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Re MI (A Child) [2013] EWHC 1073 (Fam)

Final hearing of an application for a care order where the court had to decide whether the child should return to the care of his mother or be placed in the family of his maternal great uncle, who lived in Belgium.

The issue between the parties was whether the child should return to the care of his mother, or whether he should be placed in the family of his maternal great uncle, who lived in Belgium. All parties agreed that a care order should be made.

The child had been placed in foster care following the death of his sibling. His father had subsequently pleaded guilty to manslaughter in respect of that death. The mother had originally been jointly charged, but all charges against her were dropped, although the local authority continued to seek findings that she had failed to protect the baby from the father by leaving him in his care when it should have been clear that he could not safely parent the child. The local authority further relied upon the development delay suffered by the older child whilst in his mother's care.

The case was further complicated by the mother's immigration status. She was from Pakistan and would lose her spouse's visa upon her divorce from the father. She would only potentially gain leave to remain in the UK if she either had the care of the child, or if he were in long term foster care. If he were moved to Belgium, the mother had no right to follow him there and would have to apply to the Belgian authorities. She was also likely to have to return to Pakistan.

The court considered carefully the unanimous evidence of the experts who had assessed the mother and concluded that the risks in her care were too great for the child to be returned. However, Jackson J described the case as finely balanced, and narrowly concluded that there was a reasonable possibility that the mother could provide good enough care to the child now and throughout his childhood. The fact that the move to Belgium could result in the end of contact between the child and mother was a real difficulty. A care order was made, on the basis that a planned move would be made to the mother's care.

Summary by Jacqui Thomas, barrister, 37 Park Square Chambers
______________________

Neutral Citation Number: [2013] EWHC 1073 (Fam)
Case No. MH12C00039

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MANCHESTER DISTRICT REGISTRY

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF MI (CHILD)

Date: 29 April 2013

Before :
THE HONOURABLE MR JUSTICE PETER JACKSON
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BETWEEN:

A LOCAL AUTHORITY
Applicant

-and-

(1) RM (Mother)

(2) SH (Father)

(3) MI (Child, represented by his Children's Guardian) Respondents
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- - - - - - - - - - - - - - - - - - - - -

Karl Rowley QC, instructed by A Council
Anthony Hayden QC
and Lorraine Cavanagh, instructed by KHF Solicitors for the Mother
Jane Walker
, instructed by WTB Solicitors for the Father
Frances Heaton QC, instructed by Fieldings Porter for the Children's Guardian 

Hearing dates 23-25 April 2013
Judgment date: 29 April 2013
- - - - - - - - - - - - - - - - - - - - -

JUDGMENT
This judgment consists of 84 paragraphs.  Pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken and copies of this version as handed down may be treated as authentic.

Mr Justice Peter Jackson:
Introduction
1. This is the final hearing of an application for a care order in relation to MI, a boy aged 4½.   Until January 2012 he lived with his parents, RM and SH, who I shall call the mother and the father.  At that point he was placed in foster care, where he remains.  The issue between the parties is whether he should now return to the care of his mother or whether he should be placed in the family of his maternal great uncle, who live in Belgium.  The mother and the father, who have now separated, argue for the former outcome, the local authority and the Children's Guardian for the latter.  It is agreed that a care order should be made, final or interim, whatever the outcome.     

2. MI was placed in foster care following the death of his younger brother, who I will call Baby I, at the age of 6 weeks.  His death was the result of injuries suffered at home on 5 January 2012 of which he died the following day.  Both parents were arrested, and in July 2012 the father was charged with murder and the mother with allowing the death of a child.  They were remanded in custody, where the mother remained for two days and the father for eight months.  In October 2012, the charge against the mother was dropped and in January 2013 the father pleaded guilty to manslaughter.  In March, he received a suspended sentence from the Honorary Recorder of Manchester, leading to his immediate release from custody.  The father accepts that he has no further role to play in the day to day care of MI but it is agreed that limited monthly supervised contact should now be attempted.  The mother, who is in the process of divorcing the father, has been having supervised contact three times a week.

3. I have read the core documents and heard evidence from MI's social worker, the mother, and the Children's Guardian.  There are written assessments from the social worker, from a children and families worker and from the Guardian, as well as opinions on Belgian law and immigration law.  The issues have been argued concisely and skilfully.

4. Three features of the case deserve mention at the outset.  In the first place, there has been significant delay as a result of the criminal investigations and a firm decision about MI's future is now overdue.   Secondly, the case has evolved considerably throughout its course.  It began with both parents under suspicion of causing Baby I's death, and thereafter the mother faced criminal charges until October 2012, while the criminal case against the father did not conclude until six weeks before this hearing began.  Even after that, there was a significant addition to the evidence at the very last moment, in the form of advice about the mother's immigration position if the local authority's plan to place MI in Belgium is carried out.  The third point is that there is now hardly any dispute between the parties about the facts that must be taken into consideration in reaching a decision: as a result the background history that follows is closely based upon the account given by Mr Rowley QC in opening.  Where the parties disagree is about the consequences of those facts for the assessment of MI's best interests. 

The background
5. The parents are cousins of Pakistani Moslem heritage.  The father is aged 25.  He was born in Yorkshire and is a British citizen.  He has a learning disability and required support from his local authority when he was a child. He describes mistreatment by his brothers and father after he reached the age of 16.

6. In July 2008, following an arranged marriage in Pakistan, the mother came to England on a two year spousal visa.  She was aged 18 and was about 6 months pregnant with MI.  She is a person of normal intelligence whose first language is Urdu, but she can speak quite effective English.

7. The couple initially lived with the paternal family.  After MI's birth on [a date in] 2011, the mother describes the paternal grandmother taking over his care until he was three or four months old.  By then, the parents were, with apparent justification, unhappy at the way they were being treated by the paternal grandfather.  In October 2009, on the mother's initiative, they went to a police station for help and left Yorkshire, moving to the Manchester area to stay with the mother's uncle K and his wife P (who is also the father's half-sister) before moving to their own small property in March 2011.  That property remains the mother's home.  By then, MI was 2½ and the mother was pregnant again.  She attended her scheduled antenatal appointments. 

8. The health visitors in Yorkshire had identified few issues with MI's development and he was transferred to the service in the Manchester area at the age of 16 months.  When he was two years old the parents expressed concern about his squint.  Delay in communication skills was noted and speech therapy was provided.  Anaemia, vitamin D deficiency and dental decay were issues identified as requiring follow-up.  Despite advice about diet, only limited improvement was made; a referral to a food health group was not pursued by the parents and MI was therefore discharged by a dietician.  The parents were encouraged to take him to a dentist but did not do so. 

9. In July 2010, the mother was granted discretionary leave to remain in the United Kingdom until July 2013.  Now that she and the father are to divorce, she cannot apply for indefinite leave to remain as the spouse of a British citizen and her ability to remain depends upon her being the mother of MI, who is British citizen. 

10. By September 2011, the parents' marriage was in difficulties.  The mother was receiving no help from the father, who is fond of MI but has no real parenting ability.   She informed a nurse that she and the father had separated but were living together in the same house.  There were arguments, usually when the mother reproached the father for going out and not helping her.  There was some violence on the father's part, the worst incident being an occasion when he threw a stool at the mother and MI, which would have hit them had she not moved.  After the start of these proceedings the mother at first told the social worker that her relationship with the father did not feature violence but at a later stage she said that she had been assaulted twice by him. 

11. Into this unpromising family situation, Baby I was born on [a date in] 2011 and discharged home the following day.  No particular concerns were observed by the midwife on her initial visits except that the family was sleeping downstairs in the front room due to damp upstairs.  The mother was tearful on a visit to the GP on 28 November 2011 and reported that she wanted her own mother to come over from Pakistan for support.  On 5 December 2011 the midwife identified the family as isolated and made a referral for a family worker.

12. The mother took on almost all the care of the new baby – she describes only around three occasions when the father was left alone with him.

13. On 20 December 2011, Baby I was taken to the hospital with reflux.  He was kept on the ward for observation and discharged home.

14. On 5 January 2012, the mother was feeling unwell and the father took Baby I to the GP at around 3.20 pm with a high temperature and reflux.  Advice was given.

15. Very soon after the father's return from the GP with Baby I, an emergency call was made at 3.56 pm and an ambulance sent to the parents' home.  Paramedics attended and conveyed an initially unresponsive Baby I to hospital.  The father said that sometime after taking him home he had stopped breathing.  The mother said that she left the child with the father while she took MI to the toilet. When she returned she noticed that the baby 'wasn't right'.  She went outside to shout for help.  Neighbours came and one attempted some form of resuscitation.

16. Baby I died in hospital the following day, 6 January 2012.  After his death he was found to have a fractured skull, a brain injury and retinal haemorrhages.  Post mortem investigations also revealed older injuries, being fractures of two ribs and another brain injury.

17. On 10 January, the parents were arrested and bailed and MI was placed with local authority foster carers.  Care proceedings began on 18 January, when an interim care order granted.

The death of Baby I
18. The cause of Baby I's injuries was investigated by numerous experts instructed in the criminal proceedings.  As the parties have had sight of their reports it has not been necessary to obtain further expert evidence in these proceedings.

19. The totality of the findings suggested that Baby suffered a substantial blow to the head, possibly in combination with an episode of forceful shaking.  Microscopy of the ribs showed healing fractures aged 5-10 days old at the posterior end of the left third and fourth ribs and a healing posterior fracture of the right fourth rib (4-7 days old), apparently with a co-located recent fracture, some 20-40 hours old.  All were likely to have been caused by compression of the chest by squeezing.

20. As to the old brain injury, the Consultant Paediatrician, Dr Ian Mecrow advises that it is unlikely that Baby I sustained a subdural haemorrhage at birth and that this had have lain asymptomatic and undetected until he was nearly seven weeks old.

21. The basis of the father's plea was that he had accidentally dropped Baby I from standing height while playing with him following his return from the GP.  He did not tell his wife of the accident out of fear and embarrassment.  He gave an account of other incidents that he said might have caused the earlier injuries.  Some of the experts opined that a fall from that height could have caused the injuries and death, though it was not thought that the older injuries could have been caused by any of the other incidents described.  They characterise the behaviour described by the father as extremely dangerous and foolish.

22. In these proceedings, the local authority has not sought to go behind the basis of the father's plea or to establish any other account of Baby I's death.  It also accepts and asserts that in the light of the father's responsibility for the fatal injuries, the older injuries were probably caused by him and not by the mother.  The father does not oppose this conclusion, and the mother denies having caused the baby any injury whatever.   I accordingly find that all injuries to baby I were caused by the father.

The threshold in relation to the mother
23. The local authority's case against the mother is twofold.  In the first place it contends, and she accepts, that she failed to protect Baby I, in that she allowed the father to have sole care of him when she ought to have appreciated that, due to his learning difficulty, his level of competence was such that there was a risk of a child being injured in his care.  Reference is also made to the occasions of domestic violence.  This leads the local authority to say that the mother showed a lack of judgement, with catastrophic consequences for Baby I. 

24.  In the second place, the local authority alleges that MI suffered and is likely to suffer significant harm to his development as a result of her parenting ability being inadequate to meet his considerable needs.  The mother for the most part accepts the factual basis for the concerns, but not the conclusion drawn.  

25. The agreed elements of the threshold in this regard are these:

•  MI has significant delay in his speech and language and in his social and emotional development.  The major cause is likely to be organic, but a component is likely to be due to early over-attentive, stifling parenting. 

•  MI requires better than average care if he is to reach his full potential.

•  The mother did not give MI a proper diet.  At the age of 2 years 10 months he was not yet weaned and dietary advice had not been followed.

•  MI was not encouraged to have a reasonable routine, often going to sleep very late and waking at lunchtime.

26. On arrival in foster care, MI was unused to play, to having his teeth cleaned, to eating solid food or holding cutlery or to wearing his glasses.  He had not started potty training.  The state of his teeth was so bad that nine of them had to be removed in January 2013.

MI's development
27. A global assessment has been obtained from Dr Mecrow.  His report dated 16 July 2012 identifies development delay of mixed origin:

"[67] My view is that it is highly likely that there is an unidentified organic cause for [MI]'s delay because, although he has shown some improvement in his developmental achievements, it is not clear to me that we have seen convincing  evidence of rapid catch up in the period where he has been accommodated.  It remains the case that, even after six months, [MI] has significant and definite delay.  If it had been the case that his developmental delay had wholly (or even largely) been caused by environmental factors, then I would have expected to see much more rapid improvement in his developmental progress. 

[68] Having said that there must (in my opinion) be an underlying organic cause for his delay, I have formed the view that at least a proportion of his delay resulted from the environmental conditions that he experienced in his early years.  The impression I have gained from reading the records is of [MI] having been 'molly coddled' and treated as if he were a much younger child by his parents."

28. A report from Dr Val Coupes, Consultant Community Paediatrician, dated 14 December 2012, confirms that MI "has made excellent developmental progress since he has been in foster care. The rate at which he quickly developed some skills early on in placement, such as speech and language development and feeding skills, suggests that he was not previously given the opportunity for encouragement to develop these skills.  However, despite experiencing a high level of stimulation for the last 9 months he does remain significantly delayed in all areas."

29. MI is receiving multidisciplinary input from the child development team, the pre-school support team, together with speech and language therapy and occupational therapy and support from dieticians.  He remains under the ophthalmology team due to a squint.  When he begins school he will require educational support.

30. He was initially placed with a culturally matched family but had to move foster placements on 30 January 2012 when he was found to have two bruises to his ear that were considered non-accidental.  He was then placed with white British foster carers; the parents have generally been happy with this placement and with MI's progress.  He has formed a good attachment to his capable foster mother.  She has established a regular routine for him.  He is eating better.  He attends nursery and is socializing and speaking better.  In September he is due to enter the reception class at primary school.

Assessments
31. There have been a number of assessments over the course of the past year. 

32. Between February and June 2012, a parenting assessment of the parents together was undertaken by Lisa Thornley.  After the father's remand in custody, this was extended until August to assess the mother as a sole parent.  Despite good participation, shortcomings of the parents as a couple were identified in relation to them not acting on advice on the basic care of MI, babying him, letting him lead play rather than guiding him, giving in to his tantrums, and showing disharmony in their parenting styles.  Similar observations were made of the mother on her own.   Ms Thornley concluded that concern remained as to the couple's ability to parent safely and consistently and that failure to respond to advice and guidance indicated a poor prognosis for the future.

33. An initial social work assessment was conducted by the social worker, Ms Sandra Handcock and a colleague.  It took place on twelve occasions between May 2012 and September 2012, the last seven sessions being with the mother alone.   The assessors concluded that it was difficult to be confident about the mother's ability to meet MI's needs in the future.  In particular, the assessment was inconclusive due to the difficulties presented by the absence of clarity about the role played by the mother in relation to the death of Baby I.

34. This assessment of the mother was updated by Ms Handcock after six further sessions between November 2012 and February 2013.   A variety of concerns are set out.  The mother is said not to have fully acknowledged the deficits in her care when MI was at home.  She has failed to demonstrate, over the lengthy assessment period, that she can effect the necessary changes in order to fully meet his needs.  These deficits cover response to MI's needs; a tendency to treat him as a younger child; unrealistic expectations; management of his behaviour or mood; issues over routines; and diet.  She has made some improvements during contact sessions since the initial parenting assessment but there is insufficient evidence that she can achieve consistency without prompting.  MI will require a very good level of care to ensure that he can achieve a maximum level of independence when he grows up and would be likely to suffer developmentally, physically, socially and emotionally if those needs were not met. Sadly, the mother has not demonstrated sufficient change to ensure that such harm is likely to be avoided for MI were he to return to her care.

35. During the assessment process an incident took place that caused concern to the local authority and the Guardian, and represents the only issue about which there is any factual disagreement.  During a contact session on 14 September 2012, the mother was seen to have a love bite to her neck.  She told the contact supervisor that she had been 'experimenting' with her sister-in-law.  Then, on 18 September she said that she had lied, and that the marks had been caused by her boyfriend, naming a Mr A.   The mother then filed a statement saying that she was not in a relationship with him or anyone else and that Mr A kissed her and gave her a love bite without encouragement when she was left alone in a room with him during a visit to family members in Wales.

36. The circumstances in which this all occurred was that the mother had been in Skype contact with the cousin of a female friend over the course of a few days.  He invited her to Wales to meet him and she went.  In her evidence she was visibly embarrassed to be publicly discussing the matter, telling me that she had gone on a social visit hoping that Mr A might be someone upon whom she could depend, thus strengthening her claim to have MI returned to her care.  However, Mr A kissed her without her agreement.  She has had nothing to do with him since the end of September.  

37. I accept the mother's account that she met Mr A once only and that he plays no part in her life.  I also accept her evidence that she has no current intention of forming a new relationship and that her focus is entirely on MI.  However, I do not accept her account of what happened with Mr A on that day.  I find that she went to Wales because she was momentarily excited by his attention and that this explains the observation the day after her return by the worker who saw the love bite that she couldn't stop smiling.  The visit to Wales had nothing to do with the mother's hopes for MI.     

38. The local authority and the Guardian raise this episode as an example of the mother not being entirely candid, her reticence about the domestic violence being another instance.  They also say it shows a lack of judgement on her part.

39. In early 2013, the mother attended a relevant support course ('Strengthening Families, Strengthening Communities') that had been mentioned to her by the social worker.  She attended all eleven available sessions and completed the course with credit.  

40. The mother's contact is supervised, with good continuity of supervisor.  I have studied the very clear contact notes for the past four months for what they reveal about the mother's parenting style and about the nature of the evidence on which the professionals are basing their own judgements.   

The Local Authority's Plan
41. The local authority has looked elsewhere within MI's wider family.  It undertook a viability assessment of the uncle and aunt in the Manchester area, which was negative and was not pursued further. 

42. The final care plan proposes the placement of MI with his great uncle and aunt in Belgium.  The local authority had initially declined to assess them on the basis that it could not be in MI's best interests to move there, but it then relented in the face of the Guardian's advice.  The eventual assessment of that family is positive, reporting that the couple have a secure base and home life and are committed to caring for MI.  Panel approval has not yet been obtained as further information has been requested, such as a visit to the family's new home. 

43. The family, which consists of the couple's  own four children, aged between 11 and 3 years of age, and an adopted son (the mother's now adult brother), had not met MI before the proceedings began.  They have now come over to England and met MI three times and have had Skype contact weekly since then.  There is a plan for introductions to take place in England with a view to MI moving to Belgium in July 2013.  There would be monitoring of the placement in Belgium by social workers by regular visits by UK and Belgian social workers at least every three months.  In the care plan, the local authority contemplated contact around twice a week between mother and child (supervised by the Belgian family) should she move to Belgium.

Immigration advice
44. At a hearing in March 2013, a report was commissioned from specialist immigration counsel, Ms Nadine Finch.  This was received on the eve of the hearing.  In essence, Ms Finch states that:

•  If MI were placed in the mother's care in the UK (whether under a care order or not) she would be likely to qualify for exceptional leave to remain here

•  If MI were placed in foster care in the UK and the mother had contact, she would be likely to be given limited leave to remain as a parent

•  If MI is placed in Belgium, the mother will not be entitled to remain in the UK

•  If MI is placed in Belgium, it is unlikely that the mother could visit him there from the UK and if she left England she would not be readmitted

•   If MI is placed in Belgium, the mother has no right to move there and would have to apply to the Belgian authorities, relying on her Article 8 Convention rights.

The oral evidence
45. Ms Sandra Handcock is an experienced social worker.  She qualified in 1995 and has been MI's social worker since February 2012.  The quality of her reports and statements is exceptional and her oral evidence was thoughtful and fair, giving careful attention to both the weaknesses and the strengths of the mother's situation: see for example [C248-9].   Shortly stated these are:

Strengths

•  Her own relatively happy and stable childhood

•  Her determination in taking the father and MI away from the paternal family

•  The warmth of her relationship with MI

•  Her commitment to contact and to the 'Strengthening Families' course

•  Some progress made in relation to setting boundaries for MI  

•  A reduction in her social isolation 

•  An improvement in her financial situation

Weaknesses

•  Insufficient evidence of consistent change to give confidence that she could avoid the difficulties that beset her earlier parenting of MI: giving in to him on occasion and requiring prompting in relation to some basic care tasks.

•  Uncertainty about her ability to set the firm routines that MI needs.

•  Uncertainty about her ability to provide a consistent healthy diet. H

•  Concern about her judgement and her candour (e.g. the episode with Mr A)

46. In her oral evidence Ms Handcock emphasised that MI is not an easy child to care for and needs above average parenting and reliable firmness and routine.  She said that the mother has acknowledged some but not all of the deficiencies in her former parenting.  She felt the mother does not have much family support. 

47. Ms Handcock said that the core concerns in the area of basic parenting were in relation to diet and road safety.  As to boundaries and overprotectiveness, she acknowledged a pattern of improvement at contact, with MI having fewer tantrums.   However, she was worried that once MI and the mother were alone, her tendency to give in to him would re-emerge.  Visits from a Family Support Worker could only help to a degree.  On the other hand, Ms Handcock said that the relationship between MI and his mother is very warm and loving and that the separation from the father seems real. 

48. Ms Handcock was initially sceptical of the Belgian option but after visiting in November 2012, she was impressed.  Although she had planned for the mother's contact to continue, the fact that this would be uncertain or even unlikely did not change her plan: MI's stability was more important than his relationship with his mother.  Indeed, Ms Handcock was of the view that if the Belgian option (which was not a certainty) did not for any reason work out, it would be better for MI to grow up in long term foster care in England than to have returned to his mother.  She accepted the irony of a situation where the father could have contact, while the mother, if returned to Pakistan, could not.

49. Ms Handcock records the foster mother's view as being that she has significant reservations about the Belgian plan because of the amount of change for a child with MI's limitations.  The foster carer would also worry if the contact between MI and his mother were to decrease. 

50. The mother's evidence was given in a mixture of English and Urdu, with the benefit of a very good interpreter.  She was composed throughout, except when speaking of the incident with Mr A.  I found her to be a serious-minded person, who spoke articulately and with quiet determination.

51. She gave a detailed account of MI's needs and of what she had done wrong in her previous care of MI and that this had affected his life and development.  She said that she has now learned a lot and feels much more confident about setting boundaries and putting behaviour strategies into effect, though she accepted that from time to time she still encountered difficulties.  She was taken to some incidents that had happened during contact: some she accepted as showing shortcomings, other criticisms she quite stoutly rebutted.

52. In passing, the mother mentioned that she had hosted a prayer reading on the Sunday before the hearing at which no fewer than seven female friends and neighbours (including her aunt) had come to support her, bringing their sixteen children.

53. Speaking of the father, the mother said that she shouldn't have left Baby I with him as he didn't know his responsibilities as a husband and a father.  After the birth of the baby, she had been at her wits end and had told him that if he didn't help her more, she would go back to her family in Pakistan with the children.  She had had MI at the age of 18 when she was very inexperienced, spoke little English and had no real support, her own mother having been refused a visa to come to England to help her.  She could not forgive the father and did not support MI having contact with him if it confused him, but she would not stand in the way of supervised contact.

54. She did not feel that either she or MI could manage without contact and would accordingly prefer him to be in foster care in England than in the care of family in Belgium if she cannot move there.

55. Mrs Karen Johnson is a very experienced Children's Guardian who has been involved in MI's case since July 2012.  Her evidence was similar to that of Ms Handcock, although she was somewhat less willing to acknowledge areas of strength and progress on the part of the mother.

56. She commended the work of the local authority.  She reports that the foster carer has worked extremely hard and that MI is very challenging little boy who will push boundaries and constantly needs his routine to be reinforced. 

57. Mrs Johnson's central conclusion is that the mother is unable to provide the quality of care that MI needs.  Although she has more support than before, this may not be reliable in a crisis.  Her friendship group is not tried and tested.  Mrs Johnson said: "My fear is that the quality of care and progress could be undermined and he could regress if returned to his mother.  Support would not be seven days a week and we don't know how she would manage bedtime, bath-time and morning routines.  She manages well at times, at other times not very well.  There is a possibility that if firm boundaries are not established, his behaviour could escalate to the point where it would come to be out of mother's control… I have a real fear."  Questioned by the local authority, she opined that it is likely that the mother will not be able to manage to set routines, though there may be a honeymoon period.

58. She explained that if a return home was tried and failed there was a risk of emotional harm, regression and damage to MI's potential.  He would then be harder to place because of his age and increased difficulties.  This would lessen his chance of a permanent placement elsewhere, with a high chance of future placement breakdown.  She said that there is no room for what she called "trial and error parenting" for a child like MI, who needs predictable, reliable care. 

59. The Guardian accepted when pressed that the good relationship that the mother has with the social worker is a favourable indicator. 

60. Although in her very recent report the Guardian had raised the possibility of some form of shared care between the mother and the Belgian family in future, the new prospect of the mother having no direct contact at all did not lead her to revise her advice.  She said that even indirect contact with the mother would be of value to MI. 

61. Like Ms Handcock, Mrs Johnson would favour foster care over a return to the mother if the Belgian option, which she has not herself investigated, was not available.   She accepted the Belgian option was not without risks of its own.  MI would lose his mother and foster mother and would have to grapple with another language (Flemish).  

The parties' cases
62. The local authority argues that the evidence, taken as a whole, militates against a return of MI to his mother's care.  It points to her misjudgement of the father's ability to care safely for Baby I.  As to MI, the parenting and social work assessments show that, despite over 14 months of professional guidance, she has effected insufficient change to overcome the previous deficits.  He needs an experienced carer and failure to meet his enhanced level of need will be likely to cause him harm in the future.

63. Mr Rowley draws attention to the contact notes of some 39 contact sessions between January and April 2013.  He says that a problem of one kind or another arose on 12 occasions (whether the mother allowing MI to lead the play, her giving in to him, her needed prompting, or issues over food or relatively minor safety issues).  He argues that these events are likely to be more frequent if the mother is tired and on her own with full time care.  Her support structure is embryonic.  The consequences for MI of failure are serious.  Though some aspects remain to be clarified, the plan to place in Belgium would best meet his needs.  The local authority would not support the mother being a part of that household, but it did contemplate her having regular contact prior to the receipt of Ms Finch's report.

64. The mother's case is that she accepts that she cannot give exceptional parenting but says that she is able to offer a level of care that will be good enough to meet MI's level of need.  She will accept any help and supervision that is proposed.  She points to the difficulties that she previously faced, her insight into what went wrong, and the progress that she has made in the course of a very difficult past year.  She notes that there were no proceedings or intervention at the time in the light of the matters which the local authority now relies upon, which relate not to neglect or deliberate harm but to weak parenting of a demanding child.  She relies on the strong relationship between MI and herself and on her cooperative relationship with social and medical services.  She points to the strenuous but sometimes inconsistent efforts she has made to improve her parenting.  The mother argues that her shortcomings have to be kept in proportion.  She refers to Ms Handcock's evidence, in which she accepted several areas of improvement.  She points out that the Belgian plan has disadvantages and uncertainties as well as advantages.

65. The father, who has filed statements and was not required to give evidence, expresses remorse for his actions.  He supports the mother's position and accepts the local authority's proposal for monthly supervised contact for himself.

66. On behalf of the Guardian, it is emphasised that for 3½ years, the parents failed to meet MI's basic needs and it is asserted that the progress that the mother has made is insufficiently consistent.  Rehabilitation, says Ms Heaton QC, is more likely than not to break down.  The lack of any direct contact between MI and his mother does not make the care plan untenable. 

Discussion and conclusion
67. The welfare of MI is my paramount consideration.  Under Article 8 ECHR, I must also give proper consideration to the right to respect for family life that is enjoyed by MI and by the mother.   The court is not engaged in a comparison between the mother and the Belgian family, but first considers the mother's claims, turning to consider the alternatives only if she is shown to be unable to look after her son properly.   

68. The parties are agreed that for it to be possible to contemplate the return of MI to his mother, there must be a real possibility that her care will be good enough.  It is also accepted that she does not have to show that her care would be without blemish.  As Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 at [50]:

"Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. Children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting."

69. I must have regard to the factors in the welfare checklist – in this case, every one of the six factors is directly relevant: 

(a) MI's wishes and feelings

(b) his physical, emotional and educational needs

(c) the likely effect on him of any change in his circumstances;

(d) his age, sex, background and relevant characteristics;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable his mother (and his great uncle and aunt) are of meeting his needs;

(g) the range of powers available to the court.

70. Surveying these factors, there is in my view much to be said for each of the competing contentions. 

71. As to MI wishes and feelings, he is strongly attached to his mother, who has been the only ever-present figure in his life.  The consistent account of their closeness speaks heavily against the severance of the relationship unless it is clearly necessary.  If MI does not return to his mother, he will need a good explanation as he grows up for why his father is seeing him, but she is not, against the background of his far greater responsibility for Baby I's death.

72. MI needs capable parenting if he is to reach his potential.  His developmental delay, most of which cannot be attributed to poor parenting, is a highly relevant characteristic.

73. The effect of a change in circumstances would be particularly marked if MI were to move to Belgium.  He would experience a complete change of environment in terms of his relationships, surroundings and language.  The Belgian family is very committed to him and that there are many strengths in the proposed placement, but there are also uncertainties.  For example, as recently as August 2012 the great uncle informed the local authority (see [C153]) that he and his family would be moving to England immediately and that he regarded this as extremely important on account of his own children's education as the language difficulty in Belgium was having an adverse impact on them.  This move was described as having been planned for three years.

74. The effect on MI of a return to his mother's care would probably be less difficult in the short term as he knows her and looks forward to seeing her already.  The area of concern here is of course her ability to meet his needs in the longer term.

75. MI's needs are now well understood, and have been described extensively in this judgment.  They are not particularly esoteric: regular routines, firm boundaries and reliable access to professional advice and support.

76. What then is the extent of the mother's shortcomings?  I accept unhesitatingly that her early parenting of MI was in many respects a failure and that the circumstances that led to the death of Baby I were of a piece with this.  On the other hand, the neglect of MI's needs was not malign and it occurred at a time when the mother was young, vulnerable and unsupported.  Likewise, although her misjudgement of the father had catastrophic consequences for Baby I, this is not a case where a parent culpably turned her face away from the known mistreatment of a child.  By the time of the baby's death, and the mother was in effect attempting to care for the entire family with no internal support.

77. I have also had to form a view about the mother's motivation and commitment.  She is not unintelligent and leads a relatively orderly life.  She does not suffer from addictions and nor is she associated with common criminality.  I consider that she is determined to do her best for MI and to make up for what has been a terrible family tragedy.  She has done this with increasing, though far from total, success at a time of great personal strain.

78. I have carefully studied the instances during contact that have given concern to the professionals.  Taking Mr Rowley's 39 occasions of contact, I had independently identified about six on which the mother could undoubtedly have done better.  However the overall picture from contact is quite a positive one.  There are many examples of lively and careful parenting to set aside the fewer occasions of weakness.  Moreover, while the weaknesses undoubtedly need attention, they have not been of the most serious kind.  What would be serious is if they became the norm.

79. Although Ms Handcock ultimately speaks against rehabilitation, her evidence was in my view finely balanced.  Alongside her concerns, she noted the following signs of progress:

•  more planning for contact sessions

•  more structured play

•  greater vigilance about road safety

•  involvement in medical appointments

•  voluntary attendance at the "Strengthening Families" course

•  evidence of good financial organisation

•  better understanding of the need for a balanced diet

•  less social isolation

•  separation from the father 

80. The united evidence of these experienced professionals in this matter deserves careful respect.  Nonetheless, having considered all the available evidence, I have narrowly concluded that there is a reasonable possibility that the mother will offer good enough care to MI now and throughout his childhood.  It will undoubtedly be a challenge and the possibility of failure is a real one, but I consider that she has demonstrated the capacity to address and overcome the remaining areas of weakness.  The local authority will, at its request, share parental responsibility under a care order and will be able to monitor and offers support as necessary.

81. This conclusion gains strength from the unavoidable disadvantages of the plan to place MI in Belgium.  The commitment of the great uncle and his family to this child deserves high praise, but the possibility that MI will thereby lose his relationship with his mother is a real difficulty.  There must also be some uncertainty about the successful outcome of this placement, although this would not stand in its way if the mother had been found to be incapable of meeting MI's needs herself.  Still, it would be asking a lot of this child to make so many adaptations, welcoming and supportive though the relations undoubtedly are.  I hope that once they have overcome their disappointment at the refusal of the local authority's plan, it will be possible for the mother to receive and to accept some support from them.

82. As I am respectfully differing from the advice of the social worker and the Guardian, I should explain that I do so because I attach more significance than they do to the progress made by the mother and more weight to the relationship that exists between her and MI.  I also consider that, while the precipitating events in this case were of the utmost gravity, the remaining concerns are not of a nature that would normally lead to the severance of the relationship between parent and child.  They are of a kind that could, and in my view should, continue to be worked on cooperatively in the interests of this family.

83. I reiterate my appreciation of the very high standard of work carried out on MI's behalf by his social worker, Ms Handcock.  The fact that my own assessment is at variance with hers is a reflection of the finely balanced nature of the decision.  I also commend the willingness of the local authority to cooperate with the making of an order that does not reflect its own preferred outcome.

84. I accordingly invite the local authority to draw up a revised care plan, in consultation with the mother and the Guardian, that provides for MI to move in a planned way to the care of his mother.  On that basis, I shall make a care order.  I direct that any future proceedings relating to the removal of MI from the mother's care be referred to me for directions in the first instance if I am available: I do this so that no unnecessary delay occurs in the making of alternative arrangements and so that the mother understands that she has only one further chance of providing MI with the care that she knows he needs.

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