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England and Wales Family Court Decisions (other Judges)
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Cite as:  EWFC B198
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This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the children and the adult members of their families must be strictly preserved.
IN THE FAMILY COURT SITTING AT LEICESTER
CASE No. LE15CO0261
Before His Honour Judge Clifford Bellamy
(judgment handed down on 30th November 2015)
Re D and R (Children)
Gillian Temple-Bone, counsel for the local authority
Rebecca Fitton-Brown, counsel for the mother of D
Gemma Cole, solicitor for the mother of R
Moira Walsh, counsel for the father
Emily James, counsel for the grandparents
Jonathan Adler, counsel for the aunt and uncle
Sara McCarthy, counsel for the children
1. On 13th March 2015, Leicester City Council (‘the local authority’) issued care proceedings in respect of two children, D, now aged 9, and R, now aged 5 (not their real names). The parents agree that the threshold set by s.31(2) of the Children Act 1989 is satisfied. It is agreed that R should remain in the care of her paternal aunt and uncle under a Special Guardianship Order. The main issue for determination by the court is the appropriate welfare outcome for D.
Profiles of principal characters
4. The mother has been diagnosed as suffering from Borderline Personality Disorder. In 2013 she was referred for therapy to the Personality Disorder Network. She did not engage. Following psychiatric assessment within these proceedings she has been re-referred. She is awaiting an appointment.
5. The mother experiences auditory and visual hallucinations, often simultaneously. There is no evidence of her responding to unseen stimuli. She has never experienced command hallucinations. However, she continues to experience hallucinations daily, even during the course of this court hearing. Her coping strategies are self-taught. Her principal strategy is to listen to music on her headphones. The hallucinations are intrusive. At times they make her feel suicidal.
6. In February 2011 the mother was admitted to a psychiatric unit following an overdose. She remained in hospital for a month. Although she says that she was a voluntary patient there is some evidence in the papers to suggest that she was compulsorily detained under the Mental Health Act 1983.
7. The mother has a history of self-harming, mostly by cutting her arms and legs. The most recent episode of self-harming was in December 2013. She presented herself to A&E. She was not detained. Arrangements were made for her to be seen in the psychiatric outpatients’ clinic. It was noted that she had stopped taking her antipsychotic medication, quetiapine, in June 2013.
9. The mother was in a relationship with D’s father from around 2005 to 2008. Over the years since that relationship ended the mother has been involved in 7 same-sex relationships. She has lived with five of her partners. Her longest same-sex partnership has been with Miss T.
11. Miss A is the mother of R. She is aged 31. She is learning disabled. A recent psychological assessment notes that she has a significant impairment of intellectual functioning. Her overall cognitive functioning places her within the lower 1% of her age related peers. Notwithstanding her learning disability, she is assessed as having capacity to instruct her solicitors in these proceedings.
14. FJ is aged 33. He is the father of both D and R (‘the father’). The father is disabled. He suffers from skeletal dysphasia. He has a problem with alcohol. There is some evidence of intimate partner violence.
16. In 1991, when the father was aged 9, CJ was sentenced to a term of imprisonment for sexual offences. He was released from prison in 1996. According to the papers, a psychiatric risk assessment was undertaken. The risk was assessed as low. CJ was allowed to return home to resume caring for FJ (the father).
17. In 2005 the father was convicted of an offence of unlawful sexual intercourse with a girl under the age of 16. The offence was committed in 2003 when he was aged 21. He was sentenced to a community rehabilitation order for a period of 18 months.
18. The father accepts that it is not appropriate for him to care for either of his children. He agrees that R should continue living with her paternal aunt and uncle and that there should be a Special Guardianship Order. He agrees that D should remain in the care of BJ and CJ.
19. BJ is D’s great great aunt. She is aged 67. Along with her husband, CJ, she has been D’s full-time carer for the last two years. D looks on them as grandparents. They have been described as grandparents throughout this hearing. Though not accurate, throughout the remainder of this judgment I shall refer to BJ as ‘the grandmother’.
24. The grandfather is aged 74. He suffers from angina. Before his marriage to the grandmother, he had been previously married. He and his first wife had two children. They are now adults. He is not in contact with them.
25. When she was aged between 11 and 13, Carol was sexually abused by the grandfather. In 1991 he was convicted of offences of unlawful sexual intercourse and buggery. He was sentenced to a total of 8 years imprisonment. He was released on licence after serving 5 years. There are no further convictions recorded against him.
26. Although the grandfather pleaded guilty, at the time of the criminal proceedings he insisted to the grandmother that he had not abused Carol and that his only reason for pleading guilty was because he had been advised by his legal team that he would receive a substantially lower sentence than if he were convicted after a trial. The grandmother believed him and disbelieved Carol.
27. The grandfather maintained his innocence for a quarter of a century. It was not until after these care proceedings had been issued that he finally admitted to the grandmother that he had sexually abused her daughter. By then, they had been caring for D for some two years.
29. Miss T is aged 37. She has four children aged between 5 and 13. She was married to the father of the older two children for 8 years. After their separation she formed a relationship with the father of her youngest two children. They separated in 2014. By then she was in a same-sex relationship with the mother.
30. Miss T lives in a 3 bedroom terraced house in local authority area Y, a neighbouring authority to Leicester City Council. The mother moved in to live with her almost a year ago, in December 2014. Though qualified as a teaching assistant she has never worked in that capacity. She does not work. She is registered as the mother’s full-time carer.
32. Miss T supports the mother’s view that D should be placed with her. She would be happy for D to move in to live with them. The bedroom shared by her sons is large enough to accommodate D too. D has formed a good relationship with her children, though she acknowledges that because they are similar in age there has been a degree of friction between D and her eldest son (aged 11). She does not see this as more than a teething problem.
33. Both the mother and Miss T say that their relationship is stable. They plan to marry in August 2016. In the (as they would see it) unlikely event of their relationship breaking down and the mother not being able to care for D on her own then Miss T would be content for D to continue to be a part of her family on the basis that she would then become his primary carer.
The aunt and uncle
34. EF is aged 49. She is the youngest of the grandmother’s three children from her first marriage. Between the ages of 9 and 18 she lived with her mother (the grandmother) and her step-father (the grandfather).
35. When she was aged around 17, EF formed a relationship with HF. HF lived with her at her parents’ (the grandparents’) home. When she was 18, EF and HF set up home together. They were later married. They have no children of their own.
36. In August 2014, R moved in to live with them. She has remained in their full-time care since that time. Though it is slightly inaccurate to describe them as such, throughout these proceedings EF and HF have been referred to as R’s aunt and uncle. That is the description I shall use throughout this judgment.
37. The aunt and uncle wish to be allowed to continue to care for R. Until the first day of this hearing the local authority’s care plan was that R should be made the subject of a final care order and placed in long-term foster care. That position was not supported by any other party. In particular, it was not supported by the Children’s Guardian (‘the guardian’) who strongly supported the application by the aunt and uncle for a Special Guardianship Order.
39. The local authority was involved with the grandparents as a result of the grandfather’s sexual abuse of Carol. The primary focus of that intervention was to ensure the safety and wellbeing of FJ (the father), then aged 14, when the grandfather returned to the home upon his release from prison. The assessment was that the grandfather presented only a low risk. Local authority involvement came to an end.
40. In 2003 the father was himself convicted of unlawful sexual intercourse with a child under the age of 16. He subsequently formed a relationship with the mother. The mother later became pregnant. Following the birth of D in 2006, the local authority undertook an initial risk assessment. The assessment concluded that the father posed a low risk to D. He was therefore allowed to continue to care for D.
43. It was in that same year that the father began a relationship with Miss A. By then Miss A had already had two children removed from her care. Miss A became pregnant. A referral was made to the local authority. The local authority undertook a Core Assessment. The assessment was completed soon after R was born. It is clear from that assessment that the local authority was aware of the significance of the grandfather’s involvement with his grandchildren. The Core Assessment states that,
‘The grandfather has been open about his conviction. He has given an assurance that [he] no longer feels any attraction towards children and will not pose any risk to D or R. His close family are aware of the past conviction and are also confirming that they will be protective towards D and R.’
There is no evidence to suggest that the local authority undertook a formal risk assessment of the grandfather at that time.
44. It is clear that the father and Miss A struggled with the care of two children. The mother moved in to live with them for a while in order to assist in caring for D. The grandparents also provided support. The local authority was well aware of this.
46. At some point in or around 2013 (the precise date is not clear) D moved to live with his grandparents. He has lived with them continuously since that time. The local authority became aware of this arrangement in November 2013.
47. An initial child protection conference was held in December 2013. Both children were made the subject of child protection plans. The local authority’s greater concerns were about R. In August 2014 R moved to live with her aunt and uncle.
48. The local authority held a legal planning meeting in October 2014. The meeting recommended that care proceedings be issued in respect of both children. The minutes of a Child Protection Review Conference held in February 2015 note that,
‘The risk to D and R must be comprehensively addressed, there is little evidence of structured planning and adherence to timescales to date, there is serious drift, and the number of adults involved in the caring of R and D has potentially obscured the needs of the children.’
Dr Kelly Gaskin
51. Dr Kelly Gaskin is a consultant clinical psychologist. She was instructed to undertake a cognitive functioning assessment of Miss A. It is her assessment that although Miss A suffers from a significant impairment of intellectual functioning, she has the capacity to instruct solicitors in these proceedings.
Dr Gabrielle Milner
52. Dr Gabrielle Milner is a consultant psychiatrist. She saw the mother on 24th June. She has not met with Miss T. She agrees with the mother’s diagnosis of borderline personality disorder. She notes that the mother continues to suffer from hallucinations:
‘The mother also describes having regular images of black shadows, which she identifies as two males and four females coming to attack her with knives and walking past her as though they are going to slash her throat. The mother also says she gets constant voices in her head, which are saying horrible things, such as “You’re not going to get D. Why don’t you just take an overdose? You’re useless and worthless”.’
‘The mother told me that she used to regularly cut her arms and legs in order to let “the hurt out of her”. She would find that when the blood trickled down her legs she felt her pain coming out. She used to do this when she was low – a couple of times a month until January 2014.’
54. In Dr Milner’s opinion, at the time of her meeting with the mother her symptoms appeared to be well controlled. She notes that the mother had not engaged with treatment via the Personality Disorder Network and recommended that she seek re-referral through her GP. In her report, Dr Milner says that at the time of her assessment the mother,
‘appears to be relatively stable although she does describe some periods of emotional instability, as well as visual pseudo-hallucinations and hearing voices. She is able to deal with and manage these symptoms. Currently she does not pose a risk of harm to D. Although it would appear the risk of physical or emotional harm at present is minimal, stresses in the mother’s life have resulted in her having taken an overdose, self-harming and assaulted a partner. If the mother’s mental state deteriorates as a result of stress there could be a risk of physical and emotional harm to D.’
55. A parenting assessment of the mother undertaken in the summer of 2015 reports that she told the assessor that ‘she can get angry when she hears voices and when she feels really bad she can take it out by punching the walls and shouting…’ The mother did not make a similar disclosure to Dr Milner.
Dr Melissa Jackaman
58. So far as concerns the assessment of the father, as he does not seek to care for either of his children I can deal with Dr Jackaman’s assessment of him briefly. Dr Jackaman notes that in addition to suffering skeletal dysphasia, there are concerns that the father appears to be prone to fits and that he may have had a stroke. Her assessment of him is negative. She says that he,
‘has a very limited understanding of the totality of the concerns in this case…he of course reports that he is innocent of the sexual offence for which he was convicted and therefore does not believe himself to pose a sexual risk at all...When asked about the issues of sexual behaviour within the wider family, he seems quite unconcerned about the loose boundaries in this family, the fact that it seems entirely normal for family members to be raised by people other than their birth parents, and for relationships to occur between family members…he does not see [the grandfather] is a risk and he is not overly concerned about [the grandmother’s] attitude in the sense that he feels that it makes her a risk in any way…’
59. Dr Jackaman’s assessment of the grandfather is of even greater concern, particularly in light of the fact that he has been heavily involved in D’s care throughout most of his life and a full-time carer for him for the last two years.
60. I noted earlier that at the time of the grandfather’s release from prison he was assessed as a low risk. Regrettably, that assessment is not available and so the basis upon which risk was assessed is not known. However, Dr Jackaman said that over the course of the twenty years since that assessment was undertaken the approach to the assessment of sexual risk has become much better understood. She says that,
‘Historically it was considered that intra-familial offenders i.e. incest offenders were usually considered to have low levels of deviancy and therefore lower risk of re-offending, Whilst this holds true for many people, the research has found that there is a significant proportion of intra-familial offenders who are actually identified as highly deviant by psychometric assessment. This finding suggests that what was previously known about re-offence rates of intra-familial offenders (i.e. that it is low) in risk assessment can lead to a significant under-estimate of the level of risk in a number of cases, and sadly the grandfather falls in this category.’
‘has been falsely reassured that he is a low risk, whereas in reality his level of risk is more significant than the previous assessment ascertained. In particular he continues to show some very worrying pro-offending attitudes in the form of distorted thinking patterns regarding children and sexual matters, and very poor levels of victim empathy either for a hypothetical victim or indeed his own victim, Carol.
In my opinion the grandfather therefore presents risk to a female child within the family, such as R, and I would strongly advise that he is not allowed any unsupervised contact with this young girl at all…
Whilst I think the risk of sexual abuse towards D is less, unfortunately it cannot be totally ruled out. The reason is that high deviance individuals have been found to have a greater likelihood of cross-over offending…’
Though she has not met with D, on the basis of the evidence she has read Dr Jackaman expresses concern that D is a ‘malleable, compliant young boy who might find it harder to make allegations if anything did take place’.
62. Dr Jackaman notes that the grandfather built a very close relationship with Carol. They became almost inseparable. Very similar descriptions have been given of the grandfather’s relationship with D.
‘whole understanding of sexual matters is very skewed, unhealthy and dysfunctional and he does not have a set of attitudes and beliefs which could promote healthy, safe sexual guidelines to D. Even if he were never to abuse D, I would still question his ability to educate and support D in his progress through adolescence in a way which allowed him to acquire healthy and appropriate levels of knowledge and beliefs about sexual matters.’
‘whole attitude towards parenting and her ongoing prioritisation of her relationship with the grandfather above anything else, including the needs of her children and grandchildren.’
65. There is also an issue concerning openness within this family. Dr Jackaman notes that the grandparents approach to problems is to avoid conversation about them rather than to face them head on. Their first instinct is to sweep matters under the carpet. She made the point that families in which there are a lot of secrets are families in which inappropriate things happen.
66. Nicci Vella is an independent social worker. She was instructed by the local authority to undertake special guardianship assessments in respect of the grandparents and the aunt and uncle. Within these proceedings the court gave permission for her to be jointly instructed to undertake an independent social work assessment of the grandparents and the aunt and uncle.
67. Both the independent social work and the special guardianship assessments of the aunt and uncle were positive. Ms Vella said that ‘there are no barriers’ to them continuing to care for R. However, she does identify the need for them to undergo a parenting skills course with a child development component, training in respect of sexual abuse and in respect of meeting the needs of a child who has suffered abuse and protective behaviours work. She also recommends that there should be what she describes as a ‘Family Safety Assessment’. These are issues to which I must return later in this judgment.
‘In discussing the issue of previous sexual abuse with the grandparents I have been very concerned regarding the attitude they take. The grandfather describes his abusive behaviour in a matter-of-fact way without any remorse and the grandmother dismisses it as something that just happened. Neither of them shows any understanding of the impact [on Carol] and in fact there is a sense that Carol does not exist.’
69. She goes on to note that the grandfather does not accept that he poses any risk and views Dr Jackaman’s assessment as flawed because she has used a “new” model of assessment. The grandmother appears to follow her husband’s lead in this respect and offers no challenge to his thinking.
70. Ms Vella acknowledges that the grandparents ‘have a good awareness of D’s physical and educational needs’ but says that she is ‘concerned about their capacity to recognise and meet his emotional needs…’ She noted, for example, the harsh tones in which the grandfather sometimes speaks both to the grandmother and to D. Although the grandfather claims that he raises his voice because he has a hearing problem, Ms Vella did not accept that that accounted for what she observed. She expressed doubt about whether this is likely to change in the future. It was suggested to her by Miss James, for the grandparents, that theirs is a ‘warm and loving household’. Ms Vella did not accept that description.
‘is not however straightforward as D is likely to worry about his grandparents if he is not with them. Frequent opportunities for reassurance will therefore be important for him.’
74. I have already referred to the parenting assessment of the mother. That assessment was undertaken by St Andrew’s Contact & Assessment Centre. The report of that assessment appears in the hearing bundle. The report in the bundle is undated and unsigned. The author of the report is not identified. The qualifications and status of the author of the report are not stated. An unsigned statement or assessment report is of no evidential value. Although I have read the parenting assessment, in the circumstances I place no weight on it. In taking that approach I am satisfied, in the light of the totality of the evidence before me, that no party is prejudiced by that decision.
75. Given that the local authority proposes that D be placed in the care of the mother and Miss T and that there should be a child arrangements order in favour of them both, one might have expected that there would have been a social work assessment of Miss T. Not until very late in this hearing, after the social worker, the experts, the mother and Miss T had all completed their evidence, did the local authority produce an assessment apparently completed by the allocated social worker in August. The purpose of the assessment is said to have been ‘to establish if either the mother and her partner are able to provide consistent and stable environment for D if he was to move into their care’. This is plainly a very important document. It is therefore a matter of great concern that it was disclosed so late. It is also concerning that the copy produced to the court was not signed.
Social work evidence
77. The current social worker, WG, has been the allocated social worker since February 2015. Whilst I am critical of the local authority for several aspects of the way it has worked this case, I make it plain that for the most part those criticisms relate to incidents which pre-date the allocation of WG.
78. Given the gravity of the offences to which the grandfather pleaded guilty, and notwithstanding the assessment undertaken in 1996 which assessed him as a low risk, I am concerned that the local authority did not undertake a robust risk assessment once it became clear that the grandparents had a significant involvement in the care of D and R and even more concerned that an assessment was not undertaken at the point at which the local authority became aware that the grandparents had taken over as D’s full-time carers. By then more than 15 years had passed since the last risk assessment. The local authority ought to have been aware of the fact that the approach to risk assessments has changed significantly over the course of those years. It should have appreciated that it was neither appropriate nor safe to rely upon the 1996 risk assessment.
79. It is a matter of equal concern that having become aware in November 2013 that the grandparents had taken over the full-time care of D that it was to be another 16 months before these proceedings were finally issued. Given the slow pace at which the local authority meandered along, it is hardly surprising that its application for an interim care order was rejected by the court on 30th March 2015. The lack of any sense of urgency and, equally important, the lack of a robust risk assessment of the grandfather inevitably meant that the local authority was unable to satisfy the judge that the test for ordering interim removal was met.
80. As I have noted, R was placed with her aunt and uncle in August 2014. The local authority was well aware of that placement. It undertook a viability assessment. That assessment was negative. The assessment report is dated 27th March 2015. Three days later, on 30th March, the aunt and uncle, together with the social worker, WG, signed a written agreement. One of the terms of the agreement was that the local authority would ‘facilitate courses and services that would enable [the aunt and uncle] to provide appropriate care for R given her of (sic) need’.
81. The reference to R’s need is a reference to the fact that she is developmentally delayed. The reference to courses and services reflects an acknowledgement by the local authority that as the aunt and uncle had no past experience of parenting a child they needed support and training. The local authority accepts that in order to be helped to understand and meet all of R’s care needs the aunt and uncle need the support and training proposed by Ms Vella. It is both surprising and concerning, therefore, to note that at some point shortly after the written agreement was signed the local authority decided that it would not ‘facilitate courses and services’. According to the social worker, WG, the decision to reverse the commitment contained in the written agreement was taken jointly by herself, her team manager and the Head of Service. She fully supported the decision. There is no minute of the meeting at which that decision was taken. There is no evidence that that decision was ever communicated to the aunt and uncle. Such high-handed behaviour should not have occurred and is to be deprecated.
‘11.3 The Department acknowledges that there have been considerable delays in bringing this matter to court and sincerely apologise for this. Whilst acknowledging the delays this does not negate from the risk of harm that the children have been and are still being exposed to.’
That statement comes nowhere close to excusing the shortcomings in the way this local authority has dealt with this case.
The mother and Miss T
83. The mother is in what she considers to be a settled and stable relationship with Miss T. They plan to marry in August 2016. She acknowledges her mental health difficulties and the intrusive and unsettling effect of the auditory and visual hallucinations. However, the strategies she uses to enable her to cope with this are effective. Though still registered as disabled and having a registered carer she has not required in-patient treatment for more than four years and has not self-harmed for almost two years. On the recommendation of Dr Milner she has been to see her GP who has re-referred her to the Personality Disorder Network.
84. The mother accepts that there has been some friction in the relationship between D and Miss T’s oldest son. She did not consider this to be a serious issue. Miss T’s other three children all get on with D very well and he with them.
85. The mother assured me that she understands how important the grandparents are to D. She was at pains to stress that if D moves to live with her she will not attempt to cut them out of D’s life. She will support his future contact with them.
86. In her written evidence, Miss T gives details of an incident said to have occurred on 16th October outside the grandparents’ house. According to her, the grandfather was the aggressor and she was the victim. The grandfather gives a different account. Neither account has been explored in any detail in oral evidence. I make no finding save that, as set out later in this judgment, I am concerned that these two adults were unable to control themselves and allowed this conflict to take place in front of D.
87. Miss T said that she is ‘vaguely aware’ of an allegation by D that her children have caused him bruising. The incident led to a s.47 investigation, the report from which states that the social worker,
‘saw the bruises on both front legs and side of his legs mostly around the knees. D reported that [two of Miss T’s sons] tripped him and he fell and banged his knees on the kerb however he said he fell on his side. He said he didn’t tell his mother as she would say stop “tat tailing D”.’
‘Whilst at the medical D offered the explanation that when he went to his mother’s for the weekend, him and mother’s partner’s children were playing with a scooter and they pushed the scooter into the back of his legs. The medical view was the (sic) the injuries were consistent with D’s explanation offered.’
‘D is already subject to child protection plan and there are ongoing court proceedings however, discussions to be had with mother regarding appropriate supervision whilst D and Miss T’s children are playing.’
90. Given that the incident which gave rise to a s.47 investigation I am surprised that Miss T’s recollection of the incident is so vague. She insisted that if such an incident had occurred it must have been an accident. She said that D often comes into the house telling tales about other children. She is of the view that he interprets rough play differently to other children. So far as this incident is concerned, she believes that D was encouraged (I presume she means by his grandparents) to make his disclosure.
91. Miss T confirmed that her relationship with the mother is settled and stable. Although she is registered as the mother’s carer she gave the impression that these days the ‘care’ required from her is negligible. The mother has made great progress in dealing with her mental health difficulties. These proceedings are very stressful but that stress has not impeded the mother’s progress. In Miss T’s opinion the mother is now well enough to care for D on her own, even though she has not yet done so.
92. I accept that both the mother and Miss T were doing their best to tell it as it is. I do not regard either of them as being deliberately dishonest. I do, though, consider that both of them view their present and future circumstances through rose tinted spectacles. Whilst I understand that it is difficult for them to contemplate their relationship coming to an end, neither of them convinced me that they have given serious thought to what would happen to D if their relationship did break down. Although the contact records suggest a very positive relationship between the mother and D, both the mother and Miss T appeared to minimise the difficulty of integrating D into their family. Neither of them has a strategy for how to deal with the friction between D and Miss T’s oldest son. They have not considered how they would address the problem if it were to get worse.
93. The grandfather admits that his abuse of Carol went on for two years, and began when she was aged 11. Carol did not get on with her mother (his wife). She had therefore become very close to him. In those days the grandmother was in employment. The abuse took place when Carol arrived home from school. It took place in the home. It happened once or twice a week. From the grandfather’s account of the abuse it appears to have happened much more frequently than was known at the time of the criminal proceedings.
94. The grandfather entered a plea of guilty. At the time he accounted for that by telling the grandmother that he had been advised by his legal team that he would receive a lower sentence by pleading guilty. He nonetheless continued to assert his innocence. The grandmother believed him and did not believe Carol. It was not until after these proceedings were issued that he finally told the grandmother the truth.
96. The social worker is in no doubt that D is receiving a lot of negativity from his grandparents so far as concerns his mother and Miss T. She says that in October she was informed by D’s school that the grandfather had been into school to say that if D moved to live with his mother and Miss T then he would not be able to take any of his belongings with him.
97. D adores his grandparents and they adore him. It is surprising, therefore, that until this hearing the grandfather should have taken such a rigid stance on what possessions D would be able to take with him if he left their care. In his oral evidence he was a little less rigid. D has a large collection of Lego. He said that D would be able to take most of his Lego and his Tablet. He can also take his favourite soft toy which he takes to bed with him.
98. The grandfather agreed that he and the grandmother have told D that it would break their hearts if he left their care. He has told D that he will keep fighting for him. D is aware that his grandparents have a low opinion of Miss T and do not want him to move into their home. He agreed that he has told D that the area where the mother and Miss T live is a rough, dangerous place and that it is likely that his bike would be stolen if he was living there. The grandfather showed no insight into the emotional harm his behaviour is likely to cause D.
99. With respect to the incident said to have occurred on 16th October outside the grandfather’s home, his account is at variance with that given by Miss T. Their respective accounts have not been challenged in cross-examination. In those circumstances it is inappropriate for me to make a finding. It is also unnecessary. In my judgment the real significance of this incident lies in the fact that it was allowed to occur in front of D.
100. The grandfather was a very unimpressive witness. So, too, I regret to say, was the grandmother. The grandmother says that when she heard about Carol’s disclosures she did not believe her. She accepted the grandfather’s protestations of innocence. Even when he pleaded guilty she continued to accept that he was innocent and had only pleaded guilty on advice. She continued to believe in his innocence for the best part of a quarter of a century until, after these proceedings were issued, the grandfather told her the truth. She hadn’t asked what had happened and he had not told her. She had backed him up because she did not know that he was guilty. I find that account to be unbelievable and untrue.
101. The grandmother says that now she knows the truth she does not trust her husband. ‘I wouldn’t believe him again’, she said. It is remarkable that this change in her attitude has not led to her separating from him. She appears to believe that even though her husband has perpetrated the most serious sexual abuse on her own daughter and has lied to her for years, it is possible for them to continue to parent D as a couple and that she will be the protective force.
102. The grandmother is convinced that D does not like spending time at his mother’s home. He doesn’t like Miss T. He is bullied by her children. He would be deeply upset if he were forced to go and live with his mother. It would be better for him to remain with them. He keeps them young.
The aunt and uncle
103. The aunt and uncle are delighted at the local authority’s changed position. They are pleased to be able to care for R on a long-term basis. The local authority has agreed to provide the services and support recommended by Ms Vella. They will engage in that work. They are willing to supervise all contact between R and her parents and grandparents. The proposals for contact, including sibling contact, are agreed. It is unnecessary to recite the detail.
The Children’s Guardian
104. In her final report, after reviewing the evidence the guardian comes to two very clear conclusions. The first is that R should remain in the care of her aunt and uncle under a special guardianship order supported by a 12 month supervision order. The second is that D should move to live with his mother and Miss T under a child arrangements order and that the grandparents’ future contact with him should be supervised.
105. The guardian acknowledges that D wishes to remain in the care of his grandparents. However, she is now so concerned about his emotional and physical safety in his grandparents’ care that she urged the court to move him immediately even if there were to be any delay before judgment is handed down. She acknowledges the distress this will cause not only to the grandparents but to D himself. In her opinion any short term distress will be overcome by longer term gains.
106. The guardian is concerned not only about the risk of sexual abuse but also about the risk of emotional abuse. It is clear to her that D’s fears of moving to live with his mother and Miss T have been fostered and encouraged by his grandparents. In her opinion, the local authority’s decision in 2013 to acquiesce in the placement of D in his grandparents’ care was ‘flawed’.
107. Although the guardian continues to support placement of D with his mother and Miss T, she does not dismiss out of hand the alternative possibility of placement in long-term foster care. Indeed, she accepted that there are some attractions to long-term foster care, not least the fact that it would remove D from the complexities of the dynamics of his birth family.
108. The guardian is aware of the allegation by D that he has been caused bruising by Miss T’s children and that he is unhappy spending time at their home. She accepts that he finds it difficult to live in such a busy household. She is unable to assist the court with first hand evidence as to the dynamics of the relationship between D and Miss T’s children as she has not seen them together. She has, though, seen D in the company of both his mother and Miss T. She says that he is ‘comfortable’ when he is close to Miss T.
109. Before the court may make any public law order it must first be satisfied that the threshold set by s.31(2) of the Children Act 1989 is met. Once satisfied that the threshold is met, the approach to the determination of welfare issues is to be found in s.1. In determining any question concerning the upbringing of a child, the child’s welfare must be the court’s paramount consideration (s.1(1)). In determining what is in the best interests of the child’s welfare the court must have regard to each of the factors set out in s.1(3) – the welfare checklist. The court must have regard to the general principle that any delay in determining the question before the court is likely to prejudice the welfare of the child (s.1(2)). The court must also have regard to the requirement of s.1(5) that the court shall not make any order relating to the child unless it considers that doing so would be better for the child than making no order at all.
110. In addition to those statutory requirements, the court must also have regard to the Article 8 right to family life. In particular, the court must be satisfied that any order it makes is both proportionate and in the children’s best welfare interests. In this case it is necessary to have regard to Article 8 so far as concerns not only these two children and their three parents but also so far as concerns the grandparents and the aunt and uncle.
111. There are three possible outcomes in this case – that D should remain in the care of his grandparents, that he should move to live with his mother and Miss T or that he should be placed in long-term foster care. The court’s approach to evaluating those options is clear. It was set out by the Court of Appeal in Re B-S (Children)  EWCA Civ 1146. The President made the point that the judicial task ‘is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare’. He went on to say that what is required ‘is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.’
113. There is no disagreement concerning the welfare outcome for R. It remains necessary for me to determine the appropriate welfare outcome for D. I begin my evaluation of the evidence by undertaking a welfare checklist analysis.
115. There is an abundance of evidence, which I accept, that D wishes to remain living with his grandparents. Whilst his age may suggest that the court should give some weight to D’s expressed views, his understanding is such that, in my judgment, little weight should be accorded to them. D is completely unaware of his grandfather’s convictions for unlawful sexual intercourse and buggery or, more importantly, of the risk his grandfather poses to him. Furthermore, there is also evidence, to which I referred earlier, that the grandparents, and in particular the grandfather, have placed D under considerable inappropriate emotional pressure. This, too, has had an impact on D’s wishes and feelings.
117. D’s physical and educational needs are the same as those of any other boy of his age. His emotional needs are not. They are greater. He has been parented by his birth parents together, by his father and Miss A and by his grandparents. He has been present during an altercation between his grandfather and Miss T. He has lived with and been separated from his half-sister. He is in the process of bonding with Miss T and her four children. His emotional care has been seriously deficient. He has been described by Dr Jackaman as ‘malleable’. It is vitally important for his long-term development and security that his emotional needs should be recognised and addressed.
119. As I have noted, there are three possible outcomes for D. The first is that he should remain in the care of his grandparents. If that were the outcome, that would not lead to a change in his circumstances. The other alternatives are that he move to live with his mother and Miss T or that he be placed in long-term foster care. Given D’s strong attachment to his grandparents, the second and third alternatives would represent a major change in his circumstances. In the event that the court were to approve either of those options it is clear that every effort must be made to make sure that D maintains a relationship with his grandparents and in particular that he receives regular assurance about their health and welfare. He would also need to be reassured that he is not responsible for any future deterioration in their health and welfare.
123. I have already found that D’s emotional care has been seriously deficient. Although D has not undergone a formal psychological assessment, I accept that it is likely that he has suffered emotional harm. I am in no doubt that if there is no change in his present circumstances there is a real risk that he will suffer, or continue to suffer, emotional harm in the future.
Remaining with his grandparents
126. I accept that D has a strong attachment to his grandparents. They are devoted to each other. The grandparents have done their best to provide him with a stable home. There is evidence that they are able to meet his physical and educational needs.
127. Against that, the evidence of Dr Jackaman makes it clear that D is at risk of being sexually abused by his grandfather. Neither of his grandparents accepts that that risk is real and ongoing. Both reject the expert evidence. The risk is of even greater concern when one takes into account their lack of capacity to demonstrate empathy with a hypothetical victim of sexual abuse and their total lack of understanding of the impact of the grandfather’s sexual abuse of Carol.
128. Neither grandparent has any insight into the concerns about inter-familial relationships. Neither shows any awareness of or insight into D’s emotional needs. They appear unable to comprehend that they have placed inappropriate and damaging emotional pressure on him. There is no basis for concluding that they would be more capable of meeting his emotional needs in the future than they have proved themselves to be of meeting them in the past.
Placement with mother
129. As a general proposition I accept that, all other things being equal, the best family placement for a child is with her birth parents. In this case, contrary to the evidence of the grandparents and the submissions made on their behalf, I am satisfied that D has a positive relationship with his mother, that he is attached to her and that there is a strong bond of mutual love and affection between them.
130. Placement with mother would not be placement with mother alone but with the mother’s new family comprising Miss T and her four children. There is no evidence to suggest that Miss T is anything other than an experienced and competent parent. She clearly loves the mother and is pleased to fill the role of her registered carer. I am in no doubt that, between them, the mother and Miss T would be able to meet D’s day to day care needs.
131. There are, though, some negative aspects to such a placement. Such a placement would mean that D would not only be moving home but that he would also have to change school. His main friendship network currently is centred around other children at his present school.
132. Whereas D is the only child living with his grandparents, if placed with the mother he would join a busy household comprising four other children. Although he has a good relationship with three of those children, I am satisfied that there are some difficulties in his relationship with Miss T’s 11 year old son. Those difficulties may be compounded by D being required to share a bedroom with Miss T’s three sons.
133. Although it is the case that the mother and Miss T have been in a relationship together for more than two years and have been living together for almost one year, there are nonetheless grounds for taking a cautious view as to the long-term stability of this relationship. Over the course of the last ten years the mother has been engaged in relationships with 8 people. She has spent time living with 5 of her partners. Whilst I accept that her relationship with Miss T is of greater longevity than any of her previous seven relationships (save for her relationship with the father) and whilst I also note their plan to marry next summer, if history is an accurate predictor of the future there is good reason for caution about evaluating the stability of this relationship.
134. There are also concerns about the mother’s mental health. She has an established diagnosis of borderline personality disorder. In the past she has not engaged with therapy. She has recently been re-referred for therapy. Whether she will engage remains to be seen. In the past she has self-harmed. The extent of self-harming disclosed in interview with Dr Milner was greater than that disclosed in her oral evidence. The most recent episode of self-harming was almost two years ago. I note that it followed a six month period of non-compliance with medication.
135. Although the mother sought to persuade me that if her relationship with Miss T were to break down she is now sufficiently stable in her mental health to be able to care for D on her own, the evidence does not support a finding to that effect.
Long-term foster care
137. A positive aspect of long-term foster care would be the removal of D from this dysfunctional family in which he is at risk of suffering, or continuing to suffer, emotional harm. Foster care would provide D with a neutral environment from which to maintain a relationship with key members of his family – his sister, his parents and his grandparents. He would be removed from the skewed family dynamics and questionable boundaries that he has had to endure throughout the whole of his life to date. A foster placement with loving, insightful carers would give him the opportunity to recover, thrive and grow.
138. There are also potentially negative consequences from long-term foster care. Long-term foster care lacks the security which comes with adoption. Foster carers are able to give notice to terminate the placement. That leads to the risk of a child being moved from placement to placement. Long-term foster care also comes to an end when a child reaches the age of 18. Although many foster carers provide a home and an integration into family life which endures well beyond the time when legal obligations come to an end, it is impossible to know at the time of placement whether that will happen in any particular case. It is also widely acknowledged that another negative feature of foster care is the stigma which comes from being a looked-after child. There will be six monthly LAC reviews and, invariably, periodic changes of allocated social worker, all of which can be unsettling.
140. As I have already indicated, the range of power available to the court are not confined to the two options proposed by the parties – continuing placement with the grandparents or placement with the mother and Miss T. Long-term foster care must also be considered.
141. As I have identified, there are positives and negatives associated with each of the three options available. If I am persuaded that one of the two options proposed by the parties is the right option for D then I can make final care orders today. If I do not agree with them but consider long-term foster care to be the appropriate outcome then that will put me at odds with the local authority and will lead to an adjournment whilst the local authority considers its position and with no guarantee that the local authority will accept the court’s conclusion and amend its final care plan for D.
142. Whilst I acknowledge the possibility of an impasse, I am in no doubt that that should not dissuade the court from its duty to come to a conclusion about the welfare outcome which it considers best meets the child’s welfare needs.
143. I have no hesitation in concluding that it is not in D’s best welfare interests for him to remain in the care of his grandparents. He is at risk of both sexual and emotional abuse and harm. That is a risk I am not prepared to take. Indeed, I go further. I am in no doubt that to leave this vulnerable boy in his grandparents’ home would be a gross dereliction of duty. D must be moved.
144. The balance between placement with mother and placement in foster care is less clear cut. I acknowledge the progress the mother has made in terms of coping with borderline personality disorder. I also acknowledge that her relationship with Miss T appears stable and may yet prove to be enduring. However, that is a placement which, in my judgment, has too many risks and uncertainties. I set out those risks and uncertainties when evaluating that option. I am satisfied that the risks and uncertainties inherent in that placement are greater than those which arise from a placement in long-term foster care. Taking a global holistic view of the evidence, I am in no doubt that the balance comes down clearly in favour of a placement in foster care. I shall adjourn this hearing for two weeks to enable the local authority to reconsider its position.
145. Over the course of the four days of this hearing it became increasingly clear that the level of professional concern about the risks which this young boy faces daily in his present placement are now so serious that immediate action needs to be taken to remove him. I accept that evidence.
146. It is open to me to make an interim care order in the expectation that the local authority would immediately remove D from the care of his grandparents and place him in foster care. That would inevitably lead to him moving into a short-term foster placement pending the ultimate outcome of these proceedings. That would no doubt be distressing and unsettling.
147. There is another option. The aunt and uncle have agreed that D should spend alternate weekends with them so that he can spend time with R. I was informed by their counsel that they would be willing to provide a home for D on a short-term basis pending him moving into a long-term placement. Although I have no doubt that even that is likely to be distressing for him (for I foresee no prospect of removing him from the care of his grandparents without some distress) it would have the advantage of his first placement being with family members whom he knows and would also enable him to continue to attend his present school. Whether that placement should be under an interim care order or an interim child arrangements order is a question upon which I will hear further submissions.
Postscript – hearing bundles
148. The quality of the hearing bundle prepared for this hearing is unacceptably poor. Before I address its shortcomings, I first refer to the scathing comments made by the President, Sir James Munby, in Re L (A Child)  EWFC 15 concerning a catalogue of repeated failures by practitioners to read, mark, inwardly digest and comply fully with the very clear requirements of Family Procedure Rules 2010 (‘FPR’) Practice Direction 27A. He ends by giving the following warning:
i) Defaulters can have no complaint if they are exposed, and they should expect to be exposed, to public condemnation in judgments in which they are named.
ii) Defaulters may find themselves exposed to financial penalties of the kind referred to by Mostyn J in J v J.
iii) Defaulters may find themselves exposed to the sanction meted out by Holman J in Seagrove v Sullivan.
The professions need to recognise that enough is enough. It is no use the court continuing feebly to issue empty threats. From now on delinquents can expect to find themselves subject to effective sanctions, including but not limited to those I have already mentioned. If, despite this final wake-up call, matters do not improve I may be driven to consider setting up the special delinquents' court suggested by Mostyn J…
149. In this case, amongst a host of failures to comply with the requirements of PD27A, the failure to ensure that the bundle contains only copies of signed statements and care plans is the most striking. Of the evidence filed on behalf of the local authority (8 witness statements by the allocated social worker and other local authority witnesses, reports from the Early Years Support Team and the Nursery, a parenting assessment of the mother, a Final Supervision Plan and a Final Care Plan) only one document bears a signature. That egregious conduct is completely unacceptable.
150. Over recent years I have variously encouraged, cajoled, berated and condemned the profession to try to ensure their compliance with the requirements of PD27A. I have failed. This cannot be allowed to continue. With effect from the 1st January 2016 case management orders made in this court will routinely contain a requirement that when filing a hearing bundle the party filing it must attach a certificate of compliance in the form set out in the Appendix to this judgment. The certificate must be signed by the solicitor with overall responsibility for the case. Continuing failures to comply will be dealt with robustly.
Postscript added on 17th December
CERTIFICATE OF COMPLIANCE
I [name ] of [local authority/firm ] confirm that I am the solicitor with overall responsibility for the preparation of the hearing bundle attached. The bundle comprises [ ] pages. I certify that the bundle complies fully with the requirements of Family Procedure Rules 2010, Practice Direction 27A.