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Cite as: [2014] EWCC B41 (Fam)

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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 [or his/her] 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.


14th March 2014

B e f o r e :


Re: R (Children)


Transcribed from the Official Tape Recording by
Apple Transcription Limited
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Counsel for the Local Authority: Mr. A
Counsel for the Mother: Miss B
Counsel for the Father Mr. C
Solicitor for the Guardian/Children: Mrs. D



Crown Copyright ©


  1. THE JUDGE: I am concerned with 2 brothers, A born, on 24th May 2012, and B, born on 10th September 2013.
  2. The parents of the children are C and D. I hope they will forgive me if I refer to them as "the mother" and "the father" by way of shorthand.
  3. The Local Authority's key social worker is Q and the children are represented by their guardian R.
  4. This is the Local Authority's application for a care order in relation to A, issued on 2nd August 2013, and for B, immediately following his birth on 17th September 2013. The Local Authority's plan for A and B is that they be placed for adoption and, hence, there are placement order applications issued on 6th January 2014.
  5. Each of the parents opposes the Local Authority's applications and puts themselves forward as a prospective carer for the children. The children's guardian did support the Local Authority's applications, although, in the light of the way the case has developed, she now reserves her position.
  6. The father has suffered from profound deafness since early childhood and has very limited speech. He relies on BSL signing. The mother seems to have had normal hearing for the first four years of her life but only partial residual hearing since then. She speaks well, can lip-read to a limited extent and has some BSL signing skills. Both parents have been assisted during these proceedings by hearing interpreters and relay interpreters. I am extremely grateful for what, so far as I can judge, has been the extremely high standard of that process. For the record, the children do not have any hearing impairment.
  7. Over some four days last week, albeit interrupted, I heard oral evidence from Dr Sally Austen, Q, the mother and the father. The guardian indicated that she would prefer not to give oral evidence at this hearing and, in the unusual circumstances which have arisen, no party insisted upon her doing so. She has otherwise taken a full part in these proceedings and has made submissions through her solicitor, Mrs D. Where witnesses have not given oral evidence and have not been challenged, I have taken their written evidence as read.

  9. Some of what follows is taken from the Local Authority's assessment, the conclusions of which are challenged and which I have concluded that I must set aside. I hope, however, that this summary of the background is uncontentious. No doubt, the advocates will inform me if there is a challenge to any aspect of it.
  10. The father was born on 14th December 1976 and is now 37 years of age. His upbringing was troubled. His father was a violent man who drank to excess. He was sent to a boarding school for deaf children aged 12, an establishment which seems to have been somewhat unsympathetic and where he was not happy. When he left school, he secured employment, initially with a supermarket as a packer, and he subsequently maintained a number of employments, but has not worked for the last six years.
  11. The father was previously in a relationship with E for some eight years and they have two children, F, aged 10, and G, aged 13. For a time after the marriage broke down, the father did exercise contact to both children but they now apparently refuse to see him. Thereafter, he was involved in a relationship with a lady called H before meeting the mother.
  12. The mother was born on 3rd June 1987 and is now 26. She attended mainstream schools with some specialist input for her hearing impairment. Her parents separated when she was about 16, following a long period of arguments and excessive drinking. Thereafter, the mother remained living with her own mother and she has worked from time to time in public houses.
  13. The relationship with the father was the mother's first serious relationship. The parents met via Organisation B, began living together in about 2010 and married in 2011.
  14. The Local Authority first became aware of the family in August 2012. There had been an incident in which the mother was assaulted by the father and sustained injury, albeit, it seems, accidentally. A rather superficial initial assessment revealed the presence of one J who was caring for A whilst, it was said, the parents resolved their difficulties with the abuse of alcohol. Sadly, the case was then closed.
  15. In January 2013, an anonymous referral was received by the Local Authority, subsequently supported by information from A's health visitor, to the effect that A was actually being cared for by J and that this had been the position for some months. It was also said that both parents were continuing to drink alcohol to excess. Local Authority involvement in one guise or another has been continuous since that date.
  16. On 21st April 2013, A was admitted to hospital with a scalding injury to his arm. It subsequently became apparent that, contrary to the written agreement with the Local Authority, A was once again being cared for by J whilst the parents were drinking. Throughout this period, the levels of concern for A were such that there were repeated out-of-hours visits to check on his welfare and whereabouts.
  17. Proceedings were eventually issued in relation to A following the usual Public Law Outline procedure on 2nd August 2013. Preliminary directions were given by a district judge during my absence on leave but the matter was, in due course, allocated to me and was listed before me for a contested interim hearing on 28th August 2013. In the event, the parents did not actively oppose the making of an interim care order for A and he was placed with foster carers.
  18. I directed a comprehensive social work assessment of the parents who were presenting as a couple. As the assessment neared its conclusion at the end of November 2013, an incident took place between the parents. After this incident, the father moved to Area A to live with his mother and the mother remained in the former matrimonial home. They have not resumed their relationship.
  19. I also directed various assessments of family members as potential carers for A. Sadly, those assessments were not completed within the timescale I directed and the issues resolution hearing which I had listed for 4th December had to be adjourned until January 2014. Far more unfortunately, all of those assessments of family members proved negative.
  20. Meanwhile, the mother gave birth to B on 10th September 2013. He was accommodated with A's foster carers. Care proceedings in relation to him were issued and consolidated with A's case.
  21. As I have indicated, and following the usual careful processes for consultation and approval within the Local Authority, the placement order applications were issued shortly before the adjourned hearing. As the applications were clearly opposed, they were listed for final hearing on 30th January 2014. However, by that date, I had become aware of the decision of the Court of Appeal in Re C (A Child) delivered on 21st January 2014. I have not yet seen an authoritative transcript of a full judgment but the court gave guidance as to the correct approach to care proceedings in which one or both parents suffered from profound deafness. I read from the version of the judgment that I have available to me:
  22. "First, it was necessary for all the agencies concerned to understand that communicating with a profoundly deaf person was not simply a matter of interpretation or translation. There was a need for expert insight and support by a suitably qualified person at the earliest stage. It was the duty of those acting for the parents to identify the disabilities as a factor at that early stage. Secondly, the parents and Local Authority should make the court aware of the disabilities and need for special measures as a matter of case management. Thirdly, an expert should be appointed so that the impact of the disability could be addressed at a case management hearing. In the case of a profoundly deaf person, consideration should be given to the use of a deaf relay interpreter as an intermediary to communicate with the Local Authority and the court and, fourthly, the issue of funding had to be considered. These issues are not merely a matter of good practice. The court, the Local Authority and CAFCASS have a duty under the Equality Act 2010 to afford the right level of support."
  23. In the light of that guidance, I invited the parties to identify an appropriately qualified expert to advise. Dr Austen, a specialist clinical psychologist for deaf people, was appointed and I am grateful to her for reporting so expeditiously.
  24. On the face of things, Q's comprehensive assessment of the parents was thorough and careful. However, it emerged at a late stage in this hearing that the BSL interpreter used by the Local Authority was insufficiently qualified and had no previous experience of interpreting for a profoundly deaf parent during such a crucial assessment. The father now says that he found it difficult to understand the interpreter's signing. The mother accepts that she understood the assessment process and makes no complaint about it, although she does not accept the conclusions. It is not the fault of the Local Authority that this unhappy situation has arisen. Q is as dismayed and shocked as everyone else by the discovery of the interpreter's lack of appropriate qualification. The Local Authority went to an apparently reputable agency and, ironically, Q went to some trouble to ensure that the same interpreter was used throughout. However, all parties, including, very properly, the Local Authority, now concede that the court could not place safe reliance upon Q's social work assessment. I am satisfied that were I to attempt to do so, that would infringe the Article 6 rights of the father and possibly also of the mother.
  25. In those circumstances, these proceedings must be adjourned. That is desperately unfortunate, given the ages of these children and the urgent need to make decisions as to their future. However, by the time that information as to the interpreter emerged, I had already heard a good deal of evidence and, in an attempt to salvage what we can from this hearing, I propose to make such findings as I can on the evidence that I have heard and as to the concessions made by the parents in an endeavour to provide a secure factual foundation for the assessment which must follow. For the avoidance of doubt, I have sought to put Q's social work assessment from my mind in conducting this exercise.
  26. Both boys have flourished in foster care and appear happy and settled. A is observed by Q to be "a different child since he entered foster care and he is brighter, confident in exploring and more attached to his primary care giver." The mother currently sees the children twice each week and the father once. They have generally attended conscientiously.

  28. Dr Austen is, clearly, highly skilled and respected in her field. Her written and oral evidence provided some helpful insights into the difficulties inherent in any assessment of a profoundly deaf person. However, I have to conclude that she found it difficult to put aside her own genuine and strongly held views as to the level of discrimination and unfairness inflicted upon deaf people by society, so as to achieve the appropriate standards of objectivity and neutrality expected by the Family Court of an expert witness as opposed to an advocate. By way of obvious example, in referring to the parenting assessment conducted by O, she accepted freely that she was not critical of the methodology of that assessment, a methodology identical to that of other assessments of which she was critical, because the "result" had been favourable to the parents. Her evidence was entirely honest, sometimes painfully so, but I am afraid that I found her far too willing to accuse, inaccurately in my judgment, other professionals of actual or potential bias and prejudice against deaf people without any substantive evidence or meaningful enquiry. In all of those circumstances, her evidence was not as helpful as it might otherwise have been.
  29. Q was a careful and moderate witness, willing to make concessions where appropriate. I found her very sensitive to the predicament of the parents, whilst maintaining a clear focus upon the welfare of the children. I accept that her evidence was honest and reliable but, for the reasons I have explained, I must disregard the conclusions of her assessment work.
  30. Turning to the mother, in fairness, I must express my assessment as provisional. I am conscious of just how stressful and challenging it is to give evidence in court, let alone to be required to do so with the disadvantages that the mother's communication difficulties place in her way. The level of her understanding, intellectually and emotionally, is something that will need to be further assessed. However, I found her to present as quite flat and unemotional even when discussing very distressing topics. There was none of the inappropriate light-heartedness described by others, including Dr Austen. I was impressed by the frankness of her concessions as to the inadequacy of A's care. On the other hand, I had no clear sense of her understanding on an emotional level the impact of her and the father's behaviours upon their son. Given the history of admitted deceit, I must be cautious about her evidence. Having said that, on the whole, I think she was striving to tell me the truth with the exception that she has not, I think, yet been able to be entirely frank about the level of her former drinking.
  31. Given the father's communication difficulties, I recognise the problems inherent in my attempting to assess the reliability of his evidence. It would be unwise and potentially unfair for me to draw any far-reaching conclusions at this stage. He too made disarming concessions as to his behaviour when A was at home but, again, I fear that he appeared to lack insight into what the events might have meant for A. Again, these are issues that must be further assessed.

  33. I remind myself that the burden lies on the Local Authority to prove the allegations which it makes. The appropriate standard of proof is the civil standard of the simple balance of probabilities. I have read Re B (Children) [2008] UKHL 35 and, particularly, the speech of Baroness Hale.
  34. It is conceded that the threshold criteria at section 31 of the Children Act are established in relation to each of the children. I will go on in due course to make findings as to the factual basis underlying those concessions.
  35. Pending the further assessment of the parents, I cannot address the options for the future of A and B. However, in agreeing to adjourn the proceedings, I have, of course, had in mind the paramountcy of the welfare of the children, the "no delay" principle at section 1(2) of the Children Act and, in terms of the Local Authority's applications for placement orders, the principles set out by the Supreme Court in Re B (A Child) [2013] UKSC 33 and the decisions of the Court of Appeal which followed.
  36. Finally, in terms of the legal framework, I have reminded myself of the decision of the Court of Appeal in Re W [2013] EWCA 1227 which confirms that, in assessing and balancing different alternatives for a child's future, the court is entitled to require the Local Authority to provide such support services as are reasonably necessary, for example to enable a child to return to the care of his parents.

    The threshold criteria

  38. In relation to A, I am satisfied that, at the time when the Local Authority initiated proceedings, A was suffering significant harm and was likely to suffer significant harm, such harm being attributable to the care given to him or likely to be given to him by his parents if an order were not made. As to the factual basis underlying that finding:
  39. a. It is conceded that throughout the period following A's birth, both parents used alcohol excessively, to the extent that it affected their day-to-day care of A and their ability to make appropriate decisions in respect of his care and their capacity to protect him.
    b. In terms of impaired decision-making, in particular, the parents permitted a lady called J to care for A for protracted periods from very shortly after his birth. J and her husband were unable to have children of their own. J took advantage of the parents, attending at A's birth and, I am satisfied, in reality, trying to secure A's long term care for herself. The parents were, at best, unable to prevent J's machinations and, at worst, happy to have someone they could leave A with whilst they went drinking in the local pub. Even so, A himself spent far too much time in Pub A.
    c. The parents' reliance on J to care for A only came to an end as a result of the referral to the Local Authority and the Local Authority's insistence that she be excluded from A's care and that the parents assume a proper degree of responsibility for their son's day-to-day care.
    d. Unfortunately, the parents also left A to be cared for by another unsuitable person. That is K, the 22-year-old brother of the mother. Until Saturday, 20th April 2013, he had never previously cared for A. In his care, A, now still only 11 months of age, sustained a scald to his left upper arm and shoulder. I am still not at all clear as to how that scald could have occurred. The Local Authority has not chosen to pursue any suggestion that it may have been non-accidental. The uncle did not inform the parents of what happened immediately, waiting until the mother called home at around 7.30. Following that call, the parents did not return straightaway but did so at about 9pm. Neither parent saw fit to take A to hospital that night. It is clear from their evidence that one of the factors which weighed in that decision is that they had both been drinking and feared the response of professionals. The mother belatedly took A to hospital on the following morning. By that stage, his arm was blistering and he was detained for treatment for some three days.
    e. Following that incident, there was a further written agreement dated 24th April 2013 emphasising that A was not to be left in the care of any unassessed person, including J, that the parent must abstain from alcohol and that A must not be taken to the pub. Both parents acknowledge that they understood the terms of that agreement.
    f. On the very next day, social workers discovered that A was once again in the care of J, traced the parents to the pub and found them both intoxicated. Indeed, they were sufficiently incapacitated for the social worker to be obliged to permit J to care for A overnight. The risks inherent in that course were emphasised when, later that night, A was found in bed with L, a man with an extensive criminal record, who had that very night been consuming alcohol.
    g. The parents' relationship has been marred by incidents of domestic abuse. The mother has only sustained injury on two occasions, in August 2012 and on 30th November. However, those two incidents are merely the most distressing manifestations of the father's aggression and anger as described by the mother in evidence.
    h. The parents failed to engage with professionals or to act upon their advice so as to reduce the risks posed to A. Indeed, they were repeatedly dishonest about their alcohol use, their whereabouts and A's whereabouts. I have already referred to one breach of the written agreement but also, for example, on 24th July 2013, the parents should have been at a meeting with social workers. The mother was telephoned and said that she was at Place B with A. Searches by the social worker and interpreter found both parents in Pub A with A, drinking lager, all contrary to the contract of expectations.
  40. The implications for A were considerable. He was repeatedly separated from those who should have been his primary attachment figures, his parents. The level of care afforded by L and J was not acceptable. His day-to-day life lacked stability. The probable impact of domestic abuse between parents upon a child of A's age, living within the same household, is well established and, sadly, he also sustained significant physical injury in April 2013.
  41. It is always easy to be wise in hindsight and I do not wish to be critical of social workers "on the ground" who were repeatedly faced with the challenging task of making difficult, finely balanced, decisions about A's safety and welfare during the spring and summer of 2013. I must, however, record my surprise that, against the background of events prior to 20th April 2013, A was permitted to return home to his parents' care, despite having sustained injury at the hands of another unsuitable carer, and that the correct judgment of the key social worker in April 2013 that proceedings should be issued was overruled by senior management. I would like to see evidence in due course from the Local Authority as to why that occurred.
  42. It is in that context that the Local Authority instigated the series of visits by the emergency duty team to perform welfare checks on A. They visited on over 40 occasions at various times of the day and evening. Dr Austen is very critical that such visits took place without the benefit of BSL signers. Aside from the sheer impracticality of having a suitably qualified interpreter on hand for all of those very many visits, none of which will have lasted more than a few minutes, I fear that Dr Austen misunderstood the purpose and nature of those visits. The social workers were not there to assess the parents or to offer parenting advice but simply to check that A was present and that he was safe. Where welfare issues were raised, for example the dog urinating on the floor where A was playing and the mess not being cleared up, or the father appearing drunk, the issue was reported back to the key social worker who addressed it with the parents with the assistance of a BSL interpreter, albeit it now seems that she was not well qualified.
  43. Turning to B, the agreed threshold criteria refers to him suffering significant harm at the time when the Local Authority instituted proceedings. That cannot be correct. Although it is a dismaying and unchallenged fact that the mother continued to consume alcohol to excess throughout her pregnancy, that cannot found a finding under section 31 of actual harm. I am, however, entirely satisfied that, at the time of B's birth, he was likely to suffer significant harm attributable to the care likely to be provided to him on the basis that such care was, in all probability, to be similar to that provided to A, which undoubtedly caused A to sustain the significant harm I have described.
  44. It is perhaps convenient if I address at this stage another element of the history, the process of section 20 accommodation which Dr Austen also found objectionable. As a matter of law, only one parent needs to agree that their child be accommodated under section 20. Miss B on the mother's behalf does not seek to argue that the mother did not understand what was being asked of her. I accept that the father was very reluctant to agree, as are many parents in this predicament. Eventually, he did so. In any event, B was only accommodated for some 24 hours before the Local Authority issued care proceedings. Accordingly, I do not consider that this issue needs further enquiry.
  45. Additional findings

  46. I now need to turn from the threshold issues which relate only to the facts at the time of the Local Authority's intervention, to more recent and general matters.
  47. I begin with the incident which took place on 30th November 2013. Q was particularly anxious about this incident, pointing out that it occurred at a really important time when both parents were planning to make a fresh start in a new home with a garden away from their drinking associates and unfortunate networks. Both parents, having assured the court that they were totally abstinent, were, in fact, once again, drinking to excess this time with M and N, not appropriate individuals for them to be associating with. There may have been some modest level of provocation but, certainly, it is clear that the father struck the mother, pushed her around and caused her injury. In his statement dated 17th December 2013, the father said that the incident had been "blown out of all proportion" and amounted to no more than "play fighting". That was untrue. On 14th February 2014, he pleaded guilty to an offence of assault occasioning actual bodily harm. He is now the subject of a restraining order for a period of two years to provide protection for the mother and he has been fined.
  48. In terms of contact, the father's contact is observed as very good. He is described as "shining" when he is in the presence of his children. He has also attended conscientiously.
  49. The father's mental and psychological health has been and remains a source of considerable anxiety. It seems likely to me that his misuse of alcohol is but a symptom, a reflection of underlying dysfunction. It is apparent that his problems are longstanding. His excessive alcohol consumption and his inability to control his temper have been features of his two previous relationships. The bundle contains records of police involvement at a series of unhappy incidents going back to 2006. Specific incidents have not been put to the father and, hence, I make no specific findings. These are also matters for further assessment.
  50. I am not a psychologist or a psychiatrist but it seems a reasonable hypothesis that the father's level of frustration and aggression is linked with his communication difficulties and a sense of hopelessness. Indeed, in July 2013 and later in September 2013, he seriously considered suicide.
  51. I am, frankly, sceptical that the course of counselling which the father proposes is likely to address effectively issues of such gravity and complexity but it does seem that hitherto the father has received very little appropriate treatment and support from the health services. He points out that, as a profoundly deaf person, he finds it difficult to go to his general practitioner. He really needs to make urgent efforts to access appropriate treatment.
  52. I accept, provisionally, that the father has managed to control his drinking since he moved to live with his mother in area A. Q was struck by how physically, he looks "so much better".
  53. Turning to the mother, I fear that the mother also has significant underlying issues associated with a lack of self-esteem and confidence. I also suspect that she has not fully recovered from the tragic loss of her mother and uncle during 2012. I accept provisionally that her alcohol consumption is under control. These are matters for further assessment.
  54. The observations of the mother in contact are to the effect that she can attend to the basic needs of the children and, in practical terms, is able to feed and change and generally care for them. She attends conscientiously. Sadly, repeated observations revealed a dearth of interaction and stimulation for the children. More recently, the mother appears to have been advised and encouraged to be more sociable and interactive with both children and the situation appears to be improving. The mother herself described, in moving terms, a recent contact session which had taken place within the community where she clearly felt more relaxed and natural than had been the case in the contact to date.
  55. I have heard a good deal of evidence as to what seems to be the very considerable level of support services which were provided to assist the parents in their care of A and to ameliorate their drinking problems. Dr Austen is critical of some of those services. I have concluded that, at this stage, it would not be desirable for me to make findings or even to investigate whether the parents have, indeed, been provided not just with services, but services which met their needs.

  57. There have been various discussions about the proposed further assessment. I note, and it is a tribute to Q's professional skills and to the mother's honesty, that despite the conclusions of Q's assessment, the mother would have preferred her as the assessor for the future. Sadly, Q is due to leave the Authority in the coming weeks and it would not be possible to ensure continuity if she were to undertake the work.
  58. The guardian and the Local Authority are strongly opposed to Dr Austen having any continuing role in this case. That is an unfortunate situation, not least because it means that the parents will have to be introduced to yet another professional but I accept those submissions.
  59. What I have in mind is not a generic assessment of these parents' functioning, as it were, "in the abstract". The primary question which I will ultimately have to determine is whether either of the parents could, with appropriate support, provide an acceptable level of care for A and B. It will be apparent from this judgment that I find that A's care was wholly unacceptable and that it was likely to have been so throughout his upbringing by his parents. B's care was also likely to be unacceptable if he had been placed in their care. That, sadly, is the direct responsibility of both parents.
  60. So, the issues which must be considered in the assessment are these.
  61. (i) What, if anything, has changed within the functioning of either parent since the children were removed?
    (ii) Are those changes sufficient to reduce the risk factors to a tolerable level?
    (iii) What still needs to change within the parents' functioning to enable them to provide acceptable care for these two children?
    (iv) What is the parents' capacity for sustaining change in their parenting skills?
    (v) What is the timescale for such necessary changes?

    I will hear further argument as to any additional areas of investigation in due course:

  62. The assessment needs to address and balance the relevant factors as to parenting capacity with, so far as it is possible and so far as within the remit of the assessor, the other factors in the welfare checklist, including, particularly, the pressing needs of these very young children.
  63. During this hearing, the father has been greatly assisted by relay interpreters. The relay interpreter is him or herself a deaf person with advanced signing skills and a sensitive grasp of non-verbal communication. It was explained to me that their role is to ensure that the deaf parent has accurately understood the signing of the hearing interpreter, simplifying, modifying and adapting concepts as necessary. Dr Austen advised that the father's signing skills were fluent and that he did not require relay interpreters so, at the start of this case, I did query their continuing involvement. The father indicated that he preferred them to stay and, in the event, my own unskilled observations have indicated that he has placed heavy reliance upon the relay interpreters who have proved invaluable. I hope that it will be possible for relay interpreters to be provided to assist the father in any planned assessment.
  64. Finally, in the light of the decision in Re W to which I have referred, the assessment must analyse what support services might be necessary or desirable to support any proposed placement.
  65. [Judgment ends]

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