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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Rotherham Borough Metropolitan Council v L & Ors [2015] EWFC B29 (20 March 2015)
Cite as: [2015] EWFC B29

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

Case No:



B e f o r e :

Her Honour Judge Sarah Wright

Rotherham Borough Metropolitan Council
- and -




The Child (4)
By her Children's Guardian



Andrew Lord for the Local Authority
John Jackson for the mother
Franklyn Zakers for the father
Victoria James for MD
Nicole Erlen for the child
Hearing dates: 16th to 20th March 2015



Crown Copyright ©

    Re E (Special Guardianship Order)


  1. I am concerned with E born on the 22nd of September 2014 at Barnsley District Hospital and now aged 6 months.
  2. Her mother is L and her father is A
  3. They have another child together – E's full sibling, B born on the 11th of February 2012 and now aged 3 years.
  4. The third respondent is MD, E and B's maternal uncle. B lives with MD pursuant to an order of Her Honour Judge Shipley made on the 26th of November 2012 under a Special Guardianship Order. E currently also resides with MD pursuant to a child arrangements order. There has been an Interim Supervision Order in favour of the Local Authority, Rotherham Metropolitan Borough Council.
  5. The Local Authority, Rotherham Metropolitan Borough Council seek findings that the Threshold Criteria are met. They then seek a Special Guardianship Order in favour of MD. They also seek a Supervision Order. This is supported by MD and by the Children's Guardian, Mark Hutt.
  6. The mother and father do not accept that the Threshold Criteria are met. They seek the immediate return of E to their care, alternatively they seek further assessment of father. In the alternative they seek a placement of E with their friends Ms C and Mr P.
  7. Ms C and Mr P have applied very shortly before this hearing on the 5th of March 2015 for leave to seek a Special Guardianship Order in respect of E. They have also indicated that they would like to apply for leave to apply for a Special Guardianship Order in respect of B.
  8. I have allowed them to be present throughout this hearing. They were permitted to remain during previous proceedings in respect of B by Her Honour Judge Shipley. They have been a great support to the parents. I indicated at the outset of this hearing that I would adjourn a decision on their application for leave as I wanted to consider it alongside the Local Authority's application. Unusually I allowed them to ask questions in cross examination of the social worker, although I restricted the questioning, but I thought it important to do so as they were challenging the conclusions of the viability assessment of them and I wanted as full a picture as possible. Their application relates specifically to the ultimate question for me in this case – the welfare of E and therefore where should she live?
  9. I emphasise that these proceedings are in relation to E. There has been no appeal against the orders made by Her Honour Judge Shipley in relation to B. Whilst B of course remains an important consideration as he is E's full sibling I do not intend to re-open the case in relation to him and I am in no way reviewing his current placement.
  10. I have read the 2 lever arch file of evidence filed. I gave leave for the bundle to exceed 350 pages. Where witnesses have not been the subject of challenge and have not given oral evidence, I have taken their written evidence as read. Over a period of three days I have heard evidence from a number of witnesses.

  12. There have been private law proceedings in 2010 relating to an older child of father's. I have had the benefit of reading the judgment of His Honour Judge Jones in those proceedings. Judge Jones found that the children of the family were caught up in the hostility between the mother and father and were emotionally damaged by it. In his judgement Judge Jones said of father –
  13. '…the depth and ferocity of father's feelings against the mother…is quite exceptional and very disturbing.'

    Judge Jones went on:

    'The father was at pains to tell the court on more than one occasion that he believed in smacking children by way of discipline, that he did so on the bottom, leg and arm and that he used his hand causing red marks on their bodies which, so he said, 'did not last long.'

    Judge Jones went on to say of father:

    'Sadly he is unable to demonstrate any insight into [the children's] needs or the real issues and concerns in this case.'

    'A clear picture of him is to be found in Dr. Tower's report…He is a man who seeks total control of his environment and to dominate those with whom he comes into contact….he is rigid and inflexible in his thinking…He is unable to see that in many aspects of family relationships it is necessary to accept that there are no black or white solutions but that one must often be prepared to settle for a shade of grey.'

    'The father is very concerned with what he sees (and describes) as his rights in relation to the children. There is little or no indication that he is able to focus on his responsibilities and duties to them or that he understands the full extent of their needs other than in purely physical and material terms.' Judge Jones concluded:

    'Given the father's inflexible stance I have concerns both for [the child's] emotional and developmental well-being but also, as he gets older and perhaps more challenging, his physical well being….

    His stance is that he has done nothing wrong and that there is no need for him to change…Throughout the hearing the professional witnesses have provided him with clear advice about their concerns and what needs to change. He rejects it all. Sadly he presents as both unwilling and unable to listen or change or accept the need for change.'

  14. In 2012 there were public law proceedings involving both parents in relation to B. They concluded with a Special Guardianship Order being made in respect of B to MD. Her Honour Judge Shipley found the threshold was passed and found that the parents had refused to co-operate with professionals. The father's involvement with Social Care was found to be unreasonable, difficult and aggressive. Indeed he was found by Dr. Briggs, the then instructed psychologist to present as rude and uncompromising, aggressive and hostile. This led him to conclude that B was at risk if in the care of the parents. That was unchallenged evidence. Interestingly mother accepted she could not care for B and supported the placement of B with MD saying in evidence 'I know MD would never harm a child. He is very child-orientated.' Judge Shipley found that the placement was meeting all of B's needs, both physical and emotional and that B was thriving in MD's care. Judge Shipley said in relation to her earlier finding that the threshold had been passed:
  15. '…the parents had been uncooperative and obstructive with health professionals and Social care. They had refused access to their home. I found [father's] behaviour had been challenging and disproportionate, and his involvement with Social Services unreasonable, difficult and aggressive. I felt he needed to be in control, over and above the interests of his baby B.'

  16. E was born on the 22nd of September 2014. This was without doubt a concealed pregnancy by the parents, colluded with by Ms C and Mr P. E was born at Barnsley District Hospital despite the fact that the parents reside in Rotherham. The parents attempted to conceal their identities and only provided minimal information to the hospital. When their identities were discovered a Police Protection Order was made and E was removed and placed in the care of her uncle MD alongside her brother B.
  17. The Local Authority's case is that effectively nothing has changed since Her Honour Judge Shipley's judgment in 2012. Father, they say remains a risk and mother cannot accept that father poses a risk and cannot therefore protect E from harm.
  18. The parents say that father is not, and never has been a risk. Father says the previous judgments of His Honour Judge Jones and Her Honour Judge Shipley are flawed judgments based on what he calls 'false evidence.'

  20. The burden lies on the Local Authority to prove the allegations which it makes. The appropriate standard of proof is the civil standard of the simple balance of probabilities. I have reminded myself of Re B (Children)[2008] UKHL 35 and particularly the speech of Baroness Hale.
  21. If I find the Threshold Criteria are met then the central issue I have to decide in relation to E's future is whether I should approve the Local Authority's care plan for Special Guardianship to MD or whether there is any realistic route by which he might safely be placed in the care of her parents or whether I should consider Ms C and Mr P as carers. In determining the first two of those matters, that is a placement with MD or with her parents, I bear firmly in mind that E's welfare is my paramount concern. I have reminded myself of the provisions of the welfare checklist at section 1(3) of the Children Act and also what is known as the "no delay principle" set out at section 1(2).
  22. I approach the Local Authority's applications on the basis that the best place for any child is within his or her family of origin unless there are clear welfare grounds to prefer an alternative. I must start from the principle that a child should be with his or her parents provided that his or her welfare does not demand otherwise.
  23. I must balance the pros and cons of each of the options being presented to me together with any other options which seem worthy of consideration. McFarlane LJ in Re G [2013] EWCA Civ 965 said "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." In addressing this task I have considered all the points in the welfare checklist of the Children Act 1989.
  24. It is trite law that I must be satisfied that any orders I make are a lawful, necessary, proportionate and reasonable response to the children's sad predicament. The granting of a Special Guardianship Order to MD in E's case, would represent a drastic curtailment of the rights of these parents and E herself under Article 8 of the European Convention on Human Rights and Fundamental freedoms which can only be justified by pressing concerns for her welfare.
  25. In relation to the application by Ms C and Mr P for leave to apply for Special Guardianship Order in respect of E, s.14A(4) of the Children Act 1989 provides that section 9(3) applies in such an application as it applies in relation to an application for leave to apply for a section 8 order and the test I must apply is contained in section 10 (9) of the Children Act1989 namely:
  26. Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to-

    (a) the nature of the proposed application for the section 8 order;

    (b) the applicant's connection with the child;

    (c) any risk there might be of that proposed application disrupting the child's life to such an extent that he would be harmed by it; and

    (d) the wishes and feelings of the child's parents

  27. The case law relating to applications for leave was re-examined by Black LJ in Re B (A child) [2012] EWCA Civ 737. The section 1(3) checklist does not apply, nor does s.1(1). In her judgment she pointed out that the fact that a person has an arguable case may not necessarily be sufficient to entitle him or her to obtain leave or be joined as a party. It is, she said for the judge to ensure in each case that there is a fair determination of the claims of the parties and the issues in the case. Delay occasioned by or associated with the application is an obvious source of disruption and harm and must properly be considered.
  28. Ms C and Mr P have also indicated a wish to apply for a Special Guardianship Order in respect of B. There is, of course, already a Special Guardianship Order in respect of him to MD. My attention has been drawn by Ms Erlen on behalf of the Guardian to section 14D(1) of the Children Act 1989 setting out the categories of those who may apply to vary or discharge a Special Guardianship Order. Suffice to say Ms C and Mr P do not fall into any of the categories. Of course the court could discharge a Special Guardianship Order of it's own motion in exceptional circumstances.
  29. What is clear from Re B is that it is a matter for my discretion as to how I evaluate the application for leave. I have in the particular circumstances of this case allowed Ms C and Mr P to take a full part in the hearing in order to advance their case that they should be granted leave to make an application and be joined as a party. I did limit their cross-examination of the social worker as I ruled that many of the proposed questions would not assist me in this application. However I have read the very full statements they have filed in these proceedings and gave both of them an opportunity of giving evidence and I have heard closing submissions from them.

  31. I heard evidence from the social worker, Adele Mitchell, Mother, BM (the former husband of MD's current partner), Father, MD, JM, MC, IP and the Children's Guardian Mark Hutt.
  32. The social worker, Adele Mitchell had had no previous dealings with the family before E's birth. She came to this case fresh, an agency worker assigned by the Local Authority. She tried to engage father in the assessment process. He refused to engage in any proposed assessments undertaken by the Family Assessment Team and refused to meet with her. Mother attended 3 out of the 5 assessment sessions offered. Mother consistently indicated that she wished to be assessed as a couple with father. Mother has attended contact with E but father has failed to avail himself of any of the contact offered. In her statements to the court Ms Mitchell highlights her assessment of mother as being quiet, placid and naïve, appearing to be reliant upon father and heavily influenced by his views and opinions. The Family Assessment Team concluded that if E was placed in her parent's care she would be at risk of significant harm through neglectful parenting and as a result of father's hostile and obstructive behaviour he would be unable to offer E the safe, stable and emotionally attuned care which requires now and in the long term. E would be at substantial risk, she concludes of significant emotional harm.
  33. Ms Mitchell concludes that nothing has changed from 2012. In the previous proceedings father disputed that his hostile and angry responses would impact upon his child. He was unable to offer B the sensitive care that would support and help B to develop a secure relationship with and attachment to him. He did not accept that his parenting skills are problematic and he believed he had no difficulties as a parent. Although mother has demonstrated many skills in relation to her children and has been shown to be able to meet their needs during contact mother is continually unable to demonstrate an appropriate response to father's behaviour and the risk that this presents to the children. She concludes that mother would be unable to protect either child from the emotional distress they would suffer if exposed to father's controlling and hostile behaviours. The concealment of the pregnancy, the refusal of father to engage with assessment, his refusal to attend contact with his daughter, his attitude to the psychiatric assessment by Dr. Shenoy and his continuing hostile and obstructive behaviour, she says, raise concerns in respect of his ability to offer safe, stable and emotionally attuned care that E needs both now and in the future. It is clearly demonstrated she says that the parents have been unable or unwilling to place E's needs before their own.
  34. Ms Mitchell has had the opportunity of assessing MD and his partner JM, who was together with her former husband, BM B's initial foster carer. B is thriving in their care. Since being placed with them E is also thriving in their care. She could find no evidence at all to support an allegation made by JM's former husband, of an assault by MD on JM in August 2013, a matter which is denied by both MD and JM. She recommends a Special Guardianship Order in favour of MD together with a Supervision Order for 6 months. Contact has sadly broken down between B and mother. The Local authority will need to support and promote contact between E, and hopefully B, initially. In due course there will be a need for the family to identify their own supervisor acceptable to MD and mother for supervising contact in the long term. This will need very careful consideration. There is to be a Family Group Conference. Provision for this is now written into the Special Guardianship Support Plan and will be by the 27th of March in the Care Plan.
  35. Ms Mitchell told me that she did not support the application for leave by Ms C and Mr P and the Local Authority did not support any plan to place E (and in due course B) in their care. A viability assessment of them raised concerns about their ability to work openly and honestly with professionals given they at the very least made no attempts to report the pregnancy to the authorities and had again at the very least checked out the situation in Europe as to the removal of children if mother were to travel there. There were concerns about their ability to protect E from father. Moving E, and indeed B, would mean moving them from a secure, stable, proven home in which they are thriving and are safe to an unknown.
  36. In cross examination by mother's counsel she agreed that mother was observed during contact to meet all of Es physical care needs, bring appropriate toys, arrive early for contact, offer comfort and distraction, awareness of safety, good eye contact and appropriate verbal response. There were no notable concerns in contact in relation to mother's parenting. She has many qualities that provide her with the potential to care for E. The concern is father and her capability to manage him. Without him she might have been in a good position to care for her daughter.
  37. Ms Mitchell said that she was appointed October 2014 – and she only started in Rotherham as an agency worker in October 2014, she had no prior knowledge of this family. She came in and read the papers and formed her own view. She said 'I am not given instructions to follow. That's why I wanted to meet father'
  38. Ms Mitchell indicated she was fully in support of the Guardian's proposal to instruct Dr. Shenoy to carry out a psychiatric assessment of father. There was no issue at the time that Dr Shenoy was not the right expert to be instructed. In the event father only co-operated with Dr Shenoy to a limited extent resulting in Dr Shenoy being unable to provide the court with any meaningful assessment of father.
  39. Dr. Shenoy was a jointly instructed expert. He is an experienced Consultant Forensic Psychiatrist . His CV records various areas of expertise including assessment of individuals with regards to personality disorders and learning disability and Autistic Spectrum Disorders. It was Mr Mark Hutt, the children's guardian who having been allocated this case and searching for a way forward came up with the very sensible and constructive suggestion of instructing an independent psychiatrist to assess father, hopefully provide a diagnosis and possibly then strategies for management of father's behaviour. A case synopsis and a proposed list of 8 questions of Dr Shenoy were produced.
  40. The matter came before His Honour Judge Jones on the 24th of October 2014. I note that this was at an early stage of proceedings – E was barely 1 month old. The order records that the Local Authority was supportive of the application for expert assessment of father. It supported the instruction of the proposed expert Dr Shenoy and endorses the questions that are put on behalf of the child. The mother's position is recorded that she was supportive of the assessment and had no objections to any of the questions that were sought to be asked. The father's position is recorded as being that he sought expert assessment in line with his Part 25 application and objected to the proposed questions 2 and 4 of Dr Shenoy.
  41. His Honour Judge Jones gave leave for Dr Shenoy to be instructed and gave leave for all the proposed questions to be asked of him. It is worth recording the questions that father disputed. They were:
  42. ' 2. Does [F] currently suffer from any personality disorders or traits and if so how do these impact on his functioning, behaviours and capacity to parent? And

  43. Does [F] suffer from any other mental illness, disability or psychological or emotional dysfunction which would impact upon his ability to control his behaviours, manage day to day social engagement or work cooperatively with professionals?'
  44. Those were clearly pertinent questions.
  45. Dr Shenoy saw father together with mother on the 18th of November 2014. He subsequently wrote to the court indicating that father had attended, refused to sign a consent form for a full assessment to go ahead to address the eight questions he had been instructed to prepare the report upon and indicating he agreed to only four points and would only respond to questions about what he called 'Situational Anxiety Disorder and Autism Spectrum Disorder.' Father wanted to be in control of the interview room insisting the door and window were open and the lights switched off. Father told Dr Shenoy that he would walk out at any point if he was asked questions he was not comfortable with. He warned Dr Shenoy that he needed a copy of Dr Shenoy's notes at the end. It is right to record that Dr Shenoy says that at no point did he present as hostile or threatening towards him. However due to the limited engagement from father any report would be of limited benefit to the court. Father was uncooperative with the preparation of the psychiatric report and the requirement for the report was subsequently discharged by His Honour Judge Jones. I entirely agree that any report prepared in those conditions would be virtually worthless. The result is there is no expert psychiatric evidence before the court to inform the court as to father's behaviour, any possible diagnosis or any strategies that might be of use in managing his behaviour.
  46. I note the order of His Honour Judge Jones also recites that the father confirmed that he will not now or in the foreseeable future work with or speak directly with professionals from Rotherham Metropolitan District Council social services department and specifically not take part in the Applicant's family assessment.
  47. Father has made it clear during this hearing that he criticises the Local Authority for alleging issues of domestic violence and housing conditions which are no longer relied upon. I note however his avowed intention to not cooperate was made at that hearing on the 24th of October. Indeed F had told Ms Mitchell at an earlier hearing on the 26th of September when E was just 4 days old that he did not want any direct contact with social workers and that any contact with him should be through his solicitors. The Family Assessment Team report is dated the 12th of December, long after father's avowed intention not to cooperate with the Local Authority. In any event a careful reading of that report reveals that the term domestic violence is not used. The term used is domestic abuse and refers on closer reading to concerns about father's possible controlling of mother and the impact of that behaviour upon mother and child. An order of the court dated the 23rd of January 2015 specifically records that the Local Authority did not seek to rely on any allegation of domestic violence between the parents.
  48. In any event Ms Mitchell said that she had not taken into account any issues in relation to domestic violence or housing issues when formulating her recommendations. It is unfortunate they were referred to in an original Threshold Document drafted by the Local Authority, drafted before Mr Lord was instructed. He was not responsible for it. I have had no regard to any such issues.
  49. Ms Mitchell confirmed that contact with E was offered to father and he refused to attend. There were some issues raised by mother about the venue not being suitable for father. Ms Mitchell indicated that there were a number of rooms available at the centre and if father's needs had been communicated a suitable place could have been found. She certainly wasn't aware of any communication either from father or his solicitors asking for any particular provision.
  50. Ms Mitchell fully supports the continued placement of E with MD. She said when E was placed the Local Authority were fully aware of his relationship with JM. She sees that as a very positive factor. B and E are thriving in MD's care. Their physical and emotional needs are being met. It is a positive family placement. Proposals are that mother has contact once every 3 weeks. Life story work will be done with both B and E. Indeed MD confirmed to me in evidence that he and JM will talk to the children and show them their life story books when they are of an appropriate age and understanding. She agreed with the Guardian in evidence that a 12 month Supervision Order, probably extended beyond that was likely to be needed to give contact every chance of working and moving forward.
  51. She indicted that she had assessed Ms C and Mr P negatively. She had approached the assessment of them afresh. Her concerns were they had concealed the pregnancy, they fail to fully appreciate the risks around father and was concerned about their ability to work openly and honestly with the Local Authority. They were aware of the pregnancy and didn't want to report that pregnancy due to health concerns for mother – they therefore colluded with the parents. They had made enquiries about what would happen if mother went to Europe.
  52. I found Ms Mitchell to have approached her task in this case in a thoughtful and considered, and very child focused way. She came to the case with no preconceptions. Although of course she needed to know the history she sought to engage with the parents in a meaningful and constructive way. She was cross examined about why she hadn't sought other or further strategies in engaging with father. She had been told in no uncertain terms within 4 days of E's birth that any communication with father was to be through his legal representatives. She supported the assessment of father by the independent psychiatrist Dr Shenoy, suggested at a very early stage of these proceedings. It is hard, if not impossible, to see what else Ms Mitchell could have done in an attempt to engage father in decisions about the future of E. This is not a case where the Local Authority have said that due to the outcome of previous proceedings they do not intend to assess the parents. I find they have made every effort to carry out appropriate assessments and have been thwarted by father's refusal, for whatever reason, to co-operate.
  53. Mother gave evidence before me and has provided a number of statements. Her position is that although she pays lip service to accepting the Threshold Criteria to a limited extent she does not accept the previous judgments or findings as to risk. She wishes E to be returned immediately to the care of herself together with father. I clarified the fact that she has no intention of separating from father and would not countenance doing so. If E cannot return to her care she opposes the making of a Special Guardianship Order to MD and seeks the placement of E with her friends Ms C and Mr P.
  54. It was clear to me that mother cannot separate herself from father and from his entrenched views. Sadly she has put him before her children. She refuses to accept any view or opinion that is not his. She singularly fails to appreciate the risk that he poses to any child in his care.
  55. She admits concealing the pregnancy from the Local Authority. She said 'I didn't want them to take E – I had a bad pregnancy with B. I sought as much information as I could and sought a hospital where I could have labour. I feared if I sought antenatal care earlier they would ask me to terminate. I had a fear the Local Authority would remove E. I felt I accessed as much as I needed as it was my second child.'
  56. She said of father 'I do not feel [father] is aggressive. I can say he can be slightly dogmatic in certain instances. I don't find him aggressive. He's never been violent and aggressive in my company.'
  57. She said during the proceedings with B she was bullied into separating from father. She said they are now in a long term relationship. She said 'My position is they haven't taken into account his needs – they need to assess him….It is a really big issue for him that they have pre judged him – its pre determined. The main issue is E and B but that comes into consideration as well'.
  58. She opposes E being with MD. She makes allegations that E would be neglected, unattended and there is violence in the home.
  59. She said she had met her friends Ms C and Mr P through charity work they had done together. She felt the children would thrive with them and have contact with her and father and her wider family. She alleged that MD did not promote contact with the wider family including the children's grandmother.
  60. Mother is totally convinced that father poses no risk to E. She advocated that he be assessed but was really just paying lip service to that as she maintained that the assessment would show he is no risk. She said in terms 'He needs an assessment to please the Local Authority – they will not allow him contact until he has been assessed. I don't think he needs assessment – he can adequately parent. He needs it to appease social services. There is no difficulty in her returning to us without an assessment. There is nothing wrong at all with the care he can provide.'
  61. She clearly cannot grasp the findings of the previous judgments. She seeks to argue with them maintaining they were based on false evidence.
  62. Mother appreciates that a very experienced psychologist Dr Briggs had assessed father in previous proceedings and found him – a view endorsed by Judge Shipley - to not have any cognitive functioning problems nor any learning disability, to present as rude and uncompromising, aggressive and hostile, to behave in a disproportionate way in response to his concerns and be quick to take control of situations through challenging and demanding behaviour. However mother's response to that was to say that Dr Briggs was appointed by the Local Authority.
  63. Mother accepted that she had supported a placement of B with MD but said she now did not support that placement as she thought he wouldn't be safe there as a result of alleged domestic violence between MD and JM.
  64. Mother concluded 'There is no reason why we are here and no reason to make any orders.'
  65. Evidence was called in relation to that allegation that there had been some sort of domestic violence between MD and JM. BM, JM's former husband, gave evidence having been called on behalf of mother. He reiterated that he had seen bruising on JM's face in the summer of 2013. He also said he had heard that she had given 3 different accounts of how the bruising came to be there. He made an allegation that when he was married to JM she had expressed concerns that MD was not looking after B properly. He conceded that he had never asked JM about the bruising and that she had never alleged that she had been assaulted by MD either to him or to anyone else. What was clear is that this was an acrimonious break up. He was clearly upset about JM leaving him. When I heard evidence from JM about this she denied ever alleging that she had questioned MD's care of B and said she had never had bruising and there certainly had been no domestic violence – she would not remain in a relationship if there was. It is right that when a social worker visited in August 2013 as result of this allegation no bruising was seen at all on JM. I am entirely satisfied that there is no evidence before this court to justify a finding that MD has been violent to JM. On the contrary I am satisfied that theirs is a loving, mutually supportive, entirely appropriate relationship.
  66. Father gave evidence before me. Before he did he refused to affirm or take an oath. He tried to explain to me why that was. Despite being advised by Mr P that in not doing so this may carry the impression that father wanted to control matters in his own way - a theme throughout – father insisted that he would not affirm or take the oath. He assured me he would tell the truth. His words were 'I don't lie.' I therefore allowed him to give evidence.
  67. I have observed him throughout the case. Mr P was right when he warned father that his conduct would reinforce the evidence that he is a man who must feel in control. It does.
  68. He told me that he did not accept the judgments of either His Honour Judge Jones or Her Honour Judge Shipley. He says they were based on false evidence. I note there was no appeal against either judgment. He made it clear that he had many complaints about the Local Authority.
  69. Father accepted that at the hospital when E was born he refused to give his name, address or date of birth. He said he had cooperated with Dr Shenoy's assessment save for answering any questions about domestic violence. He said he had Aspergers syndrome and needs a specialist assessment.
  70. Father had attached to his statement a report from a psychiatrist who assessed father after a referral from father's GP. Of course that psychiatrist had has not had sight of any of the case papers and the report is based entirely on self reporting by father. It is therefore of very little evidential value in this case. It concludes that the history and presentation are consistent with a diagnosis of autism spectrum disorder, the most likely diagnosis being Atypical Asperger Syndrome. Father was advised to seek out services for people with autism spectrum disorder.
  71. Father said he had not availed himself of contact with E because of the conditions put upon him and the fact that he felt the case was pre-determined. He said he hadn't made any suggestions to the Local Authority as to how contact might be achieved as, in his words, 'It is not my job to sort out contact.' That amply demonstrates, I find, this father's inability to prioritise E's needs before his own.
  72. He continued to level criticisms at MD as he had done in the previous proceedings.
  73. Father told me that he wished E to be returned to his and mother's care. If that was not possible she should be placed with Ms C and Mr P. If that was not possible, he said, he would prefer E to be adopted rather than be with MD. Again in taking that stance I find that he demonstrates that E's needs are not his priority.
  74. He maintained that he could adequately parent E, that he had a proven track record of bringing up children and that he didn't need to be assessed to care for E.
  75. MD gave evidence. He has been caring for B for well over 2 years now. He and JM readily accepted E into their household at short notice and offered her a home alongside her full sibling.
  76. I found MD to be a quiet, considered, thoughtful man. He has maintained a dignity in these proceedings for which he is to be commended despite the accusations made against him by the parents. Despite hurtful comments and accusations he is clearly able to look at what is in the children's best interests and is, I find, committed to finding a way forward to re-establishing contact between mother and B and maintaining contact between mother and E. He has not closed his mind to contact between the children and father. He would promote such contact if the Local Authority thought it safe to do so. He talked about building bridges with mother. He referred to the life story work which will be done with the children and having seen and heard from him I am confident that he will do everything he can to promote the children's best interests and knowledge of their family. It was suggested to him on behalf of mother that he did not promote contact with the wider family. It was clear from his evidence and that of his partner JM that in fact he did. Arrangements were made from time to time for visits from his mother, the children's grandmother, to their home despite the numerous health issues that she had.
  77. MD confirmed that his relationship with JM was a long term relationship and they intend to marry in due course.
  78. Both MD and JM said that the application for Special Guardianship in respect of E was by MD alone as they wished E to have exactly the same legal status as B. This is an entirely thoughtful, child centred and understandable approach.
  79. As the Guardian pointed out in his evidence MD has taken on the care of these young children allowing them to remain in a family placement. It is disappointing that the parents are still criticising him and potentially undermining him rather than supporting this placement.
  80. I heard evidence from JM. Together with her former husband she was B's initial foster carer. After separating from her husband she and MD formed a relationship. She is involved in the day to day care of both B and E and has given up her job in order to be available when MD is out at work. She said they share tasks in relation to the children.
  81. She came across as a warm and engaging person. She has reacted appropriately to questions from B about who his family are. She readily welcomed E into the household following her birth.
  82. I then allowed Ms C and Mr P, although not parties, to give evidence. I have no doubt that they are seeking to assist. They have a particular affinity to mother. However I do have some concerns about their involvement.
  83. I completely make allowances for their limited understanding of court procedures. Mr Lord on behalf of the Local Authority criticises them for not having made their application for leave to apply for Special Guardianship sooner. I do not hold that against them. They had indicated an intention to apply from an early stage and have not had the benefit of legal representation so may not have understood that a formal application was needed rather than just a statement. It was clear from the evidence of Ms C though that she did not fully comprehend the concerns about father and the impact his behaviour could have upon a child. She sought to make excuses for father's behaviour saying it was anger because no one listened to him. She said she did not think father was any risk to his children. She said she thought he had suffered an injustice. Father was 'misunderstood and maligned' she thought.
  84. They have never met E. They last saw B in 2012. Despite this Ms C said that although B had been with MD for over 2 years she thinks he should be moved to their care as he should be having contact with his mother. She said 'I don't think it's particularly harmful to move children at this age.'
  85. Ms C and Mr P effectively see themselves as an interim position with the children being reunited with their parents in due course. Ms C saw a return to court in 6 or 12 months time with a possible move of the children to their parents at some stage. Although they said they would abide by any conditions the court would impose upon them they really do not see the need for conditions and although I am sure they would abide by the specific conditions themselves they may not abide by the spirit. If something was not specifically provided for I am not confident they would be able to protect the children. They both accept that they made no efforts to inform the Local Authority of mother's pregnancy even though they were aware of it and obviously aware of concerns. They were present during the previous hearing and heard Her Honour Judge Shipley's judgment. It is disturbing that having heard that judgment they still took no action when hearing of the pregnancy. Indeed far from reporting it at the very least Ms C made enquiries as to what would happen if mother went to another European country.
  86. Ms C's solution to the fact that father could not work with social services was to suggest that mother only interact with social services. That demonstrated the fundamental inability to be aware of or understand the risks that father poses. The risks are not in his interaction with professionals, they are to the children themselves.
  87. Mr P made it clear in his evidence that he did not consider the risk to the unborn child when the pregnancy was concealed. He thought that was the parent's choice. Again this seemed to me to be an example of putting the parent's needs before that of the child. Her welfare was certainly not a priority.
  88. I heard from the Children's Guardian, Mark Hutt. He is an extremely experienced Guardian. He had no prior knowledge of this case before his appointment. His focus at the outset was in his words 'to try to understand why we were at the situation we were at.' He tried to look at the case in a fresh light. He was aware that father would be unlikely to engage with the Family Assessment Team. He did not feel, given the comprehensive Psychological Assessment undertaken by Dr Briggs in the previous proceedings that it would be appropriate to go though the same process again. As father had expressed the view that in addition to an anxiety disorder he may be on the autistic spectrum, he thought a more formal psychiatric assessment of any disorder may be more useful to the court as a preliminary matter, rather than setting up a lengthy assessment that may ultimately be unsuccessful. Following such a report professionals involved in the case would have had the opportunity of considering the report as a mechanism to progress matters to enable a relationship between father and E to develop.
  89. Father sought an Independent Social work Assessment. Mr Hutt did not feel that such a piece of work could be of any value without a formal psychiatric assessment having been completed. I agree. Unfortunately although everyone in this case save for father thought the psychiatric assessment would provide a positive way forward as I have previously recorded father did not fully engage with the assessment. This was, as Mr Hutt says, a missed opportunity by father.
  90. As Mr Hutt pointed out in his report to the court although father has annexed a report to his statement which may go some way to give a preliminary explanation of father's behaviour, it does not provide answers in terms of treatment to alleviate such a condition and how such a condition could be managed in the longer term, particularly in relation to his interaction with his daughter. As Mr Hutt said in evidence, that report raised more questions than answers.
  91. The Guardian is of the view that father remains a risk and recommends a Special Guardianship Order in favour of MD. He would wish for strenuous efforts to be made to facilitate contact with mother and to this end strongly recommends a 12 month Supervision Order with the Local Authority reviewing this at 9 months to see if an extension should be applied for, which may well be needed.
  92. Mr Hutt did eventually meet with father, facilitated by Ms C and Mr P. It was a reasonable meeting. He felt mother was inextricably linked with father. There were, he said, many positive features of mother and it was frustrating and sad because she has potential which because of the circumstances she can't fulfil.
  93. He had visited MD's household on a number of occasions. Despite difficulties MD has undergone assessment and gone through the process. There are clearly difficulties given the family dynamics but he felt it is the right place for E and indeed for B. It would, he said, be a very difficult decision to make to remove E given she is placed with her sibling and the children are thriving. He was concerned with the constant attempts by the parents to undermine this placement – in Mr Hutt's view this is a good and positive placement.
  94. Mr Hutt was concerned about allegations from the parents about MD. He said 'I think there have been things said which are very destructive. It is going to be difficult to build bridges but strenuous attempts need to be made as it is critical and crucial that contact between the children and mother be pursued.' Goodwill on all sides is needed. That is certainly true.
  95. He said that whatever had been referred to by the Local Authority, he, as the Children's Guardian, had tried to focus on what was pertinent. He has and has concluded that E cannot be returned to her parents – the risk is too great.
  96. Mr Hutt approached his task professionally and in a very considered, thoughtful and child focused way. He came up with a viable and important strategy in an attempt to move this case forwards. His attempt was thwarted by father.

  98. I start with the previous judgments of the court. I indicated at the Issues Resolution Hearing that I was not prepared to reopen matters which had previously been ventilated in court and ruled upon.
  99. Having considered all the evidence in the case I have no doubts that on the date the Local Authority initiated proceedings E was likely to suffer significant harm due to the care being afforded to her by her parents not being what it would be reasonable to expect a parent to give.
  100. E was at risk of suffering physical, emotional and/or developmental harm.
  101. The previous findings of His Honour Judge Jones and Her Honour Judge Shipley are summarised in paragraphs 1 to 3 the Final Threshold document prepared by Mr Lord. I adopt those findings as summarised.
  102. I echo the words of His Honour Judge Jones which are as true now as they were in 2006 in respect of father 'Sadly he presents as both unwilling and unable to listen or change or accept the need for change.'
  103. I do not adopt paragraphs 4 to 7 of the Threshold as drafted but instead make the following findings in relation to the Threshold Criteria:
  104. Having made those findings I therefore turn to the Welfare Checklist:
  105. (a) The ascertainable wishes and feelings of the child concerned(considered in the light of her age and understanding). E is 6months old. She is unable to express her wishes and feelings.

    (b) Her physical, emotional and educational needs; E is a healthy little girl. She needs security, stability and safety throughout her childhood. She needs consistent parenting that ensures all her physical and emotional needs are met.

    (c) The likely effect on her of any change in her circumstances; Any movement from her present placement would mean disruption and upheaval for E. Her current placement is a tried and tested placement for her full sibling B. Any move would be to an untested situation.

    (d) Her age, sex, background and any characteristics of hers which the court considers relevant; E is 6 months old. She is placed with her maternal uncle alongside her brother.

    (e) Any harm which she has suffered or is at risk of suffering; I have already found that she is at risk of harm from her parents as detailed in my findings in relation to Threshold.

    (f) How capable each of her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting her needs; Sadly, the parents have demonstrated that they cannot meet E's needs. They are committed to remaining as a couple. It is clear that E would be at risk of harm as I have found to be in their care. Father remains obstructive and unwilling to engage in any meaningful assessment as to the risks that he poses. Mother does not accept that he poses a risk.

    MD provides consistent and loving care for E alongside his partner JM. Their care has been assessed as positive. They very much have E's welfare in mind. They have committed themselves to E (and her brother B) to ensure that they can remain within their birth family. MD has committed himself to a process to promote contact with mother.

    A viability assessment of Ms C and Mr P was negative. They too seem to have little insight despite the previous proceedings into the risk that father poses to E. They have little insight into the need for a child to have a safe, secure and consistent home. They would not be able to meet E's needs for emotional security whilst they remain focused on a goal of reuniting E with her parents.

    (g) The range of powers available to the court under this Act in the proceedings in question. I can make a Special Guardianship Order, a Care Order, a Supervision Order, a Child Arrangements Order or indeed no order at all. I have considered my full range of powers under the Children Act 1989 and take into account that I must make no order unless I consider that doing so would be better for the child than making no order at all.

    The Balancing exercise in respect of the alternative options open to the court

  106. In balancing the options for I attach weight to the professional opinions of the social worker and the Guardian. Neither had approached their respective recommendations lightly. Both have approached their task in a thoughtful, sensitive and child focused way. I am entirely satisfied that Ms Mitchell and Mr Hutt have had E's welfare at the very heart of their considerations.
  107. What are the advantages and disadvantages for E being returned to her parent's care? If that were to happen E would have the advantage of being brought up by her birth parents. I am entirely satisfied that mother loves E very much and mother desperately wishes to care for her. However there are, I find, substantial disadvantages. There is a substantial risk that E would suffer harm if in her parent's care for the reasons I have already given. E would be exposed to her father's behaviour which would put her at considerable risk. Since her mother does not perceive he is a risk or that his behaviour could be damaging she would be unable to protect E from him.
  108. What are the advantages and disadvantages of allowing a further period for assessment of father? The advantage would be to give father another opportunity to try to demonstrate that he could change and allow E to be brought up by her birth parents. The disadvantages are this would cause delay in deciding E's future. It would be destabilising for her and create uncertainty about her future. This would be against a background of there being very little prospect that father would at the present time submit to such an assessment, let alone respond to any therapy or assistance then offered. He was given the opportunity with Dr Shenoy and he failed to take it. There is also very little prospect of father accepting the need to change. He has not yet taken that first step to acknowledge that his behaviour needs to change. Both parents told me that any assessment would show that he did not pose a risk. E cannot wait for an unknown amount of time in an attempt to resolve difficulties which are not even acknowledged by the parents and then might then not be resolved.
  109. What are the advantages and disadvantages of placement with MD pursuant to a Special Guardianship Order and a Supervision Order? E is clearly thriving in MD's care. MD and JM have made her part of their family whilst still recognising that they cannot replace her mother and father and have been open to guidance from the Local Authority and The Guardian. They have taken a very child centred approach. I am sure they will do their best to engage with the Family Group Conference and look towards promoting contact with mother. A placement with them would give E the substantial benefit of being brought up alongside her full brother in a family placement. A Special Guardianship Order would give MD the enhanced parental responsibility which the order would bring. It would formalise the arrangement giving E stability, security and consistency throughout her childhood. A Supervision Order would impose a statutory burden upon the Local Authority and I consider their role vital in promoting contact with mother. The disadvantage of course is that it would mean mother and father had a lesser role in E's life.
  110. In considering the options for E I turn to the application for leave to apply for a Special Guardianship Order in respect of E by Ms C and Mr P. I consider the factors in s.10(9) of the Children Act 1989 as indicated above. I am sure they made the application with the best of intentions. They have no connection with E. They have never met her. The application brings with it delay. If I were to grant leave there would then have to be a Special Guardianship Report. That would take 12 weeks. Delay is not in E's best interests. I do accept that the parent's want E placed with them if they cannot care for her themselves. Not mentioned in s.10(9) but nevertheless of relevance is the merits of their application and whether they have an arguable case. I do not think they have. I can see no advantages to a placement with them other than there would be contact with mother. However there are considerable disadvantages. A placement with them would mean separating E from her brother. It would be disruptive for her. It would mean a move from a tried and tested placement to an untested placement. They have no connection with E. They see themselves as a stop gap before E is reunited with her parents. They fail to see the extent of the risk that father poses and therefore cannot adequately protect E whatever orders that might be put in place and they have demonstrated that they will collude with the parents. There is no application in relation to B that can properly be founded and even if there was I would have no hesitation in refusing it. I do hope Ms C and Mr P can take on board the conclusions of the very experienced professionals including the Children's Guardian and the findings of this court and begin to appreciate the very serious concerns in this case in order to assist the parents in the future.
  111. Conclusions

  112. Having considered all of the above factors, I find that E requires a stable secure consistent environment allowing her to thrive throughout her life. For the reasons set out above I refuse the application by Ms C and Mr P for leave to apply for a Special Guardianship Order in respect of E. I have no doubts at all that mother loves E very much and desperately wants a chance to be able to care for her but E's welfare is my paramount consideration and having carried out a balancing exercise as I must that is abundantly best served by the making of a Special Guardianship Order to MD.
  113. The Guardian suggests, and the Local Authority agree that I make a Supervision Order to assist MD in managing the contact following my order. MD welcomes such an order. I make the order for a period of 12 months as advocated by the Guardian. I think such an order is vital. I asked that the Special Guardian Support Plan and Care Plan be amended to reflect the efforts that will be made around the issue of contact and the convening of a Family Group Conference. This has now been done in relation to the Special Guardian Support Plan and will be in the Care Plan by the 27th of March 2015. In the light of that I am content that the Local Authority Plan for contact is appropriate. Once every 3 weeks is an appropriate amount to allow E to become secure in her placement but continue the very important relationship with her mother. I accordingly make no order in relation to contact.
  114. Consequential Issues

  115. I am grateful to all the advocates for the skilled way in which they have conducted this case. Mr Jackson and Mr Zakers have said and done everything possible on behalf of the parents.
  116. The parents have been keen that the press are informed of these proceedings. I have referred their application for documents to be disclosed to the press to the Designated Family Judge. I indicated at the outset of the hearing that members of the press were welcome to attend the hearing on the usual terms. None did so attend. In the spirit of transparency I therefore intend to publish this judgment (anonymised accordingly) on BAILII if no-one here objects to that course.
  117. ORDERS

  118. I refuse the application for leave to apply for a Special Guardianship Order made by Ms C and Mr P
  119. I make a Special Guardianship Order in respect of E in favour of MD.
  120. I make a 12 month Supervision Order in favour of Rotherham Metropolitan Borough Council

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