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England and Wales Family Court Decisions (High Court Judges)


You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> MA, Re (Judgement Hearing) [2016] EWFC 46 (05 October 2016)
URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2016/46.html
Cite as: [2016] EWFC 46

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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: [2016] EWFC 46
Case No: PO16C00249

IN THE FAMILY COURT
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF MA (A CHILD)

Royal Courts of Justice
Strand, London, WC2A 2LL
5th October 2016

B e f o r e :

THE HONOURABLE MR JUSTICE BAKER
____________________

Between:
A LOCAL AUTHORITY
Applicant
- and -

A MOTHER (1)
A FATHER (2)
MA (by her children's guardian)
Respondents

____________________

Colin Morgan (instructed by Local Authority Solicitor) for the Applicant
Nicholas Davies (instructed by Ian Walker Family Law and Mediation Solicitors) for the First Respondent
Penny Howe (instructed by Access Law LLP) for the Second Respondent father
Nigel Hawkins (of Eric Robinson Solicitors) for the Third Respondents by her Children's Guardian, JM

Hearing dates: 31st August, 8th and 9th September 2016

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    THE HONOURABLE MR JUSTICE BAKER

    Introduction

  1. This very sad case concerns a little girl, whom I shall refer to as M. She has 8 siblings – 7 brothers and one sister – all of whom were subject of care proceedings following allegations of physical abuse perpetrated by their parents on the older children, and sexual abuse by the 2 oldest boys on M's sister, Z. After a contested fact-finding hearing, I concluded that the allegations were proved and after further assessments I made orders the effect of which is that all 8 children are now living away from the family home. The eldest boy is serving a custodial sentence following conviction at the Crown Court of sexual offences against Z. The second boy is living in a residential unit under the terms of a community order imposed following his conviction of one offence against Z. The younger 6 children are living in various foster homes under care orders in favour of the local authority. There is contact between the siblings and parents and between most of the siblings themselves.
  2. M was born shortly before the conclusion of the earlier proceedings and the local authority immediately started further proceedings in respect of her. This judgment is delivered at the conclusion of those second proceedings.
  3. Summary of facts

  4. The background history is fully set out in my judgements in the earlier proceedings reported as [2015] EWFC 60 and [2016] EWFC 15 and need not be recited in any detail here. I merely record again the summary of my findings in the first judgment (at paras 139-146) as follows:
  5. (1) SB and SM (the two eldest boys) were physically abused by their parents. I found that the father in particular had 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 (the fourth oldest boy) behaved towards Z and other children in his foster home in a way that was manifestly inappropriate and may well have been sexualised.
  6. In the course of the judgment, I made the following observations concerning the parents and their evidence
  7. "43. … 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 in those proceedings] characterised 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 [the family member with whom Z was living and to whom she made the initial allegations of sexual abuse]. 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. …"
  8. After the fact-finding hearing, as recorded in detail in the second judgment, various assessments were carried out. Evidence put before the court demonstrated that all of the children were very damaged and needed empathic and restorative parenting. An assessment by Phoenix Forensic Consultants 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. The Phoenix assessor gave oral evidence at the final hearing and I also had extensive written and oral evidence from the parents themselves. As summarised in the second judgment, I detected some shift in the parents' position as to whether any abuse had taken place. Having considered all the evidence, however, I reached the following conclusion:
  9. "84 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.
    85. 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 [the Phoenix assessor] 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.
    86. 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."
  10. Having carried out a welfare analysis in respect of all the children, I concluded that they should all, for the reasons set out in paragraphs 90 to 119 of the second judgment, be placed under care orders. In reaching this conclusion, I accepted the local authority plans for the children, save for the younger two. In respect of these two little boys, the local authority plan was for adoption but I concluded, for reasons set out in paragraphs 106 to 115, that the children should instead be placed in long-term foster care, and therefore refused the local authority's application for placement orders under the Adoption and Children Act 2002.
  11. The parents subsequently filed a Notice of Appeal against the findings of fact decision and the final order of 22nd March 2016. Permission to appeal was refused by the Court of Appeal in June 2016.
  12. Meanwhile, M had been born on 6 March 2016, a fortnight before the making of the final orders in the earlier proceedings. On 8 March 2016, the local authority filed an application under section 31 of the Children Act 1989 in respect of M and indicated that they would seek an interim care order and her immediate removal from the parents' care. At the preliminary hearing on 10 March, (the proceedings having been allocated to me because of the ongoing proceedings in respect of the other children), I concluded that M's safety and welfare did not require her immediate removal and the local authority therefore agreed to amend its interim care plan so as to allow M to remain at home with her parents, subject to a contract of expectations. On that basis, an interim care order was duly made and has continued up to the present date.
  13. On 23 March, I made a further case management order which included a direction for a residential assessment of the parents and M at Orchard House in Somerset, and further directions for a final hearing in September 2016. At a further case management hearing on 19 May, I directed a psychological assessment of the parents by Dr Grace Tantam. At the conclusion of the Orchard House placement, the assessors recommended that M should not remain with her parents but be placed permanently outside the family. The local authority therefore indicated that they proposed to remove M from her parents immediately once the family left Orchard House. At an urgent telephone hearing on 12 July, I therefore directed a further interim care hearing on 19 July. At the same phone hearing, however, I indicated my preliminary view that M should not be immediately removed from her parents' care pending the final hearing listed in September. At the hearing on 19 July, the local authority indicated its agreement to M remaining with her parents until the final hearing, and the interim care order continued on that basis. M therefore returned home with her parents and remains there at present.
  14. On 30 August, the local authority filed an application for a placement order under the Adoption and Children Act 2002 ("ACA") authorising the authority to place M for adoption, accompanied by a permanence report under Practice Direction 14C Annex B.
  15. The final hearing took place on 30 August (to take the evidence of Dr Tantam), 8 and 9 September. Oral evidence was given by Dr Tantam, local authority social worker Miss Rebbits, Sarah Wilson, social worker from Orchard House, Allyson Mole, local authority team manager, the mother, the father and the guardian. At the conclusion of the hearing, the court adjourned for written closing submissions, which were received the following week. Judgment was reserved until today.
  16. The Law

  17. I summarised the legal principles to be applied in care proceedings in my previous two judgments in the earlier proceedings. I have all those principles in mind.
  18. A court can only make a care order if satisfied that the child concerned is suffering or likely to suffer significant harm attributable to the care given to the child, or likely to be given to the child, not being what it would be reasonable to expect a parent to give to her, or the child's being beyond parental control: s.31 Children Act 1989. In this case, the local authority does not assert that M is suffering harm but rather that, in the light of my findings in the earlier proceedings, she is likely to suffer significant harm in future as a result of the parents' unreasonable care. It is well established that
  19. "a likelihood of significant harm means no more than a real possibility that it will occur but a conclusion to that effect must be based upon a fact or facts established on a balance of probabilities" (per Lord Wilson in Re B [2013] UKSC 33 at para 24).
  20. In seeking to prove that this threshold is crossed, the burden of proving any fact or matter relied on rests on the local authority and the standard of proof is the balance of probabilities. Findings must be based on evidence, taking into account all the evidence and considering each piece of evidence in the context of all the other evidence. While the court is entitled to draw inferences, it must be careful to avoid speculation. The evidence of the parents is of the utmost importance and the court must assess their credibility and reliability. In assessing the evidence of the parents, as with any other witness, the court must bear in mind their personal characteristics, including their cultural, social and religious circumstances. The court must be careful to bear in mind that a witness may lie for many reasons and the fact that a witness has lied about some matters does not mean that he or she has lied about everything. While appropriate attention must be paid to the opinion of experts, those opinions need to be considered in the context of all the other evidence. It is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the court, not the expert, that makes the decision.
  21. If the court concludes that the s.31 threshold is crossed, the question arises as to what order should be made. In reaching this decision, the court must apply s.1 of the Children Act. M's welfare is my paramount consideration and, in assessing where her welfare interests lie, the court must take into account the relevant matters in the welfare checklist in section 1(3), in particular the ascertainable wishes and feelings of the child, her physical and emotional needs, her age and background (including her cultural background as a member of a Muslim family), the likely effect on her of any change in their circumstances, the harm which she would be at risk of suffering in her parents' care, and the harm which she is likely to suffer if removed from their care, the capability of their parents to meet her needs, and the range of powers available to the court.
  22. In respect of the application for a placement order, I apply the provisions of s.1 of ACA, which provides, under s.1(2), that the paramount consideration of the court must be the child's welfare, throughout her 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 making this decision, I bear in mind 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 addition, a court can only make a placement order if, in the case of each parent, the court is satisfied (a) that the parent has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent or (b) that the parent's consent should be dispensed with: ACA s.21. The court cannot dispense with the parent's consent unless satisfied that the parent cannot be found lacks capacity to give consent or alternatively that the welfare of the child requires the consent to be dispensed with: ACA s.52(1).
  23. 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 [2013] UKSC 3.That guidance is encapsulated in the observations of Lord Neuberger at para 103 to the effect that:
  24. "…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".
  25. In Re W [2016] EWCA Civ 793, McFarlane LJ observed at para 73 that the phrase "nothing else will do"
  26. "does not establish a presumption or right in favour of the natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child's welfare needs and it is proportionate to those welfare needs."
  27. In Re B-S (Children) (Adoption: Application of Threshold Criteria) [2013] 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.
  28. The parties' positions

  29. The local authority asserts that the threshold criteria under s.31 are established. In its threshold document, the authority initially indicated that it relied not only on matters that had arisen during the earlier proceedings but also on information that had subsequently come to light. In the event, however, it has not sought to prove any subsequent allegations, and in closing submissions Mr. Morgan stated that the authority was not relying on those matters. I make it clear that I have not taken any of those matters into account. Thus the basis on which the local authority contends that the threshold is crossed is as follows.
  30. (1) On 7 July 2015 this court made findings against M's parents that they had physically ill-treated her older siblings in physically assaulting them in a manner beyond a reasonable chastisement with beatings that were plainly abusive and amounted to significant harm.

    (2) This court found that the parents failed to protect M's older sister Z in that they they ought to have known about, and ought to have taken steps to prevent, the sexual abuse of her by her older brothers SB and SM.

    (3) This court further found that the parents were wholly unsatisfactory witnesses who lied about their ill-treatment of the older children to conceal the extent of their physical abuse of them.

    (4) The father does not trust social work professionals, asserting that the social worker motivated SB to disclose physical abuse.

  31. If this court finds the threshold criteria proved, the local authority invites the court to approve its care plan for adoption and make a placement order. If the court approves the plan and makes the orders sought, the local authority intends to remove M immediately from her parents' care and place her in an interim foster placement pending the identification of an adoptive family. During her period in foster care, she will have contact with her parents under a "step down" plan, which the local authority has modified in the light of comments by the child's guardian to 3 times a week for the first 2 weeks then 2 times a week for the next 2 weeks, then once a week for 2 weeks, then once a fortnight and finally once a month until the child is linked for adoption. The local authority also plans contact to continue with the siblings during this period. After adoption, there will be indirect contact between M and her siblings, and the local authority will look for adopters willing to consider face-to-face contact between the siblings. Contact with the parents after adoption will be indirect only.
  32. The mother does not accept that the threshold is crossed in this case. She does not accept that M is at risk of significant harm in her care because she is adamant that she would not cause or allow any harm to come to M. Whilst the findings of the court are acknowledged, it is submitted that any risk of similar abuse being repeated is too remote and too far in the future to cross the threshold. On behalf of the mother, Mr. Davies relies on the fact, as found in the previous proceedings, that the earlier abuse arose in the context of parents struggling to cope with a large family. He submits that these are not the circumstances in which M is or will be living. In the event that the court finds the threshold has been crossed, it is submitted on behalf of the mother that the risk of harm to M is not so great as to require her permanent separation from her parents. It is submitted that the local authority has failed to establish that "nothing else will do". I shall consider the submissions on behalf of mother in greater detail below.
  33. On behalf of the father, it is also submitted by Miss Howe that the threshold is not crossed. If the court finds that it is crossed, she invites the court to endorse M remaining in the care of her parents under a child arrangements order with a supervision order, together with undertakings or conditions upon the parents as appropriate. In the alternative, if the court concludes that a care order is required, she submits that the court should invite the local authority to change its care plan to provide for M to remain at home with her parents. Finally, if the court concludes that adoption is required in M's interests, she urges the court to ensure the care plan reflects the need for direct sibling contact to be fully explored with any prospective adopters. I shall consider her submissions in greater detail below.
  34. The children's guardian supports the local authority's applications for a care order and a placement order.
  35. Evidence

    Orchard House

  36. The report on the residential assessment of the parents and M at Orchard House was presented by Sarah Wilson, senior social worker at the unit. The assessment used the Department of Health framework as a model for analysing the parents' ability to meet M's needs, together with the Signs of Safety model to address concerns about child abuse and maltreatment. In addition, the assessors used aspects of the Brook sexual behaviours "traffic light tool" to explore the parents' understanding of safe/healthy and unsafe/unhealthy sexual development within children.
  37. Ms Wilson reported that the family was placed at the unit for 12 weeks. During the assessment period, there were no significant concerns and both parents fully complied with all aspects of the assessment and worked positively with all members of staff. It was evident that they provided M with a high level of care and were able to meet all of her needs independently without the support of the staff team. Ms Wilson reported that M presented as a settled and content baby in the care of her parents. She received a high level of emotional warmth and showed positive attachment behaviour towards both parents. The parents demonstrated that they were able to parent together and remained calm and focused on M who benefited from their calm and consistent care throughout the assessment. It was observed that the mother and father had a mutually supportive and respectful relationship. There was no sign of any significant relationship stress or discord during the placement. The parents were polite and friendly towards other residents.
  38. Given the historic concerns as found by the court, an important focus of the assessment was the capacity of the parents to keep M safe throughout her childhood and ensure that she does not experience the harm caused to her older siblings. To that end, the mother and father attended 10 sessions to explore their understandings of the concerns about the older children. During the sessions, the parents presented as concerned about their children's welfare. They acknowledged that they had used physical chastisement, but not that there had been significant harm caused to any of the children as a result. There was further evidence that the parents, in particular the father, thought that there had been a "conspiracy" and that the professionals had not acted appropriately. The parents reported physically chastising the children by "a tap on the bottom", "a clip on the ear" and "a tap on the hand". Ms Wilson concluded that none of the punishments disclosed by the parents during the assessment reflected the experiences of the children. The parents were unable to explain why the children had made such significant and worrying disclosures.
  39. Both parents were clear that they had not observed anything to indicate that Z was being sexually abused. They continued to assert, as they had done throughout the previous proceedings, that there had been no opportunity for the older brothers to sexually abuse Z. They reported that the children did not go upstairs unsupervised save to go to sleep. The mother continued to dispute that she had seen any blood on Z's underwear. In the sessions in which the Brook traffic lights tool was used, the assessors explained the concept, namely that some behaviours, categorised as "green", were normal and healthy, whereas others, categorised as "amber" or "red" were unsafe and dangerous. The parents were very clear that they had not observed any of the "green" behaviour in any of the children, for example normal curiosity about human bodies. The mother told the assessors that she wanted to find out what they had done wrong and wanted to "make sure it never happens again". The father's response, on the other hand, was less clear and more conflicted. As the discussion progressed, it became clear that he remained conflicted about the older children and their experiences and that he has found it difficult to demonstrate an understanding of the abuse his daughter experienced, and that his sons abused her. Both parents said that it was "hard to believe" what they did not see, although the mother said that, despite this, she believed her daughter. In the last session, the father stated that M was "his priority" and, when asked how he would keep her safe, stated that he would protect her above his sons.
  40. Ms Wilson concluded that there had been some movement in the parents' understanding of the concerns. They stated in their different ways that they believed that Z had been abused but appeared to Ms Wilson to have moved to a position of acknowledging that she was abused without really understanding how and why this happened. Ms Wilson was concerned, however, about the disparity in their various statements about this issue, which suggested that, despite their verbal acknowledgement, they were unable to fully internalise the information that Z had been sexually abused by the older boys. Ms Wilson observed that it was very difficult to match the parents' assertion that the children were supervised at all times with the evidence that Z was sexually abused without her parents' knowledge.
  41. Ms Wilson therefore expressed the view that, whilst the parents presented as being honest and open with her during the sessions, and stated that they wanted to understand what had gone wrong with their parenting, they were unable to move to a position where it was evident that they fully understood the harm that the children had suffered. She therefore concluded that, in the light of the very significant harm the children in their care experienced, and their continued inability to recognise this, M would be at risk of harm if she remained in her parents' care. She thought it likely that, as M gets older, they may resort to parenting her in a harmful and abusive manner.
  42. In her oral evidence, Ms Wilson stated that the difficulty was that the parents were not able to identify where their parenting was harmful. If M remained in her parents' care, therefore, social workers and other professionals would be in difficulty relying on the parents to recognise the risk of harm. Ms Wilson says that it is crucial that the parents should own and accept responsibility for what happened. For parenting to change, there has to be some acknowledgement, but there was no such acknowledgement in this case – in Ms Wilson's words, "it's like it never happened". She was unable to go any further in exploring how the sexual abuse had occurred. The parents maintained that there had been no opportunity for the boys to be alone with their sister. It was their case that the level of supervision of the children had been very high and there had been no occasion when the older boys would have been alone with Z.
  43. Ms Wilson was shown the mother's last statement filed in these proceedings (considered below) in which she said:
  44. "I must assume that the abuse happened when I was not paying attention. I cannot think when this would have been. I honestly believed the children were being supervised whilst they were in the home. It was a busy family home though, and whilst we have structures and routines to manage this, which I believed worked very well, there must have been occasions when I was not sufficiently focused on the children."

    Ms Wilson responded that the mother had never said words to that effect during the assessment. She accepted that this amounted to a small increase in the level of acknowledgement but it did not change her overall recommendation. During the assessment, the parents had presented a consistent narrative – that they had had problems with SB, that they had therefore involved the local authority and that everything that has happened with the children was attributable to that involvement. In her report, Ms Wilson had used the word "collusive" to describe the parents' joint behaviour. She explained that by this she meant that they work together to present a picture which, in the opinion of professionals, did not represent what happened to the children.

  45. Cross-examined by Mr Davies, Ms Wilson confirmed that in the last session the mother had acknowledged that the children had been hit and that it had made them frightened. This was, however, inconsistent with the specific physical chastisement which she claimed to have administered. As to sexual abuse, Ms Wilson thought that the parents have an intellectual understanding of the risk of abuse from strangers and the need to keep the children safe, but although they were able to give good answers to questions, she remained concerned that they would be unable to transfer that into day-to-day care. Cross-examined by Miss Howe, Ms Wilson accepted that it would be open to the court to restrict contact between M and the boys, but emphasised that, without understanding the stresses which had led to the abuse occurring in the family, it was not possible to progress forward. It was not tenable to put in work without evidence of any understanding of the need for change. Professionals would be unable to rely upon the parents' self-reporting if the parents do not accept the risk or are not aware of when their parenting is harmful.
  46. Dr. Tantam

  47. Dr Grace Tantam is a consultant clinical psychologist and deputy director of Orchard House Family Assessment Centre. She prepared a report dated 5th July 2016 containing a psychological assessment of the parents, based on interviews with the parents together and separately. In her oral evidence, it was suggested that her assessment of the father had been undermined by practical problems – the interview was somewhat shorter than originally planned and the interpreter was not present for part of the interview. Dr. Tantam did not consider that these problems had unduly affected her assessment, and I accept her reassurance on this point.
  48. In the executive summary to her report, Dr Tantam concluded that she had significant concerns that neither parent accepts the findings "in any meaningful sense". Noting that the degree of acceptance had appeared to fluctuate in previous assessments, Dr Tantam found that in her assessment the level of acceptance demonstrated by the parents was minimal and superficial. When challenged, the mother became increasingly incoherent, effectively taking the position of "I accept the findings but it didn't happen". When the father was challenged, Dr Tantam found a sharp and marked increase in his paranoia and his expression of conspiracy theories. She found that both parents rely heavily on denial, avoidance and repression in order to defend themselves against the full implications of their actions and of the children's experiences.
  49. Dr Tantam reported that she was unable to provide a clear or valid prediction of the risks arising in this case because she did not consider the information provided by the parents to be representative or valid.
  50. "Overall, the risk assessment regarding the behaviour or the physical abuse of children presents a mixed picture. The most powerful statistical predictor of future behaviour is always past behaviour, and therefore the risk to M is present and real. My concerns is that the parents' narrative about how the behaviour was triggered…is not consistent with the findings made, or the reports of the children. This means that it is not possible for me to establish a clear picture of how such a behaviour might have occurred historically, under what circumstances it might be repeated in the future, or how arrangement/interventions might be arranged to minimize the risk. In essence, the parents' narrative renders the risk unquantifiable, beyond my conclusion that it is present by virtue of the historical behaviour."
  51. In discussions with Dr Tantam about the sexual abuse findings, the mother spoke of her concerns about Mrs. X and related how she had sworn to have revenge on SB because he had threatened to tell social services that she had slapped him. The father pointed out that the findings in the family court had been made on the balance of probabilities and that the court should not have made findings if it was only "probable". When Dr Tantam pointed out that SB had been found guilty in the Crown Court, and that the standard of proof for conviction was the criminal standard, the father retorted, "you have to understand the racism in this country. I have seen it, the jury were racist, a white jury will always a convict a black man." He told Dr Tantam that he had analysed all the evidence and believed that the allegations had been made in order to remove SB from the family home so that he could be part of a drugs gang into which he had been recruited.
  52. Dr Tantam described the picture presented by the parents of their own parenting capacity and the children's behaviour as "highly idealised". She expressed the view that the parents were not necessarily intending to be dishonest or to deceive professionals but their defensive functioning is characterized by a profound pervasive level of denial and egocentricity. She reported that the father did not accept any concerns about his care of the children and identified no areas of change to be necessary. Dr Tantam found a significant level of similarity between the psychological profiles of the parents indicating that each augments the defensive functioning of the other given the level of denial, and their express view that the difficulties lie with professionals and in the care system, Dr Tantam was unable to identify any programme of interventional support that would address their difficulties. She concluded that,
  53. "in the absence of insight or acceptance, the prognosis for engagement, let alone achieving meaningful change, is extremely poor."
  54. Dr Tantam described evidence of cognitive rigidity in the mother's presentation and personality structure, accompanied by a pervasive emotional flatness. It is Dr Tantam's view that the mother has profound difficulties in both recognising and experiencing emotions in herself and, more importantly, in her children, relying upon denial and repression in order to manage distress. According to Dr Tantam, this means that she is extremely likely to have significant difficulties in remaining available and sensitive to her children's feelings when under stress. Without insight or acceptance on her part, however, Dr Tantam was unable to draw any firm conclusions as to the types of stresses that might lead to a recurrence of the behaviour which occurred with the other children.
  55. Dr Tantam similarly concludes that the father's difficulties lie with his personality where there is evidence of pervasive abnormalities in his thinking in terms of his beliefs about the actions of others.
  56. "He appears to perceive evidence as distorted so that his circumstances and events are a result of persecution and revenge."

    Dr Tantam was concerned that neither parents appeared to be able to view the children as individuals, with their own needs, emotional states, developmental trajectories and emerging independence.

  57. In oral evidence, Dr Tantam's attention was drawn to statements by the parents to the effect that they were willing to keep the older boys away if M stays at home. Dr Tantam replied that, given her findings as to the parents' strategies around avoidance, repression and denial, she has a real concern that when the time came they would lack the capacity to keep the boys away. As a result, she had a very real concern about M's safety. Their psychological profile led her to be worried about their ability to bring that about, whatever their stated position. In addition, given their views as to the actions of professionals, she had concerns about their ability to work openly and honestly with professionals over this issue.
  58. Local authority social workers

  59. The evidence of the local authority social workers followed a similar pattern to that of Ms Wilson. A new social worker was allocated as M's key worker – Danielle Rebbitt. (The relationship between the parents and the previous social worker has been extremely difficult at times, as described my previous judgments.) Ms Rebbitt reported that, in her conversation with the parents in February 2016, the mother had said that she accepted that sexual abuse had occurred, but added that she had not seen it happen and that the children would have told her if it had occurred. In oral evidence, Ms Rebbitt described this as a contradiction in the same sentence. The father would not respond to Ms Rebbitt's question whether he accepted that sexual abuse had occurred. She detected similar responses to her questions concerning physical abuse. The father told her that the oldest boy SB was the only reason for the proceedings and he was "motivated by social services". Cross-examined by Mr Hawkins in oral evidence, Ms Rebbitt said she had been extremely concerned by this comment.
  60. In her written report, Ms Rebbitt described the parents' remarks as "deceitful" but in oral evidence she withdrew this word and said that she was not sure if the parents had been deliberately dishonest, or motivated by wanting their new baby with them, or wanting to say the right thing. Her impression was that there was really no acceptance of the abuse as found by the court. She added, however, that she had not experienced the difficulties which her predecessor had when working with the parents.
  61. Allyson Mole has been the team manager responsible for this family throughout both sets of proceedings. For a period in 2016, she took on direct responsibility for M when Ms Rebbitt left the team and the new social worker was away from work for a period. Ms Mole visited the family home on a number of occasions, including three visits after they returned from Orchard House. Ms Mole said that she had no concerns about the parents' current care of M and endorsed Orchard House's conclusions as to their care of and attachment to the baby. Like Orchard House, however, she was concerned about the parents' attitude to the abuse which the older children had suffered. She described how, during her first visit, the father wanted to show her the house and in particular the boys' bedroom. She thought the reason for this was to demonstrate that the sexual abuse as alleged could not have occurred in such a small house. The mother had been very clear that the children were never left unsupervised and no amount of discussion could shift her opinion on this point. Ms Mole said that she did not believe the mother really thought that Z had been sexually abused. Although the mother said that she accepted that Z had been abused, Ms Mole thought that she showed no insight or understanding as to how this had happened. Ms Mole noted that the father was still putting forward his conspiracy theory. When challenged by her about the fact that the jury had convicted SB and SM, his immediate response had been to query whether the jury was qualified to convict.
  62. In oral evidence, Ms Mole said she did not think there was a safeguarding plan that could offer M the level of safety required. Any plan would be reliant on self-reporting, but Ms Mole stated that parents who do not accept the concerns could not be relied on to report about them. As for physical abuse, Ms Mole's conclusion was that, as the parents were not acknowledging that they had caused harm, she did not believe any plan can be put in place could protect M from physical abuse. The consequential risks outweighed the undoubted emotional harm that would result if M was removed from her parents' care.
  63. At the conclusion of her written report, Ms Mole carried out a balancing exercise. This was less detailed than might be expected, and contained some errors – for example, characterising potential future risks of harm as current ongoing harm being suffered by M. I have noted these errors and omissions when analysing the evidence.
  64. The parents

  65. In her written statement, the mother said that she understood the court's findings in the previous proceedings and accepted that the court had found that Z was sexually abused by her older brothers. She added:
  66. "I do understand the significance of this finding and accept that this must have happened. I was not, however, aware of it at the time it was happening and even looking back now I honestly cannot think of anything I saw or heard that would have made me suspect this."

    She repeated what she had said on previous occasions that, if she had seen anything that made her think that Z was not safe, she would have acted. She added:

    "I must assume that the abuse happened when I was not paying attention. I cannot think when this would have been. I honestly believed the children were being supervised whilst they were in the home. It was a busy family home though and whilst we had structures and routines to manage this, which I believed worked very well, there must have been occasions when I was not sufficiently focused on the children."

    The mother relied on the fact that she had shown an ability during the Orchard House assessment to identify abusive behaviour and that this knowledge, coupled with the experiences she has been through, would be sufficient to enable her to protect M. As for the observations of Ms Wilson that the parents had not acknowledged normal behaviour around sexual matters within the children, the mother said that she may have misunderstood this part of the assessment.

  67. The mother admitted in her statement that she had used physical chastisement to discipline the children adding that she recognised that this was not acceptable and welcomed the opportunity to learn alternative techniques. She maintained, however, that she did not agree that the physical chastisement had been at the level described by the older children. She acknowledged that her maintaining this position may be viewed negatively, given the court's findings, but said that she was not prepared to say something different if it was not true.
  68. The mother asserted that, if M was to remain in the family, she would develop a strong sense of identity, knowing who her family were and where she came from. She will also be raised within the Muslim faith which is very important to the family. The mother further relied on the positive comments about the day to day care provided to M at Orchard House and also the positive comments about the relationship between the parents. The mother concluded her statement by stressing that their circumstances now are different from when the local authority first became involved. She believes that through their work with professionals she and her husband have learned skills that will allow them to look after M without the discipline techniques used with the older children.
  69. In oral evidence, the mother stated again that she accepted that sexual abuse had happened and that this amounted to rape of Z by her two oldest brothers. She acknowledged that she had not accepted this when Z first made the allegations and that the first indication she had given that she did believe Z was at the final hearing in the earlier proceedings in February 2016. She accepted that she had supported the attempted appeal following the conclusion of that hearing although stressed that the appeal was not designed to be against all the findings made. She said that she now accepted that Mrs X was telling the truth about what Z had said. It remained her position, however, that she was unable to say how the sexual abuse had occurred. She thought that she had supervised the children but perhaps something happened when she was busy. She adhered to the position she has consistently adopted that she had never seen blood in Z's underwear. She repeated that the children were not allowed to go upstairs except to go to sleep. They only played downstairs and in the garden.
  70. As for physical abuse, the mother demonstrated the physical chastisement she had exercised on the children as amounting to a slap with the fingers, and confirmed that it was not with the whole hand and with no force. She said that a child would be scared if hit, or if he or she witnessed hitting, but did not think her children had looked scared. Overall, the mother thought there was nothing wrong with her parenting.
  71. In his statement, the father stressed that he and his wife love all of their children and want to do the best they could for all of them, including keeping them safe. He said:
  72. "although we hold different views to the judge regarding the findings against SB and SM, we are not blind to the question of risk to M should she have contact with her older brothers. I think it is important, particularly for M, that she has a good relationship with all of her siblings but that must be in a safe environment.

    Further on in his statement, he added:

    "my wife and I are more than able to provide emotional care, keep M free from any risk of sexual harm or abuse and she will not be at risk of any chastisement from myself or my wife. Although I do have great difficulty in accepting the findings of the court, I have to accept that those are the findings and the basis from which the court must proceed. I do not agree that the fact that I hold a different view from the judge is to the detriment of the emotional care I can offer to M."
  73. The father asserted that he did not believe that he and his wife had had any difficulties with the children. He described them as a happy family. He did not believe that the degree of risk to M from over chastisement justified her removal. He believed that he and his wife had managed "perfectly well" having eight children at home and that the number of children had not caused them any undue stress or anxiety. He asked the court to remember that the circumstances now will be completely different, caring for one child as opposed to eight.
  74. In oral evidence, the father was again asked whether accepted that Z had been sexually abused by her brothers. His evidence was that the boys had been accused of sexual abuse and that therefore he would not allow them in the house, adding "and that is my final answer". He pointed out that the punishment for rape under Sharia law is death and that he could not accuse anyone if he did not have the evidence. He reiterated that, if anything had happened to the children, he would have known about it. He questioned whether the jury was qualified to convict his sons and added that he had been told that the jury consisted of local people.
  75. As for the allegations of physical abuse, he acknowledged that he and his wife had practised physical chastisement in a minor way but not the kicking and punching described by the local authority which this Court had found. He again asserted that the local authority is prejudiced against him.
  76. The children's guardian

  77. M's guardian was also the guardian for the 6 younger children in the earlier proceedings. In her report in this case, she confirmed that the parents have demonstrated that they are able to meet the basic care needs of a baby of M's age and stage of development and that they have responded to her needs and engaged with the support and assessment process. On the other hand, she also confirmed that there has been little shift in the parents' views or attitude which would provide M with the long-term protective and nurturing care she requires. It is the guardian's view that the parents continue to regard the court's findings as incorrect and assert that the children have not suffered harm. The guardian concludes that it therefore remains a very real and valid ongoing risk to M that her needs will not be prioritised and the safety will be compromised. She noted that throughout the parents' engagement with the courts and professionals, there have been times when they appeared to have changed their view. The guardian accepted, however, the conclusion of Dr Tantam that their acceptance is "minimal and superficial" and that, as a result, it is difficult to see how progress can be made to engage with the parents in meaningful work and protective parenting. In oral evidence, the guardian added that she did not get a sense of a genuine belief that Z had been sexually abused, nor any sense of responsibility, nor any acceptance of the physical abuse which this court has found took place.
  78. In her report, the guardian noted the father's assertion in his statement that they would not allow the older boys to return home. The guardian did not consider this to be a significant statement because in the light of their overall attitude they were unlikely to consider the risks associated with their older sons and would therefore be unable to protect M from the risk of sexual abuse. In oral evidence, the guardian, like other professionals, was of the view that any protection plan would be reliant on the parents being open and honest with professionals. She stated that she did not think one can rely on the parents' assertions in this regard, for example the mother's statement that she would call the police if the older boys returned home.
  79. The guardian concluded that, despite a significant time for the parents to consider the outcome of the care proceedings for the oldest children, it was disappointing that they continue to be unable to take any responsibility for their behaviour or parenting and continue to dismiss, minimise or blame others.
  80. Discussion

  81. In closing submissions, Mr. Hawkins for the guardian submitted that the oral evidence given by both parents was extremely evasive, failed to recognise and acknowledge the concerns of professional as already referred to above and demonstrated that neither accepts the findings made within the previous proceedings. In her submissions on behalf of the father, Miss Howe acknowledged that the court was bound to reflect on her client's evidence. She asked the court to bear in mind the stress that these parents have endured in two rounds of proceedings concerning their children; the difficulties in expressing oneself in a second language or through an interpreter; the impact of the father's religious and cultural beliefs, as exemplified by his reference to Sharia law as quoted above. I accept all of these points. Nonetheless, it is clear to me that neither parent accepts the findings, or acknowledges the harm that their children suffered in their care. They do not accept that their parenting was deficient in any way. The father is frank in expressing these views. The mother has on occasions made some comments that, taken at face value, might indicate that she does accept some of the findings, but looking at the evidence overall I find that in reality her position is not substantially different from her husband's .
  82. In my judgment, neither parent really accepts that Z was sexually abused by her brothers. It is manifestly clear from the father's oral evidence that, although he accepts that the court has made the finding, he does not accept that the finding is justified. This is plain from the attempted appeal against the findings and final order in the previous proceedings, but, more importantly, from the evidence in the present proceedings of Sarah Wilson, Dr. Tantam, the local authority social workers, and in particular the parents' own oral evidence in this hearing. The father certainly, and also in my judgment the mother, continue to believe that the origin of Z's allegations lay in the actions of Mrs X and in particular her alleged wish to gain revenge on SB. I have clearly concluded that there is no basis for this belief, but the parents persist in holding and asserting it. The mother has on occasions vocalised an apparent acceptance of the findings of sexual abuse whilst at the same time – and sometimes in the same sentence - asserting that it could not have occurred and demonstrating a firm resistance to considering how that abuse would or could have happened. Although at times it has seemed that the mother is more willing to accept that Z was abused, it is also plain that she and the father are a close couple and are united in their beliefs. I accept the opinion of Dr. Tantam and Sarah Wilson that there is a clear element of mutual reinforcement in their attitudes.
  83. It is now two years since Z's allegations were first made. Repeated attempts have been made to help the parents accept that their daughter was abused by her brothers, both in the course of the earlier proceedings and during these current proceedings concerning M. They are no more advanced than they were a year ago. The parents' position is just as entrenched as ever. I see no grounds for believing that any further work would lead them to change their views. Despite strenuous efforts by a number of professionals, they do not really accept that their daughter was abused. I agree with Mr. Morgan's submission that we are no further forward in understanding the complex family dynamics that led to the abuse.
  84. As for physical abuse, the parents' oral evidence demonstrated that they continue to minimise the extent of their ill-treatment of the older children. The father's position remains that what happened was physical chastisement and not violence on the scale found by this court in the first judgment. The mother, while vocalising an understanding that that the children were frightened, demonstrated in court an act of slapping with her fingers that fell far short of what I have found occurred.
  85. I accept the professional assessment of Dr. Tantam that both parents rely heavily on denial, avoidance and repression in order to defend themselves against the full implications of their actions and of the children's experiences and that in the absence of insight or acceptance, the prognosis for engagement, let alone achieving meaningful change, is extremely poor. I also accept her opinion that, in the light of their intransigence, there is a real concern as to whether, when the time came, they would have the capacity to keep the boys away. Miss Howe submits that denial itself is not a risk factor and that Dr. Tantam failed to carry out a proper risk assessment because she disregarded findings made in the earlier judgment as to the context of the physical abuse – a busy household of eight children – and failed to consider the fact that the current context would be very different. Miss Howe relies in particular on the fact that the parents love M and are devoted to caring for her, that M would be the only child in the house, that issues of physical abuse only arose when the older boys were teenagers, that the parents have undertaken not to allow the older boys to have unsupervised contact with M, and that they have demonstrated the capacity to work with professionals, notably at Orchard House but also elsewhere. Miss Howe submits that both Dr. Tantam and Ms Wilson have failed to give any or any appropriate consideration to these factors or to undertake a sufficient analysis of how residual concerns could be managed, for example under a contract of expectations. She invites the court to conclude that any risk of repetition is (a) low and (b) manageable, with appropriate planning, monitoring and education.
  86. I accept that all the evidence, including the evidence from Orchard House, is that these parents have the ability to provide physical care for M, and that there is evidence of a close attachment. But there is nothing in any of the professional reports to suggest that they have really begun to acknowledge the problems that arose in their parenting of the older children. I accept that the parents love M, but they also express love for all their other children and yet serious abuse occurred in their household. I have considered carefully the submission that those problems arose in the context of a large household and will not be repeated if the older children stay away from the family home. In the absence of any real acknowledgement or acceptance by the parents of the abuse that occurred, it is impossible for the court or any of the professionals to understand the reasons for the abuse, or to have any confidence that it will not recur, even if the parents adhere to their expressed intention not to allow the older children to return. Given the strength of feeling that the parents have for their older children, and their refusal truly to accept the allegations of inter-sibling abuse, and the examples of their lack of co-operation with some of the professionals, in particular some of the local authority social workers, I do not accept that the parents can be trusted to adhere to their promise not to allow the older children to return. Similarly, given the parents' repeated minimising of their physical abuse of the older boys, which they persist to characterise as little more than minor physical chastisement, it has not been possible for the professionals or the court to reach a clear understanding of the reasons why, or the circumstances in which, the physical abuse occurred. In my first judgment, I concluded that they had resorted to physical abuse as a means of exercising discipline, but it is unclear why they did so. As a result, any child in the care of these parents would, in my judgment, remain at an unquantifiable but significant risk of physical abuse.
  87. I accept the local authority evidence, articulated by Ms Mole and others, that any plan for a continued placement at home would be dependent on the parents being frank with the professionals about risks and concerns. There is no evidence to suggest that these parents would be frank about the risks and concerns. They believe there was nothing wrong with their parenting. In addition, I find that they would be more likely than not to conceal any concerns from professionals. A crucial question for the court is whether the parents would cooperate with professionals in any care plan for M. Although the parents have cooperated with some professionals – including the staff at Orchard House and also subsequently after their return home – they have not in my judgment demonstrated any real co-operation with professionals over the central issues in these proceedings, in particular the abuse of Z by her siblings. At times, they have adopted a defiant and confrontational stance towards social workers. I see little grounds for believing that, if challenged, they would take on board criticisms of their care of the children, or address the deficiencies in their parenting which led to the eight older children being removed. They do not really accept that there was any problem with the way they looked after the children. In my judgment, although the mother has on occasions said things to suggest that she accepts a degree of responsibility for what has happened, the underlying belief of both parents remains as it has always been – they have done nothing wrong, and are not to blame in any way for what has happened to their family.
  88. Overall, therefore, I accept the local authority submission that there is no reliable evidence to enable me to conclude that the risks identified in my previous judgments have either abated or can be effectively managed with M in the care of her parents.
  89. Before turning to consider whether the s.31 threshold is crossed, there is one other point on which counsel for the parents both relied. It was submitted that the reliability of the expert and professional evidence is undermined by references to unsubstantiated allegations made by the some of the older children subsequent to the fact-finding hearing which have not been subject to any investigation in court and on which (as explained above) the local authority do not now rely. It is of course axiomatic that an expert assessment must be based on facts as found or agreed, not on unproven allegations; see for example Re R [2002] 1 FLR 755. I have carefully considered the evidence. In my judgment, both Dr. Tantam and Ms Wilson have based their opinions on findings made by the court rather than extraneous matters. It is true that both were aware of the subsequent allegations, but I am satisfied that they have not, to use Miss Howe's word, "contaminated" their assessment. There were references to these allegations in the reports of both Ms Rebbitt and Ms Mole, but having considered their evidence as a whole, I have concluded that these allegations have not undermined the reliability of their overall assessment. I make it clear that, in so far as there has been any reference to these allegations, I have put them aside and they has played no part in my analysis.
  90. Threshold

  91. The local authority, on whom the burden of proof rests, asserts that in these circumstances the threshold for making orders under Part IV of the Children Act is crossed because M is likely to suffer significant harm as a result of the parents' unreasonable care. On behalf of the mother, Mr. Davies submits that any risk of similar abuse being repeated is too remote and too far in the future to cross the threshold. He points out that the environment in which the sexual abuse took place is not the environment in which M is or will be living. Miss Howe repeats these arguments and adds that the court is being invited to speculate that M will, in future, pose challenging behaviour at some unknown juncture and that SM and SB will have contact with her in circumstances that will pose a risk to her, despite their sentencing and whatever treatment and support they have and will receive in future. Miss Howe submits that such speculation is not an appropriate foundation for a finding that the threshold criteria are met.
  92. I have of course had the benefit of conducting proceedings involving this family over a prolonged period. This puts me in a good position to evaluate the likelihood of harm befalling M should she remain in her parents' care. In my judgment, there is a strong possibility that M will suffer significant harm in the care of her parents attributable to that care not being what it is reasonable to expect a parent to give. There is in my judgment a strong possibility that, at some point during her childhood, the parents will use physical violence on her, whether as a means of discipline or otherwise. The fact that they do not acknowledge that this is what happened with the older boys means that it is highly likely that they do not recognise themselves that this is what happened or that they do not understand their own propensity to violence. There is also, in my judgment, a real possibility that M will be exposed to sexual abuse at the hands of her brothers. I find that the parents do not really accept that the boys abused Z, that they have strong feelings of loyalty to the boys, and that, notwithstanding their assurances to this court, it is likely that they would allow the boys into the house, and fail to protect M from abuse just as they failed to protect Z. After extensive inquiry by the court and input from a variety of professionals, there is little if any evidence of insight on the part of the parents, and any protection plan would be largely dependent on the parents' self-reporting. The parents plainly do not trust the local authority, but I find that it is the parents who cannot be trusted to report concerns or risks to social services. I do not agree that the risk is remote or manageable. On the contrary, I find it is real and unmanageable.
  93. Accordingly, I am in no doubt that the threshold criteria under s.31 are satisfied.
  94. What order should the court make?

  95. As the Court of Appeal has made clear, it is incumbent on the court, after finding that the s.31 threshold is crossed, to identify all the realistic options for the child's future and carry out a thorough analysis of those options, identifying the advantages and disadvantages of each, having regard to s.1 of the Act, the human rights of the child and other members of the family, and the relevant principles.
  96. In my judgment, the options for M to be considered in this case are (1) for M to remain at home in the care of her parents, whether under a care order or supervision order or no order (2) for M to be placed in long-term foster care under a care order or (3) adoption. No other member of the family has been identified as a possible carer so a kinship placement is not an option in this case.
  97. Option (1) Remaining at home

  98. If M stays in the care of her parents, her physical, educational and cultural needs will be met. She will continue to receive good quality day-to-day care. Her parents have demonstrated that they are more than capable of looking after her as a baby. They have also demonstrated, through their care of the older children, that they have strong beliefs in the importance of a good education. They are devout Muslims who attach particular importance to the religious upbringing of their children. In this case, were she to remain living with her parents, M would be brought up with a full knowledge and understanding of Islam. Her parents are also active members of their community and, if she remains in their care, M will grow up as a member of that community and benefiting from the strength and support which it provides. She will also have contact with her siblings. This is a sibling group which has some strong and close relationships and it would be a benefit for M to be a part of that group.
  99. So far as emotional needs are concerned, it is plain that M has formed a close attachment to her parents who profess and demonstrate their devotion and love for her. At present, she is plainly settled and secure in their care. The findings made in the previous proceedings demonstrate, however, that as she gets older, her security will be jeopardised by exposure to the risks of physical and sexual abuse.
  100. The principal disadvantage of remaining in her parents' care lies in the likelihood that she will in due course suffer significant harm, as I have found above. In my judgment, this fact is of crucial importance in this case. These parents lack any real understanding or insight about these matters and accordingly do not have sufficient capacity to protect her from that harm. I find these substantial risks will remain even if the court imposes an order under Part IV of the Children Act – either a care order or a supervision order – coupled with a contract of expectations. I accept the view of professionals in this case that, given the lack of acceptance and insight on the part of the parents, there is no statutory interventional support that could provide adequate protection for M were she to remain at home.
  101. Option (2) long-term foster care

  102. If M is placed in a long-term foster placement under a care order, she will in all probability receive high-quality care. Her physical, emotional and educational needs will be met. She will be protected from the significant harm to which she would be exposed were she to remain in the care of her parents. I am satisfied that foster carers could be found who would respect and meet her religious and cultural needs and ensure that she will continue to be brought up with a knowledge and understanding of Islam. As a foster child, she would remain a member of her natural family, and therefore retain her name and current identity. Ongoing contact with members of her birth family could be arranged to nurture relationships with her parents and siblings.
  103. There are, however, a number of disadvantages of long-term foster care in this case. First, M is at present securely settled with her parents. Removing her from home and placing her in foster care would involve breaking M's attachment to her parents and thereby cause her a degree of emotional harm. Although it is likely that M would receive high-quality care in a foster placement, there is a risk that this separation could have long-term consequences. Managing this would require skilled, patient and loving care on the part of her foster carers. Secondly, although carefully-selected and supported foster carers ought to be able to meet her religious and cultural needs, there is a risk that this will be more difficult to achieve than it would be were she to remain at home. Thirdly, although contact will to some extent support her sense of identity and enable her to maintain a relationship with members of her birth family, this will inevitably not be as strong as it would be were she to remain in the care of her parents. Finally, a foster placement lacks the security provided by adoption. As a foster child, M would remain a child in care, at risk of the foster placement breaking down and the uncertainty of future applications to discharge the order. She would not experience a sense of belonging to a "forever family". It is strongly arguable that, at her present young age, she needs to be able to be a part of such a family with which she can make permanent attachments that will last the rest of her life.
  104. Option (3) adoption

  105. As in the case of long-term foster care, an adoptive placement would provide M, in all probability, with high-quality care under which her physical, educational and emotional needs will be met. By careful selection of adopters, I am satisfied that carers can be found who would be able to bring her up with a knowledge and understanding of Islam and her cultural background. Furthermore, she would be protected from the significant harm to which she would be exposed were she to remain in her parents' care. Importantly, adoption would bring the degree of security and permanence which is not available in foster care, however dedicated her foster carers may be. If she is unable to remain in the care of her parents, only adoption will meet her needs to be part of a "forever family" where she can make permanent attachments.
  106. On the other hand, adoption has a number of disadvantages. It will entail the permanent severance of M's relationship with her parents. They are adamantly opposed to her removal from their care and to her adoption. Although M is too young to express any wishes verbally, it is inevitable that removing her from her parents at this point when she is securely settled will cause her great distress and it is likely that the break of her attachment to her parents will lead to a degree of emotional harm. Furthermore, prior to moving to an adoptive placement, M would be placed in short-term foster care and would therefore have two moves over a period of several months, which is likely to be more unsettling and may exacerbate the emotional harm. The local authority hopes that, if these transitions are undertaken in a safe and nurturing environment, she should, given her age, be able to transfer attachments to her new carers with minimal distress. There is, however, no guarantee that this will be achieved. Furthermore, as in the case of foster care, it may be more difficult for adopters to ensure that all her religious and cultural needs are met. In evidence, Ms Mole acknowledged that the interim foster placement to which M will be moved pending placement would not be a placement with a family of M's own culture. Finally, as an adopted child, M would lose her identity as a member of her birth family. Contact with her parents will be on an indirect basis only, and although the local authority is committed to looking for adopters who are open to the possibility of direct sibling contact, it cannot be guaranteed that such contact will take place. Thus it may be that all contact with members of her birth family after adoption will be indirect only.
  107. Decision

  108. I have found this a difficult and troubling case and taken time to consider all the evidence again before reaching a decision. To break an attachment between a child and her parents is a very serious step. In the end, however, I have come to the clear conclusion, having regard to M's welfare throughout her life, that she should be placed for adoption. If she were to remain in the care for parents, even if under a care order augmented by a contract of expectations, she would in my judgment be likely to suffer significant harm of the sort suffered by her siblings. I find that her parents do not really accept that the older children have suffered harm and have no insight into the manifest deficiencies in their parenting. There is no evidence that M would be any safer in their care than were the older children. I accept that, if M is separated from her parents, she will experience disruption to her security and very considerable distress but this is plainly outweighed by the longer-term risk to her well-being and safety should she remain in her parents' care.
  109. In the case of the two younger boys, AH and AW, I reached a different conclusion in the previous proceedings, namely that the balance came down in favour of long-term fostering as opposed to adoption. I concluded that the importance of the boys maintaining established relationships with their family was a decisive factor. In particular, the relationship AH and AW had with their brothers and sister as part of a close sibling group was a fundamental aspect of their lives and of their sense of identity. The boys were aged 6 and 5 respectively at the date of the final order. M, on the other hand, is only aged 7 months. I must of course have regard to the likely effect on her throughout her life of having ceased to be a member of the original family and become an adopted person, and the relationship which she has with birth relatives. Although M has a close attachment to her parents, she does not have the same established relationship with the sibling group as enjoyed by AH and AW, nor does she have the same sense of identity. At her very young age, the greater degree of security which can be provided by adoption is a decisive factor. I conclude that only an adoption will provide M with the emotional and physical security throughout her childhood and beyond. I have carefully considered the article 8 rights of M, her parents and other members of the family. I conclude in this case that adoption is necessary to meet M's welfare needs and is proportionate to those welfare needs. Nothing else will do.
  110. I therefore approve the local authority care plan and make a care order.
  111. In my judgment, have regard to all the relevant matters in s. 1 of the ACA, it is in M's interest to be placed for adoption for the reasons already explained. Her parents do not consent to a placement order but, in my judgment, her welfare requires their consent to be dispensed with. Accordingly, I shall make a placement order authorising the local authority to place her for adoption.
  112. The local authority is proposing that M should move immediately into a short-term foster placement while an adoptive placement is found. Although this entails two moves for her, I agree with the guardian's assessment and conclude that it is an unavoidable step which has to be taken in her long-term best interests. The local authority proposes that, during her period in short-term foster care, there should be a "step down" programme of contact with her parents. The authority has taken on board the guardian's criticisms of their proposals as to the speed of the reduction in contact under this programme and has modified its plan in a way which, I am satisfied, is in M's best interests.
  113. The local authority proposes to arrange some face-to-face contact with M's siblings pending adoption. After adoption, such contact will be on an indirect basis, although in seeking adoptive parents, the local authority proposes to look for adopters who will be open to the possibility of face-to-face contact with the siblings after adoption. The authority is also proposing to look for an adoptive placement that will meet M's religious and cultural needs. I regard these two elements of the search for adopters as very important.
  114. In reaching this decision, I have been fully aware of the devastating impact it will have on M's parents. This is not a decision that the court reaches lightly. On the contrary, it is only arrived at after careful consideration of all the evidence. Wherever possible, children should be brought up by their parents. Adoption is a last resort, but in this case I conclude, for the reasons set out above, that it represents the right outcome for this little girl.


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