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A Local Authority v K & Ors [2008] EWHC 2051 (Fam)

Judgment in care proceedings concerning the placement of an infant child born to parents whose three previous children had been removed from their care after findings that one of them had suffered non-accidental injuries. The child was put into the care of the local authority.

The family had originally come to the attention of the local authority when one of their children was found to have serious, life-threatening, injuries. He survived but now requires permanent support so he and his two sisters were placed in long term placements. In the original proceedings Hedley J had found that the evidence presented by the parents had been a “cocoon of deceit” and although the mother admitted being the perpetrator he had found that he could not decide whether that was true. Endemic domestic violence and a chaotic family home had not helped.

This case though concerned the couple’s fourth child and whether she could remain in the parents care. The mother argued that she was separated from the father, she was now telling the truth and she was free from the stresses of the former home life. The father’s case was that he had not been found to have perpetrated any injury and so could be considered as a primary carer. Hedley J had allowed residential assessments and other measures to ascertain whether the parents had changed sufficiently to remain as carers for the child. However he decided that the evidence before him at this trial, the threat that neither the father nor the mother would be excluded if the other became carer and the background to the case meant that he should make a care order in favour of the local authority. He also justifies his decision to allow some time to assess the parents:

“I must, however, confess myself wholly unrepentant at seeing this through to what is now its bitter end;  it seems to me that ‘Z’ [the child] deserved every opportunity to remain within her natural family and I had not given up hope of that until I heard the oral evidence in this trial.  She has of course lost a few months but in the great scale of things that was in my view at least a price worth paying in the attempt to keep her in her natural family. “

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Neutral Citation Number: [2008] EWHC 2051 (Fam)
Case No: FD07C00422
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21st August 2008

Before :

THE HONOURABLE MR JUSTICE HEDLEY
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Between :

 The Local Authority   (Applicant)
 
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RK  (1st Respondent)

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RU  (2nd Respondent)

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‘Z’ (by her children’s Guardian)  (3rd Respondent)

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Ms S. Philabosie (instructed by  London Borough of Tower Hamlets, Legal)  for the  Applicant
Ms J. Rowe, Q.C. (instructed by  McCormacks, Solicitors)  for the 1st Respondent
Mr M. Bailey  (Junior to Ms Rowe)
Ms J. Delahunty, Q.C.( instructed by Miles & Partners Solicitors)  for the  2nd Respondent
Ms  T. Zabihi  (Junior to Ms Delahunty)
Miss E. Woodcraft  (instructed by Munro Solicitors)  for the  3rd Respondent

Hearing dates:  22nd July, 2008 (5 days)
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Judgment
 

.........................
THE HONOURABLE MR JUSTICE HEDLEY

This judgment is being handed down in private on 21st August 2008.  It consists of 9 pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported.

 The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

The Hon. Mr. Justice Hedley :

1. I am giving this judgment in open court but nothing may be reported which might reasonably lead to the identification of any child in this case.  This case is principally about ‘Z’ who was born on 9th September 2007 and is thus within a month of her first birthday.  The context for the case, however, is provided by the stories of three elder siblings known as ‘W’, ‘X’ and ‘Y’ who are now aged respectively 7 years, 5 years  and 3 years 9 months.

2. This family came to the attention of the authorities on 16th November 2004 when ‘Y’ was presented at hospital with life threatening injuries.  How that came about is fully described in a judgment given by me on 24th November 2005.  Suffice it to say the injuries were non-accidental, had been sustained over a period of time, had occurred within the family and there had been a culpable delay in seeking treatment.  Whilst the mother admitted being a perpetrator of injury, such was the quality of the evidence (I described it as a ‘cocoon of deceit’) that it was not really clear how or when or why the injuries had occurred or even by whom they had been caused.

3. In those circumstances it is unsurprising to most not only that the children were removed from the parents but that it was quite impossible that they should care for them again.  On 28th July 2006 I gave a further judgment making a care order in respect of ‘Y’ and making Special Guardianship Orders in respect of ‘W’ and ‘X’ in favour of a paternal uncle and his wife.  The girls remain in that placement.

4. Whilst happily ‘Y’ survived, he sustained serious and permanent injury which is likely to result in his being dependant on others throughout his life.  It was initially the plan of the local authority, approved by the court, that ‘Y’ should be placed for adoption  In fact no prospective adopters have ever been identified but the local authority are currently assessing his current foster home as a long term placement.  In those circumstances I gave leave to the local authority to withdraw their application for a placement order.  I should add that a number of prospective familial placements have been assessed but none was positive.  The only outstanding issue in respect or ‘Y’ is further parental contact.     

5. I can deal with that quite shortly.  There is no reason why it should not continue; indeed it has positive aspects.  However, ‘Y’ will never return to his parents’ care and thus contact arrangements must reflect that.  In my judgment that is best done by making it a school holiday feature of ‘Y’’s life.  In my judgment it should occur three times a year in a supervised meeting for a period of 2 hours.  As he gets older some flexibility will be needed but that should provide the framework. ‘Y’ should also, of course, remain in contact with his three siblings.  That is slightly more than the professional evidence advises but is in my view consistent with ‘Y’’s welfare.

6. ‘Z’ was conceived at the turn of 2006-07, as a planned pregnancy, after the arrangements for the other children had been settled.  Clearly that posed serious problems for the local authority.  In the end they decided to offer a familial placement and residential assessment with an organisation known as C2S.  Whether or not that was a correct decision (and the Guardian has throughout expressed her doubts about it), it was in my view a fair-minded and reasonable decision and one which I strongly suspect I would have supported had I been asked to determine the issue.  

7. The case correctly began in the P.R.F.D. and had ‘Z’ been the only matter for consideration there no doubt it would have stayed.  However, I accepted a transfer to myself essentially for two reasons.  First, I had dealt throughout with the earlier proceedings.  Secondly, I had expressed myself with some force about these parents and it seemed to me that it might not be easy for a judge of the P.R.F.D. to take a different view in respect of  ‘Z’ and that, if a different view were justified, it should perhaps be taken by me.  I have throughout done my utmost to give  ‘Z’ every chance of being brought up within her natural family having refused to terminate the subsequent community assessment and having on a least two occasions refused local authority applications to remove ‘Z’ from her parents’ care.       

8. There were inevitably a very large number of issues in the case and the evidence was extensive.  It covered both the residential assessment by C2S and the local authority’s own community assessment.  It included field social work evidence, expert psychiatric and psychological evidence and in the round was extremely detailed.   However, by the conclusion of the oral evidence those issues had both narrowed considerably and in one respect changed completely.  It is therefore wholly unnecessary to review the evidence in detail though of course parts of it remain extremely important.    

9. Although in part in a residential assessment and in part supported by all that goes with a community assessment, ‘Z’ has throughout lived with her mother as her primary carer and since 3rd June 2008 as her sole carer.  ‘Z’ today appears a normal happy child who has developed and progressed as expected.  It is true that the evidence discloses criticisms of the mother’s care as over-controlling and over-anxious.  I have no doubt that there is something in those criticisms.  However, the mother has taken some note of them.  The contact records support that, and there is the irrefutable evidence of how ‘Z’   presents today.  I intend to treat the conclusions of the local authority’s community assessment with a great deal of caution, as it does not sit easily with either the contact records or how ‘Z’ presents now.  I heard evidence from one of the two field social workers.  I found her to be a thoughtful and impressive witness.  Whilst she recognised the mother’s shortcomings as a parent, it was her view that those taken alone would not justify ‘Z’’s removal  into care.  I accept her description of the mother’s shortcomings and share her view that those alone would not justify state intervention by the removal of ‘Z’ from the family.    

10. It firmly remained the social worker’s view, however, that ‘Z’ could not remain in the family but that was put on the basis of an unacceptable and unmanageable risk of future harm to ‘Z’ given what had happened to her brother and given how little was known of what happened and why, so that no real assessment of future risk could be made.  I entirely accept that that is the central and decisive issue in this case.   

11. I had expert evidence (both written and oral) from two distinguished psychiatrists,  Dr. Freedman and Dr. Abou-El-Fadl.  They spoke with one voice that in their view the parents, as a couple, would be unable safely to care for ‘Z’ on their own.  Dr Abou-El-Fadl made it clear that the dynamics of the relationship between the parents was such that they produced a level of stress and disharmony that was liable to lead to violence which would imperil not only the welfare but the safety of ‘Z’.  By the end of the hearing both parents through leading counsel expressly accepted that position and concentrated on offering themselves as sole carers. 

12. That was, of course, something that had never been expressly assessed, although it had been foreshadowed by the events of 3rd June 2007.  On that occasion there had been a major domestic upheaval in which police and social workers had become involved.  The mother both obtained an exclusion order against the father (which he did not resist) and took over as sole carer of ‘Z’.  Although she said she wished to be a sole carer, it was clear from her written evidence and what she said to others, that she hoped they could re-unite when the father had sufficiently changed.  Given the history of the case, it was wholly unsurprising that both local authority and guardian were sceptical of both the mother’s commitment and ability to be a sole carer.  The father’s written evidence was clear;  ideally he would like them to care as a couple but he accepted that that could not be so at least at present and so he supported the mother as sole carer, offering himself as a sole carer only if the court excluded the mother from that role.  It is clear throughout that not only was the mother ‘Z’’s primary carer but the father thought that that should indeed be her role.

13. In the course of her oral evidence, the mother became much more determined that she would be a sole carer for ‘Z’ and that her relationship with the father was over.  Although I do not doubt that those were genuine sentiments, it was clear that she still had feelings for him and was exercising a choice which in an ideal world she would have been glad not to have.  I am not wholly convinced that she would be able to sustain that, although I would not make a specific finding that she would not.  In the course of the father’s oral evidence (foreshadowed in his cross-examination of the mother) his case changed completely.  He said that having heard the mother’s evidence as to how she had injured ‘Y’,  he could no longer support her as a sole carer for ‘Z’ and therefore his primary (indeed his only) case became his offering of himself for assessment as sole carer for ‘Z’.

14. It was the view of the local authority (supported by the guardian) that neither should be further assessed as sole carer for ‘Z’.  It was said (as I have indicated) that it was too dangerous to leave ‘Z’  with her mother and that the father had shown neither inclination nor motivation to act as sole carer, that he would not be able or willing to sustain that role and that in any event his role in the original incident remained shrouded in mystery.  I need say little of the local authority’s proposals themselves since they do not arise for consideration unless both parents are specifically excluded as carers and, if that be the case, then a care order becomes inevitable.  The precise future of ‘Z’ in those circumstances will be determined in the subsequent hearing of an application for a placement order in respect of ‘Z’.

15. I think in the circumstances it is probably right to deal first with the father’s case as it now stands, quite independent of that advanced by the mother, save that in practical terms it only arises for consideration if the mother is excluded, since he has always acknowledged her as the primary carer.  It is true that he has lacked commitment as a carer for ‘Z’ both in the residential and, more particularly, in the community setting.  It would, however, be wrong to exclude him on that ground alone for two reasons:  first, the mother was acting as primary carer and secondly, that he showed some aptitude as a parent when he applied himself.  It would only be right specifically to assess his commitment if that was the primary issue.  However, there are other matters requiring consideration.

16. I have to say that I still regard what the father says with a high degree of caution including his change of stance in the trial.  I note that he now accepts that he has been violent to his wife in the past and that his evidence has been untruthful.  The difficulty is that he has been consistently devious with his dealings with all over the history of these cases at least until very recent times.  I am now asked in the light of the mother’s current evidence, to make a specific finding that he was not responsible for any injury to ‘Y’.  I have, of course, never made a finding that he did cause injury.  What I have said is that such was the web of deceit woven by the parents that one simply could not know what actually happened.  If I accept the mother’s present account of what happened, then I have a much fuller picture but it remains incomplete;  for example,  I still do not really know how the metaphyseal fractures to the legs occurred.  Given the whole history of this matter, whilst recognising that the probability that the father was actively involved in causing actual injury has significantly diminished,  I do not feel able to make the specific finding sought in this case;  that, of course, is the price of repeated falsehood over a long period of time however much the parents now seek to put that right.  That said, this issue of itself would not preclude the father as a possible carer for ‘Z’.

17. There is, however, one matter that in my judgment is decisive against allowing the father an opportunity to be assessed as a sole carer for ‘Z’.  As I have said, given the father’s historic acceptance of the mother being the prime carer for ‘Z’, his application really only falls for consideration if the mother is excluded as a sole carer.  That, as I have indicated, will only occur if I take the view, (which was firmly supported by the father in his oral evidence), that ‘Z’ will not be safe in her mother’s care.  The matter which is in my view decisive against the father is that I am wholly unconvinced that he seriously intends to exclude the mother from ‘Z’’s care (other than by way of supervised contact, of course) or, if his evidence was an honest manifestation of serious purpose, then I am wholly unconvinced that he could maintain it in the long term.  There are essentially three reasons for that conclusion.  First, the father has always regarded the care of small children as women’s work, an impression confirmed to me in his evidence when he described the support network available to him.  Secondly, his innate conviction, voiced at every point throughout all these proceedings up until his oral evidence at this hearing, is that all four children should be cared for by the mother.  Thirdly, whatever he says, I am sure that he retains real feelings for his wife and that was in no way contradicted by the manner in which he gave his evidence.  Given these matters and his knowledge that the mother will be devastated if not allowed to continue with the care of ‘Z’, I find it impossible to reach any conclusion other than that in due course she would be permitted, indeed encouraged, to re-enter ‘Z’’s life.  It is difficult to know why he gave the evidence that he did.  It could have been a device to deflect the court (which past performance suggests he would be well capable of doing) or it could have been revenge for her obvious determination to separate from him, or it could have been a genuine expression of current feeling.  Even if it was genuine (and I recognise that it may have been), it is one that I do not for a moment believe he is capable of translating into practice in the medium or long term.  For all those reasons I have concluded that he must be excluded as a potential sole carer for ‘Z’.

18. That leaves the position of the mother.  As I have indicated, there is really only one question:  can I be satisfied that ‘Z’ will be safe in the care of the mother?  That question must be answered against the background of the whole family history in this case and in the context of reasonably available long-term support which must inevitably be significantly less, certainly than it has been since 3rd June 2008, and indeed since the start of the community assessment.

19. The mother’s case is in fact quite simple.  What she says is that she and the father have not told the truth until now.  Now she has done so and it can be seen that whereas she was in 2004 cowed, profoundly stressed and subject to endemic domestic violence now in 2008 her circumstances have radically altered for the better; that whereas in 2004 she inflicted grave injury upon ‘Y’, now ‘Z’ has been brought up in safety.  The stress factors that provided the context of the events in 2004 no longer exist in 2008 and the risks have diminished to such an extent that we can all be confident of ‘Z’’s safety with the mother.

20. Now it is important to recognise that there is much in that case that is true.  Her circumstances in 2004 were wretched and really had been for the years before that during which she had been married to the father.  For 18 months she had lived in her mother-in-law’s house where she had been dealt with contemptuously by the women there.  Then they moved to their own home.  The father worked long hours and she was left with the care of three children the youngest of whom had been born very premature and had feeding difficulties.  Furthermore the father was not as supportive as he might have been and frequently inflicted violence upon her.  That is broadly a picture that I am prepared to accept and of course it was a classic setting for a shaking injury especially when it is remembered that, because she had no use of English, the mother was effectively confined to the house unless escorted by the father as translator.  Contrast that with the position now where she is learning English, is separated from the father, has a little wider social circle and the care of a normal healthy child.  All that must be fully considered.

21. It is, however, important to look at the oral evidence she gave making all necessary allowances for the fact that it was given through translation.  It depends first on the assertion that her previous evidence was untrue and secondly that the evidence she was now giving was true.  That is always a very difficult position and one that excites caution in a judge.  She clearly asserted that all the evidence she had given about the “Djinn” was untrue and that that had nothing to do with ‘Y’’s injuries.  Yet at the end of her evidence she was asserting that she had not caused all the injuries, that she had sometimes shaken ‘Y’ because he had a “Djinn” (as she thought) and that some of the injuries were attributable to pre-birth matters, something effectively excluded in the first trial. That did little to give me confidence that I really was being told the whole truth.  That said,  I certainly accept that what she told me in this hearing was much nearer the truth than she has ever said before and that it came much nearer to explaining what had happened to ‘Y’; the qualifications in cross-examination had much more to do with a reluctance to face up to the enormity of what she had done.

22. There were, however, certain aspects of her evidence that left me with a profound sense of anxiety.  Those included her repeatedly shaking the child even though she knew that it was dangerous and that she had hurt him; her failure to say anything to anyone (including health visitor and doctor) about what she was doing;  the fact that often these were expressions not only of frustration but of anger;  the fact that she would rather risk harm to this child rather than harm to herself if she spoke out when she knew what she was doing was dangerous.  This is not a case of single loss of control in the face of frustration in impossible circumstances;  however grave the consequences may be, that always attracts sympathy.  This was sustained behaviour over a period of time with an understanding that it was both dangerous and wrong.  However much allowance one makes for the wretched circumstances in which the mother found herself, this suggests a degree of self-centredness which is truly alarming.  Her repeated lies to all about what happened to ‘Y’ and the inexcusable delay in seeking treatment for him had but one motive, namely self-preservation from trouble.

23. Has everything changed to such an extent that the court can be satisfied that no such thing will happen again?  The only answer that can be given is that we do not know.  The reaction of the mother on 3rd June 2008 makes it clear that she still had deep reserves of anger within her although she is certainly in better control of it than perhaps was once the case.  ‘Z’ has never tested her as she was tested in late 2004.  In any event she has been surrounded by all kinds of support.  She blandly said that ‘Z’ would never be hurt.  She will, however, be ill and fractious and demanding and she will do it at night when she is on her own with the mother.  Will the mother be able to control her anger or her actions?  Will she tell anyone if it becomes a struggle?   Will she tell anyone if some injury were to occur?  Or will her instinct for self-preservation triumph once more at the expense of a child?  We simply do not know.  The local authority case (supported by the Guardian) is that no such risk could or should be taken with ‘Z’’s welfare.  The father (who perhaps should know her best) says that she cannot be allowed to care for ‘Z’ on her own.  The mother’s case is that so different are the circumstances and so changed is she that that risk, even it if exists, is manageable in the context of ‘Z’’s long term care.

24. It is common ground that the history of this case satisfies the threshold criteria under Section 31(2) of the Children Act 1989.  The task of the court therefore is to apply Section 1 of the Act making ‘Z’’s welfare the court’s paramount consideration and requiring consideration of section 1(3).  I approach this on the basis that ‘Z’’s welfare will best be promoted by placement with a parent unless that has to be excluded.  The crucial factor here is simply whether the court can be satisfied that ‘Z’ will be physically safe in the care of her mother for, if so, that is where she should be.  Although there are many aspects to Section 1(3), in the context of the facts of this case, this is the central and crucial issue.

25. Dr. Abou-El-Fadl identified the need for psychotherapy for the mother, something that would extend over some time.  He and Dr Freedman were in some disagreement over how long would be needed.  What is, however, important is that it is needed and the deficit to be addressed in terms of anger and personality and experience is profound, as I am sure it is.  Insofar as Dr. Abou-El-Fadl was saying that the mother’s circumstances in late 2004 explain her actions,  I would not agree with him as Dr.  Freedman did not.  However, I did not think that his view was ever quite as clear cut as that and, in any event, he did not hear the mother’s evidence in court.

26. I have given this case my closest and most anxious attention.  Sadly I have reached the reluctant but clear conclusion that the placement of ‘Z’ with her mother cannot be sustained.  The essential reason for that conclusion is that I have no confidence that ‘Z’ will be safe in her mother’s care once the current safety cordon is (as it must be) relaxed.  I do not have a sufficient understanding of why the mother acted (or refrained from acting) as she did and therefore have no safe basis for assuming that all will be different now, however changed the circumstances may be.  I acknowledge the profound consequences for ‘Z’ involving as it will a double change of carer before a long term placement can be achieved and I do not underestimate the cost of that to her.  Nevertheless, the contrary risk is in my judgment both unmanageable and unacceptable in the short to medium term and thus this outcome, judged as it must be against the standard of the paramountsy of ‘Z’s welfare is inevitable.

27. With the wisdom of hindsight the Guardian’s concerns in September 2007 and the local authority’s application not to pursue the community based assessment have been shown to have been justified.  I must, however, confess myself wholly unrepentant at seeing this through to what is now its bitter end;  it seems to me that ‘Z’ deserved every opportunity to remain within her natural family and I had not given up hope of that until I heard the oral evidence in this trial.  She has of course lost a few months but in the great scale of things that was in my view at least a price worth paying in the attempt to keep her in her natural family.  I am only sorry that it has ended as it has.

28. It follows that there must be a care order in favour of the local authority.  Now is not the time to deal with contact as that must accommodate itself to developing circumstances.  I understand that some further directions can be agreed in respect of the placement order but now is not the time to deal with any contentious matters.  I cannot part with this case without my expression of deep appreciation to all counsel for their manner of conducting this most difficult trial and for all the assistance that they have afforded me throughout.