceedings come about? The father killed the mother violently. The father has a history of abusing drugs and alcohol, and there is clear evidence that the relationship between mother and father was characterised by domestic violence. The grandmother has in the past sought to protect both her late daughter and the children from his violence.

[5]The grandmother sought to apply for a Residence Order at this court and in those proceedings a Sixth Respondent, a paternal aunt (whom I shall call “EF”), the Seventh Respondent, the paternal grandfather, DE (whom I shall call “grandfather”), and the Eighth Respondent, also a sister of the father, (whom I shall call “FF”) initially sought residence themselves. As a result of orders made by me the local authority was involved. A section 37 report was directed and the case remitted to the High Court. The private law proceedings were released to a Deputy High Court Judge for directions and King J, released the final hearings of the care proceedings before me; but the local authority had failed to bring any care application initially, and I shall say more about the local authority’s performance in this case in due course. Birmingham City Council eventually commenced proceedings, indicating it sought Supervision Orders, on 22nd February of last year, but the children were removed from living with the maternal grandmother on 20th September by an Interim Care Order and they remain in foster care now.

[6]The respective families in this case are very divided. For perhaps understandable reasons ill-feeling has characterized this case, though sadly few family members seem able to put the needs of the children ahead of their feelings. There are exceptions, however, and I have noted the dignified manner in which the grandmother and EF have conducted themselves throughout this trial; but a number of extremely unpleasant events have been reported such as GD, grandmother’s brother, abusing and harassing EF in the street and an incident of GD spitting at her at the children’s school. A school should be a place of refuge for a child, not where adults cannot behave themselves save in an uncouth manner. The grandmother was arrested in September 2013 when she was accused of stealing from the children’s criminal injury compensation monies. His Honour Judge Plunkett felt constrained on 20th September to make Interim Care Orders and remove the children, even though the grandmother was bailed, as they needed to be protected from any further harm that a second arrest and criminal proceedings might inflict upon them. Special Guardianship assessments were obtained of the grandmother and EF. Neither was recommended as a prospective carer for the children. Dr. Judith Freedman, an eminent psychiatrist, has reported on the emotional consequences of the local authority’s adoption plans for the children and in particular has urged they should be kept together.

[7]Further tragedy has struck these children. The paternal grandmother was killed in January of this year, though that death is said to be unrelated to this case. The father is reported to have made threats of revenge against mother’s family, though I was told at the hearing before me in February that he now accepts that mother’s family were not involved.

[8]What are the parties’ positions? Although initially some of the paternal family sought long term fostering rather than adoption, the position now is that the father and all of his family support the local authority position. Only the grandmother seeks the retur4n of the children to her.

[9]So the issues for me to determine are these: first, should the children return to the grandmother under a Child Arrangement Order with supervision or be made subject to Care Orders; and, second, if they are subject to Care Orders, should there be long term fostering or Placement Orders granted?

[10]It needs to be said at the outset this is an extremely difficult case. Dr. Freedman told me she has agonised over the case, a word repeated by the key social worker, Ms Clarke and the Guardian. The court is faced with a loving and caring grandmother but one who has profound problems and difficulties, and with children who have had the life-changing, even life-ruining experience of their father murdering their mother and who have convoluted and difficult needs to meet. What is best for them? I start of course from the presumption that there ought to be the least interference with their family life and the need, if at all possible, to reintegrate them with their natural family were it feasible.

[11]The case first came for trial before me in February 2014. During the course of that hearing it became clear that, even though it was 18 months since the murder, the children had started no therapeutic counselling to address their bereavement, let alone adjusting to the shock and distress caused by the murder of their mother. They had yet to have any sensible explanation for either the disappearance of their mother and father from their lives or why they had been removed from their grandmother. They had had no apology or proper letter of explanation about the events of August 2012 from father. Moreover, I was dealing with a grandmother who sought the care of young and vulnerable children but whose own psychological functioning had not been assessed, something especially important as she was faced at that time when she experienced bereavement herself with caring not only for three grandchildren but also for her own younger children, V aged 14 and W, aged five. The local authority had not obtained clear details as to what therapeutic help the children were to receive at a ++time when X was showing signs of disturbance at school and at the foster home, so I made it clear then that the local authority’s plans were inchoate. In particular, it must have been very confusing for these children to see grandmother at contact, not to see V and HD regularly [see below], but for X and Y to see W at school daily. Being at the same school as W was thought by Dr. Freedman to be disturbing for X. I add at parenthesis at this stage – and I shall be introducing him shortly – that HD is the oldest child of the grandmother. Accordingly, I adjourned the case for determination until late June 2014. It was unfortunate that there had to be further delay but it was appropriate given the seriousness of the case advanced for the local authority. Moreover, even now X’s therapy had not really started. She had had one ‘getting to know you’ meeting with a psychotherapist; and nothing had been arranged for the other children. All agreed then that it would be some time before the children could or should be adopted or fostered in the long term were that to be the outcome for it was hoped there would be sufficient therapy for a placement to be feasible. By the date of the final hearing the girls had moved school and there were some signs, however, of them being more settled.

[12]During the hearing before me the local authority has been represented by Mr. Krumins, the grandmother by Miss Chavasse and the father by Miss Gallacher. Mr. Raindi appeared for the paternal grandfather and for FF. EF has represented herself and I have endeavoured to assist her as much as is possible and fair. The children have had the benefit of a Guardian but the disadvantage of three advocates, not one: Mr. Bean for the first hearing in February only, owing to his retirement, Mr. Robin Lewis for two days of the final hearing owing to a sudden family bereavement for which of course I excused him, and Miss Debbie Collins, to whom I am very grateful for appearing at short notice, for the remainder of the case. But I am satisfied that the children’s case has been put entirely properly. The Guardian supports the local authority’s plans but emphasises the need for the children to be placed together.

[13]I turn to the parties themselves.

[14]The grandmother. The grandmother presents in many ways as a forlorn figure. She is painfully thin and Dr. Freedman noticed she had lost weight from the time she saw her last in late March at the hearing on 23rd June. She told me she is currently taking antidepressants on a daily basis but could not recall precisely what. She visited her GP on the evening of 26th June to seek therapy as a result of the recent report of Dr. Freedman to which I shall come and appreciates that therapy for her once organised could take as long as two years. Asked about her depression, she had previously seen her GP about pains and sweating and he had diagnosed anxiety and depression, but she had not taken the tablets prescribed and she agreed she found it difficult to accept help. I have no doubt, however, that she is a very caring woman. I have noted her attempts to protect mother and children and I note in June 2012 she notified the local authority of her concerns about domestic violence and again in July. After the murder she cared for the three children as well as her own for over a year prior to her arrest. Within the papers before me there are a number of very complimentary reports as to the quality of her care and the relationship with the children which include the following: by SV, the nursery manager, who wrote in November 2012 of grandmother providing stability and support to X; by JG, the day care nursery manager, dealing with the younger children who said they were well presented and making good progress, comments she repeated in October; by JB of Victim Support in January 2013 who wrote of her dedication and the ‘fantastic relationship’ the children have with; by AP of Assist Trauma Care who writes of her unfailing attention, love and devotion and who is convinced she can provide a home for the children in July 2013; by TL, who wrote that Z was developing well at nursery; and by the head teacher of B Primary School, Mrs A, who wrote of the girls being settled with the grandmother, of becoming less content, X asking to go home to nanny and Y being withdrawn, after removal into care. It is very plain grandmother is deeply attached to the children and they to her, one of the key factors that makes the decision in this case so difficult. She communicates well with them and gives them appropriate guidance and boundaries. She has given them emotional warmth and stability and appropriate protection from harm.

[15]But the grandmother has a number of serious problems which adversely affect her ability to care for the children in the long term, many of which emerged with some force during the psychological assessment of her by Dr. Freedman which I set out in summary here. She herself is a victim of domestic violence from various partners, the worst of which she suffered from her most recent partner, Ws father. She has not, it seems, yet resolved her problems arising from such ill-treatment. She has a history of choosing the wrong partner and remains susceptible to repeating this ill-advised behaviour. Dr. Freedman considered she lacks insight into her problems. She is a victim of childhood sexual abuse at the hands of her late father which has left her vulnerable. She suffers from depression and anxiety. She would struggle to adapt to the changing needs of her grandchildren. The sheer number of children she would have as a single parent to care for, five with V and W, makes it impossible to give the children the attention they need. She would find it very difficult to meet the complex needs of so many with different life experiences and would find it difficult too to reconcile their competing needs. She is facing a serious criminal charge which means the children could not be returned to her for now in any event and could not be unless and until the outcome of the court case is known. She would find it very difficult to resist pressure from her family, who retain strong feelings about the murder. Likewise, she would find organising paternal family contact difficult. The maternal family members have given conflicting accounts of what they might say to the children. Dr. Freedman was to say the children need a resilient carer and she was concerned as to grandmother’s vulnerabilities. It would be a catastrophe were the children returned to her now and then removed because she was to go to prison. I shall return to grandmother with much more detail later in this Judgment.

[16]The father. For obvious reasons father can play little part in bringing up his children. I have not seen him in the flesh so cannot form an entirely balanced view of him. I noted a smirk on his face twice when the grandmother found giving evidence difficult for her, but I cannot tell whether that was due to unpleasantness or embarrassment on his part. But to his credit he has now written a form of apologetic letter to the children and that has been paraphrased to them by the social worker and Guardian on 19th June. I have seen the letter and it is entirely suitable. He does not seek direct contact with his children and it would not be right for them to have any. He has damaged them enough.

[17]The paternal family: I have not heard from the paternal family in evidence, though I have seen their statements and read the final written submission of EF plus those on behalf of the others by Mr. Raindi. They have all come to the position that the children need to be adopted. Significantly, EF told Dr. Freedman there would never be a working relationship between the paternal and maternal families. During the hearing the grandmother was to tell me she would like, were she to care for the children again, to work with EF and rely on her, for example, when she was ill, but EF told me she did not think that workable and in the light of the behaviour in particular of GD and JD.

[18]The maternal family:The grandmother has three remaining children of her own who are or have been involved in this case. The eldest is HD, now aged 21, who lives away from home. She thought she could have some influence over his behaviour in the presence of the children, for he is a regular visitor to the home; but smokes cannabis. To my concern grandmother did not seem in evidence to think that was inappropriate were she there when HD was to come home under the influence of cannabis or smelling of it, but she recognised he would not or should not smoke it in the presence of the children. I found her laissez- faire attitude a worrying approach. V is a teenager and has had some counselling at school to cope with the loss of her sister. She has of course seen the children but rarely because she finds contact difficult. W is, I think, aged only five, the same age as X There is some evidence of the girls conspiring to misbehave together and her influence on X was thought by Dr. Freedman to be deleterious when the children were at the same school.

[19]Perhaps the most concerning evidence was the hostility that still prevails in many of the maternal family. Dr. Freedman had a meeting arranged with them in connection with the script to be given to the children about their bereavement, et cetera, but only HD, GD and KD, her sister, turned up and during that meeting in the initial stages she was confronted with hostile and difficult behaviour which she frankly admitted she found hard to control; and that does not auger well for the grandmother seeking to bring the children up protected from the inter-family hostility which continues to prevail.

[20]I shall refer to remaining members of the extended families by initials only and need not introduce them here.

[21]The local authority. During the course of this case a number of matters have seriously concerned me and I am very pleased to see the number of attendees from the local authority here today to seek to better their practice hereafter. I set out the matters that have caused me grave concern. First, initially the local authority left it to the grandmother in August 2012 to commence with leave private law proceedings for residence of the children, albeit with local authority support. It was my decision to direct a report under section 37 of the Children Act and list the matter before a High Court judge, Recorder Keehan (as he then was) sitting as a Deputy High Court judge, and that led of course to these care proceedings being commenced. The local authority seemed at first unaware of the full import of the decision of Hogg J, in A and B

[2010] EWHC. 3824 (Fam)

. Leaving a relation to take private proceedings where there has plainly been the gravest significant harm is a course too often taken by local authorities in an age of austerity and here, frankly, it was an abnegation of responsibility. Second, the local authority, once the children were removed from the grandmother, left X and Y going to the same school. Ordinarily, that might seem an appropriate course but it can only have added to the children’s puzzlement and confusion to see W there. There is clear evidence that the children, especially X, did not settle in foster care and the children were left with a long journey twice a day from the foster carer’s home in the north of Birmingham to their school in the south. That was poor local authority planning. Third, the local authority failed further to investigate the grandmother and her personal difficulties ab initio. That was an extraordinary omission in an important and worrying case. It was only at the suggestion of Dr. Freedman, made to me at the hearing in February of this year, that I decided there was a significant gap in the evidence that her most recent psychological report now addresses. Moreover, to quote Dr. Freedman, the grandmother needed more support than she was getting at the time of the removal by the local authority and I fear that the lack of support and the leaving of her to make a residence application was a means of doing things on the cheap to the detriment of the children. Fourth, whatever the criticisms of the grandmother may be for not taking up bereavement counselling for the children, even for her own children, nonetheless, having taken an interest in the case by care proceedings, it behoved the local authority to ensure that bereavement and other counselling was in situ, plus the early availability of an explanation of events to the children that was age appropriate as to what had happened to mother and father and why they had been removed from grandmother. The grandmother was entitled to expect more support from the local authority and the children should have had their needs addressed urgently by the social work team. Fifth, I am concerned too that the therapeutic help the children need has been extremely slow to be implemented. True enough, Dr. Freedman did not formally recommend psychotherapeutic input until her report in December 2013 but she did imply that important work was needed to be done in her earlier reports. I accept that the key social worker, Ms Clarke, appears to have done her best to secure help but she was beset, to use her words, by bureaucratic delays such that X, whose need was the greatest had met the allocated CAMHS psychotherapist only once before the final hearing before me and it was not until 30th June, after that hearing, that Ms Clarke was to meet the psychotherapist to plan work to be done. Still no work had been done with the younger children who, I am told, require play therapy, although their needs are not as urgent. I cannot expect Ms Clarke to have diagnosed that the children would have considerable therapeutic needs probably for years to come, but it does seem to me that a psychological referral could have been made long since.

[22]More particularly, I am concerned by the failings of CAMHS to begin the work. Given that, as I shall record, the children currently are placed in a foster home prior to permanent placement until at least some work had been considered – and I appreciate the position has changed – it seems to me a closer local authority link with therapeutic services, whether by CAMHS or its own resource TESS, needs to be urgently in place. Delay remains deeply damaging to a child and I note that in her very first report Dr. Freedman said this in August 2013. “We know that the long term consequences for children who lose their parents include depression, behavioural disorders and mental illness. These children will remain vulnerable and at risk into their adult lives.” That makes the delay in organising therapy for these children inexplicable. I am also concerned that the children’s needs have not been kept under the careful review as it might have been by the Reviewing Officers at statutory meetings, despite Mr. Krumins’s stout attempt to defend them, and I advise Miss Wade of Birmingham City Council to conduct a careful review of who should have been doing what at each stage of this case. Sixth, given the continuing hostility between the paternal and maternal families and their proximity to each other it is alarming that a helpful meeting between EF and the grandmother was simply not followed up. To use the telling words of Dr. Freedman, opportunities have been missed and it is now one and a half years since the murder, as she said in February of this year. Seventh, the family finding work and the evidence by Eugenie Burke was some of the worst evidence I have heard as a Circuit judge. To have available detailed information as to the children’s needs and difficulties in the reports to Dr. Freedman and not even to have bothered to have read them reveals a cavalier, uncaring and entirely inappropriate approach to permanency placement. Given that this local authority, for all its problems, has a reasonably good adoption placement record, the approach of Ms Burke was outstandingly poor. I hope this will be followed up with her, even though she has left the employ of this local authority. Eighth, given the criticism I set out, it is worrying that Ms Clarke was not at all supported by her team manager at the very least when giving evidence. I appreciate and understand that Birmingham City Council is preparing a team of well experienced court social workers and Ms Clarke is an experienced and well intentioned professional, but there are worrying aspects to this case, which is plainly exceptional on its facts. The team manager should have been here to gain a direct insight into what the local authority’s failings are in this case, not least because they are not to be laid at the door of Ms Clarke. Ninth, I am concerned there has been apparently no advice given to the grandmother about financial matters. She appears to have been given criminal injuries compensation monies by Victim Support, not the local authority, but left to her own devices. I do not know and did not explore whether the local authority ought to have assisted her in that regard but this grandmother is plainly naïve about finances and was left with a lot of money to manage of a size she is never likely to have seen before and with no experience of handling it. Now I accept this is not the local authority’s doing but the local authority may care to consider whether in this sort of extreme case at the very least help ought to be offered at an early stage in coping with financial planning.

[23]I come to the law. In determining the right outcome for these children I should bear in mind the following vital points. First, the threshold criteria for the purpose of section 31 of the Children Act are met, as is well established from the case of A and B. There is no doubt that the court has the power to intervene in this case and make appropriate orders. Second, I should apply section 1 of the Children Act. The welfare of each child, considered separately, is paramount when I come to consider the correct orders to be made. Likewise, I should apply the statutory checklist to be found in section 1(3) and with regard to any consideration of a Placement Order section 1(4) of the Adoption and Children Act 2002. I should bear in mind Article 8, in particular, of the Human Rights Convention that each child has a right to respect for family and private life and of course that such rights of all parties are likewise engaged. But I should also bear in mind the very clear analyses of the Court of Appeal following the Re: B case in the Supreme Court. If I am to make, as the local authority urges, orders contemplating non-consensual adoption, then I note with care that such orders are a ‘very extreme thing’ to be made when ‘nothing else will do’ and as a ‘last resort’. Likewise, I should look for clear evidence of a lack of realistic alternative options for the children. I need to see clear assessments of the benefits and detriments of each option and, in particular, the nature and extent of the risk of harm involved in each of the options, in particular, given the gravity of the decision in this case to remove children away from those remaining family members that they have. I must carefully take into account the negatives as well as the positives of any plan to place a child away from the natural family. Accordingly, the analysis I shall undertake of each of the options will, I trust, be global and holistic before I decide which option best meets the duty to afford paramount consideration to the welfare of the child whose case I am considering. I bear in mind particularly the case to which Miss Chavasse drew my attention of Re: T (Placement Order)

[2008] 1 FLR 1721

. In that case it was held that whilst uncertainty as to whether an Adoption Order were possible did not preclude the making of a Placement Order in the particular circumstances of the case, it would not be known if the children were capable of being placed for several months whilst the boys concerned were placed in specialist foster care. Accordingly, the Court of Appeal allowed the appeal against Placement Orders made. Miss Chavasse likewise argued that any finding by me that a Placement Order would be in the interests of the children here would be premature for I do not know the outcome of any therapy, at least for X, who is the most disturbed of the three children. I do not think I can go so far, as will be seen, as to say the children are unsuitable for adoption but may become suitable. Here all I heard was that X required some therapy in situ before a permanent placement could be found were that the outcome of my deliberations; but the evidence is not that she is not to be placed, only that she might not be able to be placed.

[24]I turn now to the February hearing and what I learned from it. In February last I heard from but three witnesses: the special guardianship assessor, Mr. Khan; Dr. Freedman; and Mrs A, the head teacher of the girls’ then school. Yusuf Khan dealt with the Special Guardianship assessments of both grandmother and EF but I disregard that for EF as she is not putting herself forward as a carer. I have read his report with care and in his oral evidence he conceded that there were some very positive things to be said of grandmother’s care, but he nonetheless concluded that the disputes between the paternal and maternal families are too serious for the children to be placed with one side or the other. He was concerned as to what the grandmother might say to the children about the paternal family. He did not consider that grandmother could cope with the emotional needs of the children. Her son HD continued to smoke cannabis and it was not appropriate for the children to be in his company. The grandmother had a worrying tendency to have as partners men who inflicted domestic violence upon her and he worried as to her ability to protect the children. He thought there were tensions between grandmother’s younger children, V and W and the grandchildren that would emerge in due course. He regarded mother’s arrest for the theft of £32,500 from the children’s compensation monies as a serious breach of trust and of the greatest concern. I found his conclusions compelling and very damaging to grandmother’s case.

[25]But what did the psychiatrist, Dr. Freedman, say at this stage? I remind myself she is a consultant psychiatrist with a specialism in psychotherapy and, in particular, in dealing with families where one parent has killed the other, and I say at the outset I found her evidence throughout this case to be balanced and profoundly helpful. She was firmly of the view that the children should be placed together wherever they go, a view she has adhered to throughout; but despite the urgency of placing young children, because of Xs state of mind, therapeutic work should start now, she said in February, so she could adjust for a forever family, “if she’s not prepared then the whole placement of the children will be at risk”. All three children have experienced the loss of mother, father and now grandmother. There had been past domestic violence between father and mother and X might have witnessed it. On the other hand, X could have therapy, she said, after being returned to grandmother. She told me that X going to the same school as W was a problem, something of course now rectified. X at that time was “a very confused little girl” with not seeing father, seeing grandmother only at contact but seeing W daily at school. Whilst she was encouraged by the meeting last summer between grandmother and EF, she said grandmother “has a very large family who are difficult for her to manage”. It could not be said that they would just disappear if the children returned to her. She thought it unfortunate that social services had not facilitated a further conciliatory meeting between the families. She accepted that after the killing grandmother had provided a place of safety for the children, “but they have not been protected from negativity about the paternal family”. Grandmother tried to control the family but she was “up against very difficult characters”. The children would become more aware of negativity as they got older. She was doubtful grandmother could distance herself from those such as her brother or her son. The children were overdue an explanation as to their mother’s death that was age appropriate and X may have a distorted view of what had happened. Each child needed to know more than just the explanation that mother is now ‘a star in the sky.’ It was appropriate father should write a letter of apology but of course both these matters have now been dealt with. The therapy the children need is ‘no quick fix,’ she said. The children would require it at different stages of their development. Grandmother would need help over the death and its consequences. She would have liked it to be a condition of a Placement Order that therapy will continue, but of course that cannot be directed. She did not think the foster carer had received sufficient help and she said this:

“Any carer needs to understand the emotional needs of a child in these circumstances are well outside the normal range and professional help is essential.”

Likewise, the grandmother had needed more support than she had been getting were the children returned.

[26]I also heard briefly in February from the head teacher, Mrs A, the head of B School. X was in the same school year as W, though in different classes. I do not think her evidence is any longer of much significance since the girls have changed schools, but I do note that she said the children were in her view plainly relaxed and happy when they first attended school, brought in by their grandmother. This had changed over time since they have been in care. In particular, there had been difficult behaviour from X with incidents of her hiding under her desk and an allegation that W had got her to misbehave in the dining area. X revealed some information about mother’s murder and was distressed, but that had been coped with by staff at the school.

[27]I move on to the final hearing when most of the key evidence was given.

[28]Dr. Freedman: By the time of the June hearing Dr. Freedman had met and agreed a script for informing the children about the murder and removal from grandmother’s home. She prepared a psychological report on grandmother which I found very helpful. I have already set out a summary of what she said in my Introduction. She added the following salient points as to developments in addition to that which I have already set out. The therapeutic support of the children had still not started and she was fearful it might not continue during an adoptive placement. She feared CAMHS might say therapy should await a placement and, if that happened, X might disrupt a placement; but things have moved on since then and I am not quite as worried about that as I was. It might be appropriate for there to be a long term fostering arrangement in this case because some foster carers are very committed. She recommended that such are grandmother’s needs that she herself needs psychotherapy for up to two years to deal with her own problems. Ideally grandmother should not care for a child until she had had a year of therapy, but therapy could take place with the children placed with her. Such therapy could be arranged with the NHS. She had been concerned to see that grandmother has missed six recent Wednesday contacts and that maybe was because she was de-motivated, being convinced the children would not return to her. She knew the grandmother had had a 12 week course for her domestic violence problems but “there is a lot more she needs to address and this is a tall order to address serious problems when caring for these children”. Her problems such as coping with past sexual abuse had led her to make poor decisions in her life, but doing more therapeutic work “is not easy for her”. She said that grandmother does have some understanding of the effect of domestic violence on a child but she has a habit of avoiding difficult matters and she needs all-encompassing therapy to include dealing with sexual abuse, domestic violence and the death of BB. She had not been proactive in seeking help for the children. She accepted that grandmother was prepared now to have some therapy but thought it would be hard for her and she worried that she was not committed to it. It would remain hard even after a year.

[29]As to her family, she thought grandmother could not fully separate from GD or his partner, JD. She had been pulled in different directions by her family and found it hard to resist. GD had promised her (Dr. Freedman) to stay away from the children. “I do not believe him”, she said; and her meeting with GD, HD and KD had been very difficult. “They seemed just to want to pick a fight”, she said.

[30]She thought the children were more settled with their foster carer. X still wants to go back to Nanny but needs to talk through her feelings with a therapist. It remained essential for the three children to be placed together and I make it clear that these children must be. They have experienced sufficient losses in their lives already. X needs to live with someone who can note the matters she raises at home and keep her therapist informed. She was shown, as was I, various drawings X had done but, like Dr. Freedman, I am cautious about reading anything into them. She thought that Y and Z needed play therapy. It was pivotal though that X should have therapy herself and she was alarmed it had not begun from February until June. It now appears that therapy is not quite so urgent though I accept that this young girl needs therapy sooner rather than later.

[31]She thought the theft of the money will be difficult for grandmother. There was a question of spending some of it on V and W which she would have to explain to the children.

[32]I remained impressed with Dr. Freedman. The obvious conclusion to draw from her investigations is that this grandmother will find it next to impossible to parent the three children despite all the considerable positives that she has.

[33]Eugenia Burke is the current family finding social worker and gave some of the most unimpressive evidence in the case. She became family finder only on 24th April but has now left the employ of Birmingham City Council on 30th June and her role will be taken on by another. In her statement she compares and contrasts the option of adoption with long term fostering but on a generalised basis only. It became painfully clear in her evidence she had no real idea as to the circumstances of these children and she had not read any of the evidence of Dr. Freedman, nor had she read the transcript of what Dr. Freedman said in February last, which I find very worrying. This is no basis on which to trawl for adopters in an exceptionally difficult High Court case and undermines the social worker’s later assertion about the care taken in placement of these three children were a placement order to be made. She appeared to know only vaguely of animosity between family members. She met the three children once on 28th April. She understood they were thriving in their foster placement. She understood that the children had lived with grandmother for a year before removal after mother’s death. She had spoken about the children to the foster career. “I do understand” she said “that they will at some time need therapeutic help to deal with their experience of trauma and loss. They needed help for their bereavement and what’s happened from a psychologist”, not an elegant phrase. Her answers were vague and unconvincing. This is a witness who has not mastered the case. Her view was that the children should be kept together because they are so attached. But then she said if an adopter came forward just for the younger two they would have to look at that, a key failing in the light of the assurances the local authority seeks to give me through Ms Clarke. It seems to imply Ms Clarke’s assurances could be overridden; so the care plan dealing with the need for the children to be together needs to be very tight indeed. I say no more about Ms Burke. I am not satisfied at all with what she had to say.

[34]The social worker, Valerie Clarke, became the allocated social worker only on 23rd December; so many of the delays and inadequacies in this case cannot and must not be laid at her door. She described a worrying recent event when grandmother said at a contact she did not have enough lunch money for the children when monies had been supplied to her by social services. That resulted in grandmother ‘phoning KD for money and the children saw KD and their cousin at a time they were not supposed to. I agree with Ms Clarke that this was sending mixed messages to children needing to settle and the grandmother of course later conceded that she had manipulated the situation that day - which causes me concern. Generally contact had been in decline because grandmother had missed the last six Wednesdays. Contact was now two hours on Saturdays and one and a half hours on Wednesdays. The children have been let down. She understood grandmother had been ‘having a rough time’ and needed some counselling. V had had only one contact since the interim Care Order was made. HD sees the children once a month and W has seen the children a couple of times since in care but the grandmother struggles to manage all the children together. She advocates adoption for the children. They could securely attach to an adopter, just as they have with the foster carer now, and it gave an opportunity to recover from their trauma. Whilst she understood the children could return to grandmother during therapy, she was convinced as to the effect on the children of grandmother’s need for one to two years of difficult therapy for that might compromise her care of them and X might then revert to the parenting role she had inappropriately taken for her siblings previously. It was not appropriate for children to see their grandmother struggle through therapy which would distress her and them.

[35]Grandmother did not have sufficient support networks. She is vulnerable and gets poor advice from GD and JD. The inter-family hostility remained a concern. The breach of trust as to the monies is especially worrying. The paternal and maternal family conflict will put the children back. The grandmother had failed to assist even her own children with therapy for their bereavement: nothing from Winston’s Wish, the organisation recommended, had been set up for W and V. Grandmother had not kept appointments. She did not support long term fostering because this is very interventionist in a child’s life with its regular medicals and reviews. Some carers lack stamina and commitment. Children can be challenging during therapy and of course they can be put into respite care by foster carers. There is a stigma in such fostering arrangements and the children would be exposed to family dynamics. There is just as much a risk of breakdown in long term fostering as adoption. Yet it could be a fantastic placement for children. They would be able to see their family. TESS could be engaged with, and needs could be monitored through the local authority sharing parental responsibility, and the local authority could assist with contact; but she thought adoption was to be preferred because of its opportunity for permanency for children of this age, their need for a forever family where they are valued and treated as a family member, because adoption creates legal rights and the opportunity of attaching. Fostering can give mixed messages. The children need to feel loved and cared for and she said it is an opportunity to move on and come out the other side. There is adoption support from the local authority and less intrusion in the children’s lives. They can concentrate on what therapy they need and address their needs generally. The disadvantages she set out but it meant severance from the birth family, living away from people they had grown to love. One does not know how they would react to severance and there would be a risk of breakdown. It is a difficult balance, she said. She conceded that placing these particular children for adoption would be difficult because of their age, their mixed heritage and the trauma they had undergone, but it was not impossible.

[36]She thought adoption was better on balance because it gave the opportunity of recovering from trauma and starting again. She said she would do all she could to prevent the children being separated and it was later agreed by the local authority – and I shall return to this – that any care plan would be amended to put this plan even more firmly. Social services management had seen Dr. Freedman’s reports and she could not envisage separation. The local authority would be resourced for any Birmingham City Council adopters throughout childhood and for external adopters for three years. She told me that X had seen a therapist on 28th April and she would discuss progress about therapy on 30th June. Y and Z are very settled and their therapy will be organised through TESS, the local authority’s resource.

[37]She worried about ‘pathologising’ the children but, with respect, I disagree with her. We have plain evidence from Dr. Freedman of the psychological difficulties inflicted on children by their mother’s murder. She explained that the children had been referred to TESS in October of last year. There were several meetings to discuss needs but it was not until January 2014 that TESS said they could not help X and she should be referred to CAMHS NHS. I find the conduct of TESS in taking so long and the delay of the local authority in pursuing the matter extremely vigorously and CAMHS in being so slow quite inexplicable. Ms Wade really needs to get to the bottom of this. It was difficult, said Ms Clarke, to start therapy with a final hearing imminent, but I would like to have seen Ms Clarke getting more support, and therapy being organised, at the very least well in advance even of the February hearing.

[38]She was asked about bereavement counselling through Winston’s Wish. It seemed to me that grandmother had been encouraged to engage with this organisation but no pressure was placed by Ms Clarke’s predecessors to have therapy when grandmother failed to engage. Ms Clarke could not explain why no explanation had been given to the children for their bereavement, nor why that promising meeting in July of 2013 between EF and grandmother was not built upon. In fact she agreed it was a missed opportunity, but she said she had been frustrated by the bureaucratic concerns in setting up therapy for the children and I understand what she said. Bearing in mind Dr. Freedman said therapy was urgent for X in December 2013 not to have started it by June 2014 will not do.

[39]Why did she say the children were not well presented when removed? She was adamant they were not. I do not attach especial significance to this. I am satisfied that, generally speaking, the children were adequately cared for by grandmother. This is not a case about neglect.

[40]She had met the children with the Guardian in June of this year on the 19th when the explanation for removal and what father had done had been given. Had she been unfair in her written evidence in referring to the incident where the grandmother is said to have told a ‘secret’ to X, that of seeing JD outside contact on 4th December of last year and had that not really been especially upsetting for the child? She had to concede there were other factors at play which were set out. So in other words, the distress of the children cannot be exclusively attributed to grandmother wrongly involving X in keeping something from the contact and escort workers. Ms Clarke did accept that the children had been confused over seeing W at school and they had found it difficult to travel such a long way to school. They had suffered tiredness and feelings of insecurity. I have concluded that she was perhaps a little unfair in attributing the children’s insecurity to grandmother’s behaviour at contact alone but her general concerns about grandmother are nonetheless reasonable ones to have and I have to say I found Ms Clarke’s evidence helpful and her conclusions generally compelling.

[41]The grandmother, CD. She has made five statements which I have read. She is firmly of the view that she should have the children returned to her where she thinks they are best placed. Not to return the children to her, she thinks, will cause a great deal of trauma for them and this will extenuate the loss they have already suffered in losing mother and father into adulthood and her since September last. She presently faces a criminal charge of theft of the children’s compensation monies and was to plead at a case management hearing in the week beginning 30th June. I do not know the outcome of that. I understand the plea was to be not guilty and I read a confident letter from her criminal solicitor predicting a not guilty finding by a jury after a two day trial anticipated to take place in September. The quantum stolen is said to be £32,500 dissipated by grandmother over a period of four weeks when the monies arrived in the children’s accounts. Now I am no longer a judge sitting in crime but I would have thought there was a risk of conviction, of the grandmother risking losing the credit she would otherwise gain for a guilty plea and that the custodial threshold is also crossed, albeit with good potential mitigation. The solicitor for the grandmother suggests at worst a suspended sentence is likely and I do not think that is an inaccurate prediction, though it may prove to be wrong, who knows. The statement filed by grandmother includes a sad and contrite letter of 2nd November to Judge Plunkett, who was originally to hear this case, dealing with her sorrow about accessing and misspending the children’s monies.

[42]She told me she had previously offered to take the children to see their father in prison but she has reflected now on that and says she cannot do it. Indeed, she did not wish to look at father over the TV video screen during giving evidence. That in itself shows that continuing feelings and emotions run high in this case.

[43]She told me of home life for the children. She had tried to remind the children of life with their parents. For one contact she had taken the children to the Nature Centre and the girls remembered going there with their parents. She keeps a pram at home which X remembers sitting on as a little girl and keeps mother’s pink nail varnish and puts it on the girls, keeping coats that mother bought them; and X is still allowed to play with father’s hat that she found amongst her toys.

[44]What about her trauma and grief? She has had help from AP of Assist Trauma Care for six months and he has written to say she would cope with the children. She said she had ‘not really taken in’ the death of her daughter and looking after three children had kept her busy. She could grieve only once the children were removed and of course she plainly still does.

[45]As to her own children, HD, the eldest, has left home. She described him as aged 20, very protective, loving and caring, yet he still smokes cannabis regularly and I was alarmed to hear her say she would cope if he arrived at her house affected by cannabis though acknowledging there would be a smell. As to her other children, V is still at school and gets some bereavement counselling when upset. W is close in age to X and in the same year at the same school when this case began and remains puzzled as to why X and Y and Z have been taken away.

[46]What about counselling? She would have welcomed any advice from the local authority as early as February 2013 and she had been put in touch with Winston’s Wish by Victim Support at the beginning of 2013. There were two visits by Winston’s Wish last summer but the children were removed before any work was done with them. She could not remember when the help was supposed to have started but she can scarcely have pressed for it. There was an appointment for them to help V and W in April but she had to cancel and she did not hear from them again; but this was contradicted by emails from Winston’s Wish indicating that grandmother did not respond to a suggested appointment on 8th May. Grandmother told me there had been a delay in organising bereavement counselling for V and W from September 2013 until this year because the worker had said they should not start until they knew the outcome of this case because it might involve another loss; but she was forced to concede that not taking up that meeting in May was a missed opportunity. Yet she did not agree that she too is struggling with her own emotions, hence her failure to take on help.

[47]What about her contact to the three children? She has missed the last six Wednesdays. She said she had a chest infection for two weeks and on one occasion W was unwell. She had tried to contact Val Clarke but her messages and texts were not returned. She then conceded that Dr. Freedman was right in suspecting she is defeatist as to the outcome of this case and she agreed that her failing to attend meant the children being unnecessarily taken to contact and the let down had upset the children. She was trying to distance herself and was ‘panicky’ travelling so much but of course attending only once a week instead of two [she had to agree] was not distancing herself, and I wondered if this failure to attend revealed a continuing disabling grief or else an inability to organise herself, neither of which bodes well for the future. She was asked about telling X of that secret at contact in December 2013. That was the occasion when JD was wrongly outside the school in her car. X had seen her at a time when JD was not supposed to be having contact. “There’s Auntie J” X had said and she had told X not to tell anyone. She had not told the social worker or contact supervisor that JD had come without her agreement but she denied telling X it was a secret. She accepted she had told X to say nothing and understood it might be thought by others that she was putting her own interests ahead of the children. As to the contact on 21st June she said that she had arrived with £10 less than she needed at Tumble Jungle so she had phoned KD. She knew it was wrong to get KD to come but X wanted to see her. KD did not know she was going to be telephoned. She got hold of her at the shops. Then she confessed she made up the story about £10 though KD did not know she was going to do what she did. She realised she should have rung the social worker and asked for contact for KD and then made an application if it had been refused.

[48]She told me the children’s wishes and feelings are plain: they all want to come home. Z had recently said, “Nanny, me come your house”. She fears that X’s reaction might be awful if she was told she was not returning. She would cooperate with therapy needed for the children and she conceded that Z and Y may need play therapy. She accepted she too needs therapy as recommended by Dr. Freedman but her record in obtaining help is not especially good to date.

[49]So what about the domestic violence problems and therapy generally? She has undertaken the Freedom Project course on domestic violence but recognised she needed more. She does not want another partner, she says. The course she undertook finished just after Christmas, she said, but she was very vague about the date. It then emerged that she has in fact attended only six sessions, not the full 12, barely a start at undoing the effects of three violent partners and a childhood troubled by domestic violence problems. If she finished her course in February what more has she done? She had not really completed the course anyway. She said she had not taken anything else up. She learned to be careful about other partners and pointed out some of the things she needed to look out for. I did not feel she had learned as yet to be sufficiently wary to protect herself and very much needs to obtain more help. She knew she had to talk about things. She felt she could undertake therapy and care for the children; it could be done whilst they were at school. She knew it would be difficult dealing with such issues but I gained the impression she did not appreciate the emotional pressures and stresses that therapy can place on a person undertaking it. She realised Dr. Freedman had said it would be difficult. She agreed she had not spoken to anyone before save her GP about past sexual abuse. She would not agree she would find it difficult to have therapy. She would be able to talk to a therapist to “get it off my mind.” She agreed, she said, she kept past unpleasant things “locked up inside my head” but she does not understand how difficult it is going to be for her and I think she is naïve about this. She agreed that there could be quite a wait for the right person with whom she got on.

[50]As to her physical health, because of her low weight, she had had an appointment, with a dietician but had cancelled it; yet she had not re-arranged that, and she had to agree with Dr. Freedman that she lacked self-esteem. Was this not like other matters? She knows the help she needs but fails to access it. She emphasised she would take up that help because it was for the children’s sake, but I am unconvinced for her record in taking up help remains a worrying one.

[51]Maternal and paternal family animosity. She explained that KD had been a great help to her and had looked after her own younger children when she had contact with these three children. She agreed there had been unpleasant incidents involving her family though with the paternal family members. She herself felt no animosity towards the paternal family and had spoken to EF last summer and later thought EF could help in looking after the children when she was ill. She felt Dr. Freedman’s meeting with GD, HD and KD had been helpful. They felt they had been listened to, she said. She said she would not allow anything unpleasant to be said by her family about the paternal family in front of the children. If GD started she would order him to leave. Nasty things said would scar the children. She would not allow her family to do things motivated by their inability to control their emotions.

[52]The theft. KD is repaying money, as is she, to replace the monies stolen from the children’s injuries compensation monies. The total monies the children had received was £86,500. She claimed she had not read the letter from Victim Support saying monies were to be used for the children only but, as Miss Gallacher correctly pointed out to her, she had signed an acknowledgment by way of a receipt for the monies as solely for the benefit of the children. Grandmother claimed she understood what she had done was wrong now. If that is the case that would be remarkably negligent of someone seeking to care for young children. She said she knew that £5,500 had to be in a trust fund for each child, but that was to confuse the heads of damage, not the fact that any monies received for the children would be held by her on bare trust for them. She now knew it was wrong to behave like this and spend money, she said, and she acknowledged she was guilty of a breach of trust for in the space of four weeks, 24th July to 28th August 2013 she spent £32,500 of it despite having a further £8,000 compensation herself. £10,000 had gone on cars. She sold her car and a necklace she had bought for £1,000 and spent that on Christmas presents for the children, but that compounded the problem because she knew then she had been arrested for theft of the monies that ought to be returned. I learnt she had bought a car for herself, for HD and KD and paid their insurance also. She had paid for a family holiday in Brean. She had been persuaded to pay for items for KD and admitted to Miss Gallacher she has allowed members of the family to take advantage of her. She was a target, she said. But that does not auger well for her ability to stand up to her family, especially as KD is one of the more cooperative members of the family. She at no point said to family members that monies could not be spent that way and, frankly, it should have been obvious to anyone. She claimed the car for KD was to drive her and Z to hospital when K had seizures because she was only just learning to drive. She bought herself a necklace for £800, but she simply could not account for the vast majority of the monies and she agreed she had spent money on all of the children, including V and W. She said she could not distinguish between them, but of course she had to. It was the money of the three children in this case. She emphasised how much she had cared for and protected the children when their mother died and I do not doubt that, but what all this shows is a terrible lack of judgment.

[53]How would she manage if the children were returned? She said she had coped before and would cope again, and there is no doubt she coped reasonably well for 12 months but equally other unresolved issues have emerged since. When the children returned would she not have an enormous amount of things to do? Her therapy once a week; perhaps X’s regular therapy; play therapy to Y and Z; Winston’s Wish work for V and W etc. She managed before, she said, and would again. I do not doubt this lady’s good intentions but I rather doubt that she would be equal to the pressure and I agree with the local authority view that this would be a ‘tall order’. After all, she told Miss Collins that X can be “hyper”, very active, and she conceded that X and W together are ‘a handful.’ If she cannot have the children back, she would like, them be subject to long term fostering. She understands the disadvantages in that but she thought that adoption would not be better because it would break down.

[54]I want to make it clear that I have a great deal of sympathy for this sad and damaged grandmother. I do not doubt that she has tried to do her best but the tasks she has had [and will have] have proved beyond her and the court has to recognise this in the order it makes.

[55]The Guardian, Yvonne Jackson, is very experienced and has given evidence many times. I have read her report recommending a Care Order and Placement Order. She attended at the meeting on 19th June when the script work was done with the children. She found them to be settled and happy when she tried to discover their wishes and feelings. X again said she wants to live with her Nan, Y said she wants to stay with her foster carer but that was possibly because of what she had just heard in the script and was taking in. Z remains too young to express a view. The children have been quite normal at school thereafter though they asked for extra comfort that night. X said to the foster carer they saw Auntie K at contact on 21st June and “someone is going to be upset”, though I attribute no particular significance to that.

[56]To the Guardian the main advantage of adoption is that the court is dealing with very young children who would have the benefit of a full family life if placed and respect for their family life. The main disadvantage was severing family links though letterbox contact can of course assist. The main advantage of long term fostering is the continuation of that family link but the continuation of involvement of the local authority is a disadvantage because it is a statutory parent, there are regular reviews, the children are less permanently settled and foster parents cannot make decisions for themselves. The main advantage of a return to grandmother is that hers has been their home and that the children would undoubtedly benefit from her love and devotion, where they are accepted, but the disadvantage was the mutual paternal and maternal family hostility. The grandmother’s psychological profile is of concern, as is her need for therapy. The more she heard of the grandmother’s evidence the more she was against a return to her. She did not think grandmother could sustain consistent care in the long term. Which is better, adoption or long term fostering? She had borne in mind the special needs of the children because of the murder, but adoption would mean complete acceptance of the children in a new family home whereas there could be frustration with foster carers. X has serious difficulties and the key was good and effective therapy which could be undertaken in adoption. The absence of contact might be beneficial so that therapy and security of placement would not be jeopardised, and she agreed with the B-S analysis of Ms Clarke.

[57]Was it not the case that this grandmother is resilient enough to cope, asked Miss Chavasse? She was referred to the complimentary comments that I have set out in this Judgment already and other endorsements. She agreed grandmother had managed consistent care during contact and contact was very good. All reports are very positive, she agreed but she did not agree grandmother is resilient. Hard work had had an adverse impact on her health. It was too much for her to cope with the therapy she needed for herself and these children. Grandmother’s own therapy would affect her psychological wellbeing and this was despite it being clear that all the children wanted to live with her. Ms Jackson feared what the maternal family would do and, although there was no evidence of them saying inappropriate things to the children now, things had been said in front of the F family children in the street and misbehaviour at the school was very serious. Whilst she accepted grandmother evinced an intention to work with the F family for the sake of the children she felt that would not happen, a view later confirmed to me by EF in her short final submissions. The families were very far apart, even though time could be a healer.

[58]More difficulties lay ahead for this grandmother and even so the children could not return back to grandmother until the criminal case was disposed of. Although she agreed therapy could start before the criminal trial, she agreed there would be an inevitable delay whilst an adoptive or long term foster placement was found. She accepted too there would be difficulties with X once she knew that she would not be returning to her family. She had been disappointed that help for the children had taken so long to start. She did not accept though that the inevitable delays in placing the children would mean they should not be placed. They are young children. It was important they should know soon the decision that they would not be returning home if that was the court’s decision. She accepted all the difficulties in placing them: the children’s mixed heritage, therapeutic needs, et cetera, which is why a careful search for acceptable carers is necessary in this case. She has ruled out a Care Order with the children living under that order with their grandmother and in any event that is something this local authority would decline to arrange. Why did she say relevant assessments had been completed in February when the script work had not been done and the assessments of grandmother were incomplete? She had felt, she said, that all had been done that was necessary. I do express that I am a little disappointed that she did not argue, as I think she should have done, at the outset, for delay of the February case when the absence of the children having an explanation as to why they were in care and why they were removed from grandmother plus what had happened to their parents was significant, but in fairness it was only in the early days of the trial in February that the lacuna in information as to grandmother became clear in the evidence.

[59]Ms Jackson was concerned that grandmother had not completed her domestic violence course. She thought she had done her work last October and many months had passed since work had been undertaken. What is clear is that grandmother has not taken up offers of help with domestic violence historically. She was concerned about the inability to progress therapy and the failure to engage with Winston’s Wish. For all the risks involved a placement option remains in her view the last resort in a difficult case and it was the only feasible option. I have to say I find her overall conclusions compelling.

[60]I come to the law. Having reviewed the evidence at length I revisit the legal position. I have already set out what must be my guiding principles which I need not repeat, but I now refer to two cases Mr. Krumins cited to me for the local authority. In Re: V (Children)

[2013] EWCA. Civ. 913

the local authority appealed the Judgment of Baker J, in which he decided that a Care Order was necessary but it was in the best interests of the children to be in a long term foster placement and maintain contact with their parents rather than be adopted. The judge acknowledged the undoubted benefits of adoption but was not prepared to accept that safety and security could not also be provided by long term fostering. Black LJ, held on appeal that the judge did not give sufficient weight to the disadvantages of continuing contact and said this:

“I do not think that fostering adoption can in fact be equated in terms of what they offer by way of security.”

She then went on to compare and contrast the two arrangements and said, “What I say should not be taken as a substitute for professional advice to the court from social services and/or the Guardian in any case where this is a significant issue.” Applying that case, I shall weigh up with care the advantages and disadvantages of the outcomes that are possible. In Re: A (Children) [2013] EWCA. (Civ.) 1611 the judge, in deciding whether or not adoption or fostering was the better course for two boys set out in express terms the attributes she considered essential if adoption were to be beneficial for the children. She was concerned that the mix needed would be watered down or compromised by the local authority whose application she was considering, but the Court of Appeal held that her order in effect imposed conditions and that the order she made and the stipulation she sought to deploy “fell well beyond the line that divides the role of the court and the role of the local authority under a Placement or Adoption Order”. The Court of Appeal nonetheless allowed the mother’s appeal on the basis that the judge had not found that nothing else would do and was expressly contemplating that long term fostering would do. So I remind myself, if I find that placement away from grandmother is the only solution that will suffice and if I find that long term fostering would be sufficient for these children then I should not make a Placement Order but what I cannot do is impose any conditions on a Placement Order, and I accept that authority.

[61]So I compare and contrast the positions were the children now to be(1) returned to grandmother,

(2) made subject to a Care Order or a Placement Order and

(3) made subject to a Care Order but only if the local authority were to change the plan to that of long term fostering. Of course I well understand that, if the local authority cannot find an adoptive placement if I make a Placement Order, it would change its care plan in due course to one of long term fostering. I make it clear again the care plan must in any event reflect the fact that on no account must the children be separated, and I am pleased to see Ms Clarke’s positive views about that and I know Mr. Krumins will agree to any relevant amendment. So I apply the B-Sapproach with care and I remind myself that adoption must be a solution of last resort if that is the route I take.

[62]The grandmother – the advantages of a return to her. First, there is no doubting the attachment of the children to her, their love for her and hers for them. That is clear from her care for the children for over a year and from the successful contacts which are recorded. The children show some distress in separation but they are now more settled with their foster carer. Second, the children all in their different ways have made it clear they want to their grandmother’s home. Third, the placement is known to the children. They have lived with the grandmother for over a year after the murder. Fourth, contact with grandmother has been consistently good, reflecting a grandmother who can give good stimulation, interaction, guidance and boundaries, someone who can manage the children and ensure safety. Fifth, there is no doubt the day to day welfare needs of the children were adequately addressed when they lived with her. I do not consider the children were substantially or significantly neglected. Sixth, the children could return to the school and nursery they know. Seventh, the children’s rights in respect of family would be promoted. So all in all I accept this grandmother has much to offer the children. But for all the advantages I have set out I am afraid, however, I am not at all convinced this grandmother can cope in the long term. I have thought long and hard about the possibility of a return to grandmother and I would so order it were it possible, but I find, not without regret or sympathy for the grandmother, that this cannot be. First, she has substantial therapeutic needs of her own and I accept the matters of concern about her raised by Dr. Freedman. Whilst therapy could take place over one to two years were the children placed with her she would find it difficult to manage with the distress engendered by such therapy. I have set out her problems in my introduction; her own depression and reaction to therapy could have a very adverse effect on these children. One can see from her failure to take up contact recently that the six occasions I have set out indicate that when she struggles emotionally she cannot prioritise the children. Moreover, the outcome of her therapy is unknown. In addition, she has low self-esteem, according to Dr. Freedman, and problems with her body image. She is simply not psychologically resilient, which she needs to be. Second, I am not persuaded she would be able to ensure therapy would be available for her own children, let alone the children here. Her history is one of not proceeding with what is on offer, for example, the further help with domestic violence she could have had, the appointment with the dietician, the failure to seek the therapy recommended by Dr. Freedman until during the hearing before me. Moreover, her history is also that she might discontinue with therapy for herself or for the children. If the children, or V and W, were to be neglected the household would prove dysfunctional. The evidence is she did not attend two appointments with Winston’s Wish in April and May 2014, so therapy for V and W did not start as she indicated. I do not accept her account that the staff cancelled the appointments. Thirdly, in line with the therapeutic problems is the history of the grandmother failing to follow through with her own appointments or even treatment. In the past she has been prescribed antidepressants and not taken them. She has not attended Women’s Aid for domestic violence as long ago as 2007. She did not complete a domestic violence course in 2013. She did not complete the 12 week course with the Freedom Project, having implied that she had. She has not sought domestic violence help further. There is no evidence, as she put it, she has learned from the Freedom Programme, rather that there is much learning to do. Fourthly, the evidence is she could not reconcile or cope with the competing needs of the children in the long term, according to Dr. Freedman. Fifth, she would not on her own evidence keep GD away when he smokes cannabis and cannot see his affected state as compromising the children’s interests. He would pose a threat, in my view, to the safety of the children. Sixth, she is quite unable to keep her own family away and the influence of GD, HD and LD; and JD in particular, is a bad one in terms of running down the F family. The children do not need to hear criticism, even of their own father, for all that he has done and it is the behaviour of GD and JD that is especially concerning. Moreover, on her own admission, this grandmother has been manipulated by her family, even by KD. Moreover, Dr. Freedman says she turns to her family for relief from depression and anxiety, scarcely an indication she can break away from them. Seventhly, the conflict between paternal and maternal families is likely to continue. This grandmother is unlikely to be able to promote a balanced view of the paternal family. It is, in my judgment, unlikely she can protect the children from such conflict. Eighthly, the bad behaviour of her family extends even further. I note MD has even called the foster carer a witch. Ninthly, I do not think this grandmother can work with the local authority. She hid the news of JD being near contact. She recently on her own case wrongly arranged a meeting with KD at contact. These are not actions of someone prioritising a good working relationship with the local authority, rather it is an illustration of the maternal family ignoring and overriding advice and guidance from the local authority. Tenthly, her own propensity to take on violent partners is not fully dealt with and the last thing children in a violent relationship need is to be at risk of exposure to another one. Eleventh, she is at risk of a custodial sentence for her breach of trust and even if her solicitor advising her is correct, as I hope, and she will either not be found guilty or else will not receive such a sentence, she will still before too long have to explain her diversion of the children’s monies to them. It is a recipe for conflict during adolescence. Twelfth, even if she does not receive a custodial sentence, the fact that the enormous breach of trust indicates an inability to handle money at best and persistent bad decision-making under the influence of her family at worst. That she cannot account for the £32,500 spent in anything like sufficient detail is deeply worrying. Moreover, even when selling items she wasted money further. Thirteenth, there remains a risk of placement disruption if the children return to her and, fourteenth, in conclusion I am afraid the disadvantages of returning home for these children greatly outweigh the advantages.

[63]The advantages of a Placement Order. First, these are young children and, subject to the caveat as to the problems of X, should be able to be capable of attaching to a new family just as they have now attached, apparently, to their current foster carer. Second, for all the difficulties of placement, it can be tried. Clearly, the adopters would have to be very special but, as Ms Clarke has said, difficult placements have been found before and been successful. The family finder should not be daunted by the size of the task, but I hope a better family finder will be engaged on this occasion. Third, it gives the children permanence. Fourth, it promotes the child’s right to respect for family life. Fifth, it means a lifelong commitment by all parties. Sixth, adoption gives security and legal right to inheritance, et cetera. Seventh, there will be adoption support available and therapy should be arranged notwithstanding past failings of the local authority in doing so. Eighth, therapy would not be compromised by the conflicting emotions engendered by contact. Ninth, the children will be free of local authority involvement, medicals and education plans, et cetera. Tenth, placement could and should be with a carer carefully assessed to match the needs of the children and should be possible.

[64]The disadvantages of a Placement Order. The children, first, would not be in a position to have contact with grandmother, V and W, maybe not HD. I concede that letterbox contact could take place but it is not greatly meaningful for children of this young age. Second, we do not know whether an adoption would be a success because much depends on the outcome of therapy. That said, if the trawl is unsuccessful the local authority can of course change its plan as I have set out, and that should be set out as a possibility though not time limited in the amended care plan. Third, there will be an inevitable risk of breakdown in a case such as this. Fourth, there will be difficulties anyway in finding a suitable adopter. X is already five and a quarter. The children are of mixed race or heritage. They have long term therapeutic needs. There is a strong family attachment and there is the background of trauma. Fifthly, there remains the risk of those dealing with the placement of the children ignoring the clear signal from this court and the social worker that the children need to be together, though I accept the local authority is going to do what it can to avoid that.

[65]The advantages of long term fostering. First, there would be continuing contact with the grandmother and aunts who deeply care for the children. It maintains links with both paternal and maternal families generally. Second, the local authority’s statutory duty is to review the case and to engage in medical checks would mean the children’s mental and psychological health could be properly monitored. I have expressed concern over delays of the local authority in assisting these children to date. [The obligations of course continue even when the children leave care]. Third, there will be a fostering link worker to support the foster carers. Fourth, the children’s therapy would not be compromised by conflicting and family emotions and, fifth, the local authority would manage contact, even possible, though doubtful, paternal contact.

[66]The disadvantages of long term fostering are these: First, it does not necessarily provide assistance and support beyond childhood, though adoption should do so in that adopters will be committed to them. Second, there is a risk of an application to discharge the care orders that would be inappropriate and render the child or children involved insecure. Third, the continued contact with the family may be de-stabilising and it is better to have a clean break, for example, from GD, LD, JD and [possibly] HD. Fourth, the children might come to regard the local authority checks with them to be intrusive with regular social work visits and the likelihood of a number of a different social workers entering and leaving their lives throughout their childhood. To my knowledge Birmingham City Council has a particular staff turnover problem and this would accentuate this. Fifth, there would be a delay while the care plan is reconsidered. Sixth, there would be a need for respite care which can be de-stabilising. Seventh, foster placements like adoption placements can equally break down. Eighth, there is a stigma about being a child in care. Ninth, the children may feel rootless. Tenth, contact can be manipulated as it has been by grandmother on occasion and, Eleventh, the maternal family continue to have a poor working relationship with the local authority and that cannot be said to be likely to improve.

[67]My decision. It is plain to me that, despite the advantages of being placed with grandmother, the evidence that the children ought not to be is overwhelming. Applying the test that the welfare of each child considered individually is paramount, it just is not feasible for the children to return to her. That the local authority was late in identifying the defects in her parenting and the likely problems is not the point. The summary of the advantages and disadvantages of the different options points unequivocally to permanence. What of placement? I have been concerned throughout this case that, given the particular affection of the children for grandmother and the wrong approach initially taken by this local authority, this may have rendered a Placement Order as not being a last resort and long term fostering rather more appropriate. I have set out the comparison of the two possible outcomes but having heard the grandmother I have become convinced that long term fostering, though possible, and inevitable if the children cannot be found an adoptive placement, is at best a fallback position. The right thing for these children is a new start away from the troubles, difficulties and acrimony that these families continue to exhibit. It is not so much a preference that adoption must be tried but rather what these children must have. It is a last resort. Nothing else will do. Retaining a link with their families, much loved though grandmother is, is not the right option for the children and a Placement Order avoids a continuing reminder of the past. I find myself, therefore, in agreement with the social worker and the Guardian as to what is right for these children and why the court should make a Placement Order in the circumstances. Looking at the matters that I have to under section 1(3) of the Children Act I have borne in mind the wishes of the children to return to the grandmother, which it would not be in their best interests to fulfil. Their needs, especially their emotional needs, require the security that only adoption can meet. The effect of a change in circumstances may mean further short term trauma but this is a case where trauma is inevitable and therapy must be arranged as necessary. I have borne in mind the problems with these children, especially those of X, even though those are said now to be a little better. I have evaluated the harm the children might suffer in looking at each possibility. I have borne in mind the grandmother’s inability in reality to cope long term with these children. I have considered in depth the powers available to me. In connection with the Placement Order I have borne in mind the matters under section 1(4) of the Act of 2002 and in particular to the effect on each child ceasing to be a member of the birth family and being adopted, and I have noted the relationship with the grandmother in particular, which will come to an end. I also consider that adoption is in the interests of the welfare of the children and it would be in the interests of their welfare that I should dispense with consent to adoption if that was appropriate, though it is not necessary in this case because the grandmother does not have parental responsibility and the Father agrees the outcome.

[68]I agree the care plan must be amended and I ask Mr. Krumins to deal with that when I have finished my consideration.

[69]As to human rights I remind myself of the children’s rights and those of the grandmother are engaged as well as other respondents. A Part IV Children Act order should be made only when it is necessary and proportionate. For the reasons I have set out, court intervention by a Care Order is essential in this case. The children need protection from the problems I have set out. They need a stable family life where they can thrive untroubled by any further events. I am satisfied that the intervention in family life required to make the orders I am making is essential in a democratic society and entirely proportionate to the difficulties posed by this troubling case.

[70]That then is my decision. I await Mr. Krumins’s view of the amended care plan.

[71]I say only this more about the case. It seems to me that the local authority can learn a great deal about its failings in this case. I am grateful to all the senior social workers who have attended today to keep a close eye on what has gone wrong. Can I say this? In cases in future of one partner killing the other seems to me that, first, the local authority must commence a care application as a matter of urgency, the threshold criteria being plainly met. It may of course be that children never leave the care of a relation after the event, but the local authority should give the case a clear steer. A delay of even a few weeks is unacceptable as the local authority needs at once to have parental responsibility as no one else will have it save for the murderer. Second, the case should immediately be transferred to the High Court and it is for the liaison judge to decide whether or not the case can be released to a section 9 judge for case management and/or trial. Third, the local authority must do what it can to promote bereavement counselling for the children. Fourth, the local authority must bear in mind the children will have inevitable therapeutic needs and an appropriate psychiatric report should be engaged to examine these. Fifth, if the local authority is to place or leave the bereaved children with a close family member the local authority must as a matter of course urgently properly assess the family member who may himself or herself be suffering from loss arising from the killing and who may have difficulties in their own life and need careful evaluation. This was not done in this case and the traumas of the children have almost certainly been accentuated as a result.