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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their 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.
||Neutral Citation Number:  EWFC 15
||Case No: PO14C00368
IN THE FAMILY COURT
Sitting at Portsmouth
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF SM, AS, AB, AQ, Z, AH AND AW (CHILDREN) (WELFARE)
||Portsmouth Combined Court
||22nd March 2016
B e f o r e :
THE HONOURABLE MR JUSTICE BAKER
|| A LOCAL AUTHORITY
||- and -
||A MOTHER (1)
A FATHER (2)
Tina Cook QC (instructed by Local Authority Solicitor)) for the Applicant
Hugh Merry (instructed by Footner Ewing Solicitors) for the First Respondent mother
Penny Howe (instructed by Access Law LLP) for the Second Respondent father
David Josty (instructed by Heyes Samuel Solicitors) for the Third Respondent SM
JC, the Children's Guardian for SM, in person
Lucinda Davis (instructed by Eric Robinson Solicitors) for the Fourth to Ninth Respondents by their Children's Guardian, JM
Hearing dates: 1st to 5th February, 3rd March 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
The Honourable Mr Justice Baker :
Introduction and background
- This is the final judgment in care proceedings concerning seven children. The background history is set out at length in my earlier judgment  EWFC 60, delivered on 7th July 2015, and need not be repeated in any detail here. In short, the proceedings concern a Muslim family of South Asian origin. The mother is Pakistani but born in this country. The father was born in Kashmir and came to this country as a young man where he married the mother. Together they have nine children, eight of whom, seven boys and one girl, were originally the subject of these proceedings. I have anonymised their names for the purposes of these proceedings as follows SB (a boy, now aged rising 17), SM (a boy, rising 15), AS (a boy, 13), AB (a boy, 11), AQ (a boy, 9), Z (a girl, rising 8), AH (a boy, rising 6), and AW (a boy, rising 5). At the time of the welfare hearing in February 2016, the mother was heavily pregnant and expecting her ninth child. In the period when this judgment was being prepared, she gave birth to her baby, a girl, ("M") who is now the subject of further proceedings.
- As explained in my earlier judgment, until relatively recently the family was not known to social services. The children attended school and were variously described in complimentary terms as being delightful, polite and a credit to their parents. In May 2013, AS alleged that he had been beaten by his father with a stick. In January 2014, SB alleged that he was being physically assaulted by his father. A section 47 investigation concluded that the children should be supported as "children in need". The report recorded that the parents were finding the children's behaviour challenging, said that they did not want to use physical chastisement, and accepted that they needed support in particular with SB because he was 'pushing boundaries'. When more allegations of physical abuse emerged, further investigations were carried out by social services and the police, and in May 2014 the local authority started care proceedings. All eight children were removed from the family home and placed in foster care, initially in three placements. The local authority carried out an extensive assessment of the family and, at the end of August, it was decided to rehabilitate the children with their parents in stages and to provide extensive support for the family.
- At the beginning of September 2014, however, in circumstances fully described in my earlier judgment, the girl Z alleged to her foster carer, ("Mrs. X"), who was in fact a relative of the family, that she had been sexually abused by her older brother, SB. Further concerns emerged about sexualised behaviour demonstrated by some of the other children. It was decided that the children could not return home pending further investigations. Subsequently, Z was interviewed by the police and gave further details of the allegations of abuse perpetrated by SB, which included full penetration. SB himself was interviewed and emphatically denied the allegations. At the end of November 2014, Z alleged that she had been sexually abused by SM. She reiterated these allegations in a further police interview. SM was also interviewed but denied the allegations. SB and SM were subsequently charged with sexual offences arising out of Z's allegations.
- The care proceedings, which had originally been allocated to a circuit judge, were transferred to me and eventually listed for a fact-finding hearing. In the interim, the children remained in foster care although there were many problems within the various placements and the children, who were by this point divided into several different placements, experienced a number of moves.
- In my judgment at the fact-finding hearing, I reached the following conclusions (at paras 139 146):
(1) SB and SM were physically abused by their parents. I found that the father in particular has hit, punched and on occasions kicked them. These physical assaults went beyond reasonable chastisement, and included beatings that were plainly abusive and amounted to significant harm. The parents used physical abuse as a method of trying to maintain discipline over their large family which they struggled to control.
(2) Z was sexually abused by SB and SM. The abuse perpetrated by SB included forcible genital and oral penetration and occurred on a number of occasions. The abuse perpetrated by SM had occurred on one occasion.
(3) The parents ought to have realised that sexual abuse was taking place and taken steps to prevent it. On this point, I said (at para 144):
"The fact that Z was sexually abused by two older brothers in the family home in my view is clear evidence of failure to protect. The parents plainly ought to have exercised much greater vigilance. Much is made of the small size of the family home. In such circumstances, a reasonable parent would have been aware that such abuse was taking place or at risk of taking placed and taken steps to prevent it. Furthermore in the mother's case, I find that she knew that Z had blood on her knickers. That ought to have alerted her to the possibility that the child was being abused. Yet she failed to take any action. In my view the evidence is insufficient to lead the court to reach the conclusion sought by the local authority that these parents knew that their daughter was being sexually abused. On balance, however, I find that they ought to have known and ought to have taken steps to stop it happening. To that extent, I conclude that they have failed to protect their daughter from abuse."
(4) AQ behaved towards Z and other children in his foster home in a way that was manifestly inappropriate and may well have been sexualised.
- At para 146, I added:
"These findings have the following consequences. First, the threshold criteria required under section 31 are plainly satisfied. Secondly, there must be a further series of comprehensive assessments to determine what further steps need to be taken to protect the children. It may be that in the course of those assessments further information may emerge which will shed light on exactly what has happened in this family. Thirdly, for the time being the children must remain placed away from their family. Like the guardian, I am extremely concerned about the history of successive placements which all these children have endured. This court will now scrutinise rigorously all future plans about the children to ensure that the placements meet their specific needs"
- In the course of the judgment, I made these observations about the parents (at paras 43 and 44):
the parents were unsatisfactory witnesses. I take into account their circumstances and their cultural background. I recognise that answering questions in court, especially on such sensitive matters about the treatment of their own children, must have been a difficult experience for them. Nonetheless, I found both parents to be evasive and unreliable witnesses. In closing submissions, Miss Cook [leading counsel for the local authority] characterized their attitude at times like 'almost a blind and irrational denial'. In each case, I conclude that, for one reason or another, the parents are concealing information, both to the allegations of physical abuse and over-chastisement and the allegations concerning sexual behaviour within the home. The mother retreated into saying that the allegations were not possible and that, as she did not see it, so it could not have happened. She also reiterated on several occasions that she had told the children 'boys don't touch girls' bits and girls don't touch boys' bits'.
44. The father, who gave his oral evidence with the occasional assistance of an interpreter, introduced for the first time a complex conspiracy theory to explain the children's allegations. He alleged that they had been encouraged to make the allegations by the social worker and Mrs X. At one point, he suggested that the social worker and SB's girlfriend, were related, apparently simply on the basis that the share the same (very common) surname. He seemed to find it difficult to acknowledge that the older children would have the capacity to think independently. The father alleged that social services had manipulated the thoughts of all the children, older and younger. Asked why SB was saying what he was saying, the father said that it was because he was still a child. As for the sexual allegations, the father's explanation in oral evidence was that they had been concocted by Mrs X and the social worker SC. Mrs X had for some reason unclear to me sought revenge against SB. The social worker SC had, according to the father, been against him from the start, and had therefore fabricated the allegations. He said that the social worker had told the foster carers to lie about what had been said to the children. He said SC had done these things to make money and because she enjoys it.
Summary of events since the fact-finding hearing
- Following the fact-finding hearing, the children remained in foster care, although as described below, several of the children remained unsettled and in some cases moved foster home again. At a case management hearing on 10th July 2015, I gave further directions, including giving permission to the local authority to disclose a copy of the judgment to the police and solicitors acting for SB and SM in the criminal proceedings. I directed the parents, SB and SM, to file position statements setting out their responses to the judgment and, in the parents' case, their proposals for the care of the children. In August 2015, the boys were convicted at the Crown Court on charges in respect of sexual abuse of Z. SB was convicted on all counts, including rape. SM was acquitted of rape but convicted of sexual assault. They were sentenced in October 2015. SB received a 4-years custodial sentence. SM was made subject to a youth rehabilitation order for a period of 18 months, including a requirement of a residential placement with the local authority for a period of six months (ending April 2016).
- At the next case management hearing on 8th October 2015, the local authority was given leave to withdraw the care proceedings in respect of SB in the light of his custodial sentence and he was discharged as a party. At that hearing, the parents applied for a global assessment to be carried out by Phoenix Forensic Consultants Ltd. The court already had therapeutic needs assessment reports on all seven children carried out by BRS, a specialist multi-agency child and adolescent mental health service, whose assessors included a therapeutic social worker and a consultant child and adolescent psychiatrist. The parents had been asked to take part in the assessments (which were completed between February and May 2015) but had declined to do so. It is their case before me that they took this course having taken legal advice. I decided that the proposed assessment from Phoenix was necessary and gave permission for it to be commissioned. I gave further directions in preparation for a final welfare hearing in February 2016, to include final assessments and care plans by the local authority, statements by the parents and SM, and reports by the two guardians, one representing SM and the other representing the six other children. At the hearing on 8th October, in answer to a question from the court as to whether he accepted the findings the father gave a long answer, recorded in an agreed note, in which he listed eleven reasons why he disagreed with the judgment and raised a number of complaints as to the treatment of the children in foster care and the actions of the local authority.
- On 18th December 2015, having carried out their assessment, the Phoenix assessors filed their report, in which they concluded that both parents were able to offer appropriate care for the children if they were able to engage in some educational work and intervention. Subsequently they responded to further questions posed by the parties. Neither the local authority nor the children's guardians accept the conclusions in the report. The final local authority plan, supported by the guardians, is for the children to remain outside the family, with SM, AS, AB, AQ and Z remaining in the current placements and the youngest two, AH and AW, placed for adoption. In respect of the youngest boys, the local authority issued an application for a placement order under the Adoption and Children Act 2002.
- The hearing of the welfare stage of these proceedings took place in the week of 1st February 2016. Some time was lost because of a late change of counsel on health grounds. At that hearing, I heard oral evidence from Steven Lowe, psychotherapist and Director of Phoenix Forensic Consultants, the social worker SC, the mother, the father, SM's guardian and the guardian for the other children. I also had a short informal meeting with SM in the presence of his counsel. In the course of the evidence, it emerged that the current foster carers of AH and AW had spoken of the possibility of offering them a long-term home. As this had not been considered in the analysis carried out by the local authority or the guardian, I adjourned the welfare hearing in respect of the two youngest boys for further investigation of this possibility to a date some three weeks later. In respect of the five older children SM, AS, AB, AQ and Z I adjourned for written submissions, indicating I would accommodate a further hearing for supplementary oral submissions if any party so requested. In the event, no party sought to give supplementary oral submissions. I had initially planned to give judgment in respect of the 5 children without waiting for the further hearing regarding the youngest boys, but on reflection concluded that it was necessary and appropriate in all the circumstances to wait until after that hearing before delivering judgment covering all 7 children. The further hearing in respect of AH and AW took place on 3rd March 2016, following which I reserved judgment.
- In considering what orders should be made for the future care of these five children, I apply s.1 of the Children Act. The welfare of each child is my paramount consideration. In assessing where their welfare interests lie, I take into account the relevant matters in the welfare checklist in section 1(3). In this case, I consider that the factors of particular relevance are the ascertainable wishes and feelings of the child, their physical and emotional needs, their ages and background (including their cultural background as members of a Muslim family), the likely effect on them of any change in their circumstances, the harm which they would be at risk of suffering in their parents' care, and the harm which they are likely to suffer if kept away from their care, the capability of their parents to meet their needs and the range of powers available to the court.
- In respect of the application for placement orders for the two youngest boys, I apply the provisions of s.1 of the 2002 Act, which provides, under s.1(2), that the paramount consideration of the court must be the child's welfare, throughout his life. I also take into account the factors listed in the welfare checklist in s.1(4) of that Act which contains a number of the same factors listed in s.1(3) of the Children Act but also includes other factors of relevance to this case, in particular, the likely effect on the child throughout his life of having ceased to be a member of the original family and become an adopted person, and the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including (i) the likelihood of any such relationship continuing and the value to the child of doing so (ii) the ability and willingness, of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs, and (iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child. In considering an application for a placement order which is opposed by the children's parents, I follow the decision and guidance of the Supreme Court in Re B  UKSC 3.That guidance is encapsulated in the observations of Lord Neuberger at para 103 to the effect that:
adoption of a child against her parents' wishes should only be contemplated as a last resort when all else fails. Although the child's interests in an adoption case are 'paramount'
a court must never lose sight of the fact that those interests include being brought up by her natural family, ideally her natural parents, or at least one of them."
In addition, I bear in mind the observation of Baroness Hale at para 198:
it is quite clear that the test for severing the relationship between the parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short where nothing else will do".
- In making this decision, I bear in mind of course the rights of the parents and the children to respect for family life. It is axiomatic that the court will only authorise the removal of a child from the care of his or her parents when satisfied that this is the only way in which their welfare needs can be met. In Re BS (Children) (Adoption: Application of Threshold Criteria)  EWCA Civ 1146, Sir James Munby P identified two essential requirements: (1) comprehensive evidence and analysis from the local authority and the children's guardian addressing the realistic options for the child and the arguments for and against each option and (2) an adequately-reasoned judgment that contains a global, holistic evaluation of each of the options leading to the ultimate decision as to which option best meets the duty to afford paramount consideration to the child's welfare. Although the Court of Appeal in that case was considering cases in which the local authority care plan was non-consensual adoption, these requirements should be met in any case involving long-term care planning for children.
- In accordance with this requirement, I shall address the issues arising in this case under the following headings:
(1) What are the circumstances, needs, wishes and feelings of the children, including their religious and cultural needs?
(2) Do the parents accept my findings and do they have the capacity to change to protect the children from future harm?
(3) Having carried out a global, holistic evaluation of the realistic options for each children, what orders should be made to give paramount consideration to the children's welfare?
- Before doing so, I wish to record my gratitude to all the legal representatives, counsel and solicitors, who have acted for the parties in these proceedings. I also record my thanks to the two guardians one, JC, who has acted for SM and the other, JM, for the other six children and also to the social worker SC. She has grappled with the intricacies of this complex case with, so far as I have been able to discern, only limited support. It is unsurprising that, at times, she has appeared overwhelmed by the demands of this case. It is exceedingly unfortunate, to say the least, that the local authority was unable to allocate an additional social worker to take on some of the burden of this arduous case.
- I start my analysis by considering the seven individual children, their current circumstances, wishes and feelings, and needs.
- SM has had an extremely difficult time since the start of these proceedings. Between May 2014 and February 2015, he was placed in four successive foster placements, including two family placements. He then spent two brief periods in residential units in Essex and Wales, before moving in May 2015 to his current placement in another residential unit in another county approximately 50 miles from the family home. During these various placement breakdowns and moves, his behaviour deteriorated significantly. He refused to attend school, became nocturnal, disrupted the life of the family and household and indulged in various forms of risk taking behaviour.
- Following his conviction, SM received a youth rehabilitation order for 18 months, which included a requirement that he remained at the residential unit until April 2016. The local authority care plan is for SM to be placed under a full care order and to remain at his current residential unit for the time being. This course is strongly supported by his guardian, JC. The local authority and JC maintain that SM has made real progress in the placement and has settled down there in a way that he was not able to achieve prior to arriving at the unit. The local authority evidence is that he has made good relationships with the staff and peers. This is confirmed by the latest report and care plan from the unit.
- Since coming into care, SM has chosen not to follow Muslim cultural and religious practices, on occasions eating non-halal meat and not consistently following religious observances. His education has been extremely erratic. Following his arrival at the present residential unit, he has been taught at the unit, but is in the process of returning to mainstream education by attending a school local to the unit. The local authority and guardian hope that he will remain at the same school to complete his GCSEs. SM is intelligent, articulate, and capable of academic achievement.
- SM continues to deny that he committed the offence for which he was convicted. At present he is not asking for contact with his sister Z. He has regular indirect contact with his older brother, SB, who is in custody, and has occasional supervised contact with his other siblings. His contact with his parents has hitherto taken place once a week. In its original care plan, the local authority proposed that this contact be reduced significantly, but it has now accepted the opinion of JC that it should take place once a fortnight. The local authority has also agreed to consider arranging for some of this parental contact to take place in the area close to the family home, in accordance with SM's wishes. Both the local authority and JC believe that a degree of flexibility is necessary in contact arrangements and therefore oppose the making of any contact order under section 34 in the event that a care order is made.
- SM has strong views about his future which he is able to articulate clearly. At the hearing, he was represented separately from the guardian by Mr Josty. At his request, I had a brief meeting with him in the presence of Mr Josty. SM's wish is to return home to live with his parents, although he has stated that the needs of the younger children should take priority and that they should go home in precedence to him if that is necessary. Mr Josty submits that, although he does not accept the findings, the priority he gives to his younger siblings' welfare demonstrates a degree of insight into the overall situation. In Mr Josty's words, however, he craves a home life and asks the local authority and the court to consider a foster placement as an alternative to his current placement in the residential unit. In her evidence, the social worker SC accepted that the local authority had not considered long term foster care for SM. Mr Josty contends that this is a significant gap in the local authority's case and that, as a result, the court cannot conclude that the care plan represents the best option for SM.
- In the event that he stays at the residential unit, SM through Mr Josty asks that the parental contact continues to take place weekly, and seeks an order to that effect. The parents have demonstrated a commitment to contact and provide an important ongoing link with SM's life in his home community and with his family and cultural background. In respect of sibling contact, Mr Josty, on behalf of SM, roundly criticizes the local authority for failing to focus on the need to arrange and facilitate contact for SM with his brothers on a regular basis. Mr Josty therefore urges the court to make a contact order to ensure that future sibling contact takes place in accordance with the plan. Mr Josty submits that this omission on the part of the local authority has only exacerbated the problems arising from his sense of separation and isolation from the family and his disruptive experiences in foster care. Mr Josty is similarly critical of the local authority for failing to ensure that SM gets back into mainstream education as quickly as possible. Given these deficiencies, Mr Josty submits that there is considerable cause for concern as to whether the local authority will conduct future reviews into SM's situation with the degree of thoroughness and care that he plainly requires. Mr Josty therefore submits that, in the event the court approves the broad scheme of the local authority plan for SM to stay in the current residential unit, it should require the local authority to amend its care plan so as to provide for definition of the process of review of the placement and the adequacy of the contact with parents and siblings, clarity as to who will be involved in contributing towards the review process and confirmation that in the event of a change of independent review officer, the parents and SM will be notified of the name of the new officer within a defined period of time.
- At one stage in the period after the fact finding judgment, the mother and father were maintaining a position that SM should come home along with the other children. At the final hearing, however, they put forward a slightly different position. The mother accepted that SM should not return home unless none of the other children were returned, and her new baby was also removed. She agreed that he was more settled at his current placement that he had been elsewhere, that it was a good place for him to be and that she therefore did not oppose the care plan, although she was not happy with the level of contact being proposed. The father said in the evidence that the future of SM would be "whatever his Lordship will decide". Cross-examined by Mr Josty, he said that he understood that SM would remain in the care of the local authority until 1st April. Thereafter, it would be a matter for the court and dependent on the outcome of specialist assessment. Both parents also said that the other children were their first priority and that SM understood that. Both parents supported ongoing weekly contact for SM.
- AS was born in 2002 and is therefore now aged 13 ½ . His experiences in care since being removed from the family home in May 2014 have been just as disrupted and unsettling as those suffered by his older brothers. He has moved foster home no few than 8 times. On more than one occasion, he has absconded and returned to the family home. His latest move took place in January 2016 when he returned to a foster carer with whom he had lived for a period some months earlier. He has appeared to be more settled in this placement, although very recently there has been concerns that he has started absconding again. His education has also been disrupted. He has attended three schools, with episodes of exclusion, absconding and refusal to attend. Since September 2015, however, he has attended one school where he appears to have settled.
- AS's therapeutic needs were assessed over a period between February and May 2015 by BRS, a specialist multi agency child and adolescent mental health service provider who carried out assessments of all the children. Their report provides some insight into his needs, although the authors of the report warn that the findings were limited as a result of the lack of opportunity to build a therapeutic relationship with him. In addition, the assessor's work was impeded by the parents' refusal to meet the staff. At one point prior to the fact-finding, the father told them that the children did not have any problems and did not need more assessments.
- A major factor which has emerged since AS has been in care has been his assertion that he is bisexual. Plainly, this presents a matter of enormous significance to any person, particularly a young person of his age and cultural background. It has been reported that he has formed a relationship with a older boy and has demonstrated some risk-taking behaviours. He has reported feelings of depression and suicidal thoughts and has claimed to have experimented with drugs and alcohol. The BRS assessors described him as a child who feels very much alone in the world and whose behaviours suggest that he is not at all secure. They suggested that his risk-taking behaviour with the older boy was driven by a need to be loved and accepted. AS has discussed with some of his carers his experiences at home and has alluded to "horrible things" that happened there, although he has refused to give any details. He has also made some acknowledgements to the assessors of his own behaviour towards another child in one of his foster homes (which was a matter considered in the fact-finding hearing but in respect of which no findings were made) but was unable to discuss this in any detail.
- The BRS assessors concluded that his paramount need was for a permanent placement with a nurturing adult who can make him feel safe and with whom he can build an attachment. They also advised that he needs therapeutic assessments for his emotional well being and sexually inappropriate behaviour, in respect of which, as set out above, he has made a very limited acknowledgement. It was observed during contact that his siblings appeared to be at ease in his presence, valuing interaction and play with him. The three younger children Z, AH and AW all reflected positive thoughts and protective themes around his role and relationship to them. The assessors concluded that "all of the children would benefit from consistent contact with their other siblings which should be managed on an informal basis by their care givers who have a good understanding of each child's global needs and are able to support the children in building positive sibling relationships". The assessors also concluded that, when the children are settled in their permanent placements, sibling family therapy should take place to support them in developing a health group narrative and an understanding of theirs and each others' experiences.
- The local authority care plan for AS is long term fostering. It is hoped that he will be able to remain in the foster placement to which he returned a few months ago. Because of concern about his possibly sexually deviant behaviour towards another child in an earlier foster home, (which, I stress, has not been the subject of any finding by this court but about which he has made some limited acknowledgement), it is thought likely that he would need to be placed on his own or with older children who do not have such complex needs. The care plan provides for contact with his parents to take place three times a year.
- In her statement, the mother said that, within Muslim beliefs, homosexual acts are deemed as not being acceptable and are forbidden. She states:
"A is only 13 years old and I believe that he is too young to make such decisions in respect of his sexuality but despite my Islam beliefs I feel that with the help of education and support the difficulties of AS's voiced sexuality could be overcome."
In her oral evidence, the mother denied saying (as had been alleged by AS himself) that AS had brought shame to his family and "dressed like a girl". She said that she thought that, at 13, AS was too young to know about his sexuality but that, if he was homosexual at the age of 17 or 18, that would be his choice at the end of the day. She said that she would support and help him. In his statement, the father said that the seriousness of the situation is either not understood or not recognised by the local authority. He asserted that:
"Instead of thinking very carefully about the situation, the local authority has pigeon holed AS and are forcing him down the route without any thought as to the consequences to his faith and relationship with his community. The decisions that AS must make can not be rushed and need to be sensitively and delicately handled. We, as parents, are best placed to deal with that matter".
If he is not returned home, the parents seek contact with AS at least once a month,
- In her final report, the guardian observed that AS has struggled to settle in his placements and his view of being in the care of his parents fluctuates. He presents as very confused and at odds with his loyalty to his parents. He has been able to explain how his parents have physically abused him, how they do not understand his needs and how he is in fear of returning home. However, when he is feeling less settled and confused, he believes that he can return home in the hope that his situation has changed. She observes that the parents do not accept that he is homosexual and dismisses his sexuality stating he has been influenced. He has therefore struggled with his parents' reaction. The guardian observed that the lack of understanding and support is likely to have a negative impact on his self esteem, confidence and identity. His sexuality is an important part of who he is and this does not fit with the ideas of his parents. He is negatively affected by the expectations they put on him. The sense of confusion detected by the guardian is also reflected in a letter to the court which AS sent dated 3rd February 2016 in which he says, at different points, that he does not want to go home, but later that he would love to go home and be back living as a family together.
- AB was born in 2004 and is therefore now aged rising 12. Unlike his older brothers, his time in care has been less disruptive. He lived with a foster carer some 30 miles away from the family home for 3 months until August 2014, then in a family placement with a member of the extended family until September 2015 when he returned to his previous foster carer with whom he still remains. He moved from primary school to secondary school located close to the family home and currently travels there every day by taxi.
- The BRS assessors described AB as a polite, engaging, well presented and articulate boy who was able to think and answer questions about the family in a very measured manner. Unlike his older brothers, he has largely maintained religious observances. During a family assessment with BRS, for example, the children were given the option to pray, and the assessors noted that AB was keen to take this opportunity and lead the others in prayer. He identified himself as Muslim and has said that his faith is important to him. The BRS assessors commented that understanding the spectrum of Muslim beliefs and how these fit in with his family will be important in helping him contextualise what has happened and develop his own cultural identity.
- AB has demonstrated loyalty to his parents and a degree of coldness towards Z because of her allegations against her older brothers, saying it is her fault that the children are in care. On the other hand, the BRS assessors observed during a family day assessment that AB showed warmth, kindness and positive interactions towards his siblings. He was keen to present all the family relationships in a positive manner. The assessors commented that he may have concerns which he is reluctant to share in the present circumstances but which may emerge in due course and that he should therefore be offered a therapeutic relationship through which he can discuss these matters. AB concluded that his primary need was to live with carers who are able to offer consistency and reliability whilst remaining emotionally available to him. Given his different attitude towards the family, the assessors advised that he should not be placed with his brother AS. As stated above, however, the assessors were clear that all of the children would benefit from positive and consistent contact with their other siblings.
- The local authority care plan for AB is that he should remain in his current foster placement in the long term. Although he wishes to return to his parents, he has also stated that he is happy with his current foster carer. The care plan identifies the importance of respect and nurturing his religious beliefs. Under the plan, contact with his parents would be reduced to three times a year, and with his siblings would take place on a monthly basis. It may be necessary for him to move school, given the distance between his foster placement and his current school.
- Both parents oppose the care plan for AB, believing that he wishes to come home and that he has a clear sense of family which the court should respect.
- The guardian's observations mirror those of the BRS assessors. She notes that AB has remained the most reserved of the children when expressing his emotions and views. He has felt some responsibility for getting the family back together and has in the past tried to influence Z and her placements. He expresses a great deal of loyalty towards his family. The guardian notes that, as he does not openly express his feelings, it can be difficult to understand and engage his thinking or the impact his experiences have had on him. She adds, however, that AB is insightful and understanding of the issues being considered in court. Although he would like to return home, he was able to recognise the concerns held by professionals. He told the guardian that he does not believe that his parents have changed, saying that his father gets angry and annoyed with workers in contact and he just wants contact to be good. Interestingly, the guardian reports that AB was pragmatic when talking about the plans for the two younger boys, saying that he wants them to be happy and that if adoption is best for them he would support it.
- AQ was born in 2006 and is therefore now aged 9 Ύ. He has had a very disruptive experience of foster care, having moved placement 7 times since being received into care in 2014. He has been with the present carers since September 2015, having lived with them previously for a period of 8 months between July 2014 and March 2015. In the fact-finding judgment, I found that AQ had behaved towards Z and other children in one of his foster homes in a way that was manifestly inappropriate and may well have been sexualised.
- At the time of the assessment by BRS, AQ was living in the placement which he subsequently left but to which he has now returned. His female carer described him as being difficult to manage and as a young boy who struggles to be on his own any of the time. She found that he constantly seeks attention and reassurance, especially from her partner. His behaviour can become disregulated and aggressive, with him swearing and hitting out. Sometimes he deliberately winds up her own sons or does something deliberately wrong in order to make a more negative atmosphere. There are periods when his constantly negative behaviour wears everyone down.
- AQ has a diagnosis of nystagmus which becomes exacerbated when he is under stress. With his siblings, he was observed by the BRS assessors as being overwhelmed, distressed, loud and overactive, shouting over his siblings and being unable to focus. He was constantly looking for adult affirmation and responded well to encouragement and praise. The assessors thought he had low self esteem. He was seen to be caring and affectionate towards his siblings, and very protective of the younger boys, although they seemed stressed by his behaviour at times and on occasions rejected his attempts at affection. The BRS assessors observed that a skilled contact supervisor could help AQ to be more successful in these interactions. The assessors commented that AQ frequently presented as highly aroused when talking or being with his family. His attitude towards his parents was seen as variable, but he has generally expressed a wish to go home. He was seen as being keen to be part of the family, saying things he thinks will endear him to his parents.
- AQ has attended the same school since September 2014, where he is seen as academically able. His behaviour was difficult at first but has subsequently improved. AQ has generally followed his Muslim faith in his placements.
- The BRS assessors advised that emotional arousal is likely to be poorly understood and managed and therefore the child is likely to show higher levels of disregulated or disassociated behaviour as either the emotion overwhelms them or they attempt to manage it by cutting off from it. Children like AQ need support in learning to regulate their emotion from an attuned and sensitive care giver to allow them to develop these skills. They conclude that it is clear that AQ's needs are high and a skilled carer will need support in managing him. This would, they advised, be more easily met in a placement without any other children, at least in the short term. The frequency of contact with his parents needs to be considered as he seems to be avoiding these times by refusing to get in the taxi, and his behaviour has seemed to be variable in contact. In the opinion of the BRS assessors, his relationships with his siblings are clearly important to him, and contact with a skilled supervisor could model positive interaction with them.
- The local authority care plan is for AQ to remain in his current foster placement in the long term. As with the other children, their proposal for contact is that it should be reduced to 3 times a year, and that contact with his siblings should take place once a month. SC, the social worker, reports that, when AQ was told about this care plan, he punched the air.
- The parents opposed the care plan and want AQ to be returned home. They do not accept he is settled in his current placement. In his statement, the father stated that there is no reason why he, and the other children, can not be returned to their care.
- In her final analysis, the guardian comments that AQ continues to struggle with his emotions and behaviour. He lacks self esteem and needs ongoing reassurance and acceptance. He has spoken to the guardian of the different feelings in respect of the care he receives from his foster carers in comparison to that he received from his parents. He talks about the affection and love he did not receive at home and reports being frightened when he lived there. The guardian records that he has not only exhibited some sexualised behaviours in placement but has made some disclosures to his foster carers implying some involvement in sexual activities at home. No full disclosures have been made, but the guardian is concerned about what he may have experienced and the impact this may have had on him. He has expressed a wish to return home but has also told the guardian that he is worried that, if he went home, "it" would happen again. He said he did not want to say what "it" was. He then added, however, that, if he does not go home, he knows he will not be hit as he is cared for in the foster home and receives love and cuddles, something he has reported not receiving at home.
- Z was born in March 2008 and is therefore now aged 7. Prior to the birth of the new baby, she was the only girl in this sibling group. Z was the victim of a serious sexual assault by her older brothers as set out in the fact-finding judgment and which has subsequently been the subject of a criminal trial leading to the conviction of both boys.
- Z has been in three placements since being removed from home. Of particular significance was the placement with her relative, Mrs X, in July 2014, to whom she made the initial allegations of sexual abuse as described in the fact-finding judgment. That placement subsequently broke down and since April 2015 she has been in an independent foster placement where she has settled well. As a result of this move, she has changed primary schools.
- The BRS assessors described Z as an engaging, enthusiastic and thoughtful child whose confidence gradually built up, although they also described her as having very low self worth and being anxious to please her family. Contact notes examined by the assessors (who were not allowed by the parents to observe contact themselves) suggested that on occasions Z may have been treated differently by her parents. The assessors comment that it is likely that Z made sense of this by blaming herself for what has happened to the family. The assessors note that contact reports describe a pattern of isolated play and record that Z was on occasions tearful, challenging, ungrateful and rude to her parents. Since SB and SM stopped attending contact, after Z's allegations, more assertive and challenging behaviour was observed in Z. It was also noted that from April 2015 the father started to demonstrate more reassuring behaviours towards Z when she became upset.
- Z has expressed mixed feelings about her parents, acknowledging that they are important to her but also that they did not keep her safe. She has also stated that all of her siblings are important to her and she would like to return to live with them, singling out AQ, AH and AW as particularly important.
- The assessors recommended that, to provide support Z in her recovery from trauma, a safe and stable environment would be important for her. The carer would need to be able to provide a high level of therapeutic parenting and the ability to co-regulate with Z's emotional needs. At different stages throughout her childhood, Z is likely to experience different feelings, both about herself and about her brothers and her parents, and this could present various types of behaviour, some of which have already been observed. The assessors recommended that post-abuse and non-directive work could support Z in processing these complex and confusing feelings and thus reduce the likelihood of further behavioural and/or mental health difficulties in the future. The assessors advised that continuing contact with her brothers will be important for Z's sense of identity, belonging and self-esteem. Due to the neglectful environment the children are believed to have shared, Z has formed complex, yet important, relationships with her siblings. The assessors advised that, if supported in the right environment, these relationships have the potential to progress to a stage where they are able to support each other in developing a healthy narrative and understanding of their experiences.
- The local authority care plan is for Z to remain in her current foster placement in the long term. The plan adds, however, that the local authority will continue to review Z's needs and once she has settled and adjusted to long term foster care she may be considered for adoption. As with the other children, the local authority plan is for parental contact to be reduced to three times a year, with monthly contact with the siblings. She has begun therapeutic sessions which will continue if a care order is made. The care plan acknowledges the importance for Z of nurturing and supporting her Muslim faith. In her final statement, SC reported that Z was happy when told of the care plan, and describes how she pulled her arm back with a clenched fist saying "yes".
- The parents do not support the care plan, and seek Z's return home. Her mother states that Z enjoys being part of a big family. The acknowledges that she will need an understanding of what has happened and in her statement expresses the hope that with education and guidance she and the father will be able to provide the care and nurturing Z requires. The father points to how Z has described him as "the best dad in the world" and said similar things about her mother when giving them both special presents. He regards the fact that she chose those presents as quite telling.
- The guardian supports the local authority care plan in respect of Z. She notes that, at the date of her report, Z's disclosure of sexual abuse had been dismissed by her parents. She was not believed and had not been nurtured or supported by her parents. The guardian observed that this is likely to have had a significant impact on Z. She needs reassurance that she will be kept safe and her needs met. The guardian's conclusion is that the parents are unable to provide her with this and any plan for her to return home without this insight and protection from her parents would be extremely damaging to her. The guardian observes that Z remains confused about her feelings in respect of her parents. She clearly loves them but she does wish for them to change. She has remained consistent in respect of her home life experience and the guardian says that it was sad to hear her say that her happiest memory has been going into foster care.
AH and AW
- It is convenient to consider the two younger siblings together. They are perceived and portrayed as a pair and everyone is agreed that they should remain together wherever their ultimate placement may be. They share a birthday and are exactly one year apart in age, AH being aged just six and AW just five.
- Apart from a few days immediately after being removed from home, AH and AW have spent the whole of their period in care living with the same foster carers. At the hearing in February 2016, the possibility emerged that their current carers might be willing and able to care for them in the long term. In order to clarify the position and to allow the local authority the opportunity to put forward a more fully-developed care plan I adjourned the case in respect of the two little boys for three weeks. In the event, the current carers have now decided that they can not continue to care for the boys, and the local authority care plan is for adoption. To that end, the local authority have now issued applications for placement orders in respect of the two youngest boys. The plan for adoption is supported by the guardian.
- The BRS assessors observed that AH's need for reassurance is very high. He also frequently comments on others behaviour and the assessor suggests that this could indicate anxiety about the consequences of negative behaviour. According to their foster carer, there has been some evidence of sexualised behaviour from AH towards AW. AW complained that AH had "touched his bits". AH had not denied that this had occurred. AH has expressed a wish to be with his parents, but the BRS assessors detected no sense of a genuine emotional connection with his parents or a desire to be close to them. In respect of AW, the assessors interpreted the contact sheets as showing that AW felt closer to his mother than to his father. They have also detected evidence of feelings of anxiety about their parents in both little boys. On one occasion, when the mother told them that they would be returning home soon, both boys needed to go to the toilet. Subsequently, AW has expressed that living where he is now is "all good different" compared to when living at home with his family. The assessors identified a sense that AH has settled in his foster placement and is enjoying the new stimulating opportunities available to him and as time progresses has become further detached from his parents. AW has observed to become more settled both at school and at home with his carer. The assessors conclude that, in a stable, safe and boundaried environment, AW feels settled and is able to positively engage with those around him. Initially both boys struggled to follow the boundaries that were put in place by the foster carers, but over time there has been significant change in this respect.
- Both boys expressed warm feelings towards their older siblings. AH described AB as his "best brother" and Z as his "best sister". AW described Z, AB and AS as important. Like the other children, he has found AQ overwhelming. The assessors made the same comment in respect of the two little boys as in the cases of the older children, namely that they would benefit from positive and consistent contact with their other siblings. As for the future, the BRS assessors support a permanent placement as being important for AH and AW to reduce the anxiety of further moves. Each child will require support informing a narrative about the events that have occurred. Both are confused about their experiences.
- The parents strongly oppose the care plan for adoption, seeking the return home of AH and AW. The mother in her statement says that both have a clear sense of identity and of the family they belong to and are always asking when they can come home. She does not think either child would be able to successfully make a transition to an adoptive placement. She adds:
"I can not think that AH and AW would understand the logic of being adopted. They have a clear sense of family, attachments to us and their siblings, so therefore I don't think they would be able to make any fresh attachments to any prospective adopters."
It is the parents' case that, if the children come home in stages, it is AH and AW who should be returned home first.
The children's religion and culture
- One fundamental element of the background and character of this family is their religion and culture. Both parents are devout Muslims who adhere to the tenets of their faith in the way they live. At home, the children were encouraged to pray and study the Qur'an. Their diet and other aspects of their lifestyle were determined by the tenets of their faith. The older children attended regular classes in religious education.
- Under section 33(6)(a) of the Children Act, "while a care order is enforced with respect to a child, the local authority designated by the order shall not cause the child to be brought up in any religious persuasion other than that in which have been brought up if the order had not been made". It is clear that this local authority has struggled to comply with this obligation in the case of this family. This aspect of the case featured prominently in the questions put and submissions advanced by Mr. Josty on behalf of SM, but it also featured in the arguments advanced on behalf of the parents. The points made by Mr. Josty apply with equal force to all the children in care.
- Mr Josty cites my decision in the case of Re A and D (Local Authority: Religious Upbringing)  EWHC 2503 (Fam). In that case, which concerned children born into a Muslim family but whose mother had subsequently reverted to her previous Catholic faith, I considered how a local authority should approach its obligations under this provision:
. I start with the proposition that the nature of a child's religious persuasion evolves as the child matures. In the case of a very young child, whose concept of faith is undeveloped, his religious persuasion is necessarily that of his parents. If their religion changes, so will his. As he grows older, however, he will inevitably, to use the local authority's phrase in this case, "make his own choice", irrespective of his parents' wishes and feelings. Some children follow their parent's faith throughout their lives, others do not. There is nothing a parent can lawfully do to force a child to believe anything. Once he is developmentally of an age to make a choice, the choice is his. In such circumstances, it would be absurd to impugn a local authority for failing to sustain the religious persuasion of a child who had decided for himself that he did not wish to follow his parent's faith.
74. I therefore conclude that the subtle and careful language used in section 33(6)(a) requires an equally subtle and careful interpretation, rather than the inflexible, and in my view unworkable, interpretation for which the father contends. When a young child is made the subject of a care order, the local authority is under a duty to ensure that he is not brought up in any different religious persuasion from that followed by his parents prior to the care order. If the local authority breaches that duty, it will be exceeding the limitation imposed on its exercise of parental responsibility by section 33(6)(a) and, in appropriate circumstances, the parents may apply for judicial review or seek injunctive relief for breach of statutory duty or under the Human Rights Act. Furthermore, so far as possible, the local authority must ensure that the child is bought up with a full appreciation and understanding of his religious heritage and background. If his parents subsequently change their religion, the local authority must have regard to that fact. In my judgment, however, it is not obliged, nor indeed permitted, to take any steps that would be contrary to his overall welfare. Equally, if one parent, but not the other, converts to a different religion, the local authority must have regard to that fact, particularly perhaps if the parent returns to a former religion previously practised within the extended family which constitutes a significant aspect of the child's heritage, but again the local authority is not obliged nor allowed to take any steps that would be contrary to his overall welfare. And as the child develops and makes his own choices, the local authority must respect his personal autonomy and freedom of conscience, provided again that by doing so it is safeguarding his welfare.
75. In my judgment, the local authority's duty under section 33(6)(a), like all its statutory duties under the Children Act, is subject to its overriding duty under section 17(1) and section 22(3). Under section 17(1)(a), "it shall be the general duty of any local authority (in addition to the other duties imposed on them by this part)
to safeguard and promote the welfare of children within their area who are in need". Under section 22(3)(a), "it shall be the duty of the local authority looking after any child
to safeguard and promote its welfare". In Haringey LBC v C and E and another intervening  EWHC 1620 (Fam),  1.FLR 1035, Ryder J observed (at paragraph 76):
"Religious, racial and cultural factors are integral elements of welfare and may on the facts of a particular case provide both the positive and negative factors and context by and within which decisions have to be made. However, whatever an individual belief system may provide for, and despite the respect that will be given to private and family life, and the right to freedom of thought, conscience and religion, and the freedom to manifest religion or belief in worship, teaching, practise and observation (by articles 8 and 9 of ECHR), the law does not give any religious belief or birthright a pre-eminent place in the balance of factors that compromise welfare .... Furthermore the safeguarding of the welfare of vulnerable children and adults ought not to be subordinated by the court to any particular religious belief."
Ward LJ put it succinctly in this way in Re P (Section 91(14) Guidelines) (Residence and Religious Heritage)  2.FLR 573 at page 599: "in the jurisprudence of human rights the right to practise one's religion is subservient to the need in a democratic society to put welfare first."
- Mr Josty submits that this requires the local authority to address the religious needs of SM, and indeed all the children, with far greater assiduity than it has demonstrated to date. In particular, he contends that the local authority is required to address the question of religious education of the children as part of its statutory duty in respect of education generally. In her submissions, Miss Howe on behalf of the father contends that in this respect the local authority's care has fallen woefully short. Although clearly fundamental to the family's life at home, it seems none of the children has attended Mosque whilst in foster care. Teaching and supported study of the Qur'an is non-existent. The carers' notes reflect little understanding of the issues. Importantly to my mind, she observes that there is no designated member of the local authority team to support them to meet these needs.
- In my judgment, there is considerable force in these criticisms. I do not underestimate the challenges which this case has created for the local authority. Finding and maintaining separate foster placements for these children has been very difficult, and it is perhaps unsurprising that in doing so the authority has not been able at all times to meet the religious and cultural needs of the children. I am satisfied that the social worker was aware of these needs and of the importance of meeting them, but equally I am satisfied that this factor has at times been lost sight of amidst the overall problems thrown up by this case. As my judgment in Re A and D demonstrates, the approach to a child's religion and culture requires sensitive handling and analysis, particularly as the child grows older and starts to think independently. There is a danger, in our increasingly secular society, that those responsible for looking after children in care both foster carers and social workers will not truly appreciate the importance of a child's religion and culture. If possible, children should be placed in foster placements that are culturally appropriate. In the case of Muslim children, they should where possible be placed with Muslim carers, and furthermore with either Sunni or Shia carers in accordance with their own background. Manifestly it will not always be possible to achieve a placement that meets these requirements alongside the other welfare needs of the child. In those circumstances, the local authority must devote particular attention to how the child's religious and cultural needs will be met, in terms of religious observances, education and lifestyle, including diet.
- The local authority through Miss Cook acknowledged the difficulties that it had encountered in this respect. It accepted that the care plans submitted to the court did not adequately reflect the obligation to meet the children's religious and cultural needs in this case. In a supplemental document, it undertook, that the care plans for each child would be amended to include the following in pursuit of the encouragement of the religious beliefs, education, customs and practice of each child:
(1) the allocated social worker will hold meetings with each carer and/or all the carers together to discuss with them and promote the encouragement of the Muslim faith, attendance at the mosque and the studying of the Qur'an;
(2) the local authority will pay for and encourage the study of the Qur'an for each child if that child wishes to do so;
(3) the allocated social worker will support and encourage the education of carers of the children in the Muslim faith, customs and practice.
- I am satisfied that these steps will go some way to meet the religious and cultural needs of the children in the event that this court decides that the children cannot remain home. Even if these steps are taken, however, it is clear that the religions and cultural needs of the children would be better met if they are returned to their parents' care. If they are not returned home, those needs would be better met by moving the children to placements that are culturally appropriate. It is important to emphasise, however, that their cultural and religious needs are only one element of their overall welfare needs, albeit an important element that must be taken into consideration in the overall welfare analysis. If the children are not placed in a placement that matches their own cultural background, the local authority will be under an even greater duty to ensure that the child's cultural and religious needs are met. I shall return to this issue below.
The Phoenix assessment
- I turn next to consider the capacity of the parents to meet the children's needs. A crucial question is the extent to which they accept my findings and have the capacity to change their parenting to prevent further harm to the children should they return home. I begin my consideration of this question by looking at the assessment carried out by Phoenix Forensic Consultants.
- Mr. Lowe, and his colleague Victoria Tunbridge, a forensic psychologist, were instructed to carry out a comprehensive assessment incorporating inter alia:
(1) a risk assessment of the parents in the light of the court's findings;
(2) an exploration of the parents' attitudes and understanding the findings and whether the parents would be able to protect the children against such behaviours in future;
(3) an analysis of their ability to care for each child appropriately and meet their needs;
(4) a psychological profile of the parents, including an investigation of whether either has any features of psychological or emotional difficulty or personality disorder which could be associated with risk; and
(5) advising as to what changes each parent may need to make, the prognosis and timescale for such change, and details of any work or therapy from which they might benefit.
- Mr. Lowe and Miss Tunbridge interview the parents twice, separately, and observed a contact session with the parents and the six youngest children. Their report records that the father was co-operative and that he understood why the authorities were worried about him, although he demonstrated some anxiety about the assessment process. He described his upbringing in some detail, including his experience of corporal punishment. He described his relationship history, his employment and health problems. Asked about the allegations of sexual abuse, he said that Mrs. X had lied and the judge trusted her. "She has made it all up to get revenge" He said that, if something had happened to Z, they would have known because she was so close to her mother. The report authors commented that "it is clear that [the father] has very little understanding of [the] nature of sexual victimisation, particularly within families, where the sexual abuse goes undetected because children find it very difficult to tell parents." They added, however, that there was no sense of the father trying to hide or cover up for his son's behaviour. He just did not understand how this might happen in a family. They advised that he would need some input to assist him in this understanding. They observed that what they described as his "natural reaction to protect his sons" was likely in the long term to work against their rehabilitation and continue to prevent Z from telling her parents what took place.
- In respect of the allegations of physical abuse, the father acknowledged that he was out of his depth when managing the lives of the children in modern society. The report describes him as appearing to have been foundering to find a way of recreating the order that he felt existed in his own childhood. Describing the occasion when he had tried to impose discipline on SB when he came home late, the father said that: "I was fighting with myself really and not with him". Mr. Lowe concluded that he had not seen evidence to suggest that the father set out to be routinely violent to his children, but rather "that he lacks the skills and understanding to manage them as effectively as he would want to." He described the father as loving the children and wanting to be able to care for them and was therefore motivated to receive assistance to help him make the changes needed.
- In the course of the assessment, Ms Tunbridge used a psychological assessment tool, the HCR-20, which is described as representing "an attempt to integrate evidence-based knowledge of risk factors for future violent behaviour with clinical judgment". The outcome is set out fully in the report. It was concluded that most of the risk factors were not present in the father's case. There were sufficient concerns about him based on past behaviour to indicate that he is at raised risk of reacting in a violent way with his children. This was, however, set against the absence of any other real predictive indicators. The authors of the report commented that he possessed many skills that would lead him away from violence if he was given some educative and therapeutic work now. Assessment of the risk factors associated with sexual abuse concluded that there was no evidence to suggest that he would act in a sexually harmful way towards the children. Psychometric testing identified some signs of narcisstic and paranoid personality traits, although not at a level to amount to a disorder. The authors of the report observe that it is at times of stress that personality characteristics present at their most extreme.
- The mother appeared less anxious in interview than the father and was quite open about her life experiences, although the authors of the report thought that she might have presented an over-rosy picture of her childhood. She described her mother as "brilliant, one of the best you could have", and said that she never chastised her and her siblings. The authors of the report comment that, if it was right that the mother's parents did not use corporeal punishment, one might have expected that the mother would have learnt significant skills of negotiation and discussion with her children. The mother reported no experiences of bullying or negativity. Mr. Lowe commented that such a person faced with extreme difficulties does not have the coping skills necessary to manage. The mother recognised that her children were growing up in a different environment and there were increased pressures on her and her husband to respond in ways that neither of them experienced.
- It was very clear to Mr. Lowe that the mother recognised that physical chastisement is not acceptable in principle. She also accepted that she had used levels of physical punishment that were inappropriate, although she did not accept all of the findings on this issue. Mr. Lowe and Ms Tunbridge doubted whether in the current proceedings either parent would be able to publicly accept the level of physical abuse that took place within the family. What they are able to do separately from each other is accept that the father's behaviour had been excessive in a set of situations, in particular with the older boys, which they had no real understanding of how to manage. Mr. Lowe and Ms Tunbridge regard this recognition as a starting point potentially for therapeutic involvement with the family.
- The mother gave the same explanation for Z's allegations of sexual abuse namely that Mrs. X had fabricated the allegations in order to get revenge. The report quotes the mother as saying:
"Z could have been abused but I would have told the professionals. I would like to work to keep my children safe from sexual abuse. The boys would need professional help as well. Something happened without my knowledge, and I would like to keep them safe. Z is my first priority in this Mrs X is making my daughter say things that are not true. If I had seem blood on her knickers I would have done something about it."
"I would like time to talk to my daughter
. I would want to sit down as a mother and start asking and talking. Did this really happen to you? There should be no secrets and I will help you and protect you. I would say that I believe you and that no one is going to hurt you."
Mr. Lowe and Ms Tunbridge comment that again this response places Z in a situation where she was having to justify what she had said. They think the mother would need considerable assistance in being able to communicate with Z in a facilitative manner
- Psychological assessment of the mother using the HCR-20 tool found that most of the identified risk factors were not present in her case. She is at raised risk of reacting in a directly violent was although to a lesser degree than the father. There was no evidence to suggest that she would act in a sexually harmful way towards her children. The parents' failure to protect their children was not deliberate but rather attributable to a lack of understanding and therefore amenable to educative or therapeutic work. She too has some personality traits but not at a level to amount to a disorder.
- Mr. Lowe observed a contact session. His overall impression was that there was a clear sense of the family working together, with respect shown by the parents for their children and vice versa. There was no sense of fear or reservation about what the children were saying. The mother took a greater role in dealing with the children and displayed greater skills in doing so. The father was involved throughout but his role decreased as the session continued. In passing, I note that the parents' representatives have drawn to my attention other contact records which demonstrate that the children seem to enjoy contact and that they have a close relationship with the parents. Other contact sheets, however, seem to suggest that the parents have times struggled to cope with the children and that the father has on occasions said inappropriate things to the children during contact, such as promising that they can come home.
- Mr. Lowe and Ms Tunbridge concluded that both parents would benefit from intervention and that they are able to offer appropriate care for their children if they were to engage in some educational work and intervention immediately prior to and whilst having care of the six youngest children. They would need to give a clear commitment to the work. They need to undergo a parenting course (which in their supplemental report they described as a typical local authority course involving 12 weekly meetings of 2 hours' duration) and engage in some educative work about sexual abuse in families, how to recognise it and deal with it. They advised that the father also needs to engage in some stress and anger management treatment, which in their supplemental report they said should be in the form of cognitive behavioural therapy. Mr. Lowe and Ms Tunbridge concluded that the prognosis was good. As to timescales, they indicated in their report that, if Phoenix were to do the work, it could be completed in 6 to 8 weeks and should start one week before the children returned home. As to the children's sexualised behaviour, they commented that it is necessary to work with the two older boys intensively. Any intervention would need to be driven by the needs of the individual children which would require a thorough assessment of each child. In answer to supplemental questions after production of their report, they said that any return home by SM would need to be managed, with a risk assessment carried out after he has completed the intervention work.
- In his oral evidence, Mr. Lowe said that it was possible for someone in the parents' position to acknowledge that something sexual had happened to the children with a belief that the convictions were not sound coupled with a general mistrust of authority. It is possible to hold both of these things at one time and for them to be in conflict and unresolved. The intervention that he was proposing would establish whether the father was capable of changing his thinking so as to ensure that the children were safe. In his oral evidence, Mr. Lowe accepted contrary to how I had read his report that there would need to be evidence of change as a result of the intervention before the children returned home. This work was worth doing irrespective of whether the children returned home. Cross-examined by Miss Cook on behalf of the local authority, Mr. Lowe agreed that, before the children went home, the court would have to be satisfied that the parents could protect the children from further sexual risk and that it would be dangerous to introduce them too early. He agreed that what was required was not just an acceptance of the findings but also acceptance of responsibility for what has happened. As for the mother's statements to him about Z's allegations, he did not accept that there was ambiguity. He believed that she was acknowledging that something had happened to Z. Cross-examined by Miss Davis on behalf of the younger children's guardian, he agreed that both parents struggle to see things from the children's point of view. He thought that, with regard to the impact of the offences on the children, the parents' attitude had shifted, but accepted that there was a risk that if Z returned home, she would come under pressure to retract her allegations to "save the family". He agreed that there was evidence that they had put emotional pressure on the children.
The Parents' Evidence
- Before completing my evaluation of the Phoenix assessment, I consider the parents' evidence before me, both their written statements and in the witness box. I have already summarised their evidence concerning the future plans for the children. Here, I focus on their evidence concerning the allegations and findings as set out in their statements and oral evidence at this hearing.
- Until shortly before the hearing, the parents had consistently refused to accept the courts' findings or to accept that there was any real cause for concern about the welfare of the children. I have already referred to the father's lengthy assertion at the hearing in October 2015 of the reason why he did not accept the findings. In their written statements filed after the Phoenix report was filed and immediately before the final hearing, there was a slight shift in attitude. In her statement, the mother asserted that she was willing to engage and would be fully committed to any work that would enable the children to return home. She said that she had acknowledged that sexual abuse "might have happened" and that she did not want there to be any future abuse in the family. She said that she has struggled and continues to struggle and come to terms with how and when it could have happened. She said that she truly believed that she and her husband had been totally written off as ever being able to care for the children, regardless of any commitment they may have to make changes to develop their understanding to allow the children to return home. She said that she wanted to draw a line under what she had believed or not believed in the past and move forward, She acknowledged that she had felt bitter towards Mrs. X in the past but now wished to simply focus on the children. The mother also wrote a handwritten letter to me which I have read carefully in which she said, amongst other things, that the children's religious needs were not being respected in care, that since the findings had been made, it has put a lot of stress on her and her husband coming to terms with what has happened, and that they were not bad parents. She added: "I would like to say I accept your judgment and also my two boys being convicted."
- In his statement, the father accepted that he was having difficulties coming to terms with the court's findings. The enormity of what has been found made it difficult for him to accept what has been decided. He recognised that the court had considered all the evidence, and that a jury had found the older boys guilty beyond reasonable doubt. As a result he said that he had "to acknowledge that they are the decisions that have been made." He said that he would welcome the opportunity to work with Mr. Lowe to ensure that the children are safe and learn more appropriate methods of chastisement. He also stated, however, that the attitude of the local authority towards him and his wife throughout the process has left it difficult for the social workers to carry out any work with them. He reiterated his criticisms of SC, asserting that she was prejudiced against him because they had registered a complaint against her. He set out various criticisms of the local authority's management of the children in care, and of their failure to arrange parenting classes. He concluded by asserting that he and his wife were not a significant risk to the children, and claimed that the best thing that could happen to the children was for them to be "reunited to live at home and just experience normal family life living together as a family, going to school, and being part of the local community."
- When the parents came to give their oral evidence, there was a further discernible shift. In her oral evidence, the mother said: "I do accept SB raped Z. It is really hard but I do accept it. I accept SM sexually abused Z." This was, so far as I am aware, the first time that the mother had made such an express statement. It was clear to me listening to her evidence that it was a very difficult thing for her to say. When asked why she had not said this to the social worker conducting the pre-birth assessment in respect of the new baby, only a few weeks prior to the hearing, she said that it had been hard for her and she was trying to take it all in "it's not easy, so much has happened". She also does not accept some of the details of the allegations, for example that she had seen blood in Z's knickers. Cross-examined by Miss Davis on behalf of the children, she acknowledged that, at the time she told Mr. Lowe that she wanted to ask Z what had really happened to her, she did not know whether Z's allegations were true or not. According to the guardian, the parents had said as recently as 20th January that they did not believe that Z had been sexually abused. When Miss Davis put this to her in evidence, the mother said that she did not think that she had said that to the guardian. She said that the father had now told her in the last few days that he accepted that Z had been sexually abused, but she was not sure if he still believed that SC had made Z make the allegations. She acknowledged that it is not normal for sexual activity to occur between children, or for children to exhibit sexualised behaviour, but said that she did not know how it had happened in her family and had not really thought about it. She added that she had been saying that they needed to keep everybody out of it and deal with it themselves. Cross-examined by Miss Cook, she denied that either she or the father had ever used excessive force in chastising any of the children, including SB and SM, although in re-examination she acknowledged that physical abuse had occurred. On the other hand, she said in evidence apparently for the first time that it was not all SC's fault that the children were in care, but rather the fault of her and her husband. She continued to urge the court to allow the children to return home, although she agreed that it would not be practicable for all the children to be returned together, and therefore suggested that the younger children should come back first, to be followed by the order children at a later date.
- The father, who gave his oral evidence through an interpreter, also said at one point in evidence that he accepted that Z's allegations were true. His reason for accepting this now was that he had read that Z had repeated her allegations to her new carer. Pressed further by Miss Cook, however, his position was not as clear, even allowing for the fact that he was giving evidence through an interpreter. Asked whether he accepted that SB had raped Z, he replied "yes, possible". Asked why he had told Mr Lowe that Mrs. X had made Z make the allegations to get revenge, he said that she had said to him that she would get revenge on SB, but now he had independent information from the new carer. The father further said that SB had exaggerated the extent of his beatings and started confronting him when he had the support of his parents. Asked whether he still believed there had been a conspiracy involving social services, he said that he had changed his opinion to some level, meaning, as I understood it, "to some extent". Cross-examined by Miss Davis, he agreed that when he saw the guardian he was still saying that Z's allegations were untrue. He said that Z had said that Mrs. X had beaten her and threatened to do so again, but now that Z had told her new carer, an independent person, that she had been abused, he had changed his mind about the truth of her allegations. Up to that point, he has believed that she was making the allegations under the influence of SC and Mrs. X. Pressed again as to whether he believed that Z had been sexually abused by her older brothers, there was a long pause before he replied yes. Later, he said that he did not accept that AQ had behaved in a sexualised way towards another child in the foster home, adding; "my children do not touch each other sexually". When asked to explain the sexualised behaviour exhibited by AH to AW, he said that the foster carer's account was not trustworthy and untrue, pointing to the fact that at the earlier hearing the court had made no findings about the earlier conversation between the two boys recorded on her IPad. Later, he referred to the widespread presence of sexual imagery in this country, and to the importance attached to sex in British society, and added: "if something happened [to my children] it happened because of these factors and not because of me. My children have been influenced by the society and I don't know what they are being told to perform by the carers and the people they are with."
The parents' capacity to change: discussion
- In the light of the evidence given by the parents, I turn to consider to what extent they have truly accepted my findings, whether they have the capacity to change their parenting style and methods so as to protect the children, and, if so, how long that process of change would take.
- I acknowledge that each parent said at different stages in the oral evidence that they accepted that Z had been sexually abused by her older brothers. These assertions must be assessed, however, in the context of their earlier statements, both in writing and orally, and of their dealings with the social workers and other professionals, and having regard to the conclusions I drew about their evidence in my earlier judgment as quoted above, namely that they were evasive and unreliable witnesses who had concealed information from the court. In all these circumstances, I am not satisfied that the parents' limited acknowledgment in their oral evidence represents their true opinions and feelings. The father's explanation for the reason why he has now, very late in the day, accepted Z's allegations mainly, that she repeated them to an "independent" person, namely her new carer was totally unconvincing and implausible. It may be that at some level they recognise that, without acknowledging the truth of Z's allegations, it is unlikely that they will be allowed to resume care of their children. That recognition in itself represents some progress, but only to a very limited degree. Both the mother and father are to my mind a very long way from genuinely accepting that the allegations are true. They have not begun to understand the extent of the physical and emotional harm suffered by Z, or the seriousness of the conduct of SB and SM, nor in my judgment have they begun to realise the extent of their failure to protect the children and the harm that has thereby resulted. The father's assertion in evidence that any sexualised behaviour demonstrated by his children was caused by the corrupt society in which they now live, and not through any fault on his part, shows the extent of his lack of awareness of his responsibility for what has occurred. In her final analysis, the guardian concluded that the mother and father are unable to take any responsibility for their actions, but, rather, apportion blame to others or minimise the concerns. I agree. Nothing I have heard in the course of this hearing has caused me to question this assessment.
- Furthermore, it is clear from their written and oral evidence, and from their statements at earlier stages in the proceedings and to the Phoenix assessors, that they do not accept the extent of my findings concerning physical abuse, nor understand the degree to which their failure to manage the behaviour of the children, and their excessive use of physical chastisement, has damaged the children. The father's acknowledgement to Mr. Lowe that the incident involving SB in the middle of the night involved him fighting with himself rather than his son may well present the start of a process of understanding, but it is no more than a start. The parents have a long way to go before they truly accept and understand the extent of the physical abuse they perpetrated in this case.
- In my judgment, the Phoenix assessment significantly underestimated the extent of the change required in these parents and was manifestly over-optimistic as to the capacity for change and the timescales it would take to achieve the degree of change necessary for these children to return safely home. It is possible that over time the parents may come to accept my findings, and develop an understanding of the degree of harm they caused to the children, and achieve the changes necessary in their parenting. It may be that, with professional help and guidance, they may learn new skills as parents so that they can protect their children from sexual abuse, and manage the behaviour of their children as they get older and face the challenges of growing up in modern society. In my judgment, however, it is likely to take a very considerable amount of time and hard work to achieve these changes. I consider that the Phoenix assessors have seriously misjudged these issues. There is considerable force in the guardian's observation in her final report that in some respects the Phoenix assessment appears to validate the actions of the parents by simply suggesting that they lacked parenting skills and have a level of naivete. I also agree with the guardian that the assessors did not really challenge the parents and substantially based their assessment on information taken from the parents at face value. Furthermore, they did not address the risk to the children of placing them back with the parents at a point when they had not made any significant changes in their parenting. Accordingly, I agree with Miss Cook's submission on behalf of the local authority that the assessment was wholly unrealistic in terms of timescales either of the parents' ability to achieve change, or as to how long the children could safely wait for the changes to be achieved. These deficiencies in the Phoenix assessment were exposed in Mr Lowe's oral evidence, notably in the shift in his opinion both as to the timescales necessary to achieve change and as to the point in the process at which the children could be safely returned home.
- I further accept Miss Cook's submission that at present there is little prospect of the parents, in particular the father, engaging with professionals who challenge them. The parents' behaviour towards the professionals throughout these proceedings demonstrates that they are unable and/or unwilling to work with those challenge them. This is highlighted in particular by their allegations that they had been the victims of a conspiracy orchestrated by SC. Miss Howe submits that the father's "conspiracy theory" is best understood as a construct or narrative to help him make sense of an otherwise bewildering and impossible reality. In my judgment, however, his belief about a conspiracy, if genuinely held, demonstrates a particular lack if insight and understanding. Furthermore, the parents, and in particular the father, have during contact sessions made a number of comments to the children which, in Miss Davis's phrase, have exposed the children to their conspiratorial world. The contact records show that the mother on occasions attempts to prevent the father making inappropriate remarks but with limited success.
- Meanwhile, all the children are, as Miss Cook describes, very damaged and need to have some kind of empathic and restorative parenting. They need first and foremost to be safe in the care of whoever is looking after them. In their treatment of Z and her allegations of abuse, their physical abuse of the older boys, and their response to AS's expressions as to his own sexuality, the parents have demonstrated the difficulties they have in identifying and meeting the needs of the children. I accept Miss Cook's submissions that the children are in urgent need of stability now, not in several months time when further work has been done. All the children are damaged to some extent, some profoundly so, and some are having therapeutic work for sexualised behaviour. In Miss Cook's phrase, the parents are themselves not even on the first rung of the therapeutic ladder.
- I therefore turn to the final welfare analysis in respect of each of the seven children. It is convenient to consider them in three sections first, SM, then the four middle children, AS, AB, AQ and Z, and, finally, the two younger boys AH and AW.
- In my judgment there is only one realistic option for SM and that is to make a care order that will enable him to remain at his current residential unit at the expiration of the residential condition of the rehabilitation order passed by the Crown Court. SM has made progress at the unit and has at last returned to mainstream education, but he is still in the early stages of addressing the consequences of his conviction, and needs to build a therapeutic relationship within the protective surroundings of the unit. A return home, or to another placement in his home town, would manifestly be contrary to his interests at this stage. I acknowledge that he wishes to return home and have thought carefully about that and about everything else that he told me when I met him and everything said on his behalf by Mr. Josty, but it is simply unrealistic to contemplate any placement other than remaining at his current unit under a care order at this stage. It is true that the local authority does not appear to have considered the option of a foster placement near to his home, but in my judgment to move SM at this stage, when he has just returned to mainstream school and embarked on his GCSE course and in is in the early stages of addressing his offending behaviour, would be to jeopardise his future welfare. I accept the analysis of the local authority and guardian that his welfare plainly requires him to stay at the residential unit for the time being. The local authority will, however, be under an obligation to keep this placement under review. I anticipate that in the summer of 2017, when his Crown Court order expires, and he finishes his GCSEs, it may be appropriate for him to move, depending on the progress he has made.
- In addition to the requirements as to his placement, education and therapy, there are three other aspects of his future care which must be mentioned. First, I endorse the view of the guardian, JC, now accepted by the local authority, in an amended care plan, that his contact with his parents should take place once per fortnight. SM wishes to see his parents once a week, but in my judgment that is neither practical nor in his best interests. The contact must remain supervised, but I do think the local authority should consider arranging some contact to take place in his home town, and, in due course, at the family home. I accept the local authority amended care plan on this issue and do not think it necessary to make any court order in respect of parental contact.
- Secondly, consideration needs to be given to the question of sibling contact between SM and his brothers and, in due course, his sister Z. SM is at present having indirect contact with his older brother SB but contact with his other siblings has been very infrequent. The local authority plan now is for contact with AS, AB and AQ to take place four times a year. The plan for contact with AH and AW depends on the court's decision as to their long term future placement (see below). If the younger boys are placed for adoption, the local authority plan is for contact to take place twice a year, either face to face or by letter box. The local authority plan is silent as to the level of contact if AH and AW are not placed for adoption, but I infer that in those circumstances it would be appropriate for their contact with SM to be similar to the contact he will have with the other brothers. Currently there are no plans for contact between SM and Z. SM does not wish to have contact with her and the terms of his rehabilitation order preclude any such contact taking place.
- On SM's behalf, Mr Josty urges me to make a contact order to ensure that the contact provider for the care plan between the siblings actually occurs. I recognise that the local authority has failed to address this aspect at times in the past, but, given the complex needs of the children and the importance of maintaining a degree of flexibility in the contact arrangements to meet those needs, it would in my judgment be wrong to impose an order. I accept the local authority's assurance that it will arrange contact in accordance with the plan. The issue of sibling contact should, however, be an agenda item at every LAC review and the independent reviewing officer must carefully monitor this issue to ensure that the needs of SM, and the other children, for inter-sibling contact are properly being considered by the local authority.
- The third aspect of SM's care plan to which I must refer is religion and culture. I accept Mr Josty's trenchant criticism which in fact is valid not only for SM but also for the other children. I acknowledge the local authority has sought to address these criticisms in amendments to the care plan. But in my judgment, as SM will not be living in a culturally appropriate placement, the onus on the local authority to meet his cultural needs is even greater. Accordingly, I shall require the local authority to amend its care plan again by identifying and appointing a named specialist worker, selected from the local authority or for an independent agency, who is from the same cultural and religious background as the family, to work alongside the allocated social worker and devise and implement an additional component of the care plan to address the cultural and religious needs of SM (and, as I will explain below, the other children). Crucially, the specialist worker must involve SM in devising his customised plan and should also consult with SM's parents on this issue. Once agreed, the details of the plan must be shared with the staff at SM's residential unit and the local authority must carefully monitor the extent to which it is being followed. I recognise that this imposes an additional burden on the local authority which is already committing very considerable resources to this family, but, given the failure of the local authority adequately to address the cultural and religious needs of the children hitherto, there is much work that needs to be done to repair the damage and to ensure that the local authority complies with its statutory obligations.
AS, AP, AQ and Z
- The four middle children, whose individual needs are set out in separate sections above, can now fairly be considered together. In each case, the realistic options are (1) a return home to live with their parents, either immediately or, under Miss Howe's secondary position on behalf of the father, at a future date when the parents have undergone the work identified by Phoenix; (2) a move to a kinship carer or another foster placement that is culturally appropriate, or (3) remaining in each case in the current separate foster placements under a care order.
- There are a number of advantages of a return home for these children. First, in each case, the children would be returning to the home to which each has expressed a wish to return, although it should be added, however, that each has to varying degrees expressed ambivalence about the prospect of a return home. Secondly, if all the children return home, they would have the benefit of living together. Thirdly, by returning home, they would return to the home and community in which they lived all their lives until removal at the outset of these proceedings. Fourth, they would be returning to a home consistent with their religious and cultural needs. Fifth, they would be returning to the care of their parents with whom they have a close attachment, and who cared for them throughout their lives up to the date on which they were removed. I remind myself that this family was unknown to social services prior to May 2013 and that the children were described as being delightful, polite and a credit to their parents. Since they were removed, the closeness of the attachment has been demonstrated during supervised contact.
- On the other hand, a return home would bring a number of disadvantages. First, it would mean returning the children to a household in which one of the children sustained serious sexual abuse perpetrated by the older brothers, and to the care of parents who failed to protect her from that abuse. Secondly, they will be returning to the care of parents who inflicted physical abuse on older children. Thirdly, the parents have demonstrated no significant capacity to change and, in my judgment, any change in the parents' attitude and understanding will only be achieved after a prolonged period of work and therapy. At present, I do not believe that these parents really accept the degree of child abuse that took place in their household, or that they were culpable for failing to protect the children from that abuse. The father believes that responsibility for the break up of his family rests upon the social workers who have, in his view, perpetrated a conspiracy against him, and with society as a whole which has corrupted his children. The parents' lack of insight into the extent and causes of the children's harm means that they are singularly ill-equipped to protect the children from future harm.
- In her closing submissions, Miss Howe on behalf of the father put forward what she described as his secondary case, namely to seek a further assessment by Phoenix of the parents' capacity to engage in therapeutic work to determine whether they have the capacity to change before the door is closed to the children coming home. She acknowledged that this would inevitably involve a short further delay but described the delay as "planned and purposeful" and pointed out that it would impose no hindrance to the plans for the children who already live in their intended full time foster placements. The advantages of this course would be that it would hold open the possibility of the children returning home. The disadvantage is that it would entail yet further delay for an indefinite period. As stated above, however, I reject the opinion of Phoenix as to the timescale of the work required. As already indicated, I consider this to be a very significant underestimate. Given the delays that have already taken place, the prospect of ongoing uncertainty is a very great disadvantage of Miss Howe's secondary position.
- The second option placing the children in a kinship placement or with a culturally appropriate foster placement would have the advantages of meeting the cultural and religious needs of the children, and possibly facilitating a greater degree of contact between each child and his or her siblings and with their parents. On the other hand, it would involve uprooting the children from their current placements where each have achieved a measure of security. It has also been pointed out that no kinship or culturally appropriate foster placement has been identified so far, so that this option would involve further delay for the children.
- The final option is for each child to remain in his or her current placement. The advantages of this course would be that it would enable each child to build on the strong relationship that each has formed with their respective current carers. This is particularly so in the cases of AS, AB and Z. Although AQ has a good relationship with his current carer, it is as yet not clear whether he will settle there. Overall, however, the picture is that, after the very disruptive experiences in care in the early stages of these proceedings, all four children have now, to varying degrees, settled down. All four children have vulnerabilities, perhaps AB to a lesser extent than the others, but in the case of AS, AQ and Z they are each, in different although connected ways, highly vulnerable. The security each has achieved in his or her current placement is very important and their future welfare depends on consolidating and maintaining that security. A further linked advantage is that, within the security of their current placements, each child can access the therapeutic assistance that each is going to need, to varying degrees and at different times, to recover from their experiences.
- The disadvantages of the children remaining in their current placements are, first, that each child is separate from all other members of the family parents and siblings and also in a placement that is culturally different from the family home.
- Having conducted a careful analysis of these options, I conclude that the balance comes down overwhelmingly in favour of the third option that each of the four children AS, AB, AQ and Z should be place in the care of the local authority on the basis of their respective care plans that each should remain in his or her current foster placement. The advantages of this option plainly outweigh the disadvantages. In contrast, the case of the other two options return to the family home or placement in a kinship placement or culturally appropriate foster placement the disadvantages plainly outweigh the advantages. The children's best chance of recovery from their experiences and addressing their own individual and complex needs as outlined earlier in this judgment plainly lies in staying in their current placements.
- As in the case of SM, there are three aspects of the care plan which need further underlining. The first is parental contact. The local authority plans to reduce contact to three times a year. I accept that a reduction in contact is now an appropriate step but in my view the proposed reduction is somewhat greater than necessary or appropriate. I consider that the appropriate level of contact hereafter would be four times a year, but in each case the local authority must keep the question of contact with the parents under careful review. Each child has different needs and the keyworker, LAC review, and the IRO must carefully review the question of the parents' contact on a regular basis. It is likely that as time goes by each child's needs for contact with his or her parents will change, particularly if the parents engage in therapeutic or other work and demonstrate a greater understanding of the history of abuse and their own culpability.
- Secondly, there is the question of sibling contact. The local authority care plan is for this to take place once a month. This seems to me to be consistent with the children's overall welfare, but with these caveats. First, as already stated, I accept the criticisms levelled by Mr Josty on behalf of SM, but which apply to all the children, that the local authority has not properly addressed the issue of sibling contact in the past. So great have been the demands on the local authority, and in particular on SC, that they have at times lost sight of the importance of sibling contact. Secondly, for that reason, and for the general reasons of the children's welfare, it is incumbent on the local authority the social worker, LAC review, and IRO to pay careful attention to this question to ensure that these errors are not repeated in future. Thirdly, although the general plan is for contact once per month, it must not be forgotten that each child is an individual, and that relations between siblings are different so that their needs for contact are different. For example, it may be in the interests of AB and AQ to have more frequent contact. This must be carefully monitored and kept under review.
- The third issue is the cultural and religious needs of the children. I have already set out my proposal for a specialist worker to be assigned to address these needs. The rationale for and scope of that appointment applies with equal force to these four children as it does to SM.
AH and AW
- Finally, I turn to the little boys AH and AW now aged 6 and 5. In their case, the realistic options are (1) return to their parents (2) a kinship placement (3) long term fostering and (4) a placement order for adoption. The possibility of the children remaining with their current carers is no longer an option.
- In carrying out this analysis, the court was considerably hampered by the fact that the local authority in its final analysis as filed for the hearing on 3rd March did not identify long term fostering as an option for the boys at all. It seemed to have been assumed that, once the possibility of the children remaining with the current carers had been eliminated, the choice was, in reality, return home or adoption. This is a further illustration of how the local authority has struggled with the complexity of the issues arising in this case. Miss Cook on behalf of the local authority was obliged to put together hurriedly some handwritten amendments which were subsequently, after the hearing, reduced to an amended care plan document. Although the court therefore has some analysis of the option of long term fostering, it does not inspire me with confidence that the local authority has truly considered this option before coming to its recommendation. As I made clear at the hearing on 3rd March, I regard this as a serious omission on the part of the local authority, only partly compensated for by the later document, and by the separate analysis put forward by the guardian. Furthermore, neither the mother nor the father's counsel was instructed by the parents to put forward any argument in favour of long term fostering versus adoption. The parents' case is, simply, that their children should be returned home.
- The advantages and disadvantage of the first two options return home or a kinship placement are as set out above in respect of the four middle children and I make it clear that I have conducted exactly the same analysis in respect of those options when considering the cases of AH and AW. The advantages of a return home are that the children would be returning to the home to which each has expressed a wish to return and to the parents with whom they have a close attachment, and they would return to the home and community in which they lived all their lives until removal at the outset of these proceedings, and to a placement that was culturally appropriate. The disadvantages are that it would involve returning the children to a household in which their sister sustained serious sexual abuse perpetrated by the older brothers, and to the care of parents who failed to protect her from that abuse and who have inflicted physical abuse on older children, and who have as yet demonstrated no significant capacity to change. As already stated, the parents' lack of insight into the extent and causes of the children's harm means that they are singularly ill-equipped to protect the children from future harm. Although a kinship placement would in theory allow the children to grow up in the extended family, and within their own culture, the plain fact is that at present no kinship placement is available.
- The advantages of long term fostering are as follows. First, it would provide the children with a long term home, albeit not one with the degree of security and permanence which would be provided by adoption. Secondly, it can be almost guaranteed that a foster placement can be found for the two boys to be placed together. Given their very close bond, and the fact that they have always lived together, this is manifestly of crucial importance. Thirdly, long term fostering would enable the boys to remain members of this family. In this respect, they would be treated no differently from their siblings. Their sense of identity as members of the family would be maintained. Fourth, they would be able to have regular contact with their parents, in all probability at the same level as their four middle siblings namely four times a year. Fifth, they would be able to join in contact with their siblings, presumably at the same frequency of once a month. Sixth, given their close relationship with their family, it is likely that an outcome which enables that relationship to be maintained would be in accordance with their wishes and feelings.
- The disadvantages of long term fostering are that it would not provide the children with the same degree of security and permanence as would be achieved by adoption. Furthermore, the children will remain in the care of the local authority and subject to the restrictions of the care system and at risk of having their placement disrupted by further applications to the court. In addition, they would be at risk of repeated moves of foster placements, as has unfortunately occurred with their siblings during the course of these proceedings. Furthermore, as they cannot stay in their current placement, a decision that they should be placed in long term foster care would involve a move to new carers unknown to them and to a placement that will be untested. In addition, it is asserted that in many cases long term foster carers do not enter into the arrangement with the same degree of commitment as adopters. Without the complete legal responsibility which comes with adoption, long term foster carers may not feel the same degree of personal responsibility for the children. Finally, it is asserted on behalf of the guardian that the children may be exposed to disruption through the influence of their parents at contact.
- The advantages of adoption, as summarised by the local authority, are that a placement order would ensure that the boys are given every opportunity to achieve in their lives. They would have the opportunity to be placed within an adopted family that would prioritise their needs and ensure that they experience the safety and security they need to heal from the trauma they have suffered. Both boys require emotionally intelligent carers who are able to accept the children for who they are and nurture them with a therapeutic parenting style. It is asserted that an adoptive placement best fits this requirement. The children would not be exposed to the risks of long term fostering as identified above, but instead would have the complete security of a permanent new family. Further, as the guardian observes, many adoptive families are willing to contemplate contact with the birth family including in some cases face to face contact, and it is possible that an adoptive placement could be found that would accommodate direct contact with the siblings in this case, and, perhaps, with the parents. The local authority searches to date have identified four potential adoptions matches that are said to be culturally appropriate, although it was not clear at the hearing whether they are a precise cultural match.
- The disadvantages of adoption are that it would break the relationship that the children have with their parents and siblings and with their identity as members of this family. Although the local authority would search for a placement that would accommodate direct contact, it cannot be guaranteed that such a placement will be found. Although the local authority would hope to place the boys together, again it cannot be guaranteed that such a placement would be found. The local authority plan is to look for a home for the boys together for six months but, if that is unsuccessful, to move then to looking for separate placements for the boys which can accommodate direct contact between them. The boys are older than many children placed for adoption and at their age it is possible that the risk of placement breakdown is greater. It is likely that an outcome that results in the fracturing of the relationship between the boys and their birth family will be contrary to their wishes and feelings. Adoption is contrary to the wishes of the parents and to the other siblings, several of whom have been very distressed at the prospect of a permanent separation from their little brothers. The wishes and feelings of the child's relatives are a factor to be taken into the welfare consideration when considering whether or not to make a placement order under section 1(4) of the 2002 Act.
- For the reasons stated in relation to the older children, I do not consider that to return home to the parents would meet the needs of AH and AW. The degree of harm suffered by some of the older children, and the parents' lack of insight and understanding as summarised above, in my view preclude the prospect of a return home. No kinship placement has been identified and plainly a search for such a placement would take considerable time. To my mind, the realistic choices for the boys are therefore long term fostering or adoption.
- I have not found this an easy decision. It is only after careful thought that the court takes a course that is contrary to the clear recommendation of the local authority and guardian. Nonetheless, in the end, I have come to the clear conclusion that the right outcome for AH and AW is that they should be moved to a long term foster placement. I bear in mind the decision of the Supreme Court in Re B and the very clear guidance given by the judges in that court to the effect that adoption is only to be preferred as a last resort and when the court is satisfied that nothing else will do. In this case, I am not satisfied that nothing else will do. On the contrary, looking at the overall welfare needs of these two boys, I find that long term fostering will be the better option. I accept that it does not provide the same degree of security and permanence as adoption, although a careful search for a long term foster placement ought to identify a placement which is capable of providing a strong degree of stability and which meets all of the needs of the children, including their cultural needs. In my judgment, however, the sense of identity and the importance for these children of maintaining lasting and meaningful relationships with their siblings and parents is such that long term fostering is to be preferred. There is a very strong sense of family identity in this sibling group and this is just as important to these little boys as to their older siblings. They would, in my judgment, suffer a profound sense of loss were they to be deprived of the opportunity to sustain that relationship. S.1(4) of the 2002 Act requires me to have regard, amongst other things, to the likely effect on the child throughout his life of having ceased to be a member of the original family and become an adopted person, and the relationship which the child has with birth relatives. In this case, I conclude that the relationship AH and AW have with their brothers and sisters as part of a close sibling group is a fundamental aspect of their lives and of their sense of identity. Maintaining that lifelong relationship is therefore a crucial aspect of their welfare throughout their lives.
- Accordingly, subject to hearing any further argument that any party wishes to put forward as to the details of any order or directions that should now be made, I propose to make a care order in respect of AH and AW but the local authority's application for a placement order in respect of the two boys is refused.
- The three points made above in respect of the older children are all equally valid in respect of AH and AW. Parental contact should in my view be four times a year and for the reasons identified above, sibling contact should take place once a month. The local authority must carefully monitor contact to ensure that it is tailored to meet the needs of the individual children. For the reasons set out above, I consider that the cultural and religious needs of the children require a specialist worker to be identified to devise a more detailed plan to address this important issue.
- I therefore propose to make care orders in respect of all seven children, SM to remain in his current unit, AS, AB, AQ and Z to remain in their current foster placements, and AH and AW to be placed together in a long term foster placement. I will hear any submissions that any party wishes to raise as to consequential orders and directions.
- I know that this outcome will cause bitter disappointment to the parents. I hope, however, that they will seek out and undertake the work proposed by the Phoenix assessors. If in due course they develop a true understanding of the extent and causes of the harm suffered by the children in their care, they may be able to play a more prominent role in the children's lives at some point in the future.
- Finally, I record that, between the end of the hearing and the delivery of this judgment, the mother has given birth to her ninth child, a daughter, M. The local authority has issued separate proceedings in respect of M and her future is as yet uncertain. The local authority must now address the question of contact between M and her siblings. That is another indication of how this case requires constant monitoring and review to address its multifarious complexities can be addressed. These children have a range of needs which are going to need intense work. It is imperative that the local authority makes available adequate resources to ensure that the needs of the children are fully met.
[Postscript Following the court's decision, the local authority agreed to amend its care plan for AH and AW to provide that the two boys be placed together in a long-term foster placement, and further that a specialist worker would be allocated to address the cultural and religious needs of the children.]
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