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Cite as:  EWFC B174
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|RBC v R & J-M|
Crown Copyright ©
I am dealing with applications for care orders in respect of R aged 9 years, K aged 6 years and O 2 years.
I have read all of the evidence contained in the Court Bundle and handed in through the course of this hearing, and heard from various witnesses. I would also like to say at the outset that it is abundantly clear to me that the parents and grandmothers in this case clearly love the children concerned. As is often the case in these sorts of proceedings, this case is not about how much they love the children but about who is best placed to meet their needs for the rest of their childhoods.
Events leading up to these proceedings:
RBC Children's Services have been involved with the maternal family since 1998 and I think it worth going over that history to set the current concerns and decisions that I must make in context. Between 1998 and 2005 the LA were involved with the family of JM due to concerns in relation to the care provided by TR to the Mother and her siblings. JM alleged that she had suffered physical violence and witnessed domestic violence while in the care of TR.
In addition, there was ongoing conflict between members of the extended maternal family and this adversely affected the parenting that JM received from her mother TR. There were numerous Police call-outs.
When R was born in May 2005, JM (then aged 15 ˝years) was living with TR. By June 2005 the LA was informed that the Mother and R had moved to the home of the maternal great grandmother CM as a result of an argument between JM and TR. On 1 July 2005 R sustained a minor burn injury to her leg when she was accidentally splashed with hot water while a bottle was being made: the injury occurred during an argument between JM and TR. Following this incident JM and R were accommodated under Section 20 of the Children Act 1989. This placement, however, broke down in August 2005 when the foster carer alleged that JM had assaulted her and JM raised concerns about the foster carer's conduct. JM was then placed in a Mother and Baby unit.
R's Father is DD: it appears that he has had little if any involvement in R's life. JM had very little information about his whereabouts and it has not been possible to locate him during these proceedings.
Professionals working with the family from 1998-2005 encountered difficulties in reaching a clear understanding of the family's true functioning, principally as a result of the complexity of the family relationships and the conflict between family members, characterised by multiple allegations and counter-allegations.
In December 2010 the LA was informed of an incident of domestic violence between JM and JJ; following an initial assessment the case was closed.
JM has reported that her relationship with JJ ended in or around July 2012. It appears that the children continued to have contact with JJ in Southampton and that EJ was involved in the arrangements. On 30 January 2013 the LA was notified that JM had taken a "cocktail" of prescription drugs and a referral was made to the Urgent Care Team. On 28 February 2013 JM contacted BWA and reported that JJ had tried to strangle her. She was offered a place at a refuge. She went to the refuge with the children on 4 March 2013, but only stayed 1 night as she said it was "too far away".
On 8 March 2013 JM contacted Children's Services as a result of feeling depressed and suicidal. A social work visit took place during which it was immediately apparent to the professionals that the children had been exposed to ongoing and serious domestic violence between the parents for a number of years. R and K disclosed that they had witnessed domestic violence between JM and JJ and extended family. R and K also disclosed that JJ had smacked K and pinched R. JM became upset when the children made their disclosures and called them "liars": she said it was their fault that they could not see JJ.
Professionals observed R to be "comfortable" handling O [H27; H30-31].
JM informed professionals that she had no contact with her Mother TR, that "she hated her and would not care if she died" [H32].
There is a summary of the information provided to the LA by the children, other family members and enquiries of other agencies at H2-4. This includes descriptions of 9 Police referrals since 2009 involving domestic violence, and a total of 80 Police incidents involving JM and her wider family; and JJ having 14 convictions for violence-related offences. MPS, attended by R and K, reported a low level of parental contact; R working below average and with problematic punctuality: the School were concerned that JM was negative about R and that she had little support with her work at home; also she seemed well acquainted with adult issues within the family home. In respect of K, he was reported to be skittish and lacking in concentration on occasions; he was reported to have attended school hungry on occasions.
Information from the Urgent Care Team indicated that the team had closed JM's case as they understood she had moved out of the area. JM was described as having "an unstable personality disorder" and her risk of suicide and self-harm to be "reasonably high" [H4; H35-36].
JM and JJ were seen together on 14 March 2013: she denied any domestic violence between them: she said they intended to resume their relationship and that she would move to be near her biological father [H34]. JM denied that her overdose in February had been linked to an incident of domestic violence with JJ.
An Initial Child Protection Conference was held on 2 April 2013 and the children were made the subject of child protection plans under the category of emotional abuse. On 19 June 2013 a further CPC took place and the children remained subject to child protection plans. Some progress had been noted between April and June, in particular in relation to school attendance. However, JM was reporting difficulties with K, and had asked that he be accommodated. K – then aged 4 – was reported to have caused extensive damage to a neighbour's property. JM had engaged with mental health services, and had been referred to WH, but had failed her first appointment as a result of lack of child care [H84].
On or around 4 August JM took K to live with EJ, but subsequently removed him from her care as she had changed her mind [H125]. In mid-2013 the parents' relationship ended. Professionals continued to be concerned that JM was singling out K for criticism. JM had also suggested that he had ADHD, and that this was the cause of his problematic behaviours as she saw them [H126]. Neither parent had engaged with individual domestic violence work. Professionals were concerned at JM's erratic co-operation.
At the further CPC Review on 25 November, there was some progress noted in relation to JM having achieved some stability and a contact arrangement having been agreed with JJ at 1 x 2 weeks. TR was having contact with the children as well. However, on 13 December JM removed R and K from school and took K and O to Bromley, Kent to live with the mother of her new boyfriend SCJ. R was left in the care of TR.
JM returned to this area over Christmas 2013. A written agreement was made with the support of the LA that R and K would stay with TR and O would remain with JM while she addressed her difficulties [I34-36]. By mid-February there were concerns that JM was failing to comply with the requirements of the child protection plans, ie: she had become non-compliant with her mediation; she was not co-operating with professionals; and she was making allegations against TR of drug and alcohol misuse and accused her using offensive language to the children [H146-147].
On 21 March 2014 TR made a without notice application for Residence Orders and Prohibited Steps Orders in respect of R and K [I1-17]. In circumstances that are less than clear, the LA was not notified, was not invited to assist the Court, and the Court made an open-ended Residence Order in favour of TR [I70-71].
Over the weekend of 18 April 2014 R and K were allowed by TR to stay with JM against the advice of the LA. During the weekend JM called the police as SCJ, JM's partner, became aggressive and had pushed her. The children witnessed this incident.
A further domestic violence incident took placed on 4 May 2014. O was in the care of TR at the time. The police report records that JM stated "they (JM and SCJ) separated 3 months ago but got back together. She says she has suicidal thoughts due to him and is at rock bottom…." JM informed the social worker that she wanted to go into a refuge. JM did not go into a refuge and subsequently refused to sign a written agreement to ensure that O was not exposed to SCJ.
On 28 May 2014 the LA received a call from TR who stated that there was an incident at JM's to which she had had to call the Police. TR informed that JM was scared of SCJ and that there were drugs in the property which SCJ kept above JM's wardrobe. O was present during this incident. On 3 June 2014 the LA applied for a Care Order in respect of O. On 8 June 2014 JM placed O with TR whilst she was at work. JM then attended TR's home in the afternoon. Both JM and TR have given different accounts as to what happened, however the situation resulted in JM removing all three children from TR's care. JM placed K with his father, JJ, and R and O were taken to JM's home. R subsequently informed the social worker that TR had hit her. A s.47 investigation was undertaken with an outcome of no further action. TR applied for a Specific Issue Order on 10 June [I56-57]: the Order (with a power of arrest attached) was made on 10 June 2014 by DJ Wakem [I58-59] and R and K were subsequently returned to her care.
The Local Authority issued proceedings in respect of R and K on 20 June 2014 and subsequently the proceedings were consolidated with those concerning O.
Events during these proceedings:
The Local Authority's applications were listed for a First Hearing before DJ Wakem on 24 June 2014 [Order at B 64-67]. The Court gave directions for the filing of viability assessments and for the instruction of DM, Forensic Psychologist, to carry out an assessment of the family members. The LA's application for an interim care order in respect of O was listed for hearing before HHJ Everall QC on 2 July 2014. At the hearing the LA had applied for an interim care order in respect of O on a care plan that she be placed in foster care. All the Respondent parties opposed the application, and in the light of a relatively positive psychological assessment on JM dated 1 July 2014 by Dr T, the LA decided not to pursue the application. O remained in the care of JM and a revised written agreement was entered into at Court by JM, TR and the Local Authority.
In addition, hair strand testing was directed in respect of JJ. The case was timetabled to an IRH in October, to include kinship assessments of EJ and TR.
The matter was restored for an urgent interim care hearing on 15 July 2014 in relation to O following the events of 8-9 July 2014. In short these included:
(a) Difficulties between JM and TR in relation to contact arrangements, despite the agreement entered into earlier and neither adult reported these at the time;
(b) Incidents involving SCJ coming to JM's home, while O was present, and either late at night or in the early hours of the morning. JM did not contact the Police or inform the LA at the time of the incidents, despite being aware of the high level of concern about domestic violence from SCJ;
(c) JM being involved in a car accident and reporting feeling suicidal and being taken to hospital for assessment, although she was not sectioned. The following day Mother informed Children's Services that she had not sought treatment or support from her GP or CMHT.
Following the events of 9 July, O was placed – with the agreement of JJ – in the care of TR. JM also agreed to this placement as a temporary measure. On 15 July 2014 the Court made an interim care order in respect of O on an interim care plan that she would remain placed with TR while assessments were undertaken [B75-76].
Hair strand testing in respect of JJ has shown positive for cocaine [E117-120]. JJ is no longer putting himself forward as a carer for the children. He has a new relationship and a young child with his current partner and I am informed that his local authority have been notified by RBC of their concerns in these proceedings, but there is no involvement by Southampton Children's Services with him or his new family.
The matter was restored for hearing on 9 September 2014 on the application of the LA, who sought an extension of time for the completion of the Kinship Assessments in respect of TR and EJ. In addition, an application was made for an Exclusion Order to be attached to the ICO in respect of O. The basis of the application was that on Sunday, 31 August 2014 Thames Valley Police were contacted when JM removed O from the care of TR, in breach of the written agreement in place, and took her to Kent. It was the belief of the LA that JM intended to take O to meet her ex-partner SCJ; JM claimed that she had taken her to Bromley en route to the London Aquarium. SCJ's Mother lives in Bromley. At the date of the hearing, such were the concerns of TR that she had wanted a power of arrest to be attached to the exclusion order. The order is at B78-84: at the request of JM and TR, hair strand testing was directed for the presence of cannabis in respect of JM and for amphetamine in the case of TR. The test results [E122-148] show the presence of cannabis in JM's hair strand and amphetamine in TR's hair strand. JM has claimed that the presence of cannabis is environmental and not direct use by her; TR has said that she has not taken amphetamine [E246]. She now accepts the test results which show consistent amphetamine consumption over the test period, but has explained that the use of amphetamine is a result of her use of slimming pills purchased on the internet [C297].
The Issues Resolution Hearing took place on 1 December [Order at B85-90]. At the conclusion of the hearing JJ disclosed to the social worker that JM has been repeatedly insinuating that he is not O's father. As a precaution ahead of the final hearing the Order provided for DNA testing to establish if he is O's Father. However, the sampling appointments for JJ and O had to be cancelled on 12.12.2014 as the GP scheduled to take them was unwell and there was no one else able to take the samples. In evidence in the course of this hearing, JM was very clear that JJ is O's Father and it is accepted that EJ and JJ would still have a relationship with her even if DNA testing were to show later on that he was not her birth father.
Threshold is now agreed in this case on the basis of the composite threshold document set out at A36-37 and I adopt this as my threshold findings in this case.
Parties Positions as they were at the outset of this Final Hearing:
The Local Authority had applied for a Supervision Order in respect of R. The Local Authority supported the appointment of TR (maternal grandmother) as Special Guardian for R and the appointment of EJ (paternal grandmother of K and O) as Special Guardian for K and O. NB: The children were with TR: R and K are subject to Residence Orders and O is subject to an interim care order. Their proposals with regard to contact had moved on since their final care plans were filed and at the point that I concluded hearing evidence, the suggestion was of a minimum 3 weekly pattern with one week in Reading, then week 3 in Southampton, with some scope for further contact with JJ and JM in between, dependent upon further discussions between parties in light of my final decisions about where K and O should be placed.
JM supported the children remaining in the care of her mother TR and her appointment as their Special Guardian. She did not oppose the making of a Supervision Order in respect of R (and the other children). Midway through this hearing, Mother changed her position to no longer opposing K going to live with his paternal grandmother, EJ. She would agree to an exclusion order with respect to limit her going to TR's house and agreed with the Local Authority revised contact proposals.
JJ supported and continues to support the final care plans in respect of K and O. He filed a Position Statement on 12.12.2014 confirming this position. If the children remain in the care of TR, he seeks contact at a minimum of 4-6 x per year and monthly telephone contact; if they move to live with EJ, he accepts the Local Authority revised plans and the Guardian's suggestion of weekly contact with him at his mother's house and supervised by EJ. He asks that K and O move immediately to live with his mother.
TR seeks to continue to care for R asked she be appointed her Special Guardian with a 12 month Supervision Order. Her position with regard to K has vacillated through the course of this hearing. In her final position statement, she appeared to seek an adjournment of the final hearing in respect of K so that there could be a trial move for him to the care of EJ under an interim order. Her evidence to me was that, whilst she ideally would have wanted all 3 children to stay together, she was not going to stand in the way of K's wishes to be with his PGM. Her final position in relation to K was outlined to me as one where she still seeks that K be placed with her with the two girls, but that if that is not felt appropriate by the Court, she would ask that his placement with EJ be under an interim order or some form of order that imposed conditions upon contact etc or continued the involvement of the Guardian. In the event that the Court approved the final care plan, she suggests that he should move after Christmas so that the children can be together on Christmas Day. TR opposes the final care plan in respect of O and wants her to remain in her care; she has applied for a Residence Order in respect of O. TR appears to accept the Local Authority's recommendation in respect of the frequency of contact between the children and the Mother [C374 /6].
The Guardian supported R staying with her maternal grandmother, TR, under the auspices of a SGO and a 12 month Supervision Order. In relation to K, she supports him being placed with his paternal grandmother, EJ, under the auspices of a SGO. In relation to O, her position was that she should be placed with her maternal grandmother, TR, also under an SGO with a 12 month Supervision Order.
The issues that were for me to determine were:
i) Placement of K as TR alone argues that he should be placed with her with the 2 girls, or that his placement with EJ should be on an interim basis only;
ii) Placement of O
As everyone was in agreement with regard to placement of R and at this stage I could find no reason to consider any alternative, I was going to deal with R in my conclusions at the end of my judgement and focus instead on the remaining issues relating primarily to K and O. The parties conducted the hearing from that perspective, namely that R was not an issue as they were all in agreement.
At this point I need to deal with the developments overnight of 18th December 2014 after I had concluded hearing evidence and submissions in this case. It was alleged by JM to the SW that she had been breaching the exclusion order regularly and caring for the children at the request of TR. She also made allegations about TR drinking and spending time with her friends rather than caring for the children. JM also indicated that she no longer wanted any of the 3 children to be placed with TR and instead wanted them to be placed with EJ. TR denied the allegations. All parties agreed with me that this went to the main issue in the case which was the risk of harm that may be posed to any child placed with TR arising from the volatility of the relationship between TR and JM. I therefore heard evidence on this issue and adjourned until Monday 22nd December 2014 to hear submissions in light of the additional evidence. RBC also indicated that they needed to rethink their plans with regard to R and were unlikely to be able to present a final care plan for her by Monday. Over the weekend they sought agreement from TR and the parents to place the children with a maternal aunt. The Guardian supported this and the agreement was given and I approved this plan over the weekend.
When I resumed on Monday 22nd December 2014, I allowed the maternal grandmother to call a witness, Tina Pollard, in support of her denials in relation to JM's allegations. All parties agreed that I needed to conduct a fact-finding hearing within this full final hearing to determine the issue about whether or not there had been breach of the exclusion order and I accepted that this was appropriate as my findings would govern the care plan for R.
Fact-finding in relation to whether or not there have been breaches of the exclusion order
As I have noted, JM was alleging that on numerous occasions since 6th November 2014 she has been at TRs property with the children in breach of the exclusion order. TR denies this entirely. I heard oral evidence from both of them and also from TP. I also saw the photographs on JM's phone which she says support her evidence.
It is clear that JM and TR have a very dysfunctional, even toxic I would say, relationship. JM does appear prone to making allegations against people in that she has made numerous claims about eg drug taking on the part of EJ. On any analysis of the situation, she is clearly a very damaged and potentially damaging person with considerable issues which she accepts, hence the original care plans did not allow for her children to be returned to her care and she did not seek to have her children returned to her in this hearing. I have therefore approached her evidence with considerable caution. I have also made allowances for the fact that TR was clearly not well when she attended court on Friday and therefore this may have coloured her demeanour in giving me evidence about this issue.
However, despite the numerous allegations that JM has made before, she did produce photographic evidence which she says supports her allegations. TR alleges that somehow JM has manipulated the dates that appear to be recorded as when these photographs were both taken and last amended. Frankly, I cannot see that JM is capable of the sophistication which such alteration would doubtless require, both in terms of technical knowledge but also in terms of planning the spread of those dates. TR also alleges that somehow JM has transferred photographs from her own phone to JM's phone. Whilst I can understand that perhaps TR might be misguided enough to allow JM access to her phone, the photograph of the school photograph appears to be crucial in undermining this. It is clearly a school photograph which everyone accepts was taken in the term after the summer holidays, which fixes it sometime in early September. The hand holding the school photograph, as was submitted on behalf of JM, is clearly not just of a darker complexion that TR but also looks larger and perhaps younger than TR's own hands. I was not provided with an explanation from TR as to why she might have been taking a photograph of a photograph which she herself possesses, despite the fact that she was asked in the witness box when cross examined to account for that photograph. TR also asks me to believe that she is unable to show me any photographs on her own phone because they have been wiped. Whilst I note that she did give evidence earlier last week about her phone not working for a period, she did not give this explanation this time and in fact the malfunctioning of her phone was challenged last week as the SW had managed to ring her when she claimed that she was unable to ring EJ to arrange contact. She said in her evidence to me that the photos on her phone had been wiped but she did not know by whom.
I find that the most damning aspect of the photographs, regardless of the dates that they may or may not have been taken, is the appearance of the children themselves. If these were photographs taken in April this year as TR alleges, then the children bear a striking resemblance to their appearances in the latest school photograph and O in particular looks exactly the same as in the photograph taken at Winter Wonderland on 13th December 2014. For a two year old girl who I have heard is not only achieving her developmental milestones but exceeding some of them, I would have expected her to appear far more immature if these photographs were taken in April this year.
The presence of SCJ at the house as JM alleges is also deeply concerning. The photographs show him with the children and in TR's house, some with TR present. TR's explanation is that this was the Easter egg hunt visit in April when SCJ and JM turned up at her house to see the children and she let JM take the children away for an overnight visit when they witnessed a domestic violence incident between JM and SCJ (CHR 35-36). She was very clear in her evidence to me that she did not let SCJ into the house that weekend because the children were there, she did not know that JM was taking photographs and she did not do more than walk through the house when SCJ arrived so the photographs should only show her walking to the back door. On looking at the photographs themselves, it appears to me that TR is sitting in the background of the ones that show SCJ with the children and he is clearly in her house and is in more than one room as some appear to be in the living room and some appear to be in some other room which is narrower and has a table and some chairs in it. She is not therefore telling me the truth when she says that she did not let him into the house and she is also not telling me the truth when she says that she only walked through the house.
JM also alleges that she was present when O was taken ill and had to be taken to hospital by ambulance. TP was called to refute this evidence and also the allegations that JM has been present at the house. I have some degree of caution in relation to TP's evidence as she initially said that she visited TR most nights and had not seen JM there then she actually said when cross examined by RBC that she visited TR really in the evenings in the main and could just knock on the door to see if TR was okay or stay for a couple of hours. She has also never been at the house when the social workers have visited by her own admission. It doesn't therefore sound as if she goes into the house nearly every day and therefore might not have seen if JM was at the house. She also doesn't stay overnight so would not necessarily have seen if JM were staying overnight. She has also had a child removed from her care by RBC and openly said that she would help TR if she could. I am not therefore sure that TP is a reliable witness and is certainly not independent.
Despite my concerns about JM's own credibility, there is also the question about why she has raised this issue and at such a late stage in the proceedings. Making these allegations whereby she and her mother have disregarded the exclusion order entirely and persuaded the children to lie seriously jeopardises the future of contact arrangements between her and the children, in addition to threatening the placement of the children with her mother. TR alleges that somehow this is linked to a possible fraudulent claim for tax credits in relation to the children. She showed me a letter from HMRC about this which she received after court on Thursday 18th December at some time after 3pm and then sent a text to JM about. She says that it must be in response to that which prompted mother to change her story. However, the social worker's update dated 18th December 2014 says that she received the telephone call from JM informing her of her allegations at 4.37 pm. This really does not leave much time for JM to have concocted the entire story and then to have altered the photographic evidence as is alleged by TR. Again, it is clear that this provides ample evidence of the dysfunctional relationship between TR and JM and it is therefore a matter of considerable concern in terms of how they might manage contact in the future, given the proposals for contact in this case.
On balance, whilst JM may well have exaggerated the amount of time she has spent at TR's, her account is more consistent with the photographic and other evidence of a culture of secrecy in TR's home before. I also have not forgotten the concern that K displayed about talking about the mobile phone incident involving TR's actions in disciplining him by taking his phone from him. I did not find TR or TP to be credible witnesses and, despite her tendency to cry wolf, it does seem to me that JM is credible when she says that she has breached the exclusion order in order to spend time with her children to help TR who on her own admission has found the numerous different tasks and appointments for the children difficult to juggle.
Parties positions after fact-finding:
RBC are no longer seeking to place R with TR and have indicated that they need to amend their final care plan and will be exploring other maternal kinship placements for R. In respect of K and O their position remains the same.
JM is seeking some placement within the maternal family for R but not with TR and supports K and O going to live with EJ.
JJ's position is unaltered.
TR still seeks the care of R and also O.
The Guardian supports an adjournment of the proceedings for R to investigate alternative kinship placements by assessments. She was not present today but had given instructions to the children's solicitor, Mr Rodriguez.
DM, Forensic Psychologist, was instructed and has prepared a report on the children and their mother. This is dated 6th August 2014 and is at E25-116. He has also addressed supplemental questions posed on 5th December 2014 in an addendum report dated 11th December 2014 – E274-283. DM gave me evidence to the effect that in his opinion O has no secure attachment to a primary carer. He was very clear that this arises from her insecure attachment or lack of attachment prior to this rather than it being a criticism of parenting from TR over the last five months while O has been placed with her. On balance he concluded that, whilst a move for O to her paternal grandmother would be upsetting and would require a period of adjustment for her, this was not the same as being traumatic in the true psychological sense, and that EJ would be better able than TR to give her the high standard of parenting that she needs to have a chance of forming a secure attachment, not just good enough parenting. He based this conclusion upon all of the evidence which he had seen but was particularly referring to EJ's skills arising from her work with adults. He was concerned about TR's unstable relationships, particularly with JM but also with other members of her family. If, as she says, she was using slimming drugs purchased over the internet he was also concerned about the recklessness that this indicated. He was clear that if K and O were to move from their current placement that this should be done quickly rather than wait until after the Christmas holidays.
SGO Assessments were directed and prepared in respect of EJ and TR and these, plus the associated documentation including SGO Support Plans, can be found at E149-271. Interim kinship and viability assessments were also completed and can be found in the Bundle at C102-159 and C273-293.
Hair strand testing in relation to JJ, JM and TR was also directed and the results are at E117-120, E122-135 and E136-148. I have also had sight of an email dated 7th November 2014 clarifying the test results for TR showing consumption of amphetamine in light of her explanation about slimming pills.
The Bundle also contains the Common Point of Entry assessment of JM at E11-16, dated 1st July 2014.
Other professional evidence and assessments
The SW in the case has prepared a total of 7 statements in the course of these proceedings and these can be found at C27-68, C69-98, C171-200, C201-244, C245-258, C261-272 and C294-338. She gave evidence before me to the effect that her recommendation remained that K and O should be placed with EJ under SGOs and that R should be placed with TR under an SGO. Her concerns were O to be placed with TR revolved around the instability in the relationship between JM and TR and also the very different needs that O has given her insecure attachment manifested by indiscriminate approaches to adults when seeking affection.
There is a statement from the Health Visitor, dated 20th May 2014 (C19-25) which summarises her involvement with the family since 2008, and her concerns about domestic violence relating to JM's relationship with JJ.
Viability assessments were conducted in respect of JJ (C102-121), SS (C122-139), and EJ (140-159). The assessment of JJ highlighted that there would need to be a more in depth assessment of him, addressing numerous issues and highlighted as a concern that it had come to light during the assessment that he had been using class A drugs. The assessment of SS as a potential carer for O was positive but SS withdrew her application to be considered as a carer on 19th August 2014. The assessment of EJ as a potential carer for K was positive and led to the full SGO assessment of her and supplemental statement by the assessor addressing issues raised by the Guardian and which can be found at E149-209 and C347-360.
There has also been a positive SGO assessment of TR by CW which can be found at E227-258 and a supplemental statement from the assessor addressing issues raised by the Guardian and which is at C361-372. CW also gave me evidence about her concerns in relation to TR's lack of emotional regulation posing a risk to O's emotional wellbeing were O to be placed with her. She was very clear that O requires reparative parenting which TR would not be able to provide at the same time as parenting R, whereas EJ can provide this to O at the same time as parenting K. She based this partly on her observations and the evidence but also placed reliance on the transferrable skills which EJ has arising from her work as a carer for vulnerable adults.
Kinship reports in relation to TR and EJ were also prepared and can be found at C273-293. EL, one of the co-authors of these kinship reports and also one of the SGO assessors, also gave me evidence. Despite the fact that EJ's adult children had all been in trouble with the law, she was clear that EJ was able to learn from her parenting of her own children and to parent in a different way for K and O. She also highlighted the transferrable nature of the skills which EJ had acquired in her work to parenting K and O.
The Guardian has prepared two reports and a lengthy position statement for the IRH – the reports are at E1-10, E284-304. She gave evidence to the effect that she believes O has formed an attachment to her maternal grandmother, TR, and that therefore it will cause O pain to be moved. Such a move, she indicated, could only be justified if O is at some risk of harm and she also highlighted the likely adverse impact upon R if O were not to live with her as R wishes. She acknowledged that her final report had not addressed the impact upon K if O were to be separated from him, but gave evidence to the effect that she did not consider that he would be too troubled by O not being there.
JM has filed two statements, dated 1st July 2014 (C160-163) and 8th December 2014 (C341-346). She gave me evidence confirming her change of position during the hearing to accept that K should be placed with EJ. She did go on to continue to make allegations about EJ in terms of drug use by her and facilitating drug use by her adult children but still maintained that K should be placed with her. She equally confirmed that she wanted R to live with her mother, TR, and was asking for O to continue to live there, but also confirmed her allegations about the TR's drug use. She was visibly upset recalling her experience of being parented by TR, describing her as cold and shutting her out, but at the same time highlighted how positively TR engages with R, K and O as a contrast to her own childhood.
JJ has filed two statements, dated 27th June 2014 (C99-101) and 5th June 2014 (C339-340). He was also granted leave during this hearing to file and serve a short statement from EJ in light of the criticisms of her raised by JM and TR. He did not give evidence but called EJ briefly to respond to some of the allegations made by JM against her. EJ gave evidence to confirm that she was not involved in drug taking and did not facilitate her adult children taking drugs in any way. She also confirmed that her adult son will no longer be living in the property past the end of this week in anticipation of at least K living with her.
TR has filed two statements, dated 1st July 2014 (C164-170) and 9th December 2014 (C373-386). She confirmed that she does not wish to oppose K living with his paternal grandmother, EJ, as long as he is not going to want to come back like she says he did last year. She therefore wants me to consider an interim order to see how his placement there goes. She confirmed that she wants O to remain in her care and described the good routines that she has now established in relation to the children. She denied the allegations made by JM about her parenting of her own children and denied drug use. As the hair strand testing had revealed a consistent use of amphetamine over the sample period (the email of 7th November 2014 produced in the course of this hearing confirms this), she appeared to accept that she had consumed amphetamine. However, her explanation for this was that in order to lose weight she had bought slimming pills. These had been purchased over the internet via a friend as she told me that she did not know how to use the internet. She indicated that she believed they must be safe because they had been purchased over the internet.
The additional evidence which I heard and saw on Friday 19th December 2014 was a written statement from the SW and then from JM. JM also gave me evidence on the issues she had raised. She alleged wholesale breaches of the exclusion order, indicating that since the Local Authority final plan had been conveyed to TR, she had been at TR's house at her mother's request almost constantly. She alleged that she had had to help look after the children and also that her former boyfriend, SCJ, had been present on some of these occasions having been asked by her mother to visit. She also showed me timed and dated photographs between 7th November 2014 and 13th December 2014 which appeared to show JM at TR's property with the children, on shopping trips into Reading and also SCJ at the property while JM and TR were there with the children. TR gave me evidence having not had time to prepare a written statement given the time constraints of the Court. She was adamant that her daughter was lying and her explanation for the photographs was that her daughter had changed the dates and times that they were taken and in some cases had transferred the photographs from TR's phone. She was unable to show anyone the original photographs on her own phone because they had been deleted she said.
Relevant legal considerations
In addition to considering section 31 (2) of the Children Act 1989 with regard to threshold, and the welfare checklist contained in section1 of the Children Act 1989, I have also had regard to sections 14A and 14B of the Children Act 1989 with regard to Special Guardianship. I have also had regard to the cases of Re B-S and the recent case of Re R (A child) with regard to the process I should adopt to evaluate the realistic options for the children in this case, even though this is not a case involving adoption as a potential option.
Options in this case
As I have noted, everyone was in agreement that R should be placed with her maternal grandmother, TR, under a SGO with a 12 month Supervision Order to RBC. This was despite the concerns about TR consuming amphetamine through slimming pills purchased on the internet and the volatile relationship between TR and JM. Clearly, the Local Authority believed that those concerns were manageable in relation to R being placed with TR. As I mentioned earlier, I could see no reason to consider other alternatives since this did appear to be in her best interests. However, in light of the findings of fact made by me about breaches of the exclusion order, RBC now seek an adjournment of the proceedings for R and that does seem sensible in the circumstances.
As was said by DM in evidence to me at the beginning of this hearing, whatever outcome I deem best for these children, the children are going to inevitably lose something. Placement with TR would place K in a placement that is against his wishes; placement of K in Southampton will separate the siblings and O could only go to live with one of her two grandmothers on the current assessments.
In resolving this issue, detailed analysis of the relevant welfare checklist headings is the only way forward as at issue is what placement best suits the welfare needs of these children.
Analysis of these options – advantages and disadvantages of each
i) K and O to be placed with TR:
TR alone asks me to consider this option. It has the advantage that all 3 children would be together. It is a placement that they are familiar with and which has met at least their basic needs for five months. Disadvantages relate to going against K's extremely clear wishes and feelings to live with his paternal grandmother. TR's request for this option is one that is also subject to her acknowledgement of the wishes and feelings of K but does appear to also be informed by her fears that the placement will not be lasting one. I will return to this point later when I consider placement of K with EJ under some form of interim order. TR told me herself in her evidence that she would not want to go against his wishes so I have found it difficult to reconcile her changing views - I will also return to this point later.
When DM interviewed K, although K did mention his fears about being separated from his siblings (E37 para 50 and E38 para 58), he also talked keenly to DM about his desire to live with his father and his new half-brother even if it meant separating from R and O (E97). DM also noted at E278 that he "is clear that he wants to live with his paternal grandmother to the extent that the positive feelings about that experience are likely to outweigh the negative aspects of being separated from one or both of his maternal siblings". Thus it appears that K, although only six years old, does have an appreciation of the impact of going to live with his paternal grandmother in terms of his relationship with R, and potentially O if she does not move with him, but he still wants to live in Southampton.
Although his means that his wishes and feelings cannot be determinative and must be weighed carefully, the Guardian is also clear that he has more than a simple desire to live with his paternal family – in evidence she referred to it as an "agitation" to live with them. On balance, she has concluded that placement of K with his paternal grandmother was in his best interests, in light of his extremely strong identification with his paternal family, his own wishes and feelings and the positive assessment of EJ in terms of her capability of care for him. I too accept those conclusions. I also find that his relationship with his maternal family and in particular with his siblings will be maintained by regular contact and that the 3 weekly cycle of contact which is proposed by the Local Authority as a minimum will address this need.
ii) O to be placed with TR:
This is the option which TR seeks. The advantages would be that O is staying in a placement which she knows and which everyone accepts has met her basic physical needs over the past five months since she was placed there in July. It would also enable her to maintain a close relationship in Reading with her half-sibling, R, and also remain close to her mother and maternal family in Reading. R has expressed a clear wish to continue living with O so would clearly be upset if O were not to live with her. The Guardian also highlights the risk of harm to O which the upset caused by a move from this placement would cause O.
The disadvantages are it would leave O at some remove from her paternal family who are based in Southampton. It would also remove her from day to day contact with her brother, K. CW and the SW express concern about the ability of TR to cope with the reparative parenting which they identify O as needing. They have identified that O has an insecure attachment or no attachment to a primary carer and reparative parenting is required to address this in the longer term.
In relation to wishes and feelings, as I have mentioned the wishes and feelings of R and K, O is clearly too young to be able to express these and that is not disputed. In terms of her physical needs, these have been met by TR over the past 5 months - this is not in dispute.
Where parties start to differ is over her emotional needs, starting with the issue about her attachment or lack thereof. What DM told me was that O had an insecure attachment and that she did have a bond with TR but TR was not her primary attachment figure. Although he had not seen TR with O since July, he had read the evidence filed since and this did not alter his opinion. There appeared to be a difference of opinion between DM and the Guardian about O and her attachment but the Guardian did accept that O had an insecure attachment and was likely to be only in the early stages of forming any attachment to her maternal grandmother. CW also appears to accept that O may have some attachment to TR at C365 para 5.6 – she believes that O may be able to transfer this and did not accept that O will be traumatised by a move as the Guardian fears. Given that DM accepted there was some bond between O and TR in his evidence to me, and he and the Guardian agree that it would take much longer than 5 months to form a secure attachment for an insecurely attached child, I find that actually the difference between them is not about whether or not there is any attachment but rather about what impact a move may have upon O in light of her having some bond with TR, albeit one that is not at this stage secure. This falls to be considered under the headings of likely effect of any change of circumstances and potentially risk of harm. It is clear from the findings I have made after the discrete fact-finding on the breaches of the exclusion order that the risk of harm balanced against the effect of change of circumstances now focusses upon TR's ability, or not, to keep any child placed with her safe from inappropriate contact with JM.
In relation to likely effect upon O of change of circumstances if she were to go to live with her paternal grandmother, DM was of the opinion that whilst she might find a move upsetting, he firmly rejected the notion that this would cause O trauma in the psychological sense of that word. Quite a lot has been made by parties of the word "trauma", mostly unhelpfully to me in this case since DM was merely pointing out in his evidence that the term does have a technical meaning which was not the sense in which most lay people use it, including the Guardian in this case. DM accepted that O would miss her maternal grandmother if she left her care, but found no evidence that O would be traumatised by moving to live with EJ (E279). KM also agreed that O would grieve for her maternal grandmother and CW accepted that there was a very positive relationship and great affection between TR and O.
DM was questioned in some detail about what O needed in parenting terms which goes to the issue of her emotional needs as well as the capability of parents and others to meet those needs. As I have found, O has a need for parenting to address her insecure attachment. DM, CW, KM and the Guardian actually all agree that what O needs in this regard is stability and consistency in a safe placement. CW and KM contend that O's needs go beyond good enough parenting to requiring something that is better than good enough. I do not find that this is the case. DM told me that he thought it was "crucial that (0) has someone who can address her needs in a secure way" and this was also noted in his reports at E98 para 378 and E99 para 384. I find that the issue here is not whether O needs something that goes far beyond the range of good enough parenting, but whether TR is capable of providing that stable, secure and consistent parenting which DM identifies O as needing. This is linked to concerns about the volatile relationship she has with JM.
CW has expressed concern about TR and her ability to regulate her emotions and put the needs of the children first. Those concerns are set out at C365 relating to TR becoming upset in the presence of O and O seeking to comfort her. TR denies that she has become upset in the presence of the children apart from on one occasion when walking home from school with the social worker when she described having tears running down her cheeks but not sobbing (her evidence to me). She also accepts that she became upset when informed of the final care plans for the children but denies that O was present. CW was very clear in her evidence to me that she has struggled to discuss matters with TR alone because O was often present and the fact that TR appears to accept that she has kept O with her rather than send her to nursery does appear to lend credibility to this. DM was very clear that if she was unable to regulate her own emotions and differentiate her own emotional needs from those of the children, this would make her unlikely to be able to meet the emotional needs of O now and in the future. In light of the number of missed nursery sessions, I am concerned that she kept O with her far more than O's illness would explain. I have borne in mind her very real fear about the outcome of these proceedings. However, someone who was able to regulate their emotions appropriately would surely have raised this fear with the professionals and tried to understand the reality rather than continue in uninformed terror. I do find that this represents TR putting her emotional needs first rather than those of the children.
As has been pointed out by Counsel for JM, the burden of proof is on the LA to prove on balance of probability that TR is not an appropriate person to care for O. The absence of evidence from the SGO assessment of her does not assist me here but there is ample other evidence for me to draw upon in the Bundle to determine this issue, and also my conclusions about the breaches of the exclusion order. This issue seems to me to be inextricably linked to the volatility of TR's relationship with JM as I have already noted, and the risks which that poses to the stability of the placement as well as her own difficulties in regulating her emotions. The Guardian acknowledged that the volatile relationship between TR and JM is a risk. TR argued that with support and probably some form of exclusion order, TR can manage this risk safely to parent O. TR and JM were both acknowledging that this relationship at present is fragile, although it was better than it has been. The breaches of the exclusion order show, however, that their relationship remains dysfunctional and volatile. The fundamental question, it seems to me, is does the risk of harm to O by moving her from a placement where she is beginning to have a bond with TR outweigh the risk of harm to O of remaining in a placement where there is a volatile relationship between TR and JM?
It is clear that it took an exclusion order attached to the interim care order to attempt to regulate the interaction of JM at the maternal grandmother's house while the children were placed there. That order was granted in September and has been in place for 3 months. There has been blatant disregard of this order, I find. It demonstrates a lack of insight on the part of TR about the concerns and how to manage JM's behaviour in relation to the children. Clearly, support has been in place for five months but support alone was not sufficient, some form of order was also required. CW and KM are both clear that she has struggled to work with them and I think even she accepts this. Her explanation for this struggle is the pressure of the care proceedings but she also told me that she had had a lot to organise with caring for the three children. Obviously caring for three children is demanding and requires complex juggling of commitments, any parent can tell you this. Her lack of transparency about the presence of JM at her property is also indicative of a reluctance to work co-operatively with RBC.
I find that the risk of harm to O by remaining in a placement with TR which would be rendered unstable by the continued dysfunctional and volatile relationship between TR and JM is simply too great. The harm O will suffer by moving is therefore the lesser harm.
iii) K and O to be placed with EJ, or K to be placed with EJ under some form of interim order
Given my findings about the disadvantages of K and O being placed with TR, I do find that the advantages of K and O being placed with their paternal grandmother outweigh the disadvantages. TR is the only party asking me to consider the interim order option and I will address it now as I think it is a discrete issue. She relies largely upon the untested nature of the placement and the fact that a move to Southampton for K last year resulted in his moving back to Reading. She also relies, it appears, on concerns about EJ's parenting of her own (now adult) children. In relation to this aspect, I have been struck by how similar the concerns about the grandmother's parenting of their own children are in some respects. Both parented children who have grown up to have significant problems of one kind or another, whether it is involvement in criminality, drugs or domestic violence. The main distinction which the Local Authority highlight is that despite this, EJ's family is functional whereas TR's is dysfunctional.
The advantage an interim option is that it does give time for testing of the placement. The significant disadvantage is the issue of delay in concluding matters for K, something which Family courts should never take lightly and which is subject to even more scrutiny given the legislative expectation of concluding most care proceedings within 26 weeks. I should say here that the reason for this expectation is because significant quantities of research have shown us that the old approach of delaying outcomes while the Court maintained control through interim orders was fundamentally harmful to the children involved in those proceedings in the majority of cases. For a case to go significantly beyond the expected 26 weeks it has to be truly exceptional and the reason for the delay has to be something that is in the best interests of the child concerned. That is simply not the case here for K and O. In relation to R, it does appear that her case is an exceptional one given the unexpected way in which the situation has developed through this final hearing. As was clearly stated by the Guardian and the SW in this case, K and O need certainty and they are only going to get that through a final order.
TR expresses concern about the failed placement in Southampton last year. It does appear to me that what was attempted last year was very different to the proposal before me now. It was a placement with JJ rather than EJ which is a very important distinction. What is proposed here is also a SGO which will be underpinned by a support package and clear arrangements about contact. TR also expresses concern that EJ appears to still believe that JJ can parent his children. Clearly, his parenting of his new baby has not caused Southampton Social Services to implement child protection measures based on the information that was relayed via RBC in the course of this hearing. It is also clear that EJ needs to undertake work to understand substance abuse and therefore to be able to better understand JJ's problems and inability to care for K and O. This work is planned under the SGO support package and EJ appears to be committed to doing that work with the Local Authority. She also appears to fully understand that her adult children cannot live at her house if the children are there and has demonstrated some insight into the issues that her parenting may have caused in the past. I can therefore find no valid reason to leave K and O in a further period of limbo and therefore do not accept that an interim order would be in their best interests.
For O, advantages would be that she is placed with her brother in a placement which is not at risk of the dysfunction and volatility I have found would arise in a placement with TR. The LA contend that EJ is also better equipped to provide O with the parenting which CW assessed her as needing in her evidence to me in this hearing. Despite the lack of close relationship between O and EJ, due largely to circumstances preventing them having time together, O is clearly loved by her paternal grandmother and she was observed to be happy and contended when she stayed with EJ recently. She would maintain a close relationship with her paternal family and have an opportunity to develop her sense of identity within that family.
Given my findings, O should be placed with EJ as the risk of harm to her in a placement with TR which may be destabilised by JM is simply too great. I do accept this move will upset O as she has started to form some bond with TR. However, this is not yet a secure bond and, whilst she will grieve, she is young enough to adapt and the positive observations of EJ's care of her by DM at the beginning of December suggest that this will not take long. EJ will be granted a SGO in respect of O and the support package and contact proposals put forward by RBC will meet O's needs now and in the future.
K should be placed with EJ as well. As I have said, I find that this is in his best interests. EJ will be granted a SGO in respect of K and the support package and contact proposals put forward by RBC, with scope for more contact with JJ as suggested by the Guardian but controlled by EJ as the Special Guardian, will also meet K's needs now and in the future.
In respect of R, clearly my findings about breaches of the exclusion order mean that the final care plan must be rethought. To do this there must be further assessments of maternal great aunt GF, and also SS if she is willing, plus also potentially CM, maternal aunt. This means I cannot conclude proceedings in respect of R and will therefore adjourn her case as suggested to an IRH and extend the timetable accordingly.
JM is also not putting herself forward as a potential future carer for her children and therefore is no longer under consideration in relation to placement of R.