Re J (a child) (Learning Disabled Parent) 
Local Authority application for a supervision order in respect of a child
This is the first part of a decision about the future of a little boy called J. For the full text of the second part and a case summary of both parts click here
IN THE HIGH COURT OF JUSTICE BT12C00028.
First Avenue House
42-49 High Holborn
Friday, 12th October 2012.
DISTRICT JUDGE CUSHING
A LONDON AUTHORITY Applicants
- v -
AP 1st Respondent
AM 2nd Respondent
J 3rd Respondent
(by his Children's Guardian)
MR REX HOWLING, QC (instructed by London Borough of Hackney Legal Department, Town Hall, 298 Mare Street, London, E8 1DY) appeared on behalf of the Applicants.
MISS RACHEL LANGDALE, QC and MISS JULIA GASPARRO (instructed by Goodman Ray Solicitors, 5 Cranwood Sreet, London, EC1V 9GR) appeared on behalf of the Respondent Mother.
MISS ELIZABETH VEATS (instructed by Hodge Jones & Allen, Hodge Jones & Allen LLP, 180 North Gower Street, London, NW1 2NB) appeared on behalf of the Respondent Father.
MISS BRIDGET THOMPSON (a solicitor from Osbornes Solicitors LLP, Livery House, 9 Pratt Street, London, NW1 0AE) appeared on behalf of the Children's Guardian.
Tape Transcription by:
John Larking Verbatim Reporters,
(Verbatim Reporters and Tape Transcribers)
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1. I have not had the time that I had hoped to have to prepare this judgment in detail; I am going to give my decision first, then the judgment. I will then have a transcript of the judgment. The judgment is not provisional in any sense that I might change my mind. It is provisional in the way that I say it. When I receive the transcript I may change the emphasis, the wording; I may add things or take things out; but my decision is final.
2. My decision is that the threshold for making an order in this case is passed on a limited basis.
3. I am not satisfied that I have sufficient information about the child's chances of being successfully brought up by his mother and I shall therefore direct that there be a further assessment at Alison Lodge for the purpose of identifying the extent to which AP can sustain and build upon the improvements that she has been noted to have made during her stay at Beacon Lodge, and to effect a transition from supported accommodation into independent living. In January or thereabouts I shall hear more about the case with a view to making a final decision about whether J can live with his mother or not.
4. I have come to the conclusion that AM does not have the capacity to be a sole parent for J and therefore if AP is unable to look after him then neither of the parents would have the capacity to bring him up. I do need further information about AM in relation to contact.
5. The local authority will be pursuing further inquiries on the basis of a parallel plan. They will actively consider AP and at the same time they will pursue all the alternatives which are open to them. One of those alternatives would be the paternal cousin, ET, but it would be wrong to put all the local authority's eggs in one basket and assume that a family placement will be possible or in the interests of J, and therefore I will require a member of the Adoption and Fostering Team – or whatever the title of the team is in that particular borough – to take responsibility for looking into J's case with a view to his being placed as soon as possible with the person who is going to bring him up. The reason for that is that J is now five months old and his placement with the person who is going to bring him up is now becoming urgent. He has not been in anybody's care except for AP's up to now, which has been better for him than if he had been in the care of his mother and foster carers, so he has had consistency of care by his mother alone, but if he is to be placed with anyone other than his mother it will be vital that he is placed as soon as possible after the 12-week period of further assessment.
6. This case concerns a child J, who was born in May 2012 in London and so at the date of this final hearing he is five months old. His father AM is 29 years old. His mother AP is 29 years old. The London Borough applies for a care order and a placement order in respect of J. AM does not dispute that the threshold for making an order under Section 31 Children Act 1989 is passed. AP does not accept that the threshold for making an order is passed and makes no formal concessions. However, I am satisfied that the threshold is passed to the extent that I will set out later in this judgment.
7. Rex Howling QC appears for the Applicant local authority. Rachel Langdale QC and Julia Gasparro appear for the mother, AP. Elizabeth Veats appears for the father, AM. Bridget Thompson appears for the Children's Guardian. I am grateful to all the representatives for their helpful presentation of the evidence and their economic use of time. I was provided with a bundle of documents in Parts A-G and a further bundle H which related to previous proceedings concerning AP's older children, which proceedings were determined in January 2012 by which time she was already pregnant with J. I read all of the documents which I was invited to read in Mr Howling's helpful opening document and I was referred to a number of the other documents during the course of the hearing. I heard the oral evidence of social workers from the local authority; from Beacon Lodge Family Assessment Centre; from the Community Learning Disability Service; AP and AM; and the Children's Guardian.
8. AM is alleged to have a significant history of violent behaviour including violence in the context of the family. He has an extensive criminal record including a conviction for seriously violent behaviour. AP has two children with a previous partner, both of whom were the subject of care proceedings which ended in January 2012 with orders for the girls to live with their father under a residence order and a supervision order in favour of the local authority. The two girls have contact with their mother. AM and AP commenced their relationship in July 2010 at which time AM was caring for the two little girls. By the autumn of that year the local authority received reports from extended family members that AM abused alcohol, was unable to control his anger and picked fights with people. Additionally, there were reports of his behaving in a sexually disinhibited manner in the family home while the two little girls were present. In December 2010 AM was spoken to by Social Services and the family home was visited unannounced. AM denied abuse of alcohol, stating that he drank only socially. He admitted smoking cannabis outside – but not inside – the home, and denied the sexually disinhibited behaviour, stating that the children were in bed at the time. In his first statement in these proceedings AM has said that that allegation was made maliciously by a relative of the mother's. I have not heard evidence on which I could determine where the truth lies in relation to that allegation and therefore I must find – and do find – that for the purpose of these proceedings the allegation is not proved to the requisite standard.
9. In the first week of January 2011 the eldest child, S, started to tell the social worker about being hurt by AM but she stopped when her mother gave her a stern look. When interviewed alone, S said that AM had pulled her pyjamas down, smacked her bum and then taken off his top and was eating her, which she clarified meant he was licking her. She said her mother had told her not to say anything. When interviewed by the police, AM said S was a liar. When the allegations were discussed with AP, she did not believe that they were true or that she had failed to protect the children. She said she had asked AM about it and he swore he had not done it. She felt he sounded genuine. Proceedings were commenced in relation to S and her sister T. They were made subject to interim care orders and removed from the care of their mother. Initially placed with a foster carer, they moved to live with their father with whom they now live.
10. The multi-agency risk assessment conference held on 6th December 2011 received a report of AM perpetrating violence against a previous partner. AP became pregnant by AM and J was born on 9th May 2012. As a result of all the historical concerns, naturally the local authority needed to ensure that the care provided for J would be good enough that he would be safe. These proceedings were issued immediately after his birth. AP and J were admitted to Beacon Lodge for assessment within a week of his birth, and that is where they remain although the Beacon Lodge assessment ended 10 weeks ago and the interim and final reports and an alternative report from Beacon Lodge have been filed with the court.
11. J is a young baby, 21 weeks at the date of this hearing. Up to this time he has spent all his life with his mother in supported living arrangements, first in hospital and then at Beacon Lodge. It is apparent from the first report filed by Beacon Lodge and by the social workers' statements that the professionals working with the parents were doing so on the assumption that there would be a separate fact finding hearing apart from this final hearing. AP clearly believed that was the case and acted accordingly. She told me it was not made clear to her that she should not be having any contact with AM until considerably later in her stay at Beacon Lodge.
12. I return to the matter of the threshold having said that I found it to be passed. I think I have time to deal with the details of the manner in which I find it to be passed. I accept the concessions made by AM as being sufficient to pass the threshold under Section 31 in relation to him. So far as AP is concerned, the local authority threshold statement is lengthy and it will not be possible to deal with every one of its many paragraphs. However, it commences with the agreed threshold document dated 20th January 2012 with reference to S and T, in other words, this is the final agreed threshold document approved by Her Honour Judge Meyer on dealing with the final hearing of care proceedings in relation to those two little girls.
13. In view of these findings being so recent just before J's birth, and the risks presented by AM's propensity for violence I find it was likely that J would suffer significant harm emotionally due to witnessing his father's violent behaviour to others. He was also likely to suffer neglect.
14. At the time that the local authority put in place protective measures for J, which was at the time of his birth, AP continued in a relationship with AM so far as was known to the local authority. Nothing about her parenting was likely to have changed because she had had no work done to help her to change her parenting. J has never suffered any harm let alone significant harm in the care of his mother. The likelihood of significant harm was attributable to the mother's difficulties, that she did not at that time have a basic understanding of J's developmental needs. To be fair to her, she has subsequently developed a better understanding as a result of the intervention of Beacon Lodge. She was further unable to recognise the concerns raised regarding AM and the seriousness of the risks he could pose to J. She could not recognise that J could be harmed by witnessing violence or that he could be unintentionally hurt. Because of her failure to protect S and T notwithstanding all that she knew was a likelihood at the time the protective measures were put in place, that she would also fail to protect J. A reasonable parent would be expected to recognise that AM has a propensity for violence from which J needed to be protected. A reasonable parent would be expected to have a basic understanding of a child's developmental needs.
15. Two months into the assessment at Beacon Lodge on 19th July 2012 AP was being told that her basic care of J was of a good standard and there were no current concerns about that; however, there were concerns about her ability to offer consistent emotional warmth and age-appropriate stimulation. Eleven days later, on 30th July 2012, Beacon Lodge filed the first of its so-described final reports. The report written by AP's support worker, DK, and countersigned by the Deputy Manager. It recommended in concluding that AP had learned new skills and developed already-acquired skills and techniques to enable her to care for J but that she would not currently be able to care for him independently and would continue to need input and guidance to ensure she could care for him and safeguard him. It recommended that they be placed together in supported accommodation, receiving 4-5 hours' support per day.
16. A further report filed by Beacon Lodge which repeated verbatim much of the content of the first report. It identified AP's inability to show basic understanding of her child's developmental needs as a deficit in her parenting ability. In the nursery sessions, however, AP participated fully with the singing and actions even when J was asleep. She has asked AM to buy a baby gym for J, which he did, and AP placed J in a position on a play mat where he could play with the gym but she was not heard giving him any oral encouragement. The second report identified safety as an area of concern. Although AP could identify basic safety measures around the home, she was unable to grasp the fact that AM could present a risk to J's safety or emotional security due to violent behaviour. The second report concluded that AP would require a high level of on-going support throughout J's childhood to ensure he received good enough parenting. Her report was tentative to the extent that she occasionally used the word 'may' indicating a risk of something happening rather than a probability. It indicated that AP had been unable to accept advice to concentrate on her assessment rather than maintain her relationship with AM until 5th July 2012 but she did not say what had happened after that time. Separately it is recorded that on 13th September 2012 AP told the health visitor she was no longer in a relationship with AM and does not have contact with him. I heard AP's evidence on that matter and am satisfied that she ceased to be in a relationship with AM from a date early in July 2012.
17. I heard the oral evidence of AP's support worker from Beacon Lodge. I found her to be a thoughtful and impressive professional witness. Her background in Special Needs education meant that she was well placed to work with a woman such as AP who has learning disabilities. In her oral evidence DK maintained the opinions that she had given in her written report that AP had learned to good effect about the physical care of J; that she had made some progress in learning about his emotional needs; and DK recommended that mother and child be placed together in supported accommodation with significant input on a daily basis to consolidate existing learning and develop AP's learning in those areas where she was still deficient. DK did not recommend the separation of mother and child. I found DK's approach both in her written report and in her oral evidence was entirely child-focused and she was realistic about the extent of AP's need to develop areas of her parenting and the likelihood of her achieving the goals. I am confident that I can place considerable weight on DK's opinion. The writer of the alternative final report from Beacon Lodge did not attend to give oral evidence. I was unable to obtain any clear understanding of the reasons for the departure from DK's conclusions and in those circumstances I place no weight on the conclusions of that alternative report.
18. AM supports J being looked after by AP and only if that is not possible then by himself, and if not, then by his cousin ET.
19. I find it impossible in the light of the positive outcome of the Beacon Lodge assessment report written by DK to find that AP lacks the capacity to meet the needs of her little boy. I heard AP give oral evidence and despite her learning disability I found her to be perceptive about the extent to which she had received help from Beacon Lodge to improve her parenting and the extent to which she was genuinely motivated to continue to learn new skills or improve existing skills so as to be able to bring him up better than she had been when she had the care of her two little girls.
20. The evidence of the community disability doctor was helpful. They completed an assessment of AP's eligibility for services as a person with learning disability. As part of a joint health and social care team they assessed and considered her eligibility for services but there are different criteria for social care services and for health services. In relation to AP the assessment was that without substantial support issues around family would be at risk of breaking down, and in particular this meant the parenting aspects of family. Department of Health guidance suggests a variety of different arrangements to support parents with that eligibility level, whether direct or indirect support. The assessment was in limbo until it was determined whether mother and child were going to be together. As a result of my decision mother and child are going to be together, at least for the next 12 weeks, the period of the further assessment. It will be necessary as part of the work to gather the information for the next hearing to identify the services which will be available for AP to support her in the care of her child.
21. It would be unfair, given her difficulties, and not a true test to place J in the care of his mother alone with little or no support in place after all the benefit that has accrued during the Beacon Lodge placement. The reason is that the extent of AP's disability and the assessment of her entitlement to support as a parent in the area of family and networks means that she must receive continuing help to achieve and maintain the best parenting that she can for J. It was very encouraging to hear DK and the Children's Guardian describe how J responds to his mother's attention and how much more attentive AP has learned to be to his emotional needs.
22. J's welfare is my paramount consideration and therefore it comes higher in my thinking than the speed of determining the question where this little boy should live in future. Nevertheless I am conscious that delay in determining the question is generally contrary to the interests of children's welfare. The further assessment that I have in mind is therefore time-limited. AP has been fortunate indeed that the Children's Guardian, found it possible to visit her on a Sunday outside of normal working hours to observe the progress that mother and child were making. If she had not made that visit and observed with her own eyes the improvements AP had made she would probably have inclined to the view taken by the second Beacon Lodge report.
23. There are strengths and weaknesses in AP's capacity to meet the needs of her child. But overall DK's evidence was to the effect – and I use her language to describe it – DK said 'She has made it.' DK added that she would expect AP to make good progress at Alison Lodge. She described how J is cooing, smiling and making good eye contact with his mother. AP has discussed with DK the family support on which she can rely. She has had visits from her own mother; from AM's mother; from friends. Further areas in which AP will need to make progress in order to anticipate J's development is in relation to dealing with children's naughty or defiant behaviour and temper tantrums; the use of time-out; and the use of a naughty step. This seemed to be entirely in line with the difficult behaviour which AP was observed to be unable to manage effectively when she had the care of S and T. There are many aspects in which AP needs to make improvements. DK said that J is a calm boy but he will be more testing in the next three months because he will be more alert and he will be teething. AP will need to engage with a new nursery. She will need to register with a doctor and with a new health visitor. She has her own issues to address on which she will need help; for example, with budgeting to manage a home and keeping things clean and tidy. There was an equivocal incident described at E135 and AP was making lunch and two other toddlers began to bounce J in his chair rather aggressively. AP was unable to deal with the misbehaviour of the toddlers because she was concentrating on making lunch. DK said that her concentrating on making lunch is part of who she is and it does not mean that AP did not care about what was happening to J.
24. It may be thought that AP has already had the normal 12 weeks' assessment which is offered to parents and some curiosity may be aroused by the idea that after 21 weeks at Beacon Lodge AP and her son should be placed in further supported accommodation. DK was very clear about this and I was greatly helped by her experience as a Special Needs teacher. She said it takes longer for parents with learning disabilities to learn. But there are many practical ways to support a parent with learning difficulties and if the right practical support is there, DK felt that AP could do it. One of the techniques employed by DK was to repeat things to make sure that AP has understood, and to await a response of confirmation. There is still some inconsistency of emotional contact between mother and child but AP has learned to be more loving. She now understands her son's different cries and their interaction has been good. Consistency needs to be developed.
25. DK was of the opinion that AP's own historical emotional issues may in the way of her being able to offer good emotional care and said that AP had described having a loving relationship with her own mother but then had gone on to say that there were always other partners and that AP did not always feel that she got to the emotional support that she needed. AP needs to engage with counselling as part of the further work that she will need to do to increase her capacity to care for her child but I have no evidence of any necessity to complete counselling before she would be able to move on to less supported accommodation. So long as the counselling is in place and a relationship has been established with the counsellor that should be a continuing support for the placement of the child with his mother. I asked the Community Learning Disability Service what they would want to see in place if she was considering helping a learning disabled parent to provide consistent care and promote development. They described a support worker, activities, music roots, baby massage, and sessions with other parents with learning disability, one-to-one key work with feedback, services to work with the parent, parenting support, parenting classes (possibly offered through NCLP), nursery, mother and baby groups, and a health visitor. Those seemed to me to be along the right lines and in addition the counselling relationship to be established.
26. I now turn to the question of family relationships and human rights. All public authorities are under the same obligations to respect the rights of family members when making any decision that would affect the child. I was referred by leading counsel for AP to the decision of Mr Justice Hedley in the case of Re L  1 FLR in which he in turn quoted the words of Lord Templeman in Re KD, who said:
'The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature.'
27. The learned judge went on to say that it follows that society must be willing to tolerate very diverse standards of parenting, including the barely adequate and the inconsistent, and that children will inevitably have very different experiences of parenting and very unequal consequences flowing from it. Some children will experience disadvantage and harm while others flourish in atmospheres of loving security and emotional stability. Social engineering is not the objective of the court or of the legislation. In this case, as in the case of EH v LB Greenwich, in my judgment the local authority made up its mind about AP too soon. It did not wait for the final outcome report from Beacon Lodge before concluding – wrongly, in my judgment – that AP lacked the ability to look after her own child. Particularly as a parent with learning difficulties she and her child were entitled to be given the time to demonstrate that she could meet his needs before any decision was made that would have removed J potentially from the care of a loving parent and family.
28. The local authority must face up to the consequences of an adoption order by a member of the father's family which did not appear to have been firmly grasped by the allocated social worker. As may be seen from the limited basis on which I find that the threshold for making an order is passed, AP has at no time been neglectful of J or uncaring of him. She loves him. She described him in very warm terms when she gave her oral evidence. She is not a physical risk to him. It would be bizarre if she were to be precluded from having any relationship with him in circumstances where the father, who has had considerably less involvement, would continue to have a relationship with him and indeed be a relative of his. AP said about her child:
'He is very important to me. I don't know what I would do if I lost him. He means the world to me.'
29. If AP can keep that at the forefront of her mind and if that can lead her determination to do her best to learn all that she can as quickly as she can then there is every hope that J will have the upbringing that his mother wants for him, i.e. in her care, receiving her love and support. But she will have to work at it.