I County Council v TD & Others  EWHC 379 (Fam)
Twelve month supervision order made in respect of four children who were to remain in their mother’s care, against the recommendation of the Guardian that a care order be made. Orders for direct and indirect contact made in respect of the respective fathers. Consideration given to the difference between a care order and supervision order.
The court was concerned with four boys aged between 10 years and 8 months. Mr ES (father of ER) and Mr HP (father of the youngest baby, TB) were parties to the proceedings alongside the mother; the fathers of the two other boys played no part.
In July 2016 shortly after the birth of TB the local authority issued applications for care orders in respect of all four boys, relying on domestic violence and an alleged non-accidental injury sustained by TB whilst still in hospital. That injury was however subsequently held not to be non-accidental as was alleged and the court made a finding that the mother did not inflict the injury. As a result however of the alleged injury and other concerns, all four boys were removed from their mother's care; the three eldest placed with the maternal grandmother and the baby in kinship foster care.
The local authority alleged – and the parties largely accepted – that the mother had been in a series of domestically abusive relationships, including with Mr ES and Mr HP, and had suffered serious injuries at the hands of both. The children had been exposed to violent incidences and they were considered to be exhibiting disturbed behaviour as a result.
Over the course of the proceedings the mother engaged well with the local authority and support services provided, including the Freedom Programme. Although the court went on to find that she had not been entirely honest in the past with professionals as to her relationship with Mr HP, Moor J was satisfied that she had developed insight and had learned to work openly with the local authority.
The LA proposed that the children remain in the mother's care (they had returned to her care shortly after IRH) under a 12 month supervision order. They proposed indirect contact between ER and Mr ES, and direct supervised contact (twice a year) between TB and Mr HP. The mother agreed with the LA save that she did not agree to direct contact between TB and Mr HP. Mr ES agreed with the proposals. Mr HP agreed save that he sought contact at four times a year.
The Guardian argued that there should be care orders in respect of the children (with them remaining in their mother's care), and did not support direct contact between TB and Mr HP without further work being carried out.
The following key principles were relied upon by Moor J:
- The fact threshold is established does not automatically lead to the making of orders; the welfare of the children is paramount in making such decisions to include the welfare checklist and no order principle ;
- The court can make a care order notwithstanding the LA's care plans: it is for the court to decide which is more appropriate, but it should not make an order that the LA does not seek unless there are very cogent reasons for doing so ;
- Equally the court must give full reasons where it disagrees with the recommendation of the Guardian ;
- The protection of the child is the decisive factor when deciding whether to make a care or supervision order and a care order should be made only where it is necessary for the protection of the child ;
- The key differences between a care order and supervision order are:
- Under a care order the LA can remove the children without further order from the court;
- A care order will give the LA parental responsibility;
- Subject to it being discharged, a care order will last until each child turns 18 whereas a supervision order lasts for one year with the ability to extend it for a maximum of three years;
- Under a care order there are LAC reviews and an IRO.
Moor J considered that a care order was neither necessary nor proportionate and so, going against the Guardian's recommendation, made a 12 month supervision order. In respect of the contact between ER and Mr ES he made an order for reasonable contact on the understanding it would start at indirect and, all being well, progress to direct contact. In respect of Mr HP's contact with TB, Moor J ordered 10 months' indirect contact to be followed, subject to several conditions, by direct contact twice a year.
Summary by Esther Lieu, barrister, 3PB
Neutral Citation Number:  EWHC 379 (Fam)
IN THE FAMILY COURT
Date: 23rd February 2017
Mr Justice Moor
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I County Council Applicant
TD First Respondent
HP Second Respondent
ES Third Respondent
TB, EJ, ER and GJ (by their Children's Guardian, WR) Fourth to Seventh Respondents
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Hearing dates: 20th to 23rd February 2017
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MR JUSTICE MOOR:-
1. I have been hearing an application by the Local Authority, the I County Council dated 28th July 2016 in relation to four children, GJ, ER, EJ and TB. Originally, the application was for care orders but the Local Authority now seeks a twelve-month supervision order on the basis the children will live with their mother, TD. I must also deal with the question of the contact that ER and TB will have to their respective fathers, ES and HP.
2. The positions of the respective parties are as follows:-
(a) As indicated above, the Local Authority seeks a one-year supervision order in relation to all four boys. It also proposes that there be indirect contact between ER and his father, ES. Finally, it seeks an order for direct supervised contact between TB and his father, HP twice per annum.
(b) The Mother accepts that there should be a one-year supervision order in favour of the Local Authority. Her case is that she has been and will continue to cooperate fully with Children's Services. She agrees the contact order between ER and Mr ES. She opposes direct contact between TB and Mr HP.
(c) Mr ES agrees that ER should live with the Mother. He further agrees to the supervision order in favour of the Local Authority and the proposal for indirect contact, provided that the matter is kept under review.
(d) Mr HP agrees that TB should live with the Mother. He is neutral as to whether or not this is pursuant to a care order or a supervision order. He supports the proposal for him to have direct supervised contact but seeks it four times per annum rather than twice.
(e) The Guardian, WR does not agree to the supervision orders. She believes that there should be care orders in relation to the children but on the basis that they reside with their Mother. She agrees with the Local Authority's proposal for ER's contact but does not agree that there should be direct contact between TB and his father in the absence of further work.
3. The revised threshold document is dated 12th January 2017. It refers to the Mother having engaged in violent and controlling relationships, in which such behaviour often took place in front of the children. It alleges that she resumed her relationship with Mr ES after his imprisonment for an assault on her and she concealed that from the Local Authority. She was then harassed by Mr ES but failed to report this to the Local Authority. She remained in contact with Mr HP after he had been sent to prison for assaulting her and even named him as her birthing partner. It alleges that she has limited insight and is vulnerable. It says she is inconsistent in seeking support and has, at times, failed to accept professional guidance.
4. There is no dispute that the threshold for making care orders as set out in section 31 of the Children Act 1989 is satisfied, namely that the children were suffering or were likely to suffer significant harm and that the harm or likelihood of harm was attributable to the care given to the children, 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 at the date protective measures were sought. Indeed, subject to a couple of small amendments and one issue that I will have to decide, the Local Authority's threshold document dated 12th January 2017 is entirely agreed between the parties.
5. The fact that the threshold is established does not automatically lead to the making of care orders. I must consider the welfare of the children to decide what orders to make. Their welfare is my paramount consideration. I must apply the welfare checklist in section 1(3) of the Act. I must also consider the no order principle set out in section 1(5) of the Act, namely that the court should not make an order unless it considers that doing so would be better for the child than making no order at all. It is clear, however, that in this case I must make orders.
6. There is no dispute that the children should reside with their Mother. If I was to make a care order, it will last until the children's respective 18th birthdays, subject to discharge in the interim. It will give the Local Authority parental responsibility for the children. There will have to be Looked After Children (LAC) reviews and there will need to be the appointment of an Independent Reviewing Officer (IRO). Finally, subject to any restrictions I put in place, the Local Authority would be free to remove the children from the Mother's care should it so decide.
7. If I make a supervision order, section 35(1) of the Children Act requires the Local Authority to advise, assist and befriend the supervised child. It does not give the Local Authority parental responsibility. Subject again to discharge, it lasts for twelve months although it is possible to renew it twice, to give a total of three years. There is no need for LAC reviews and no IRO is appointed. Subject to the Police exercising their right to remove pursuant to a Police Protection Order, the Local Authority would have to apply to the court before the children could be removed. Having said all that, I can direct, pursuant to the Social Services and Well Being (Wales) Act 2014 that the Local Authority prepare a care and support plan for the children.
8. I make it clear that I can make a care order notwithstanding the current Local Authority care plans. Indeed, Mr AD on behalf of the Local Authority has acknowledged that, if I were to do so, the care plans would be changed. It is for me to decide which is more appropriate. The case of Oxfordshire County Council v L  1 FLR 70 is authority for the proposition that I should not make an order that the Local Authority does not seek unless I am satisfied that very cogent reasons exist for doing so. On the other hand, there is authority for the proposition that I must give full reasons if I am to disagree with the recommendation of a Guardian. In this case, I have to do one or the other.
9. The protection of the child is the decisive factor when deciding whether to make a care order or a supervision order (Re D  2 FLR 423). A care order should be made only if the stronger order is necessary for the protection of the child (Re B  2 FLR 693). If the balance between the two is equal, I should adopt the least interventionist approach (Re D  Fam Law 600). The key in each case is to decide whether a supervision order is proportionate as a response to the risk presented (Re O  1 FLR 923).
10. Finally, I have to consider the issue of contact to two of the fathers, both of whom have assaulted the Mother and have been subject to risk assessments. I have considered the cases of Re M (Contact: Violent Parent)  2 FLR 321 and Re L (A Child) (Contact: Domestic Violence) & Ors  FLR 260. In the latter case, Butler-Sloss LJ said:-
"If…. there is a firm basis for finding that violence has occurred, the psychiatric advice becomes very important. There is not, however, nor should there be, any presumption that on proof of domestic violence the offending parent has to surmount a prima facie barrier of no contact. As a matter of principle, domestic violence of itself cannot constitute a bar to contact. It is one factor in the difficult and delicate balancing exercise of discretion. … In this context, the ability of the offending parent to recognise his past conduct, be aware of a need to change, and make genuine efforts to do so, will be likely to be an important consideration."
11. Given the level of agreement, I can deal with the long and complicated history of this case far more briefly than would otherwise be the case.
12. The Mother, TD was born in 1984. She is therefore aged 32. She is the Mother of all four children.
13. The Second Respondent, HP was born in 1988. He is therefore aged 28. He is the father of TB. He has a very long and unpleasant criminal record with numerous convictions between 2007 and 2016. They cover a wide range of offences including assaults, criminal damage, theft, motoring offences and drug offences.
14. The Third Respondent, ES, was born in 1986, so he is aged 30. He is the father of ER. It was thought that he was also the father of EJ but DNA testing has recently proved that he is not EJ's father. I intend to make a declaration to that effect, even though no application has been made formally. There is no dispute that he is not the Father. Both he and the Mother are parties to this litigation. It would be a waste of resources to require a further application. I should perhaps mention that the Mother now says that the father of EJ is Mr RA but that has not been proved by DNA testing. Mr ES also has a number of convictions between 2012 and 2015 which include convictions for violence, drug offences and breach of court orders.
15. The eldest of the four children is GJ. He was born in 2006 and is therefore nearly eleven years of age. His father is GL but Mr GL plays virtually no role in his life. GJ has been diagnosed as having Attention Deficit Hyperactivity Disorder (ADHD) for which he receives medication. Nevertheless, to his credit, he moved to a mainstream class this year.
16. ER was born in 2009, so he is aged 8. EJ was born in 2012 so he is aged 4. I do not know if there is any intention to change his name now that it is known that his father is not Mr ES. TB was born in July 2016, so he is very nearly 8 months old.
17. Unfortunately, at least until the start of these proceedings, the Mother's adult life was characterised by a whole series of relationships with abusive men. There was undoubtedly domestic violence between the Mother and Mr ES which was, at times, witnessed by GJ. I have not conducted a fact finding hearing as there is an admission of violence but I note that the allegations include that Mr ES stamped on her head rendering her unconscious and that he punched her in the face and broke her hand. The Mother had obtained a non-molestation order against him on 7th April 2011 but the relationship continued thereafter. Indeed, he was convicted of assault occasioning actual bodily harm and common assault during 2012 as well as two offences of breach of the non-molestation order. It is said that the Mother recommenced a relationship with him on his release from prison. In 2013, he was convicted of harassment, namely breach of a restraining order.
18. In July 2012, the Mother reported to the Police threats to her from Mr RA, including an allegation that he posted a picture of a gun on Facebook.
19. Although I have not seen any documentation, I understand there were private law proceedings in 2013 that resulted in a residence order to the Mother and a contact order in favour of Mr ES. My understanding, however, is that contact ceased in July 2013 following Mr ES having an argument with the Mother. An indefinite restraining order was made against him in December 2013.
20. There have been difficulties with GJ. In August 2013, GJ caused damage to a local property. At the time, he was only six. In 2014, there was a further incident when he allegedly held a child's head under water before being stopped by a passer-by. He was also accused of throwing rocks at passing vehicles.
21. In March 2015, the Mother commenced a relationship with Mr HP. There is no doubt that this relationship was characterised by "jealous and controlling" behaviour from Mr HP as well as physical abuse of the Mother. In November 2015, the Mother alleges that she was subject to a serious physical assault by Mr HP. ER was screaming as a result.
22. In March 2016, there was a further assault by Mr HP on the Mother. GJ says he saw Mr HP threatening, hitting and punching the Mother and pushing her downstairs. Bruising was seen and Mr HP is alleged to have made degrading comments about her.
23. The same month there was a very serious incident involving GJ and ER. It appears that they took a young girl aged 10 to a field. It is said that GJ restrained her so she could not move her arm and that ER then touched her breasts and between her legs. The girl bit GJ's hand to free herself. Another account says that GJ also touched the girl inappropriately. Again, I have not conducted a fact finding hearing so cannot make specific findings but this is clearly a very serious and worrying matter.
24. On 26th April 2016, Mr HP was convicted of assaulting the Mother and given a 12 week prison sentence. It is clear that this was not the end of the relationship between the Mother and Mr HP. There is no doubt that the Mother was a regular visitor to him in prison and wrote to him there. It is said that GJ and ER wrote to him as well. The only point that the Mother makes in relation to this is to say that she was, of course, pregnant with Mr HP' child at this point.
25. The Mother gave birth in July 2016. There is no doubt that there was some contact with Mr HP that day as he was sent a birthing video by his sister who was the Mother's birthing partner. When he was released from prison, he attended at the hospital to try to see TB but was prevented by the hospital staff. A decision was taken shortly after the birth to trigger child protection procedures due to the Mother's ongoing contact with Mr HP.
26. On 19th July 2016, the Mother obtained an injunction against Mr HP, preventing him from using or threatening violence against her or the children or from coming near to her home or the home of the maternal grandmother. Mr HP was not to have any communication with her.
27. Prior to this, in early July 2016, TB was diagnosed with a displaced spiral fracture to his right femur whilst still an inpatient at the hospital. Initially, it was thought that this was a non-accidental injury. Indeed, the Mother was arrested and for a time there was a bail condition that she should have no unsupervised contact with her children. The three eldest children went to live with the maternal grandmother and her partner. On 28th July 2016, the Local Authority made its application for care orders. It is clear that it relied on domestic violence as well as the alleged non-accidental injury.
28. The matter came before HHJ Gaynor Lloyd on 29th July 2016. She made interim care orders in relation to all four boys. The eldest three were to remain living with the maternal grandmother and her partner. They supervised the Mother's contact. TB was discharged from hospital to kinship foster carers. In due course, expert evidence was ordered as to the issue of whether the fracture was non-accidental or not.
29. The experts had very great difficulty in coming to a definite conclusion as to the cause of the injury to TB. Eventually, however, a consensus emerged that it was not possible to say that it was a non-accidental injury. On the balance of probabilities, it was thought to be a birth related injury. In consequence, I have not been asked to find that it was a non-accidental injury. I agree entirely that this was the correct approach. I have heard the Mother give evidence. She is clearly a caring and loving mother. I accept that it is inherently improbable that such a serious injury would be deliberately inflicted on a days' old baby in a hospital. It follows that the Mother is entitled to a finding of fact that this was an accidental injury. On the balance of probabilities, I find it was caused at birth. In consequence, the Mother is entirely absolved of responsibility. She did not inflict injury on her child and that is the finding of the court.
30. The case had, however, by then been reallocated to me. It was made clear that the Local Authority pursued its allegations of significant emotional harm to the children as a result of domestic violence. Nevertheless, a parenting assessment of the Mother by the Social Worker, ST, dated 24th November 2016 was, in many respects, very positive as to the Mother. It is clear that there is no criticism of her physical care of the children. She keeps the house clean and warm. It is maintained to a tidy and hygienic standard. She is willing to ask for and accept support. She has encouraged and promoted the children's education. She is attentive to their needs. The difficultly has been her inability to ensure a consistent and stable home environment due to the children's exposure to domestic violence. There had been 13 referrals between December 2009 and May 2016 over the issue. She has recently undertaken the Freedom Programme leading to her having a better understanding of abusive patterns of behaviour but she still requires further support. The children say they saw Mr HP knock her out and call her a bitch and a slut. GJ witnessed Mr ES hit her and stamp on her head. Having said that, the Mother loves the children and her love is reciprocated. She needs to develop more rigid boundaries but she does have the capacity to meet their needs and is willing to accept support. She has the capacity for change within the time frames for the children. The recommendation was rehabilitation.
31. The IRH took place before me on 20th January 2017. It was agreed that the three elder children would be returned to the care of the Mother on 21st January 2017 and that TB would gradually be integrated into the family over the next two weeks, commencing 26th January 2017.
32. The elder three children did return on 21st January 2017. They have all been doing well and are very pleased to be home. TB joined them on 2nd February 2017 and his return has also gone well. There is no dispute that all four children should remain with the Mother.
The written evidence
33. Risk assessments were also undertaken of both the relevant fathers, namely Mr ES and Mr HP. They were both done by ST. The assessment of Mr ES is dated 14th December 2016. She details his previous convictions and information from his GP as to him having had a low mood in December 2015 for two years. The inability to see his son was the explanation given. He has anger problems and had smoked cannabis for ten years. Although previous contact reports were positive, ER is ambivalent as to contact. Mr ES has difficulty acknowledging his own behaviour and his relationship with the Mother had been volatile and unpredictable. He still exhibits some controlling behaviours and told Ms ST that he considered it could be acceptable to become angry to put a point across. He had difficultly recognising the impact of domestic violence on children.
34. ER initially said he did not want contact but then said he would like to see his father but, allegedly, said the opposite when he returned home and was distressed/crying. Ms ST considered Mr ES needed to demonstrate his commitment to ER. ER does not need further instability and contact will have to be at ER's pace once his position at home is secured. There will also need to be work done to address his emotional and behavioural needs. The assessment recommended letterbox contact to re-establish a relationship as an opportunity for Mr ES to show he can be consistent and sensitive to ER's needs. He should attend the Caring Dads and Incredible Years programmes with a review of the contact in six months.
35. The risk assessment of HP is dated 16th January 2017 and was also prepared by ST. She noted that Mr HP does cooperate with probation but it does not prevent him from committing further offences. She says she saw him leaving the appointment with her, driving a white van even though he has been banned from driving. She noted that he admitted to starting to smoke cannabis again. He has a good understanding of what a child needs but lacks insight into his own behaviour and limited capacity to take responsibility. Mr HP would prefer contact to be supervised. Contact would be to maintain a positive sense of identity for TB.
36. The final care plans are dated 27th January 2017. ST filed her final statement the same day. She says that the Mother has developed her understanding of abusive behaviour. The children are happy to be home and are relaxed and contented. They had been pushing boundaries whilst with the grandparents. The Mother requires support to manage but the Local Authority seeks the less intrusive supervision order to deal with the risks.
37. Mr HP filed his final statement on 2nd February 2017. He confirms the Mother to be a good mother. He wants contact to TB but his preference is for supervised contact at a neutral venue as he has no wish to come into contact with the Mother. He would like the court to consider supervised contact four times per year. He confirms he has five other children in three different families but only has contact to one child aged 2 to 3. His contact to three of the other children was stopped by their mother. In relation to the final child, he does not want to disrupt the new family.
38. The Mother's final statement is dated 3rd February 2017. She indicates she is happy for ER to have indirect contact to Mr ES. If ER wants direct contact, she says she will liaise with the Local Authority. She has grave reservations as to Mr HP' contact and believes there should only be indirect contact as he has no respect for the law. She is fearful as to what will happen when the non-molestation order expires. She believes he will go to prison again which will curtail contact and points out that he does not have a meaningful relationship with any of his other children. She says he needs to show commitment and attend courses. She confirms she is not in a relationship at the moment.
39. Mr ES' final statement is dated 10th February 2017. He is living with his parents. He had been in a relationship with the Mother for seven years. The final separation was in July 2012. He had always had doubts as to EJ's paternity. He agrees that he behaved unacceptably at times. He says that the reason he has not had contact since July 2013 is that he spent £6,000 contesting the case but ran out of money and then had extreme difficulty arranging contact with the Mother such that it broke down completely after he was charged with harassment for breaching a restraining order. He has completed the IDAP domestic violence course and has not been in trouble with the Police since 2014.
40. The Guardian, WR's final report is dated 10th February 2017. GJ is relaxed and happy to be at home. He is curious about his father as he has had no contact to him since he was a baby. The Guardian notes the very concerning March 2016 incident involving him and ER. ER is pleasant and inquisitive. He is more relaxed since he has gone home. He is very frightened of Mr HP. ER has been dominating and has behaved inappropriately to another child at school. EJ was distressed and anxious when away from the Mother.
41. The Mother is able to meet the children's basic care needs. The relationship is warm and caring. There are concerns as to neglect on a temporary basis when she is stressed by domestic violence but her care is good when she and the children are in a secure setting. She lied about her relationships ending. She is friendly and cooperative when there is agreement with professionals but she can be argumentative, evasive, volatile and annoyed when she disagrees with them. Mr ES accepts some responsibility for what has occurred but minimises the events. His parents may be able to facilitate contact in due course. She was worried about Mr HP who minimises the violence and even told her that it was nothing more than a "slap" and "play fighting".
42. She does not consider a twelve-month supervision order to be adequate. She takes the view that there needs to be intense monitoring as the previous monitoring did not prevent domestic violence. There should be final care orders as the Local Authority is more likely to gain cooperation if it shares parental responsibility with the Mother. Contact can then be reviewed at LAC reviews.
The oral evidence
43. I heard oral evidence from the Social Worker, ST; from the Mother; from Mr HP and from the Guardian, WR. I did not hear from Mr ES as nobody wished to cross-examine him. He sat in the back of my court throughout paying careful attention to the case. On any view, this shows a level of commitment that has certainly been lacking from some of the fathers in the past.
44. Ms ST impressed me as a committed and careful social worker that has done her very best for this family and will continue to do so. She has a good relationship with the Mother that is both refreshing and relatively unusual in these cases. She considered the risk to the Mother was in the long term, given the previous pattern. She was satisfied the Mother was not in an abusive relationship at the moment. The Mother has a good support network of family and friends who are aware of the proceedings and the risks. She said they would let the Local Authority know if there was a problem but Ms ST trusts the Mother. I accept that evidence. She considered twelve months was sufficient for a supervision order although it might have to be extended.
45. She was asked as to whether the Mother had really changed. She said that the Mother undertook ten sessions from September 2016 to the end of November 2016 with LG and, as time went on, she was able to identify abusive behaviour for the first time. Ms ST did encounter some resistance initially but, as time has gone on, the Mother has recognised the benefits of working with the Local Authority. The Mother will voice her opinion but she has not been confrontational at all. She can reflect and has cooperated although the Local Authority requires the cooperation to continue.
46. Ms ST dealt with contact and said that ER had been quite stressed by the idea of contact. He requires a period of stability. TB has no understanding of domestic violence but he has a right to see his father and have a sense of identity. If necessary, the Local Authority has committed to it until TB is aged 16.
47. At times during the evidence, the Mother became distressed but I was clear that the emotions she was showing were genuine and appropriate. She clearly loves her children very much and wants to do the best for them. I am quite satisfied that the children should be back in her care. Most of her cross-examination centred around whether or not she had genuinely changed and had recognised the dangers of violent men and, in particular, HP. I have to say that I consider cross-examination on such issues to be difficult for parents in care proceedings. She was asked when she had "seen the light" and she said it was when she was told by a hospital Social Worker and the Police in hospital how dangerous Mr HP was. I do not accept that this was the case although I do not believe she was lying to me. She may well have convinced herself that this was the crucial moment but I do not believe it was. After all, she already knew how dangerous he was as he had been sent to prison for assaulting her. I consider, however, that she has now firmly come to a conclusion as to Mr HP. I am quite satisfied that the relationship with Mr HP is over for ever. After all, he has a new girlfriend and I believed both when they said they did not want any contact with each other although Mr HP did want to see TB.
48. I consider the "light bulb" moment in this case was when the children were removed from the Mother's care. This had never happened before and it caused her to take a long hard look at how it had come to this. I recognise that the reason for the removal was the unfounded allegation of assault in the hospital but the Mother realised that it was not just this. She knew she had to work hard to get them back and she has done so. This does not mean that I can be sure that she will not enter another inappropriate relationship in the future although I accept she has done good work with LG and has even set up a support network for victims of domestic violence. I am satisfied that she will tell the Local Authority if she wishes to enter another relationship if only because she knows that there will be very serious consequences if she does not.
49. She was asked why she had continued a relationship with Mr HP after he was sent to prison for assaulting her. I am satisfied that she did and, at the time, she misled professionals. I find that she did telephone him in prison to say that she had given birth to TB but she did not invite him to the hospital. She explained the continuing relationship on the basis of her pregnancy. I do have some sympathy for her in that regard. I also recognise the complex features of dependency in violent relationships. I am, however, satisfied that the relationship would have continued without Local Authority intervention. It follows that the final paragraph of the threshold document, which is to that effect, is proved and will remain in the document.
50. She was asked why she did not want a care order. Again, I consider this to be a very difficult question for a parent, as opposed to the position if asked to a family law professional. She told me she did not want a care order as the children had suffered a lot. She had been stressed by the trauma of separation. She told me it was important she got support and she needed support. What she was really saying to me was that she did not want the stigma of the children being in care. She wanted to look after them as their mother not, as she sees it, as the equivalent of a foster carer. I recognise that this is important to her as it would be important to most people.
51. Mr HP was not an impressive witness. He told me he had changed but I do not accept that. He denied driving a van whilst disqualified but I accept the evidence of Ms ST that she saw him do so and I reject his evidence that his brother was driving and he was in the middle of a seat of three. It follows that I cannot accept that he is a changed man without more. He did tell me he had attended two sessions on the Caring Dad's programme and had six more to go. Whilst positive, I remind myself that he has always cooperated with probation services yet has continued to offend.
52. He told me that the Mother telephoned him from prison to say she had the baby. I have already accepted that this was the case. He told me she visited him in prison two weeks before, saying she wanted a family life with him. I accept that evidence as well. He received letters from her and the boys. He said this showed ER was not frightened of him. I do not accept that. It shows that the Mother got ER to write a letter to Mr HP. He did, however, tell me that he had no feelings for her any more but wanted to see the little boy. I accept that evidence.
53. Finally, I heard from the Guardian, WR. I make it clear that she is a very committed and conscientious Guardian who has done her very best for the children she represents. I have a difficult decision as to whether I prefer the outcome she suggests or that asked for by the Local Authority. I have to choose one or the other but that does not mean that I do not respect the views of both.
54. Ms WR was clear that the children should remain living with the Mother. Her basic care of them is very good. If there had been no injury to TB, the placement would have been with her. She said that ST is a very sensitive social worker. The disagreement between them was that she saw a need here for more complex and intense work with the family than Ms ST. Moreover, Ms WR felt that there would be times when the Mother would show resistance to the work. At that point, there would have to be intervention from somebody who has parental responsibility, namely the Local Authority. She said there was no proof that the Mother appreciates the impact of domestic violence. I am not sure she is completely correct as to that. She also said that the difference between the two orders was that there would be an IRO if there was a care order. Moreover, she said that this was very early days.
55. Turning to the issue of Mr HP' contact, Ms WR was of the view that there needed to be further assessment done. The children had to understand that the adults must deal with the violence. Until the work had been done, she considered contact between TB and Mr HP should not be introduced.
56. Mr AD for the Local Authority submitted to me that there are four main distinctions between a care order and a supervision order. I accept these distinctions. They are:-
(a) The ability of the Local Authority to remove the children under a care order without a further application to the court.
(b) A care order will give the Local Authority parental responsibility.
(c) Subject to it being discharged by the court, a care order lasts until the children are respectively aged 18, whereas a supervision order only lasts for one year, with the ability to extend it to a maximum of three years.
(d) There are LAC reviews and an IRO with a care order that do not apply to a supervision order.
57. I have considered these differences carefully. I have come to the clear conclusion that, in this particular case, they do not require me to make a care order. I say so with great respect to the Guardian's view but I do so for the following reasons:-
(a) If there had to be a removal, I am clear that it would be appropriate for there to be a court decision to remove. If there is a care order, I consider that it actually makes the position more difficult. Of course, I can make orders that require the Local Authority to give notice but, if it does so, the Mother would not be automatically entitled to legal aid. She would have to apply for discharge of the care order (which might be difficult for her if the position had deteriorated from the position today) or for judicial review of the decision to remove, which is cumbersome and not appropriate. I recognise there are cases where care orders are required notwithstanding placement with a parent but I am of the view that, often, the ability to remove without a court order is a disadvantage of such an order not an advantage.
(b) I recognise that a care order would give the Local Authority parental responsibility but I take the view that this does not justify such an order in this case. The Mother has cooperated. She has indicated that she will continue to do so. She gets on well with the Social Worker. She knows that, if she stops cooperating or ignores the advice of the Local Authority, she will likely face further care proceedings and she may well lose her children again. This is a very powerful incentive to be cooperative. I believe she will do so. I am therefore of the view that it is not fundamental that this Local Authority has parental responsibility.
(c) I cannot see that it is appropriate to have a care order in place where children are placed with a parent for more than three years. I do recognise that a supervision order will expire in a year's time whereas a care order will not. I am, however, clear that this Local Authority can, should and will apply to extend it if the Local Authority is of the view that it is necessary to do so. I make it equally clear that I would expect the Mother to consent to such an application. It would, therefore, be a relatively simple exercise.
(d) I recognise that there will not be LAC reviews or an IRO. There are some advantages to children not being "Looked After". The need to undertake child medicals is one such advantage. Turning to the lack of an IRO, I have formed a very favourable impression of the work of this Local Authority in this case. I consider it will do what is necessary. Moreover, I can and will require the Authority to produce a Care and Support Plan pursuant to the 2014 Act. I am of the view that this removes any possible disadvantage of there not being an IRO.
58. In effect, the final reason why the Guardian sought a care order was that she considered greater work was necessary than the Local Authority thought was required. I am by no means certain that, even if correct, this would be dealt with by my making a care order. The Local Authority would still have the same view and the only point would be if the IRO disagreed. But, more importantly, I am clear that this Authority is not going to abrogate its responsibility.
59. It follows that I accept the Local Authority care plan. It does pain me that I have had to come to a different conclusion to that of a well-respected and experienced Guardian but I have to approach this case on the basis of the law. In four respects, I am clear that the law requires me to make a supervision order:-
(a) I need very cogent reasons to overrule the Local Authority's care plan in this regard. As set out above, I do not find such reasons in this case.
(b) I should only make a care order if the protection of the children requires it. My finding is that it does not.
(c) In such circumstances, I must approach the matter in the least interventionist manner. That means a supervision order not a care order.
(d) Finally, I have come to the conclusion that it is not proportionate to make a more intrusive order in this particular case, again for the reasons set out above.
60. I therefore must make child arrangement orders pursuant to section 8 of the Children Act 1989. I make an order that the four children live with the Mother but subject to a one-year supervision order in favour of the Local Authority. There will be a direction pursuant to the 2014 Act that the Local Authority prepares a Care and Support Plan.
61. I now turn to the question of contact. Mr ES' contact is agreed. I make an order for reasonable contact, initially on the basis of indirect contact but with the clear intention as set out in this judgment that it should move to direct contact, initially supervised by the Local Authority. This is on the basis that the Local Authority will advise the parents as to what contact is reasonable and how to achieve it. I accept that ER's views are important but not determinative. He should certainly be strongly encouraged to see Mr ES. It may well be that Mr ES' parents will be involved at some stage. I am sure that it is in his interests in the long term to have a safe and secure but enduring relationship with his Father.
62. Mr HP is in a different position. I recognise that many will think it odd that it was proposed to me that there be direct, albeit supervised contact, to him but not in relation to Mr ES. I accept that the age and views of ER do distinguish his position in a way that does not, at present, apply to TB although it does give the court some pause for thought.
63. I further accept, of course, that it is, in general, in the interests of children to know their parents and have a relationship with both of them. In this case, it is fortunate that the Local Authority is prepared to facilitate supervised contact in the long term, even if only on an identity basis. Equally, I have to pay careful regard to Practice Direction 12J. I must consider the effect of such contact on the older boys. I reject the suggestion, tentatively made, that the contact between TB and Mr HP could be kept secret from the others. That is in nobody's interests.
64. I have therefore come to the conclusion that Mr HP must prove himself before there can be direct contact. He must complete the Caring Dad's programme. He must engage in indirect contact to TB once per month. I understand that he has literacy difficulties but that does not stop him sending a card or small toy. He must avoid any further involvement with the Police. In other words, there must be clear indications that he is not going to drop out of TB's life in the way that he has in relation to four of his other five children. I accept that he has shown a genuine commitment by attending this case and giving evidence but that is only a start. If he can do what I have set out, he can have supervised contact commencing in January 2018 and the matter can continue as proposed by the Local Authority, namely twice per annum. I reject the suggestion it should be four times per annum. In some respects, this is identity contact only but I can see the justification for it in TB's interests.
65. In Mr HP' case, however, I am not going to make an order for reasonable contact. I am going to direct indirect contact for ten months on a monthly basis followed by direct contact, twice per annum supervised by the Local Authority provided Mr HP has complied with the conditions set out above. Any further development of this contact will require a further court order.
66. I am very grateful to everybody involved with this case for the careful way in which it has been approached in the interests of these four boys.
Mr Justice Moor
23rd February 2017