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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. In order to strictly preserve the anonymity of these children and members of their family, the identity of the Applicant Local Authority and of any locations in the UK or abroad will not be disclosed in any published version of this Judgment. 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.
IN THE EAST LONDON FAMILY COURT
SITTING AT THE CROYDON MAGISTRATES' COURT
||Case Number FC14C00027
||18th August 2014
B e f o r e :
MS RECORDER ALISON BROOKS
sitting in private
||Re V, W, X, Y and Z (children)
Mr William Dean for the Local Authority
Mr Julien Foster for the First Respondent (M)
Mr Stephen Lue for the Second Respondent (F)
Ms Xenia Stavrou for the children (V, W, X, Y and Z)
Hearing Dates: 12th and 13th August 2014
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MS RECORDER ALISON BROOKS:
- I am concerned with the welfare of 5 children, V, a girl born in 2001, now aged 13, W, a boy born in 2007, now aged 6, X, born in 2010, now aged 4, and twins Y and Z, born in 2011, now aged 3. The First and Second Respondents are the legal parents of all five children. Since 12th February 2014, V has been in foster care, thankfully in the same placement throughout. The four younger children have lived at home with their parents throughout.
- The children are represented in the proceedings by their guardian, Denise Hart, who appears in the proceedings by Ms Xenia Stavrou. The Mother, M, is represented by Julien Foster and the Father, F, by Stephen Lue. The Local Authority is represented by William Dean. I am grateful to all counsel for the assistance they have given me during the course of this hearing.
- The Local Authority seeks a care order in respect of V, with a plan that she remains in long term foster care. In respect of the other four children, all of whom are described as thriving in their parents' care, the Local Authority seeks supervision orders for 12 months.
- This case was listed before me for final hearing with a four-day time estimate. I had the benefit of a day's reading on 11th August, during which I was able to read the trial bundle. In addition, Counsel for the Local Authority kindly provided me with the trial bundle filed during the previous care proceedings and I had an opportunity of reading these papers fully during the time the parties requested for discussions on the morning of the 12th August. In addition to the papers already referred to, I have read the Mother's final statement dated 8th August 2014, the Guardian's final analysis dated 7th August 2014 and position statements filed on behalf of all parties.
- The parents, quite understandably, have been anxious throughout to secure V's return home to their care. However, in the days leading up to this hearing, they communicated through their solicitors their decision to accept V's expressed wishes not to return home and indicated they would not oppose the plan for her to remain in long term foster care. I do not underestimate how difficult it must have been for them to make this decision, and I have no doubt it was made solely on the basis of what they felt was in their daughter's best interests, taking into account and respecting her wishes, and made entirely out of love for her. The parents continued to dispute threshold had been met in respect of any of the children and therefore opposed the application for a Care Order in respect of V. Even if threshold were met, they opposed the applications for Supervision Orders in respect of the younger four children.
- On the morning of 12th August, at the request of the parties, I allowed time for discussions between the parties and their legal advisors. I made the advocates aware during a very brief hearing that I admired the approach taken by the children's Guardian in her carefully thought out position statement, which I interpreted as seeking to preserve the possibilities of future rapprochement between V and her parents, whilst ensuring all children were safeguarded. The Guardian considered that it would be in the youngest children's best interests if the Local Authority remained involved with the family for a period of time in order to ensure that they work with and provide assistance to the children and parents to rebuild their relationship with V. However, she did not consider it would be at all helpful for future relationships between the Local Authority and the parents, and ultimately for the children, if a contested hearing took place.
- Just before lunch, Mother's counsel emailed a document in respect of threshold insofar as it applied to V, which she was prepared to sign up to. When the parties appeared before me after lunch, it was confirmed that both parents conceded threshold on the basis of this document, all parties were in agreement that these concessions were sufficient to meet threshold, and all parties were in agreement that the appropriate order in respect of V was a care order. After further discussions outside court, a second, consolidated document was emailed in respect of concessions as to threshold in respect of the four younger children. Again, both parents "signed up" to this document, and all parties were agreed it was sufficient to cross threshold. I shall turn to this document more fully in due course.
- To summarise, all parties invited me to find threshold met in respect of all children, and agree the appropriate order in respect of V would be a Care Order, with a plan for her to remain in long term foster care. The issues were thus narrowed to two:
(a) Whether I should hold a fact finding hearing in respect of an allegation made by V that she was beaten about her body by her Mother with a belt on 23rd January 2014; and
(b) Whether I should make Supervision Orders in respect of the four younger children, as the Local Authority invites me to do, or a Family Assistance Order, as the parents and Guardian propose.
- None of the parties wished me to hear evidence on these two issues. All were content that I adjudicate on them on the basis of oral submissions. Naturally, if I decide that a fact-finding hearing in respect of the disputed allegation is necessary, then I will hear oral evidence. All Counsel presented their arguments before me fully and cogently.
- Before I deal with the issues that need to be determined in this case, I set out the background to it, as set out in the statements and other documents filed. The parents in this case were born and raised in Africa. V too was born there. In January 2007, the parents left Africa to begin a new life in the UK. V was left in Africa in the care of family members while her parents settled and set up home here. W was born in the UK while V was still living in Africa. In September 2009, V was brought to the UK to join her parents and younger brother, who by that stage was rising 2. In effect, V joined a settled family unit in respect of which (by reason of her physical absence) she had never been a member.
- In March 2011, the Local Authority's Children Services received information that a food safety officer had entered a factory unit rented by the Mother and reported finding V working in the kitchen. On 18th March 2011, V (then aged 9) was interviewed by a social worker and police officer in school. During that interview, V alleged:
- She very frequently worked at her mother's factory after school, helping to prepare things / washing up or looking after her brothers while her parents worked, staying until 10 or 11, such that she was not able to prepare for school;
- Her mother sometimes slapped her or hit her with a belt;
- Her dad sometimes backhanded her and once hit her with a belt;
- She felt like she was left out of the family;
- Sometimes she had to eat leftovers away from the family;
- She was largely responsible for looking after her brothers;
In her police interviews, which took place on 24th March 2011, Mother did not accept these allegations, pointing out, for instance, that the parents rarely took the children to the factory, and certainly never to undertake work. She denied V was ever allowed to make her own food or cooked in any way at home. She didn't clean the house and neither did she do anything other than play with her siblings. She denied slapping or hitting V with a belt. The same day, Father was interviewed, and he too denied the allegations made.
- Her Mother had threatened to take her to Africa and leave her there.
Following the ABE interview, V was taken into police protection, and placed in foster care. Care proceedings were issued and interim care orders were made to secure her continued placement. When visited by her solicitor shortly after being placed in foster care, she reported she did not want to return home and was uncertain regarding contact with her parents.
A Psychological Assessment Report was prepared for the purposes of the proceedings by Sylvia Reyes, dated 16th January 2012. The following salient points can be extrapolated from that report:
- When the parents were asked what they thought would help V, they suggested time with her mother was what she most wanted. Mother also said she would like help to know what she and her husband should do to help V be happier at home and at school, and asked that professionals help them with advice;
- V was assessed to have a high level of personal vulnerability and a limited level of perceived emotional support, in the form of either external or internal resources. This placed her at greater risk of poor personal outcomes unless her circumstances and support structure could help her to achieve changes in her view of herself and others;
- Observation of V's current relationship with her mother during contact showed that Mother was not always aware of her emotional needs;
- V's primary attachment figure was her mother and her separation from her on various occasions, but particularly the time when they were physically very distant, may well have caused her to doubt the reliability of people who are important to her. The experience of being in care was likely to have exacerbated her sense of not being able to rely on her mother in particular to be there for her when she needed it;
- V was by now expressing a desire to return home;
- The most effective intervention for V's parents would be between 4 to 8 sessions of Video Interaction Guidance;
V was rehabilitated back to her parents' care in or about March 2012. The proceedings concluded on 1st May 2012 by the making (by consent) of a Supervision Order in respect of V. It was agreed the younger four children did not require any orders, but would remain open to children's services as children in need for a further period of time. The parties signed a Working Together Agreement.
- V would benefit from some family sessions run with her and her parents by an experienced family therapist who would be able to help them think about the roles within the family and what the explicit and unspoken rules had been until now and what they thought they should be from now on.
So to recap, by 1st May 2012, V had spent two significant periods of time away from her parents, and some or all of her siblings, the first being in Africa and the second being the period of approximately 1 year spent in foster care between 2011 and 2012.
Despite it being agreed by all parties that part of the support package offered to this family to improve the relationship between V and her parents would include family therapy, within a few months of the final hearing the family went on holidays to Africa, returning to the UK without V. She was not returned to the family home until a year or so later. The parents' case is she elected to remain there to be educated. Her case is it was her parents' decision. Whichever is the correct account, on any analysis it was not a decision which met V's emotional needs, resulting as it did in her spending a third extensive period separated from her family, this time again for about 12 months. I note in particular the parents' acceptance during the proceedings that what V needed in particular was more time with her mother, and yet what transpired was that she was given no time at all with her.
On 29th November 2012, Z, Y, W and X's cases were closed to the Local Authority's Children's Services.
In July 2013, V returned to the United Kingdom to live with her parents and siblings. There were no further concerns and on 9th October 2013 her case too was closed to the Local Authority's Children's Services.
On 28th January 2014, W told a class teacher that V had brought a friend's mobile phone home and his mother hit her with a belt. This information was not passed to the Local Authority until 24th February 2014, after V had made her own allegation.
On 12.2.14, a referral was received from V's school. She had informed student support she was not getting along with her mother and said this was upsetting her. She said she didn't feel she was wanted at home and felt her mother didn't like her. Sometimes, she said, none of the family would talk to her. Later that day, she was visited at school by the then allocated Social Worker. V alleged to her that on 23rd January 2014, in punishment for having received a one-day exclusion for using a mobile phone at school, her mother hit her with a belt. V said she was terrified of going home and spoke of feeling isolated by family members.
On 13th February 2014, V was ABE interviewed. During that interview she said as follows:
- Dad was ok (really nice) but she didn't really get on with her mum;
- Mother didn't make her feel wanted;
- Mother didn't have time for her, saying, "Go away, I'm busy" if she needed help with something;
- Mother sometimes excluded her. She gave an example of the whole family out on a walk, she'd be at the back and everyone else would be holding hands and laughing, but if she approached her mother, she would just say, "Go … leave my hand";
- Mother repeatedly hit her over her body with a belt in January (the phone incident);
V was placed in foster care with her parents' consent. She has remained there since, again with her parents' consent. She has expressed a desire not to see her parents, and has therefore had no contact with them. She has expressed interest in seeing her brother W, although is not yet ready to see her other siblings. No direct contact has yet taken place, but it is envisaged by all parties it will happen soon. There was an attempt to set up contact between the pair in August but it didn't take place. There is dispute between the parties about the reasons why, but all parties wish to draw a line under that abortive effort at arranging contact, and work collaboratively to ensure it will take place in the future.
- Her only chore at home was to hoover her bedroom and keep it tidy.
On 18th February 2014, Mother was interviewed by police. Her sense of V's place in the family was very different to her daughter's. She felt they got on well, but it was her role as a mother to correct behaviour she believed was negative. It's clear from reading the interview that Mother had been struggling, and described her daughter as very, very rude and naughty. She denied having hit her daughter at all, let alone with a belt. She described checking V's bags to see what books she'd taken from the school library, and confiscating any she thought were inappropriate.
On 3rd March 2014, proceedings were issued by the Local Authority. The younger four children have remained at home during the currency of the proceedings under interim Supervision Orders.
Sylvia Reyes was again instructed to report (Report dated July 4th 2014, E7 - 37). The following is a summary of the most salient points of her report:
- V found it difficult to talk about being hit or hurt by anyone and said repeatedly that she didn't want to say why she wasn't happy at home. To answer questions that required her to give negative information, she had to make a physical effort to speak and became quite agitated;
- She seemed more disturbed when talking about feeling that she is not as loved as her siblings than by talking about being hit;
- She did not want to say negative things about adults that they would later find out she had said. She was reluctant to say anything negative about anyone including her parents;
- V was not prepared to say that she does not like her mother but states that she thinks her mother does not like her;
- She feels distanced from all of her siblings, apart from W, with whom she feels she now has a special bond. Her relationships with her siblings changed following her last year away in Africa. She believes that this has come about due to needing to get to know all of her siblings again, having been away for a year, and that W was the one who remembered her best. Consequently V asked to have contact with W only;
- V has stated that she feels she cannot be good and just has a bad part to her. She says that she doesn't know why she is but that she is just rude;
In summary, Ms Reyes' observations were that V was still deeply impacted by her experience of care with her parents and still found it difficult to discuss. She seemed to feel shame in talking about her experiences. "Her periods of time spent in the care of others when she has been in Africa would have been experienced psychologically as abandonment regardless of the intellectual understanding and intent that she and her parents may have had of these periods" [Para 4.22, E16]. These experiences appear to inform her perception of her relationship with her parents and siblings. Her optimism remains very low. Low optimism can point to later development of serious affective disorders such as depression [Para 4.16, E14]. Her quality and level of relatedness to others, which is relevant for all relationships, is extremely low and highlights within this assessment her view that she does not belong anywhere. For a young person of her age this level of personal and psychological isolation is rare and serious. [Para 4.17, E15].
- She is clear she does not want to return home nor have contact with her family. She says that thinking of her family makes her feel uncomfortable and so she avoids doing this.
Ms Reyes assessed V as having a high level of personal vulnerability and a very low level of personal resources related to her personal robustness and making use of external emotional support. This places her at significant risk of poor personal outcomes and suggests that significant changes are required in her external circumstances and that she should receive therapeutic relational support in order to develop a higher level of personal resilience [Para 5.1, E20].
V has a history of separation from her mother, who has not been replaced by someone else as her primary attachment figure, and these separations alongside emotional distress in their relationship will affect V's capacity to connect to others [Para 5.3, E21]. She is angrier about her relationship with her mother than she was before and has lost the hopefulness she previously had regarding this relationship [Para 5.13, E23]. In Ms Reyes' assessment, her parents appear not to have improved their insight into her emotional needs and have not engaged in recommended therapy that would have helped improve their insight and provide the opportunity to heal the difficult relationship V has with her mother.
Although V and her Mother had a desire for things to be better between them when V returned home in March 2012, these good intentions could not be sustained because there was no greater understanding of what was needed and why. While change is always a possibility, each major unrepaired rupture in the relationship between V and her parents makes the process more complex and necessarily longer to complete as erroneous beliefs are more entrenched.
Interestingly, the Assessment concludes that V could be rehabilitated to her parents but this would require a high level of awareness and sensitivity on the part of her parents who, in Ms Reyes' opinion, have tried their best to do what they think is right for V but have lacked an understanding of her psychological and developmental needs which arise both from her current age and more importantly from her experience of relationship with them to date [Para 5.21, E25]. This conclusion obviously has to be set in the context of V's consistent statements to professionals, including to the Guardian in their most recent meeting, that she does not want to return home.
That then, sums up the background.
In order for the State to intervene in this family's private family life, I must be satisfied that as of 13th February 2014, being the date upon which V was removed from her parents' care, and 3rd March 2014, being the date upon which the Local Authority issued its applications in respect of the four younger children, each child had suffered or was likely to suffer significant harm and this harm or likelihood of harm is attributable to the care given to them, or likely to be given to them if the order were not made, not being what it would be reasonable to expect a parent to give to them. Only upon proving this or, in other words, crossing the threshold of significant harm, can I go on at some future stage to consider the children's welfare and orders I should make.
I remind myself that it is for the Local Authority to prove any allegations they rely on in support of threshold or indeed welfare and that the standard of proof is the balance of probabilities.
The document prepared on behalf of the Mother and accepted by the Father, by reason of which all parties accept threshold is met, is as follows:
a) The mother has expressed her unhappiness to V for untidiness, poor personal hygiene and for having failed to tidy her room.
b) The mother has taken at least one of V's library books from her and has failed to inform V's school that she has done so, exposing V to the risk of her getting into trouble at school.
c) The mother took V to Africa in 2012 while V was subject to a supervision order without prior consultation with the local authority and thus, while V was in Africa, the local authority was unable to carry out its statutory functions of advising, assisting and befriending her.
d) The mother left V in Africa in 2012 for a period of approximately one year, this being the third occasion that V had been separated from her family since 2007, the other occasions being in 2007 when V was left in Africa when the mother came to settle in England and in 2011 when V was placed in foster care. In doing so, the mother (a) did not pay proper regard to V's emotional needs; (b) did not show sufficient insight into V's feelings of separation from her family and in particular her siblings.
e) The mother failed to complete the work identified by Sylvia Reyes during the course of the previous proceedings as being essential for the purposes of her being able to provide good enough parenting to V and thus exposed V to the risk of emotional harm through being unable to meet all of V's emotional needs.
f) On 12 February 2014 V told the allocated social worker that she did not wish to return home.
g) The mother has tried to do her best to do what she thinks is right for V but has lacked an understanding of her emotional and developmental needs.
h) It is necessary for trust to be rebuilt between V and her parents.
i) As a result of the siblings' separation from V, they are at risk of suffering significant emotional harm.
Taking into account all the information I have read, paying particular regard to the report(s) of Ms Reyes and the Guardian's final analysis, I am satisfied threshold is made out in this case on the basis of the document prepared by Mr Foster, in that at the relevant date the children had suffered or were at risk of suffering significant harm and that harm or potential harm was attributable to the care being given to them, or likely to be given to them, not being the care that it would be reasonable to expect a parent to give.
At this stage I move on to consider whether I now need to conduct a fact finding hearing into the allegation of being hit with a belt on 23rd January 2014. It is a matter for my discretion whether the concessions made by the parents are sufficient to meet the justice of the case and the best interests of the children. All parties appear to be united in identifying the considerations I must adopt when considering such a question. In determining whether further investigation is appropriate and deciding upon the extent of that investigation, I will take into account the circumstances of the case including (a) the interests of the children, (b) whether there is likely to be future litigation in which the disputed facts would be relevant, (c) the relevance of the disputed allegations to the local authority's care plan and management of the case, (d) the time likely to be spent investigating any given issue and the cost to public funds of the investigation, (e) the likely evidential result of the investigation and (f) the emotional toll of the court hearing.
Taking each of these points in turn, I deal firstly with the interests of the children. On behalf of the Local Authority, Mr Dean submits V has a right to know a serious allegation she makes is openly and properly looked into and assessed. He submits she has a right to know what has happened to her. He accepts we don't know for sure what her reaction would be if this allegation was not investigated by the Court, but says it's possible she might think she wasn't taken seriously and it may be difficult for her to find it wasn't acted upon. I note this approach is different to that taken by the Local Authority during the first set of proceedings, where V made more extensive allegations of physical abuse and servitude against both parents, but nevertheless the Local Authority did not seek to prove the truth of the allegations, but relied upon the fact of them in support of its contention that she had suffered or was at risk of suffering significant emotional harm [B123 of Previous Proceedings Bundle].
According to the Guardian, V is aware the court will be considering the issues about her unhappiness and whether she can go home. She is not expecting a decision about whether her parents hurt her physically. In fact, this is an issue she struggles to talk about. Whilst V has spoken to the Guardian about her allegations, the child herself identifies this case is more about the emotional side than physical. For V, it is about loss, separation, rejection and how she perceives that. The issue for her is whether she's going home or staying in foster care. In the Guardian's view, there is no benefit to V of having a fact-finding hearing into the disputed assault allegation.
V knows already what happened to her and where the truth lies. She doesn't need me to tell her. The parents already know what happened to V and where the truth lies. They don't need me to tell them. I accept the Guardian's analysis that V is not expecting a decision to be made about whether her parents have hurt her physically, and will therefore not be adversely affected if I decide a fact finding hearing is not necessary. The decision V needs now is a decision about where she will be living.
As for the younger four children, whether I hold a fact finding hearing or not, the outcome for them will be the same: they will remain at home with their parents.
Dealing with the point whether there is likely to be future litigation in which the disputed facts would be relevant, the Local Authority submits that a finding on the disputed allegation potentially goes to any future application for discharge of the Care Order in the future. I note the Guardian's observation that any future application by the parents for discharge of the Care Order would hopefully be made only if there was a reasonable prospect of V returning home. I can't predict when or in what circumstances the parents might make any future application to discharge the Care Order, but in my opinion a finding of physical abuse would not be determinative of any such application. A court looking at such an application would have to consider the relationships within the family and the parents' ability to understand and consistently meet their daughter's emotional needs. There would have to be evidence of positive change, most likely demonstrated by the parents engaging with family therapy. Contact would need to be up and running and be a happy experience for V, and there would be independent evidence of that by way of contact observation notes. In view of her age, V would have to agree to rehabilitation to her parents' care, and any such agreement would be carefully scrutinised.
Turning to the relevance of the disputed allegations to the Local Authority's care plan and its management of the case, the Local Authority contend that to enable them to fully understand what's happened and to ensure the correct orders are put in place in relation to the younger children, there needs to be clarity about the allegation of beating in January 2014. In other words, a finding of physical harm in respect of V might point towards a Supervision Order being the most appropriate order in those circumstances. The Local Authority is seeking Supervision Orders in any event. This is not a case where a finding of physical abuse might cause the Local Authority to reconsider its plan that the children remain at home. A finding of physical abuse will not result in a change to the support services which will be put in place, either under a Supervision Order or a Family Assistance Order. For those reasons, I do not consider that my consideration of the most appropriate order for the four younger children will be affected in any way by the presence or otherwise of a finding of physical abuse of V.
The time spent investigating the issue and the cost that would involve. This factor will not impact on my decision at all. Time is available during this hearing to investigate the issue fully, and although a longer hearing would involve some additional costs in terms of advocates' fees, if I consider a fact finding hearing into this allegation to be necessary, I will hold one.
The likely evidential result. This involves a broad analysis of what evidence is before the court. There is a transcript of V's ABE interview, which was undertaken relatively soon after the alleged incident. I have not viewed the video of the ABE interview. I would do so if I decided to hold a fact-finding hearing, but to have watched it while considering whether to even embark on such a hearing would, to my mind, have risked straying into making decisions as to the truth of the allegation, which is not what I have to consider at this point. V's account is consistent when given to others and also corroborated in the comment made by W to his school teacher.
Set against that, if I were to embark on a fact finding exercise in respect of the allegation of being hit with a belt in January 2014, it is inconceivable that the parents would not invite me to consider the allegations made by V on 18th March 2011 when assessing her credibility. I have outlined the allegations of physical abuse and servitude made by V in 2011 in paragraph 11 above. I bear in mind police made enquiries of other units on the same site as Mother's factory during the course of their investigation. Nobody had ever seen any children coming into the factory, although one person had seen children waiting in the back of a car. I note observations made by V's foster carers during the first proceedings that she was not proficient in the kitchen, and didn't know how to boil an egg. Neither carer could imagine V in the primary care role of another child, saying she was barely able to care for herself. During her meeting with Ms Reyes (report dated 16.1.12) she acted very surprised when asked about her earlier report that she ate leftovers at home and was asked to do the dishes while the rest of the family watched television; she said this was not true and that she had not said it. Asked about working in the factory she said that she didn't work in the factory and again could not explain why there was a discrepancy with what she had first told people who interviewed her [E45].
The likely evidential result is not clear. There are consistent allegations within these proceedings, and inconsistent ones in the previous case. I cannot say with any degree of certainty what the likely evidential result would be, and if I heard evidence and made a positive finding V was not telling the truth, this would hardly be in her best interests if the family truth, in fact, was otherwise. It would be devastating for her. Obviously this is the type of situation courts have to grapple with all the time, but I have to ask myself whether the circumstances of this case demand that I take this risk.
The emotional toll of the hearing. The Guardian takes the view a contested fact finding hearing will not assist and will do nothing to move things forward. Holding such a hearing could have a devastating emotional impact on the parents and V.
I ask myself whether it is necessary and in the welfare interests of all children for me to embark on a fact finding hearing. Taking into account the circumstances of the case, and the factors listed in paragraph 37 above, I struggle to see what such a hearing would achieve. I am satisfied that it is not in the interests of any of the children, and V in particular, to subject the parents to this enquiry. Such a process would be neither proportionate nor in the children's interests; it is a course which only the Local Authority wishes, and which the Guardian herself discourages me from embarking upon. I am also satisfied the enquiry is unlikely to have any effect on the future care plans for any of these children. In the circumstances, my determination is that there will be no fact finding hearing into the allegation of physical abuse.
I turn now to the question of what orders to make in this case. I have to be satisfied that the orders I make are a lawful, necessary, proportionate and reasonable response to each child's sad predicament. I bear firmly in mind that Care Orders represent a drastic curtailment of the rights of these parents and of V to respect for family life under Article 8 of the European Convention on Human Rights, which can only be justified by pressing concern for her welfare, and if it is necessary for the protection of the rights of the child to grow up free from harm.
The effect of section 1(1) of the 1989 Act is that, when considering whether to make a care or supervision order, I must treat the welfare of the children as my paramount consideration, and this involves taking into account in particular the factors identified in section 1(3) of the Act.
Dealing with V, utilizing the section 1(3) checklist:
(a) The ascertainable wishes and feelings of the child concerned (considered in the light of her age and understanding). V is a 13 year old girl who is able to articulate and express her wishes and feelings. It is clear from school reports that she is performing well above the level of her peers. She has clearly and consistently expressed her wishes and feelings to the allocated social workers and the Guardian that she would like to continue to live with her current foster carer and does not want to return to her parents' care. She has repeatedly stated she does not feel ready to have any form of contact with her parents or indeed any of her siblings, other than W. She has said she is afraid of being returned home against her wishes.
(b) Her physical, emotional and educational needs; V needs to be cared for throughout her childhood by a consistently warm carer who can meet her needs for physical safety, her basic care needs and be available to consistently respond to her emotional cues and needs. She is reported to be thriving in foster care, and her school have noticed positive changes in her presentation. I note she has experienced a lot of instability and upheaval in her life and being separated from her immediate family has been a significant feature throughout her life, from an early age. She desperately needs to be able to settle in a permanent placement and invest in it. She needs to know her birth family are safe and that there is the potential for a resumption of her relationships with their parents and siblings.
(c) The likely effect on her of any change in her circumstances; V hopes to be able to stay with her current foster carer. There is now some doubt about this and I am pleased to hear that the Local Authority is to undertake some work with the foster carer so as to maximize the chances of this happening. There will be an effect on V if she has to change placement, but I judge this to be less upsetting and frightening for her than if she had to go home.
(d) Her age, sex, background and any characteristics of hers which the court considers relevant; I consider V's background, as set out above, to be highly relevant in explaining to a large degree the fractured relationship she has with her parents and indeed her siblings.
(e) Any harm which she has suffered or is at risk of suffering; She has suffered harm as set out in the agreed threshold document referred to above, which I approve.
(f) How capable each of her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting her needs; Sadly, the parents have demonstrably not been capable of meeting V's needs. The parents have in the recent past asked for information about, and a referral to parenting classes to enable them to develop positive parenting strategies. They have reportedly followed up on information provided by the allocated social worker and made contact with relevant parenting classes in the parents' locality and are to be invited to the next batch of parenting classes. They have indicated a willingness to engage in family therapy. They are to be commended for this, but alas it comes too late for V. She needs decisions to be made about her future care now. I hope in time the parenting classes and therapy will assist them to repair the damage done in their relationship with V and rebuild it.
(g) The range of powers available to the court under this Act in the proceedings in question. I can make a Care Order, a Supervision Order, a Child Arrangements Order or indeed no order.
In view of the agreement of the parties that V should remain in foster care pursuant to a Care Order, I do not propose to enter into a balancing exercise of the various options available to me. Suffice it so say, matters are sufficiently clear to persuade me that a Care Order is the appropriate order to make. Indeed it is the only Order which will serve the welfare needs of this child. I approve the care plans, which provide for therapeutic work between V and her foster carers. Although the care plan is silent as to therapeutic work between V and her parents, I am pleased to note there is provision for this in the Written Agreement to be signed by the parents and Local Authority. Such work will help the parents to recognise where things have gone wrong in the past, and assist them and V (once she has settled in placement and is ready) to resolve their difficulties and work through their experiences together and apart. It will hopefully enable V to be genuinely heard by her parents and to help them understand her needs and how they can be met. It will assist in building bridges so that as V grows older she is able to develop meaningful, supportive and rewarding relationships with her birth family.
Consideration of Contact. I am satisfied the Local Authority genuinely wants to promote and facilitate contact between V and her siblings. At the moment she has expressed a wish to see only W and I have no doubt the Local Authority will do all it can to ensure such contact takes place and both children are supported to make it a success. I am equally confident the Local Authority will encourage contact to develop so as to include the other children in due course and, when V is ready, her parents. I am equally satisfied the parents are aware of how important sibling contact is to V and the other children, and will do all they can to ensure it starts, is promoted and maintained and is successful. They, no doubt, will be aware that V is far more likely to develop a wish to see them if she is seeing her brothers and sister.
I turn now to the other children, and the issue of what order to make. The parents and Guardian urge me to make a Family Assistance Order. The Local Authority says only Supervision Orders will do.
Section 16 of the Children Act 1989 permits me to make a Family Assistance Order, requiring the Local Authority to make an officer available to advise, assist and (where appropriate) befriend any person named in the Order. Both parents have consented to being named in the Order. Under subsection 4, I can direct both parents to notify the allocated officer of any change in the children's address and to permit that officer to visit any and all of the children. Pursuant to subsection (5) as amended by section 6(4) of the Children and Adoption Act 2006, any Family Assistance Order I make shall be for a duration of 12 months, unless I direct otherwise.
Conversely, while a Supervision Order is in force, it shall be the duty of the supervisor to advise, assist and befriend the supervised child and to take such steps as are reasonably necessary to give effect to the order. A supervision order also imposes a duty on the supervisor to consider whether or not to apply to the court for its variation or discharge where the order is not wholly complied with.
An immediately apparent difference in the two types of order is that under a Family Assistance Order, the parents having agreed to be named, the duties of the Local Authority extend to the parents as well as the children.
The Local Authority proposes that while the Supervision Orders are in place, the parents will undertake a Working Together Agreement (set out at Paragraph 15.1 of the social workers' final statement at C71) to the effect that
(a) they agree to undertake a suitable parenting course, as advised by the social worker, to enable them to explore alternative strategies to manage children's behaviour;
(b) the parents ensure the children continue to attend relevant activities at Children's Centres to enable the children's social and language development.
(c) The parents make their home available for social workers' announced and unannounced visits.
(d) The parents ensure they make the children available for contact with V should this be required.
If I make a Family Assistance Order, the parents and Local Authority would sign up to a Working Together Agreement which would incorporate as a minimum those elements set out in paragraph 59 above.
The Local Authority submits that Supervision Orders would give structure: the care plans would stand as the framework and because these would be imposed orders, the parents would have an understanding of the seriousness of the situation and the need for them to co-operate.
The parents adopt similar positions, which is to submit there is no material difference between the two types of order. In those circumstances, applying the principle that any order should be proportionate and the least draconian, the right order would be a Family Assistance Order. Counsel for the Father makes a further important point, namely that because the parents have to agree to be named in a Family Assistance Order, doing so enables them to take ownership of the Order which makes such an Order superior to Supervision Orders.
The children's Guardian supports the submissions made on behalf of the parents. In her opinion, nothing that has been said by Local Authority suggests they will be in any better position, or the children, by there being an imposed supervision order in these circumstances. In further submissions, she considers there is still mistrust between all parties, and the parents and the Local Authority are going to have to work hard to build good working relationships. It's only by working together there is hope for the future. Ms Hart believes there are glimpses that things might improve in the future for V and her parents, and she wants the parents to hold onto that and not give up hope.
Turning to the section 1(3) checklist in respect of the younger children,
(a) The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding). All four children would want, I'm sure, to remain in their parents' care, and to see their sister.
(b) His physical, emotional and educational needs. All four children need to be cared for throughout their childhood by consistently warm carers who can meet their needs for physical safety, their basic care needs and be available to respond to their emotional cues and needs in an environment which does not involve high levels of unpredictability, conflict and abuse. They need their parents to give them positive images of their older sister, and to be encouraged to have contact with her whenever that might be appropriate.
(c) The likely effect on him of any change in his circumstances. There will be no change. Hopefully contact will be introduced with V which will be a positive step for all the children.
(d) His age, sex, background and any characteristics of his which the court considers relevant. All four children have been looked after by their parents all their lives. Their older sister has spent several extended periods of time living away from home, and having little or no meaningful contact with them.
(e) Any harm which he has suffered or is at risk of suffering. All children are reported to be thriving in their parents' care but the circumstances leading up to V's fourth period away from her family, and the fact of her living apart from them, will have caused harm to the children, as set out in the concession threshold document above.
(f) How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs. The parents appear to be meeting the needs of their youngest children on a day to day basis well. The children have a need to be able to think of their older sister positively, and to want to have contact with her when she is ready. They need to know she is not someone to be demonised within the family. The parents will need some support and advice to manage how they keep the memory of V alive and positive for the younger children, and to encourage them to see her when she is ready to do so.
(g) The range of powers available to the court under this Act in the proceedings in question. I can make Supervision Orders, a Family Assistance Order, Child Arrangements Orders or indeed no orders.
Having considered very carefully the circumstances of this case and each party's submissions, I have decided that the most appropriate order to make is a Family Assistance Order. I consider the material difference between these orders and Supervision Orders to be a positive one, namely that the former will include an obligation on the Local Authority to assist, advise and befriend the parents, and not just the children. I am of the view that the point made by Counsel for the Father about the parents "owning" these orders is a compelling one, and will in my Judgment result in a more collaborative approach than by imposing orders on them. The services to be provided to the family under each will be the same, and I can therefore see no material benefit to the children of making Supervision Orders.
I hope that the Court process will have afforded the parents some opportunity to reflect on more appropriate styles of parenting, and the needs of their children. Going forward, I hope they will look to professionals for support, where appropriate, when they may be struggling with the demands of their children and particularly in the more challenging phases of their development. They have indicated a willingness to undertake parenting work and to engage in family therapy and I encourage them to do so.
Today V will know that her family, the professionals and the court have listened to her wishes. I hope that she can begin now to put this chapter of family life behind her, and that in time she will feel ready to engage with family therapy. She is a much loved member of this family and must be helped to not lose sight of that.
I am delivering this Judgment in writing after having communicated my decisions to the parties in Court on 13th August. This written Judgment should be given to those who are involved in V's care, so that they can better understand her particular circumstances and respond to them.
To summarise, I made a Care Order in respect of V, and a Family Assistance Order, requiring the Local Authority for a period of 12 months to advise, assist and befriend the parents and children. In addition I required the parents to take reasonable steps to enable the officer allocated under the terms of the Family Assistance Order to be kept informed of the addresses of the children and to be allowed to visit them. All parties were fully involved in the drafting of final orders (which contained explanatory preambles and consequential provisions) and the Working Together Agreement, which I approved.
Pursuant to the Practice Guidance on publication of Judgments issued on 16th January 2014 by Sir James Munby, President of the Family Division, I have to consider whether to give permission for this Judgment to be published. Having heard brief submissions in Court and by email, it is clear that:
(a) Where a Judgment relates to matters set out in Schedule 1 … and a written judgment already exists in a publishable form … the starting point is that permission should be given for the judgment to be published unless there are compelling reasons why [not];
(b) this case falls squarely into Schedule 1(ii), being a case where I have refused to make supervision orders in circumstances where one party urged me to do so;
Are there compelling reasons why I should not give permission for this judgment to be published? The parents cannot understand why anybody else would want to read about their family and the problems they've had, and are naturally anxious about such information being placed in the public domain. I bear in mind the parents' and children's rights under Article 8 of the European Convention on Human Rights (respect for private and family life) but those, in my view, can be protected by suitable anonymisation. I have also considered whether publication will have any effect upon any potential criminal proceedings, and in my judgment it will not. In all the circumstances, therefore, it does not seem to me that the parents' understandable anxieties are compelling reasons to justify refusing permission to publish.
This judgment will be anonymised insofar as the identity of the parents and children are concerned. Paragraph 20 (i) of the Guidance provides that in all cases where permission is given for a judgment to be published, public authorities and expert witnesses should be named in the judgment unless there are compelling reasons why they should not be so named. In the circumstances of this case, I am concerned that identifying the local authority and any geographical locations, whether in the UK or abroad, might inadvertently reveal the identity of V and her family. V has had a number of moves in a relatively short period of time. She arrived in the UK from [an African country] in 2009, spent a year in foster care between 2011 and 2012 before spending another year in [an African country] from 2012 to 2013. She then spent a period of about 18 months in her parents' care before returning to foster care. Her history of placements are so specific that I am concerned it would be relatively easy for anybody reading the Judgment, knowing in which Local Authority she and her family live, to identify her. For that reason, unless anybody wishes to argue to the contrary, I am going to direct the Judgment be anonymised to exclude the identity of the Local Authority and any references to geographical areas, in the UK and abroad.
The version of the Judgment approved for publication will contain the following rubric:
"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. In order to strictly preserve the anonymity of these children and members of their family, the identity of the Applicant Local Authority and of any locations in the UK or abroad will not be disclosed in any published version of this Judgment. 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."
I am very grateful to Mr Dean, who has kindly agreed to anonymize this Judgment for my approval.
Note 1 In the non-anonymised judgment, the name of the country appears. For the purposes of the anonymised judgment, to protect the identities of the children, reference is made only to the continent. [Back]
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