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Cite as: [2017] EWFC B111

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No. ZC17C00428

IN THE CENTRAL FAMILY COURT

First Avenue House
42-49 High Holborn, WC1
11th December 2017

B e f o r e :

HER HONOUR JUDGE HARRIS
(In Private)

____________________

LONDON BOROUGH OF SOUTHWARK Applicant
- and -
(1) M
(2) Y
(3) Z
(4) V
(5) W
(6-7) C and D (children)
Respondents

____________________

Transcribed by Opus 2 International Ltd.
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This transcript has been approved by the Judge

____________________

MR WILLIAM DEAN (instructed by Legal Services, London Borough of Southwark) appeared on behalf of the Applicant.
MS DANIELLE LEWIS (instructed by Duncan Lewis Solicitors) appeared on behalf of the First Respondent.
MR CRAIG RICHARDSON (instructed by Law Legal) appeared on behalf of the Second and Third Respondents.
MS JOANNA YOULL (instructed by McMillan Williams) appeared on behalf of the Fourth and Fifth Respondents.
MS ELPHA LECOINTE (instructed by Venters) appeared on behalf of the Children's Guardian.

____________________

HTML VERSION OF JUDGMENT
____________________

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    JUDGE HARRIS:

  1. I am giving judgment in this case where the London Borough of Southwark seeks care orders in relation to two children: C, aged 9 years, and D, aged 3 years. Their mother is M. The other parties to the proceedings are the maternal aunt, Y, and her husband Z, and the maternal uncle, W, and his wife, V. The family all originate from a country in South America. The children's guardian is Jacqueline Jones. Y has a child called G, aged 14, from a previous relationship. The couple also have a younger daughter, H, aged 6. W and V do not have children although V has an adopted teenaged daughter living in South America.
  2. The father of C is also from South America and holds parental responsibility. He is believed to have left the country and his whereabouts are unknown. The father of D is believed to still live in London although his whereabouts are unknown. He has two other sons, both of whom may be living abroad. Neither father has played any part in these proceedings.
  3. The parties' representation is as follows: London Borough of Southwark is represented by Mr Dean of counsel; the mother is represented by Ms Lewis of counsel; Y and Z are represented by Mr Richardson of counsel; W and V are represented by Ms Youll of counsel; and the guardian and the children are represented by Ms LeCointe of counsel. All the adults have had the benefit of Spanish speaking interpreters throughout the proceedings.
  4. These are the third set of care proceedings concerning these children, all three of which have been dealt with by me. On 26th February 2014, I made a special guardianship order in favour of W and V in relation to C. On 26th November 2014, I made a special guardianship order in respect of D in their favour. What has been referred to as an unusual arrangement was approved in the case of D in that the mother was to move in with W and V and by a working together agreement dated 26th November 2014, it was envisaged that she would be entitled to participate fully in the care of D although the overall responsibility for his care lay with W and V as special guardians. Inevitably, as she would be living in the same household as C, she would be undertaking some of the caring responsibility for her.
  5. In July 2016, the mother left the home of W and V in circumstances which I will need to deal with in more detail later in this judgment. She went to live with Y and Z who were then assessed positively as special guardians by Southwark. This was done because W and V, according to the local authority, had made it clear that they wished to relinquish these special guardianship orders that they held. Private law proceedings were brought by Y and Z for discharge of the original special guardianship orders and the making of an order in their favour.
  6. There was an initial hearing before the Justices on 7th March 2017 where the recital to the order stated that W and V "no longer wish to be special guardians for the children". Although the order did not explicitly say so, it is apparent that W and V were not opposing a grant of a special guardianship order to Y and Z. The statement that W made for the next hearing in April 2017 stated that they had not opposed the application of Y and Z. The matter had by then been transferred to me in the interest of judicial continuity.
  7. On 21st April 2017, when the matter was listed before me, it was stated for the first time in court by W and V through their representative, that they were actively seeking the return of the children to their care and thus opposed the order being made in favour of Y and Z. Y and Z then reacted in turn by stating that they wished to withdraw as prospective special guardians citing the pressure which was being placed on their family by the family animosity. I was so concerned about the apparent inability of family members to provide any stability for these children that I directed a s.37 report.
  8. The matter returned to court in June 2017 when the local authority advised that it was bringing public law proceedings which it did the following month. I should say that in April, I had made a child arrangements order in favour of Y and Z that the children live with them in order, at least temporarily, to seek to stabilise the situation.
  9. By the time the matter returned to court in June 2017, Y and Z had changed their minds again and were again asking to be considered as special guardians. The mother had been required to leave the home of Y and Z and did so during May 2017. In the same month, for the first time, W and V made a plethora of serious allegations against Y and Z of physical and emotional abuse and neglect of their children, as well as of C and D, and inappropriate sexualised behaviour by Y in the presence of the children. It was also said that G, the older boy, had behaved in a sexually inappropriate manner towards C.
  10. From August 2017, Y and Z once again reversed their position stating they could no longer offer long-term care for the children as a consequence of intolerable family pressures. They stated, however, that they were prepared to continue to care for the children until the conclusion of the proceedings and, indeed, to assist in the children's transition to foster care if that was the court's decision.
  11. By the time the public law proceedings came before me on 20th July, the mother had wholly fallen out with Y and Z and wholly aligned herself with W and V. I directed the preparation of a Scott schedule of allegations by the mother and W and V on the one hand, and a response by Y and Z and any counter allegations by them on the other hand.
  12. At the issues resolution hearing on 26th October, it was agreed that the Scott schedule findings should not be pursued as a full fact-finding type hearing was considered to be disproportionate and unnecessary. The order recorded, "Instead, the court will consider the matters raised in the final evidence." Ms Youll, on behalf of W and V, has sought to suggest that it is inappropriate for me to make any findings of fact as between the adults. I made it clear that the order never envisaged that no relevant factual matters would be considered as indeed they were in the final evidence and the oral evidence. Further, it is self-evident that any welfare evaluation has to be underpinned by findings of fact.
  13. THE PARTIES' POSITIONS

  14. As stated, the local authority seeks care orders with a plan for long-term fostering for both children together. I had previously raised a concern that given the age difference between C and D that there was a risk of D's interests being sacrificed to those of C as he was plainly of an age where if he could not return to the family, adoption might be seen to be the preferred permanency option.
  15. The social worker prepared a further detailed statement which was countersigned by senior management explaining their thinking. In summary, they relied upon the very close sibling relationship between the children and the protective factor that this would represent should the children not be able to live within the family.
  16. The local authority's position is supported by the children's guardian but vehemently opposed by the family. The mother's first option is that the children should be returned to her care. Her second option is that they should be returned to the care of W and V and her third option is that they should remain living with Y and Z. The third option appeared at first blush to be unrealisable given the stance taken by Y and Z.
  17. W and V supported the children returning to the mother as the first option and put themselves forward as the second option. They vehemently opposed any placement with Y and Z. Y and Z's position has been more complex and nuanced and even Mr Richardson on their behalf appeared to me to struggle to articulate it during closing submissions.
  18. On the first day of the hearing, I was told by Mr Richardson that Y and Z had revised their position following a meeting with the mother over the weekend and were prepared to be considered as a third option provided only that they had the support of all the other family members. Z seemed to deviate from this position during his oral evidence when he appeared to be saying that he and Y would still put themselves forward as third option even if W and V did not support this, which they patently did not. However, during closing submissions, when I sought clarification of their final position from Mr Richardson, his formulation was as follows. They were in an invidious position. If they put forward a positive case for them to be preferred over the mother or W and V, or alternatively for foster care, this would invite serious anger and recriminations from the other family members. Indeed, they had been exposed to hostile telephone calls from the extended family in South America. If the local authority had been prepared to place the children with them under a care order, this would have offered a protective element. Whilst, as Mr Richardson put it, they fell in line with being third option, they did not put forward a positive case to care for the children but, rather, left it to the court to consider whether it was a runner.
  19. The local authority revised the original contact proposals in the care plan. Its final position, which was the position also of the guardian, was for contact with the family to take place eight times a year. This would be six sessions to the mother with Y and Z on the one hand, and W and V on the other hand, attending one each of those sessions. There would then be one further session each for Y and Z and for W and V providing contact for them twice a year. All the respondents, obviously other than the guardian, sought a far higher level of contact and the mother sought for contact to be once a week.
  20. I heard this case from Monday, 4th December to Friday, 8th December. Monday afternoon was a reading afternoon and I heard oral evidence from Tuesday to Thursday inclusive. I heard closing submissions on 8th December and I am giving judgment today on 11th December. I have read the majority of two very substantial lever arch bundles. I have to say that I was not assisted and indeed was positively hindered by the extremely unhelpful pagination of what was supposed to be a core bundle. The bundle contained agreed selected documents from the two previous sets of care proceedings.
  21. I heard oral evidence from the following witnesses: Eluned Kemp, independent social worker who carried out a parenting assessment of the mother including an investigation of the family dynamics; Dionne Roach, the allocated social worker; the mother; Z; W; and the guardian. It was agreed with the parties that one of the two couples should give evidence on behalf of both of them.
  22. In making any findings of fact, I remind myself that it is for the person making the allegation to prove it on a balance of probabilities. I also give myself a Lucas direction to the effect that a person may lie for a number of reasons, including fear, embarrassment, panic, or distress. Further, the fact that an individual lies about one issue does not mean that he or she is lying about everything. This direction is particularly pertinent in the case of the mother, as I shall discuss.
  23. There is a short threshold document, intended to be a composite document, which has been accepted by the mother who accepts consequently that the threshold is crossed but is disputed by W and V in particular as to paragraphs 1, 2, and 4.
  24. THE BACKGROUND

  25. This case has a tortuous and complex background. The mother came to this country in March 2003 on a six months student visa. It was renewed but expired in 2006 and her immigration status is still not regularised, although she now has limited leave to remain and is entitled to work. W came to the country in 2001 and V in 2002. I do not know when Y came but it was shortly before the mother came as she assisted the mother in coming over. W and V started their relationship in 2002 but subsequently separated and W has subsequently married and divorced. W and V married in 2014.
  26. The mother is seeking permanent leave to remain which she believes she should get because D has a Spanish passport. Her application has recently been refused she says because her solicitor sent D's expired passport as well as her expired identity card to the authorities.
  27. The mother lived with both her brother and her sister when she first came to the country but a pattern developed whereby she would leave, in particular her brother's home, at short notice when she entered into new relationships. The mother and C became known to social care in 2011 when a referral was received from a clinic where she had taken C for examination. She reported that she had left C alone with a man called S who she has referred to both as her partner and as a close friend, and C reported that she had been sexually abused by this man. The mother raised this alleged abuse with S, apparently in the presence of C, and he denied it. The mother appears to have accepted his denial although in her recent evidence she was more ambivalent. As C did not repeat her allegations in an ABE interview, the police took no further action.
  28. The mother accepts now that she entered into relationships impulsively with men about whom she had limited knowledge. The mother has given a number of different and contradictory accounts concerning domestic abuse in these relationships. The special guardianship reports in the previous proceedings state that she reported that the fathers of both the children were physically violent to her and that C was exposed to this abuse. However, in these proceedings, she states that C's father was not physically violent but only verbally abusive and, on one occasion, pushed her on to the bed. She also now states that D's father was only verbally but not physically abusive to her. She told Ms Kemp, the independent social worker, that the abuse in her previous relationships was verbal, emotional and financial rather than physical.
  29. Ms Kemp records that the documentary evidence from the previous proceedings shows that there were reports of sexual abuse of C by both S and subsequently by D's father. There were also concerns about poor and unpunctual school attendance, an incident of sexualised behaviour at school by C, and neglect.
  30. The catalyst for the first set of care proceedings was an incident at a London hospital where the mother was then working as a cleaner on 16th July 2013. The mother took C to work with her and C was kept inside a storage cupboard or small room for several hours and was locked in on her own for about 15 minutes. It was said to be extremely hot, a temperature of 29 degrees, although the mother disputes this. C was found in an extremely distressed and overwrought state, understandably. The mother was arrested for neglect and the police took a police protection order. C was placed in foster care and care proceedings were commenced.
  31. On 2nd December 2013, C was placed with W and V who were then the subject of an ongoing special guardianship assessment. The mother had previously lived at various addresses in and around the Southwark area. W and V live elsewhere. C thus had to change school.
  32. During these proceedings, the mother fell pregnant with D. Throughout her pregnancy and after D's birth, she lived with Y and Z. The mother was the subject of a negative parenting assessment. There was also a psychological assessment of the mother, carried out by Dr Farhy, which found the mother to have an IQ of 61 and significant cognitive difficulties falling within the mild learning disability range. The mother has always strongly disputed this assessment claiming that she was misunderstood by Dr Farhy as a result of language difficulties although the assessment was carried out in Spanish.
  33. Dr Farhy considered that the mother's limitations could be compensated by living within a supportive family environment. He also considered that the mother could benefit from bespoke parenting training and counselling on self-esteem and relationship strategies. Whilst he considered that the latter could enhance her parenting capacity, he did not state in terms whether this would be sufficient for her to provide care on her own.
  34. The local authority relies upon the conclusions of this assessment as still being relevant. Significantly, Dr Farhy considered that the mother appeared to enjoy a close relationship with her other siblings. At that stage, there was no evidence of the complex and unhelpful family dynamics which have featured so centrally in these proceedings. Further, the mother has told Ms Kemp within these proceedings that, historically, her brother and sister have been far from supportive. The report states:
  35. "She feels her relationship with her siblings was normal until she came to the UK. Her sister [Y] lent her money to come here, but as soon as she arrived, demanded repayment and would not let the matter drop. She says she was given little or no help by her sister or brother. She relied on friends mostly from within the church who helped her to find work, accommodation, and English lessons. She has not found her siblings to be supportive since she has been in the UK. She has, in the main, had to be self-sufficient. She says that most of her strength derives from her deep Christian faith."
  36. As previously stated, there was a positive special guardianship assessment of W and V which I have re-read and which resulted in a consent order being made on 26th February 2014 whereby they were granted a special guardianship order.
  37. Further care proceedings were brought on the birth of D who remained in his mother's care at the home of Y and Z under an interim supervision order. The mother was subject to a positive parenting assessment by Judith Fournel, an independent social worker, who profoundly disagreed that she was a neglectful mother. She described it as rare, in her lengthy professional experience, to observe such a close bond between a mother and child as that observed between the mother and D. There was also considered to be a strong attachment still existing between C and her mother despite their separation. The extended family also portrayed themselves to her as being wholly supportive and stated the problem had been that the mother had not made them aware of her difficulties. Significantly, given what the family all say now about the grandmother, Y described the grandmother as kind and loving.
  38. Ms Fournel took issue with the assessment of a learning difficulty by Dr Farhy. She recommended that the mother moved to live with D to W and V to enable her to continue to care for D whilst enjoying the shared care of C. With the benefit of hindsight, Ms Fournel's report can be seen to be somewhat nave but, in mitigation, the mother and the family presented a different picture to her from that which they present now in a number of respects.
  39. Dr Farhy prepared an addendum report to address the points made by Ms Fournel. He disputed that there had been linguistic difficulties, made reference to the different methodology employed by him and the social worker, and to the inconsistencies in accounts given by the mother to both of them and the mother's willingness to manipulate her story as evidenced in other situations. He did not depart from his original conclusions. The reports from the earlier proceedings compared with those in these proceedings highlight the issue as to whether the mother and the family more generally have been consistent and straightforward in their dealings with professionals.
  40. In D's case, both W and V, and Y and Z, received positive special guardianship assessments. Y and Z have explained that they considered it was preferable for W and V to become special guardians of D so that the two siblings could be brought up together. During D's proceedings, there was a police referral to social care in June 2014. A neighbour of W and V reported to police seeing C on the flat roof of their house alone in the early hours of the morning and crying out for her mother. It transpired that she had been left alone in the property and the door locked. W and V have suggested that she was simply on the windowsill, but the police report at H2 makes it clear that the neighbour reported seeing the child on the roof. In the event, I have concluded that it makes little difference which account is true given that the child had been locked in the house alone. This was particularly unfortunate given her previous experience leading to a police protection order. The police took a police protection order on this occasion and W subsequently accepted a caution for neglect.
  41. The minutes of a strategy discussion between social care and the police refer to the police's view that being left alone was something which appeared to them to have happened frequently. The guardian, in her initial analysis, referred to it as being perplexing that there should have been a positive special guardianship report following this incident. The special guardianship report in D's proceedings addresses this incident and regarded it as a one-off and as being uncharacteristic behaviour by the couple.
  42. A final hearing of the care proceedings for D took place between 24th and 26th November 2014 and resulted, I believe consensually, in the making of a further special guardianship order to W and V. As previously stated, the working together agreement drawn up at the conclusion of that hearing provided for the mother to be entitled to reside with W and V "to care for [D] as fully as possible including whilst [W] and/or [V] are not at home" (G421). W and V would hold overall responsibility for D. As stated, this arrangement has been referred to by professionals in these proceedings as an unusual one which could give rise to ambiguity and a blurring of boundaries.
  43. I note that Y and Z have just arrived at quarter to eleven.
  44. The thinking behind the arrangement was that the mother had formed a close bond with D who had been in her care since birth and also had a close relationship with C. The mother was not considered able by professionals, with the exception of Ms Fournel, of providing safe care for the children on her own given her vulnerabilities, the previous incidents described in this judgment and her cognitive limitations. It therefore appeared to be in the children's best interests that she was able to continue to provide a caring role but under the auspices and authority of the special guardians. Of course, at that stage, no one was aware of any difficulties within the family dynamics. With the benefit of hindsight, it can be seen that this arrangement had the potential to give rise to difficulties.
  45. To complicate matters further, the local authority in these proceedings initially proceeded under the misapprehension that the mother had moved into W and V's home and assumed the care of the children in breach of the special guardianship order. I find this surprising given that the same authority has been involved throughout. The family's representatives have contended that this mistake has coloured the view of professionals about the adults and, indeed, the guardian's final analysis still contained this misapprehension. I will need to consider this submission later in this judgment.
  46. At some point prior to July 2016, Y and the mother arranged for their own mother, J, to come over to this country from South America. W told me that she initially stayed with Y and Z but was quickly kicked out. He was not part of the arrangement to bring J over and indeed disapproved of it. He says the mother "smuggled" J into his home without his knowledge and consent.
  47. About the only issue the family members were agreed about was the malign influence of J. All the family members, including the mother, referred to her as being manipulative and disruptive, as well as undermining relations between different family members. This is particularly odd coming from the mother as she and her mother have, to put it colloquially, been joined at the hip since they left the home of W and V and then the home of Y and Z. They have been living together in a studio flat sharing a mobile phone and one of the mother's plans as outlined to Ms Kemp was to set up home in London with her mother. As is the pattern in these proceedings, that suggestion has now changed. It is now said that J will be returning to South America at the end of these proceedings.
  48. In July 2016, the mother and J left W and V's home with the children. There have been differing accounts given by the different involved parties as to the circumstances of their departure and the mother once again has given contradictory accounts. The mother contends that she, her mother, and the children were kicked out by W and V after an argument. In his oral evidence, whilst he had previously maintained that they had left of their own volition, W accepted that he had kicked them out but denied that he had kicked out the children.
  49. The social worker's first statement reveals that the mother contacted Croydon Children's Services alleging that she had taken her children to live with her sister Y as she was fleeing from domestic violence committed against her by her brother over the past year and of him threatening to hit her. She alleged this had been witnessed by C and she had no intention of her children returning to his and V's care as she was fearful that her brother would harm her. She also contacted Southwark Children's post permanence team asking to report the alleged domestic violence incident. She made similar allegations to the children's school (E96). She said she reported the incident to the police. However, no report has ever been found. She said that the police had informed her that they were unable to take further action as she was reporting an argument only. The mother clarified with the police that there was no physical violence and that the incident had only been an argument.
  50. C also alleged to social care that she had witnessed V throw D on to the floor in the past and also witnessed V stabbing W on the arm during a domestic incident. She also stated that V had taught her to steal at her school and shops. Ms Roach told me that these allegations had been made to her by C on two occasions and that C had demonstrated how D had been thrown on to the floor.
  51. The grandmother also reported to Ms Kemp that C had told her that V had attacked her husband with a knife but that she, the grandmother, believed it was a form of play fighting. C also told her teacher at school that she was unhappy at home with W and V and was scared of her Aunt V who shouted at her a lot. C has also not been consistent and has provided contradictory information about her relationship with W and V describing being frightened of V and then at other times stating that she enjoyed spending time with her uncle and aunt. I am told by Ms Youll that she sought disclosure of the social work case notes of what C said to Ms Roach on two occasions but this has not been provided.
  52. It may come as no surprise, given the bewildering twists and turns of accounts in this case, that the mother has since rowed back on these allegations. She says in her first statement that there was only a big argument because the children had drawn on the wall and W felt she should have stopped it. She accepts that C was present during the argument and no doubt found it frightening. She denies that there was any domestic violence between her and W and says they sometimes argued but not that badly. In oral evidence, she tempered this even further by stating that there had only ever been two arguments, the second leading to her departure. It has been a recurrent theme throughout all three sets of proceedings that the mother claims she has been misunderstood because of language difficulties and she claims this again on this occasion. However, her statement also says that, "I may have exaggerated the situation a bit as I was angry and upset."
  53. The mother gave a further and slightly different account to Ms Kemp telling her that W and V had lived alone for ten years without any children and, at times, found it difficult to adjust to sharing their home. They both complained frequently about the noise which they found difficult to tolerate as they both worked very long hours. She told Ms Kemp that she frequently had to bite her tongue and was reduced to crying in the bathroom. However, she maintained that the children were never aware of this.
  54. Following the children's removal, W and V took no steps to secure their return. Ms Roach, in her s.37 report, as well as her first statement in these proceedings, describes six or so meetings between social care and W and V when they were advised of the steps they needed to take to secure the return of the children and the possible need to involve the police.
  55. On 30th August 2016, thus only a number of weeks after the children had left, W and V informed Ms Roach that they wished to relinquish their special guardianship order as the family were not supporting the children returning to their care.
  56. On 26th October 2016, according to Ms Roach, the couple confirmed that they did not oppose Y and Z becoming special guardians of the children.
  57. On 13th February 2017, they advised social care that the mother and J had turned up with the children asking if they could all move back in with them. They told the mother they could not. They stated that they had received notification of Y and Z's application for a special guardianship order and that they were not opposing this. They would still have been happy for the children to live with them but not the children's mother, but felt that without family support, they could not do this. They were also worried about the allegations that C had made about witnessing V behaving violently towards W and wanted to know if this would affect any application to be adopters in the future.
  58. In their written evidence, W and V give a different account. They state they were given no advice or help from the local authority other than to call the police, and they did not want to call the police on their family. They state that they wanted the situation to resolve amicably and by agreement within the family. They further state that they have always wanted the children back. In oral evidence, W stated that they would definitely have taken steps to recover the children if the children had not been living within the family. They contend that they never agreed to Y and Z becoming special guardians. They further state that they only became really concerned about the children once the mother left Y and Z's home as she was a protective factor. In the end, however, they did not take issue with the local authority's chronology of events and this was confirmed by Ms Youll in closing submissions.
  59. I should make it clear that I unequivocally prefer the detailed account provided by Ms Roach in her evidence over that given by W and V in so far as there are differences between them. I am quite satisfied that all the evidence, including the court order made in March 2017, show that they did not oppose the making of a special guardianship order in favour of Y and Z albeit that they may not have expressly consented to it. As I said in my opening summary of the history, in a statement prepared on their behalf for the hearing in April 2017, they made it clear that they could not put themselves forward as special guardians because of the intolerable pressure placed on them by the allegations made by the family and the acrimony within the family. I pause to observe that this is a precise reflection of what Y and Z came to say in turn. The position statement made no reference to the detailed and lurid allegations which were later to be made by them against Y and Z. Further, at the hearing on 21st April, they stated for the first time that they wish to secure the return of the children to them. As stated, at that hearing I made an order that for the time being, the children live with Y and Z.
  60. It was only at a meeting with social care on 18th May 2017 that W and V made the serious and detailed allegations which they still maintain against Y and Z. These are set out at E53 and are as follows:
  61. "When they saw the children recently, they were full of nits, so they do not believe that [Y] washes their hair. The children are not being fed properly. C told [V] that the grandmother told C that she has snake's eyes and she walks crooked. [Y] did nothing even though this made C cry. [Z] drives a vehicle with the children in the car but he does not have a driver's licence or insurance. Initially, [V] alleged that [Y] has six lovers and the oldest child has seen her have sex throughout his life. This then changed to [Y] having one lover called 'T', and she showed us a photo of him on social media. T is [Y]'s long-term lover who visits when [Z] is at work and they kiss in front of the children. The children call T 'papa'. Oldest son G describes T as a better daddy than [Z]. They allege that the oldest son G pulls his sister's knickers down and [Y] and [Z] do not do anything about this. When G visited their home, they observed him to try to take C's clothes. [V] stated that it is not G's fault. It is because he has lived in a room with his mother and her lover for so long seeing her have sex. [Y] and [Z] hit all the children in the household."

    Other than the fact that the children had nits, all of these allegations are strongly and vehemently denied by Y and Z.

  62. The s.37 report concluded that the author could find no substance to any of the allegations made by W and V. Despite this, the couple and the mother maintained their allegations and W complained vociferously during his evidence of the inadequacy of the investigation by social care. The local authority questions why the couple should have waited nine months after the children first went to live there to make these allegations. Again, W relied upon the fact that the mother was living with the couple until May 2017 and this tempered his and V's concerns.
  63. It was put to W in cross-examination by the local authority that this explanation made no sense because some of the allegations, for example, that the children were not fed properly, affected all the children and not just Y and Z's children. Secondly, why had W and V not reported beforehand the serious safeguarding concerns which affected their niece and nephew? In his answer to this second point, W appeared to suggest that what went on with his niece and nephew was no concern of his.
  64. In December 2016, C had had to change schools again. This was thus her third primary school. The pattern of shifting allegiances with the mother moving from one camp to the other has been a continuing theme. The mother went on to make serious allegations against Y and Z. She reported that she and her mother had been confined to one room where they had to take their meals and effectively live with the children because the rent they were paying Y only entitled them to one room. This is complete denied by Y and Z who state that it was the mother and the grandmother's wish to remain in one room and live separately, and this undermined the routines in the household for their own two children.
  65. In May 2017, the mother confirmed to social care that she had been asked to leave the home of Y and Z. As I have said, the mother has now strongly aligned herself with W and V again against Y and Z although I will come on to address the very recent attempt at conciliation the weekend before the hearing. The mother supports the allegations which W and V make against Y and Z.
  66. The mother is then reported in May to have removed the children without agreement or consultation with Y and Z, together with J, and take them back to the home of W and V. The children were returned to Y and Z the next day. The mother says that they were regularly going to W and V's home over weekends to give the couple, Y and Z, a break. This is wholly denied by Y and Z. Another motif throughout the proceedings has been allegations about different family members being motivated by financial considerations. For example, W and V state that Y and Z saw how well they lived with the special guardianship allowance and Y and Z viewed the mother as a cash cow. It was thus in their interests to entice her over to their household.
  67. This acrimony and hostility has continued unabated during the proceedings. In her statement, Y reports that prior to the proceedings commencing, it proved very difficult to manage the mother's contact with the children. The mother was meant to be seeing them approximately once a week with more frequent telephone contact. Both Y and W, in a rare moment of agreement, have commented upon the fact that the mother is very strong-willed. Y refers to them being besieged with phone calls with the mother phoning up to five times a day.
  68. In July 2017, there was an extremely unpleasant incident when the police had to get involved when the mother attended to collect her possessions from Y's house. Y contends that the mother became aggressive and argumentative and pushed her. All the children were at home and H and C became extremely distressed and were crying. As I have said, in the end the police were called. Y states that she overheard J and the mother telling C to tell the police that Y had pushed C over on to the floor.
  69. In August 2017, there was a further incident whereby J and the mother collected the children from Y and Z's home on Friday, 4th August and only returned them again on Monday, 7th August when the social worker intervened. Again, there are competing accounts from the two camps. Z states that he agreed to J collecting the children for contact on Friday for the afternoon but she and the mother then retained the children. The mother, W, and V state that Y and Z advised them that they did not want the children anymore and they could take them. By this time, the arrangements for the mother to have contact with the children were fortnightly to be supervised by social care. Even if Z's account were true, he was extremely foolish in allowing J to collect the children knowing that she was in close collusion with the mother at all times.
  70. There were also unpleasant scenes at C's school and D's nursery where the mother or the grandmother attempted to take the children from school and school has had to threaten to call the police. The mother says in relation to one incident that she had agreed with Y to meet at C's school but had got there early but this does not explain why the school felt it necessary to threaten to call the police.
  71. As I have just stated, the mother set up a meeting with Z on the weekend before the hearing in an attempt to reconcile. There was no agreement even as to what was said at this meeting. Z said that the mother had agreed to withdraw all her allegations as a precondition to his agreeing to be the third option but the mother disputed this. Ms Kemp said in her evidence that, by this time, the mother had her back against the wall and this was too little too late.
  72. THE EVIDENCE OF MS KEMP

  73. Ms Kemp is an experienced social worker with 35 years post qualifying experience. She has worked as a court welfare officer and a children's guardian. She met with all the adult parties and the grandmother, as well as observing a contact session between the mother, the grandmother, and the children. Ms Kemp referred to the mother's frequently changing proposals as to how she would care for the children. Initially, she told Ms Kemp that she wanted to secure a flat in a particular area to be near her brother. C could then return to her old school. Her brother had promised to support her financially and practically should the children be returned. However, when Ms Kemp interviewed J, she advised that they had viewed a flat that was nowhere near the area the mother had mentioned and that the plan was to travel to the school by bus. Latterly, the mother expressed a clear wish to live independently with her children and her mother. She felt the best way of avoiding problems with her siblings was to cut the problem "off at the root" and only accept help in an emergency. She referred to a second option of renting the entire top floor of her brother's house from him but to lead separate lives.
  74. As I have said, her position has changed again as she now refers to her mother as a disruptive influence and states that she is intending to return to South America at the end of the proceedings. The option she now puts before the court as her preferred option is to live in the same house, albeit separately, from W and V and to work for W and V in their cleaning business.
  75. When Ms Kemp spoke to W and V, despite the stance they had taken in their court statement and to the local authority about living apart from the mother, they were more ambivalent on the subject with her. She spoke to the inclusion and safeguarding manager at C's former school and she confirmed to Ms Kemp that she had not seen W and V throughout the time that C was a pupil at school. Ms Youll referred to the special guardianship report for D at G308 which stated that the school had formed a very good relationship with W and V. I note, however, that this was in 2014 before the mother lived with them and when they had the care of C alone.
  76. The mother explains that when she moved in with W and V, C asked that she be able to take her to school and this was cleared with the school. W and V maintain that they continued to attend school events such as parent evenings, with the mother. They say that a new head started in 2016 so that she probably does not know them. The school says that the only contact W and V had made with them was when they were approaching staff and other parents in the playground in the autumn of 2016 in an attempt to gather personal references to assist in getting the children back. They were making allegations of abuse by Y and Z. They were apparently said to have responded angrily and left when told to refer any concerns to social care and/or the police.
  77. Ms Kemp expressed grave concern at the extent to which C had been brought into the adult disputes. She was aware of the court dates and exactly what was happening at court. At E98, she says this at paragraph 60:
  78. "I am concerned that C, in particular, is privy to the adult disputes and has an ever-changing perception of the loyalty she owes to family members which, in the main, seem to depend on her mother's current allegiances."
  79. The school was offering counselling and referred to C as being overly aware of the adult conflict and of being constantly worried. The teacher felt that even in the therapeutic sessions, C's requests seemed to be blatantly prompted by the adults round her and that she had been manipulated into passing on requests.
  80. Ms Kemp was concerned at the mother's minimisation of the extent of domestic abuse in her relationships. She referred to the fact that C had previously said that D's father had hit and hurt her, and she was afraid of him. Equally, she was concerned at the mother's statement in the previous proceedings that she disbelieved C's allegation of sexual assault, it being the mother's belief that C had made this up at her father's behest to assist with a reconciliation with the mother. Ms Kemp was concerned that whilst the mother was able to articulate the negative effects on C in particular of frequent changes in carer and of the conflict amongst the adults, her behaviour did not give confidence in her capacity to translate her thoughts into action, "There is a disconnect between her stated understanding and her actions."
  81. When dealing with the family dynamics at E104, Ms Kemp made these observations at paragraphs 87 and 88:
  82. "I would say that, at present, family relationships are characterised by animosity, a lack of trust, poor communication, feelings of anger, pain, and victimisation. Feelings as yet are too raw for mediation and forgiveness to even be considered. Alliances have been formed which seek to cast blame on one faction or the other. Often, where there are deficiencies in one caregiver, protective factors exist which offer compensatory parenting by other adults responsible for the children. In this case, the opposite appears to be the case in that family members seem to have been intent on exploiting any perceived deficiencies in the children's placements. Such heavily conflicted family relationships as appear in this case could have a profoundly negative effect on the children caught up in them. Sometimes, alliances are formed and divisions created as a means of exerting control. This can have the effect of creating insecurity, fear of abandonment, and poor self-esteem. A child can feel guilty or disloyal that they are somehow responsible for the family rifts. Constantly shifting sands in adult relationships are harmful to children."
  83. Ms Kemp expressed concern about the confusing and contradictory accounts the mother gave her which did not always accord with information in previous documentation. This inconsistency has been referred to in both previous special guardianship reports and in the previous parenting assessment of Ms Skirrow.
  84. In the mother's favour, Ms Kemp accepted that the mother's precarious position because of her lack of immigration status was now being ameliorated. She accepted that the mother was capable of showing emotional warmth and could provide for the basic care of the children. She also accepted that for the last three years, the mother had not entered into any unsuitable relationships with men. However, she did not feel able to support a placement of the children with any of the family members. None of the adults had shown insight into the impact on the children of being in the middle of the familial battle with serious allegations and counter allegations being made by the adults.
  85. She emphasised the emotional impact on the children, in particular C, and the chronic instability that these conflicts cause with repeated changes of carers, accommodation, and school. Whilst the effects of the turmoil were less apparent in D on account of his age, he too showed signs of insecurity such as the significant difficulties he had in settling in nursery.
  86. She did not consider that W and V had adhered to the underlying purpose of the special guardianship orders which made them responsible for the children, for example, in their dealings with the school. Further, they had not sought to enforce the special guardianship order when the mother removed the children. This was the case even though the mother was taking them to a home where they considered there were serious safeguarding issues. Y and Z too, although they did not hold superior parental responsibility, had failed to set boundaries, for example, to prevent the mother and J from taking the children back to W and V at weekends. None of the adults had prioritised the children over their own agenda. None of the adults seemed capable of de-escalating the conflict.
  87. I found Ms Kemp to be a shrewd and sophisticated appraiser of people who was able to achieve a firm understanding of the dynamics at play in this case as well as the complex history. I found her an excellent witness and I found her report to be a model of its kind, and to be thorough, well-considered, and generally impressive.
  88. DIONNE ROACH, SOCIAL WORKER

  89. I found the written evidence of Ms Roach to be very good and, in particular, the s.37 report was a thorough and impressive piece of work. I found Ms Roach's oral evidence to be less helpful. Her conclusions, of course, reflected those of Ms Kemp.
  90. THE MOTHER

  91. In her written evidence, the mother says when living with W and V, "In practice, I cared for the children." This is disputed by W and V who say that the arrangement was more akin to a shared care arrangement. Similarly, when they moved to Y and Z, the mother says:
  92. "All the care of C and D was provided for by me and my mother. This was the situation until I and my mother left my sister's home."
  93. The mother says that she is currently working for W and V in their cleaning business and that she could work in the home office answering phones and working on the computer if the children came back. As I have stated, her current plan for housing is that she will live in the upper storey of W and V's home but separately from them. They will need to share kitchen facilities but at some point in the future, a kitchen may be installed in the loft. The mother says that she is in the process of undertaking a parenting course in Spanish and is studying to improve her English.
  94. There is no doubt on my part that the mother is clearly devoted to her children and they are the centre of her world. I accept also that there have been improvements in her circumstances since the first two sets of care proceedings. Her immigration situation is now more settled. She can obtain legitimate work and the earlier difficulties with poor school attendance have abated. She is plainly able to demonstrate emotional warmth to her children and to provide more than adequately for their basic needs. She has also not entered impulsively into relationships with unsuitable men for the last three years. However, I regret to say I find her to be a wholly unreliable witness and the documentation in the three sets of proceedings is absolutely littered with contradictory accounts of events. I have been able only to highlight a fraction of these in this judgment.
  95. I have considered carefully the question of her learning difficulty, but I do not consider that these contradictions can realistically be attributed to her learning difficulty. I say that because I also find that she is well able to be manipulative as evidenced by her different accounts to professionals over time putting forward whatever suits her case at that particular time and also her manipulation of C to reflect her own views at any particular time. This presents great challenges to any professional working with her to understand what is really going on at any particular point.
  96. I also consider that her siblings are right when the describe her as strong-willed and impulsive. She has shown a complete disregard for orders of the court and does whatever it takes to secure her ends of having the children in her care. This is also the view of Y and Z who state at C66:
  97. "[M] is convinced that it is her job and right to provide the care for her children and that it is not something that should be delegated to other people, even family. She is very strong willed and it is often difficult to not do what [M] says."
  98. This, I am afraid, is with little thought about the impact on the children of her behaviour. This is exemplified not only by her leaving W and V's home in July 2016 in breach of the special guardianship order, but also more recently with the contact arrangements set in place by the court. Having said that and although at first blush this may seem to be contradictory, I consider that she is also susceptible to pressure from other members of the family. This, in my judgment, arises in part from what I see as her continuing dependence on whichever family member she is aligned to. In particular, when she was asked whether she stood by the allegations against Y and Z during her oral evidence, she hesitated and looked extremely uncomfortable. W, from the well of the court, said "S" or "No" very firmly from where he was sitting and I consider that this is an indication that he has placed her under pressure to support his case.
  99. She may express some acknowledgement of the impact of the family animosity on the children but, as Ms Kemp says, is wholly unable to translate this into action. I am afraid I also find that she has wholly failed to protect her children and, in particular, C from the ongoing dispute. C has been described as being extremely loyal to her mother and tending to echo whatever her mother's latest position is on family relations. At C262, Ms Roach states:
  100. "It also seems possible that she has encouraged C to lie to professionals to substantiate her own allegations against the children's aunts and uncles."
  101. This has resulted in significant emotional harm for C whom I find to be a child who is deeply worried, confused by her world, and distressed and anxious about her future. I also find the mother still to be a vulnerable woman and I agree with Ms Kemp that there is insufficient evidence of change from the previous proceedings when she was not considered able to care for the children independently.
  102. Y AND Z

  103. Y has been a somewhat shadowy figure throughout these proceedings. Z has attended on his own to court on a number of occasions and I note that she absented herself when Ms Kemp attended for their interview which was conducted just with Z. It seems to me that Z has been far more engaged both in the assessments and in the court proceedings themselves.
  104. I found that Z demonstrated more insight into the harm caused to the children by the adult conflict than either the mother or W. However, his answers to questions were vague and discursive and did not tend to address the points being put to him. I found that throughout his evidence, he was attempting to be diplomatic to paste over the difficulties, and to hold the family line.
  105. I do not find that any of the serious allegations which had been levelled against him and Y have been made out. W's evidence made it clear that they were based upon what had been related to him by third parties, including C. The s.37 report did not find any of the allegations substantiated, nor did the children's schools express any concern about any of them. The children themselves were spoken to and denied that they had ever been hit. As I will relate later in this judgment, however, my finding does not make any material difference to W's case because I consider that if the allegations were true that, in itself, would raise concerns about W's parenting.
  106. I am quite satisfied that the very recent further change of position on the part of Y and Z arises out of a deep-seated wish to prevent the children from going out of the family. I am far from satisfied, however, that this can be translated into stable care for the children by Y and Z. Both Y and Z have demonstrated frequent and impulsive changes of mind about providing long-term care for the children. They made a knee-jerk reaction to the change of mind by W and V in April to seek the return of the children to their care. They then changed their minds again and put themselves forward as long-term carers. In August, they changed their minds yet again stating that the allegations by the family were taking too great a toll on themselves and their children. Then at the start of this hearing, there was the further change of heart following the meeting last weekend. Finally, in submissions, it was confirmed on their behalf that they do not put forward an affirmative case to care for the children but leave it to the court to consider.
  107. I believe this to be so because in their hearts, they know that the family dynamics are such that they would not be able to provide stable care for these children. Currently, their overriding concern appears to be to protect themselves and their family from the anger of the wider family. It must be self-evident that any placement with them would be intensely fragile and liable to fail at the first hurdle. I consider that on past performance, the couple would find it impossible to hold the line against the mother who can be extremely determined and strong willed.
  108. I conclude that it is highly likely that were the children to be placed with Y and Z, they would be subject to further instability and changes in their primary care arrangements. I consider that Y and Z have been in a position of great turmoil as they explained themselves in their final statement and that is why they have taken the line that they have of not affirmatively putting themselves forward but simply leaving it to the court to consider their case.
  109. W AND V

  110. Again, I have only heard from W. Ms Youll has submitted forcefully that her clients have felt sidelined in these proceedings particularly when they have not been further assessed in contrast to the mother. On 8th August 2017, I refused an application by W and V for a parenting assessment or updating special guardianship assessment. This application was renewed before Mr Record Ullstein QC who again refused it. Although I am told that he indicated the matter could be considered at the final hearing, I note that neither order was appealed, no Part 25 application was made for a further assessment at this hearing, nor was I invited to adjourn the hearing.
  111. I should say at the outset, like the other adults, I accept that W and V too love the children. I regret to say, however, that I did not find W to be a reliable witness. His account contains a number of inherent inconsistencies. He also changed his account about the mother leaving voluntarily in July 2016 and agreed that he had kicked her out. Whilst the written evidence appeared to dispute the s.37 report and account of meetings with social care after the children left, he expressly conceded that the contents of the report, at E51 in particular, were correct. I consider that he has rewritten history to suit his case, for example, in relation to his desire to resume the care of the children after the mother removed the children from his home.
  112. I find that once the mother moved into his household following the making of the special guardianship order for D, he and V were content for her to take over the primary care of the children. He was working long hours and V was also working, although the extent is unclear. Although the working agreement allowed the mother to assume care of D, I consider that the situation was more akin to one whereby they allowed the children and the mother to reside in their home as an uncle and an aunt. On this issue, I accept the mother's evidence as I can see no motivation for her to lie about it as it could be seen to be adverse to her case.
  113. Although the school were in contact with the couple and they formed a good relationship with the school during the period before the mother moved in, the complete absence of contact with it following her moving in is, in my judgment, a reflection of what was going on within the household.
  114. Given the mother's inconsistency, I am unable to make any finding about domestic abuse within the household, a position that the mother has resiled from in any event. I also consider it would be unsafe to rely upon C's reports, albeit that they were made to the social worker, to the grandmother, and to some extent to Y. This is because of the view of professionals that C may tell untruths as a result of being manipulated by her mother and echoing her mother's views.
  115. I find the evidence that the arguments between W and V were in the nature of play fights, albeit that they frightened C, to be extremely odd, however. I do find it likely, however, on the balance of probabilities, that there were serious tensions in the household. I find the most likely and credible account to be the one which the mother gave to Ms Kemp, namely of the couple working long hours and finding the presence of two young children irksome and irritating at times. I find her account of her crying in the bathroom and biting her tongue has a ring of truth about it. I also find it was likely that there were arguments about financial matters which seemed to preoccupy this family and also about other issues. As I have said, I find, as did Ms Kemp, that financial matters were likely to be at the centre of many of this family's disputes.
  116. I find it likely that C was telling the truth when she complained to her school teachers, amongst others, that V would shout at her and that this frightened her. I also express concern that there seems to have been very little effort to re-establish contact with the children in the initial months after they left the home. As I have said, the picture is a mixed one as I accept that C has spoken affectionately about her uncle and aunt and appears in some respects to enjoy a good relationship with them.
  117. I consider that W and V's failure to seek the return of the children prior to April 2017 is at a piece with the fact that the mother was their primary care throughout the time that she lived with them. I also consider that the couple's complete failure to exercise their parental responsibility demonstrates a lack of commitment to these children. The couple have done nothing to promote the children's stability and have acquiesced in the mother's actions which have led to the children experiencing gross instability.
  118. If W's allegations about Y and Z were true, it is very difficult to understand why he did not take action to protect the children for whom he held superior parental responsibility from this household which had so many safeguarding concerns. As Y and Z themselves state, when the choice during the proceedings was for an interim foster placement or the children remaining with Z, W and V supported the children remaining with Y and Z. This was long after the mother had left.
  119. As I said earlier in this judgment, my findings about the allegations that he makes against Y and Z, in fact, make no difference to his case. If he is right about his allegations, or even some of them, and I am wrong, this shows a woeful failure to protect. I do not accept his excuse that the mother was there to moderate the difficulties because the children would still be impacted by what was going on. If, however, I am right in my findings, the allegations can be seen to be malicious and a significant contribution to the toxic family dynamics.
  120. I have found his case to be puzzling in the extreme. Given that he was prepared to relinquish the children and acquiesce in Y and Z becoming special guardians, it is difficult for me to understand why he has become so vehement in his opposition and so passionate about seeking the return of the children since April 2017. The only explanation I can see is that he was prepared to acquiesce in the situation while the mother was the primary carer. Once Y and Z were in the frame as primary carers, his hostility to them as a couple explains his opposition to them but not the passion with which he now seeks the return of the children to him and V. Nonetheless, his primary position continues to be a return of the children to the mother.
  121. I am satisfied that he, like Y and Z, would not hold the line against the mother and would be likely to allow her to play a greater role than any court order sanctioned or even to allow her to resume the primary care of the children. In my judgment, he sees no reason why she should not have the primary care of these children. This is reflected in him seeing her as the first option.
  122. I found him to display an almost complete lack of insight into the impact on the children of the acrimony within the family. This is reflected in his refusal to accept that the threshold is crossed. It means that he would not see the need to protect the children from the acrimony. I am afraid I also found him to be a dogmatic and somewhat inflexible individual who would find it difficult if not impossible to accept anyone's point of view if it differed from his. I find that this would be likely to affect his ability to work with social care and I note his continuing inability to accept the conclusions of the s.37 report.
  123. It follows from all that I have said, that I reject the submission made by Ms Youll on behalf of W and V that they have not been adequately assessed. In my judgment, there is a wealth of information about the couple in the chronology of events and in all the assessments that have taken place. I consider that my view that it was not necessary to have a further updating assessment of them in order to resolve the proceedings justly to have been borne out and to be correct.
  124. I agree with the view of professionals that the dynamics within this family are toxic and are unlikely to change within the timescales for the children. Further, it is my judgment that none of the family has been straightforward and entirely honest with professionals over the course of these three proceedings. This has made discovery of where the truth actually lies an extremely difficult process.
  125. I further accept that these toxic dynamics have led to chronic instability for these children. I accept the point made that the incorrect assumption that the mother and W and V had breached the special guardianship order must have had an adverse impact on how they were viewed by the local authority and the guardian. However, this error did not form part of Ms Kemp's thinking and I have already found her analysis to be compelling.
  126. THE GUARDIAN

  127. I made it clear during closing submissions that, regrettably, I did not consider that the guardian had added very much value in this case. She appears essentially to have reviewed the local authority evidence and there is little independent analysis from her. I say this being painfully aware of the constraints placed upon CAFCASS guardians in the current climate. However, her final report simply repeated verbatim a number of paragraphs from her initial analysis including the incorrect statement about W, V, and the mother being in breach of the special guardianship order which had been corrected by them. The guardian also accepted that she spent only 10 to 12 minutes speaking to W and V at court on one occasion. Even though I declined a further assessment of W and V, I made it clear during the court hearings that the local authority and the guardian should include an analysis of their position in their evidence. Under cross-examination by Ms Youll, the guardian was obliged to make a number of concessions including that her B-S analysis of the option of returning to W and V was inadequate.
  128. THE LEGAL PRINCIPLES

  129. The welfare of these two children is my paramount consideration and I must apply the welfare checklist in s.1(3) of the Children Act. I bear well in mind the well-known authorities cited by Ms Lewis on behalf of the mother to the effect that a child is always best placed with his or her parent unless welfare considerations demand an alternative conclusion. I have to carry out a welfare evaluation of the internal pros and cons of the different realistic options applying the welfare checklist. I must then consider the pros and cons of each option alongside those of the other realistic options.
  130. A placement in foster care involves a substantial interference with the Article 8 rights of the mother, the aunts and uncles, and the children. I must be satisfied that such a step is both necessary and proportionate. In other words, any interference with those rights, must be limited to that which is necessary in order to protect the children and promote their overriding welfare needs. Put another way, I must not make such an order unless nothing else will do to meet the children's overriding welfare needs.
  131. I am prepared to consider that the realistic options are these: return to the mother; return to V and W; and continuation of care by Y and Z and long-term foster care. I say I am prepared to accept those options because, in Y and Z's case, it could be said that they do not represent a realistic option given that they do not put forward an affirmative case to care for the children. Nevertheless, for the sake of completeness, I consider that it would be important to consider the pros and cons of their case.
  132. The key elements of the welfare checklist, in my view, are: the wishes and feelings of the children; their needs; the effect on them of any change in their circumstances; any harm they have suffered or are at risk of suffering; and the adults' ability to meet their needs. I fully accept that both these children have a strong bond with their mother. C is desperate to remain in her mother's care and I have read the letter from her which has been produced. She is extremely anxious about going into foster care which is something the social worker has felt constrained to discuss with her. She speaks negatively about her previous time in foster care. Having said that, I consider that the mother has done little or nothing to reassure her and this recent concern about animal allergies seems to me to be likely to stem from her mother as she has never previously referred to having allergies. D too, if he were able to articulate his wishes and feelings, would be likely to want the same as his sister.
  133. I am satisfied that these children have an overriding need for stability and permanency. The court has tried and failed to achieve permanency for them for some years now. C has suffered chronic instability throughout her young life. She has lived initially with her mother, then in foster care, then with W and V alone, then with W and V and the mother, then with the mother, Y and Z, and then with Y and Z alone. She has had three changes of primary school already and a fourth is likely to be required if she moves into foster care.
  134. There will inevitably be a change in the children's circumstances, given that Y and Z do not put forward an affirmative case to look after them, whatever the decision of the court is. I am quite satisfied that the children have suffered significant emotional harm as a result of the chronic instability in their lives and the impact on them of the adult dispute. The threshold criteria are plainly met and both the mother and W and V have contributed to the harm that they have suffered.
  135. Ms Kemp has spelled out the emotional impact on the children of the family dynamics which have already had a significant impact upon C spilling over into her education and requiring therapeutic input from the school. D is already showing signs of insecurity in the way he was unable to settle at nursery which went beyond ordinary separation anxiety in my view. As Ms Kemp said, these children have been pulled from pillar to post. C has been drawn into the family acrimony and has been put in the invidious position of having constantly to shift her loyalties and allegiances.
  136. I have already referred to the very salient paragraphs of Ms Kemp's report at paragraphs 87 and 88. Later, she stated at E108:
  137. "There is evidence that C appears to echo the views of the last person who had any influence on her other than a constantly stated desire to live with her mother and is displaying signs of confusion and anxiety which spill over into everyday life at school."
  138. None of the adults have shown themselves capable of being able to address the toxic relationships within the family. In fairness to them, the adults themselves appear to recognise this to some degree. In this respect, they have plainly prioritised their own needs over those of the children. All of them have acted impulsively and have failed to exercise their parental responsibility to achieve any security or stability for the children. There is no sign that this is likely to change within the children's timescales. Indeed, the tenor of the oral evidence in this case exemplified how far the family have to travel in this regard.
  139. In considering the realistic options, I accept the evidence of the local authority that it would be harmful to these children to be separated even if this means that D's chances of securing permanency via adoption are sacrificed. I consider that the sibling relationship is of key importance to these children and is likely to be a strong protective factor if they cannot return home.
  140. THE MOTHER

  141. The mother is the birth mother with all that this provides for the children in terms of her love, commitment, promotion of their identity needs, cultural heritage, and self-esteem. As I have stated, the mother has a close bond with both her children. Further, it is C's overriding wish to remain with her mother and D would be likely to say the same were he able to express himself. The mother's basic care is better than good enough. The mother has made improvements in her situation since the earlier care proceedings. Her immigration status is improved. She is able to work legitimately. She has sought to improve herself by attending a parenting course and working on her English. She has not entered into any unsuitable relationships with men for the past three years. The problems with poor school attendance and punctuality are no longer present and this has been assisted by her more secure immigration status.
  142. As against this, the mother has repeatedly acted in impulsive ways which have undermined the children's stability. The result has been chronic instability for both her children but particularly C. She has seen it as her inviolable right to look after her children and has thus repeatedly flouted decisions of the court aimed at providing permanency. As I have said, whilst she has shown some insight into the importance of stability for her children, she has been wholly unable to translate this into action. She has played her part in promoting the toxic family dynamics which have been so harmful to the children. She repeatedly shifts allegiances and makes serious allegations against the family members with whom she has fallen out. This, in turn, impacts on the children's stability as both couples in this case have withdrawn from caring for the children as a result of being unable to cope with the allegations and hostility. She has manipulated C with a view to get her to support her allegations which is a form of emotional abuse. C, as a result, is a confused, anxious, and distressed young girl. There is no evidence that these patterns have shifted over many years or that they will shift within the children's timescales.
  143. As Mr Dean submitted, the proposals the mother now puts forward make her heavily dependent upon W and V in terms of accommodation and employment and, as such, place her in a very vulnerable position. I am not satisfied that they would live separate lives within the same home and there is all the scope for tension and breakdown in relationships which existed before.
  144. I am also satisfied, as was Ms Kemp, that the mother still has vulnerabilities which could impact upon the security and stability of the children. I hark back to Dr Farhy's evidence and that of previous assessments which speak of the need for ongoing support in her care of the children. There are still risks, in my judgment, of her making poor and unsafe choices. I am not satisfied that nay professional help which could be put in could sufficiently reduce these risks.
  145. W AND V

  146. As family members, W and V bring the same benefits as the mother albeit as aunt and uncle. I have no doubt that they love the children and that the children have, in many respects, a good relationship with them albeit that C has expressed some concerns. They can provide the children with security of accommodation and finances. Their basic care is better than good enough. They have already had the children living with them for a significant period. As against this, I find that they too have contributed to the children's current predicament of chronic instability. They wholly failed to exercise their parental responsibility when the mother left their home and they have provided no adequate justification for his. They too have demonstrated changes of mind at short notice and thus impulsivity. The lurid allegations made against Y and Z, which I have found not to be made out, have contributed in a direct way to the reluctance of that couple to continue to put themselves forward.
  147. I also have concerns about the inconsistency of their position, namely, the lack of protectiveness they have shown if the allegations were true and the promotion of family discord and disharmony if they are false. W at least appears to have poor insight into the impact of his actions or inactions on the children and I find that the roof incident is an example of such a lack of insight. It has taken on greater prominence now that it is recognised not to be an isolated incident. I also consider that the particular personality of W is not conducive to his working well with professionals. Further, I agree with Ms Kemp that they too would be unlikely to hold the line against the mother as history demonstrates.
  148. Y AND Z

  149. This too is a family placement which has been tried out. The children have been observed to settle well and to be afforded a good level of care. Y and Z very recently had a positive special guardianship assessment. The children are said to have a good relationship with their cousins. I cannot speak for Y, but Z certainly has a better insight than the other adults into the impact of the family acrimony on the children but has been unable to do anything to resolve it.
  150. Y and Z have found it extremely difficult to be resilient in the face of the family hostility and there have been frequent changes of mind. Their current ambivalence, whilst understandable, is a strong contraindication to stability. I agree with Mr Dean that their final statement, which is a reflective statement, is likely to be represent their true thinking.
  151. A PLACEMENT IN FOSTER CARE

  152. This is the only way of achieving permanence and stability if a family placement is ruled out. Such a placement will be carefully selected and the placement already identified, if this becomes the placement, can partially meet the children's cultural needs as the female foster carer is Spanish. The fact that the children would be placed together represents a significant protective factor. Further, the children would still be enabled to have a relationship with the mother and the extended family members. The children will be relieved from their ongoing involvements in the chronic and unhelpful family relationships and this should reduce the confusion and distress currently experienced by C.
  153. As against this are the children's wishes and feelings. At the very least, in the short term, the children are likely to suffer significant distress and anxiety. Further, foster placements do not necessarily endure for a child's minority and, in D's case, this is a very long period. Further, the children will suffer all the stigma and inconvenience of being looked after children in terms of having an allocated social worker, being subject to LAC reviews, and when they are older for checks to have to be made on friends if they wish, for example, to have overnight stays.
  154. I have thought long and hard in this case as to whether a family placement can be tried once again. I am painfully conscious of the likely impact on C and there must be some risk that she will not settle in foster care. As against that, I am wholly satisfied that the chronic instability, division of loyalties, distress and confusion felt particularly by C, will not abate and that the future will look similar to the present and the past. I cannot see that the chronic instability which has prevailed throughout these children's lives will end if they are placed within the family. At the end of the day, I do not find that any of the adults can meet these children's fundamental needs for a secure, stable, and stress-free childhood and that permanence, very sadly, must be sought outside of the family.
  155. It follows that I make a care order in respect of both children in favour of the London Borough of Southwark. I have considered carefully the revised contact proposals. Contact after an order has been made always represents a step into the dark because it is not known what the children's needs will be, how well the parents and other adults will accept the decision, and whether they will undermine the placement. Any decision by the court simply represents a starting point. Whilst the children have a need to see their mother, in particular, regularly and frequently, against this must be placed the need for them to settle into what will be, I expect and hope, their long-term placement and to form new attachments to alternative primary carers together with the risks that the mother may undermine the placement.
  156. I consider that for the time being, the proposals put forward strike an acceptable balance between these competing factors. However, I also make it plain that they are a starting point only and are likely to need reconsidering at regular intervals with possible changes of plan, either upwards or downwards, depending on the competing factors which I have just referred.
  157. I should say, finally, I am very grateful to all the advocates for their very helpful presentation in this case which has assisted me.
  158. That is my judgment in this case.


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