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Re J & MM (Children) [2013] EWHC 1820 (Fam)

Judgment of Jackson J on welfare issues in respect of care applications following a fact-finding hearing.

The case concerned an application by a local authority for care orders in relation to two children; J aged 9 ½ and MM aged rising 4. The children were removed from their parents' care in November 2011 and placed in their current placement, with their maternal grandparents, in July 2012. At the fact-finding hearing reported as A Local Authority v A Mother & Ors [2012] EWHC 2969 (Fam) Jackson J had found that the parents had been "reckless and incompetent" in managing J's asthma and that as a result she had suffered harm, including years of unnecessary medical treatment.

Psychological assessments of the parents had established that, among other things, they had little insight into their actions and only superficial acceptance and understanding of the findings. As such the Guardian recommended that the children should remain living with the grandparents and have contact with the parents. The parents accepted this and a final hearing, listed for March 2013, was adjourned to allow special guardianship assessments, with a view to the making of Special Guardianship Orders in favour of the grandparents at a hearing in May 2013.

On the eve of the May hearing, however, it emerged that the grandparents had been permitting unsupervised contact between the children and parents, including staying contact. The hearing was therefore adjourned in order to allow the local authority to investigate. The outcome of the investigations was that the local authority changed their care plan to removal into foster care, which plan was supported by the Guardian.

Jackson J concluded that continued long-term placement with the grandparents would not be a sustainable way of meeting the children's emotional needs. His Lordship found that the family "nurses the unrealistic hope in their own minds and in the minds of the children that the family will be reunited in the foreseeable future" and that the grandparents were unable to put the children's needs before family loyalties. Care orders were made, with contact to both the parents and grandparents and with a view to assessing whether a placement order would be in the interests of MM.

Summary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers


Neutral Citation Number: [2013] EWHC 1820 (Fam)
Case No. LM11C00050



Date: 26 June 2013

Before :
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(3) J and MM (by their Guardian)

(4) GRANDPARENTS Respondents
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Malcolm Sharpe, instructed by County Secretary Solicitors Group
Kate Burnell
instructed by Forbes Solicitors for the Mother
Nicola Miles
, instructed by Marsden Rawthorn for the Father
Paul Hart
, instructed by JWR Law for the Children's Guardian 

Hearing dates 24 – 26 June 2013
Judgment date: 26 June 2013
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Mr Justice Peter Jackson:

1. This is an application by a local authority for care orders in relation to two girls: J (aged 9½) and MM (rising 4).  Their parents are the mother, aged 42, and the father, aged 39.  The girls were removed from their care in November 2011 and, after a short period in foster care were placed with a maternal uncle in January 2012 before moving to their current placement with their maternal grandparents in July 2012.  The grandmother, who is aged 71, is in good health, while the grandfather, aged 74, has had some health difficulties.

2. This hearing follows a fact-finding hearing in October 2012 that led to a judgment reported at [2012] EWHC 2969 (Fam).  In it, I found that the parents had being reckless and incompetent in their management of J's asthma and that as a result she had suffered significant physical and emotional harm.  She had been subjected to years of unnecessary medical treatment, often of an extreme kind, had learned to think of herself as a sick child, and had suffered damaging disruption of her education and social development.  I found the parents' evidence to be unreliable and rejected their account of J's health and of their actions.  I found that the remarkable improvement in J's health and well-being following her removal was due to her receiving her proper medication and being treated as a normal child.  I adjourned to allow for psychological assessment of the parents, who were seeking the girls' return to their care, and for an assessment of J.  The final hearing was fixed for early March 2013.  In the meantime, contact with the parents was taking place at a contact centre three times a week and at the grandparents' home once each weekend.

3. The parents have since March been attending psychotherapy sessions to improve their understanding and because they see this as a way of recovering the care of the girls. 

4. The psychological assessment of each parent established, among other things, that they had little insight into their actions and only a superficial acceptance and understanding of the findings.  The local authority and the Guardian concluded that the appropriate outcome would be for the children to remain in the long term with the grandparents with defined contact with the parents that was regulated and monitored by them.  The parents stated that they accepted this outcome.  An adjournment of the hearing in March was requested to enable the procedures for a special guardianship assessment to be completed, and the matter was relisted for 2 May 2013 for the making of special guardianship orders. 

5. However, on 1 May the local authority learned from J's school that she had told her teachers in March that there had been 'sneaky visits' by her mother.  Further, at the end of April she had said that she and MM had stayed with the parents over the Easter weekend (30/31 March) and that they were due to stay again later in the month of May.  On Wednesday 1 May, J told a teacher that there was to be a 'sneaky sleepover' on the Friday.  This information only reached the attention of the local authority on the eve of the relisted final hearing.

6. A social worker visited the school on 1 May and spoke to J, who said that there had been no visits to the parents' home, that contact always had to be supervised and that 'if they get caught then they may get a warning or something'.  After that the social worker visited the grandparents, and then the mother.  They all denied that any unauthorised contact had taken place and said that J had imagined it.

7. On 2 May, the case came before the court as planned.  On the basis of the positive reports that have been filed in advance, I was expecting to make special guardianship orders in favour of the grandparents. Mr Sharpe, representing the local authority, informed the court of the fresh information and sought an adjournment to allow the reports of unauthorised contact to be investigated.  The mother and the father, through counsel, both stated that there was no truth in the suggestions.  The grandparents, who were represented on that occasion, said nothing, the clear impression being that the family was united in denial.  I adjourned the hearing to 24 June.

8. On 3 May, the mother's solicitors wrote to the court and the parties stating that unauthorised contact had in fact happened over the Easter weekend, with the children spending the period from Saturday to Monday in the parents' home.  For reasons that I do not understand, the children's new social worker did not become aware of this admission for over a week.  Accordingly, when she went to meet the grandparents for the first time on 10 May, she asked them whether the contact had taken place: they denied it, even though they themselves knew that the mother had admitted it.  The social worker returned on 14 May, now armed with the solicitor's letter, and the grandparents were forced to concede that they had allowed unsupervised contact, though they clearly did not consider that it was a very serious matter.

9. Investigation of these issues led to a change in the local authority care plan.  At the outset of this hearing, it put forward a plan for the removal of J to one foster placement (as a long-term placement) and MM to another, with a view to a placement application being issued in her case.  After the social worker gave evidence, the local authority reviewed its plan overnight and it now proposes the immediate removal of both children to the same foster placement, where future plans for MM will be assessed. 

10. The revised plan has the support of the Guardian.  It is opposed by the parents and by the grandparents. 

11. In the course of the hearing, evidence was given by the social worker, the parents, the grandparents and the Guardian.  A report on J by Professor Billington, chartered psychologist, updated in the light of the new disclosures, is also available.  He expresses concern that J is caught between powerful forces and has a need to say the right thing.  She sees the grandparents' home as effectively being a stepping stone to a return to the parents' care. 

12. In considering the competing proposals for these children, with their different ages and needs, their welfare is my paramount consideration.  I also respect the rights of the children and the adults to their life as a family, which will be breached by the implementation of the care plan.  That can only be justified if it is necessary and proportionate in terms of the children's welfare; as has recently been said elsewhere, the local authority must show that nothing else will do.

13. There is no doubt that J has a strong bond with both parents and desperately wants to return to their care.  At all events, she does not want to be separated from MM.  MM's wishes and feelings are surely the same, though as a younger child she is less aware of the issues.

14. The parents do not have the ability to meet the children's needs.  In my first judgment, I said that they would need to show a significant and reliable change in approach for this to be possible.  While I commend them for embarking on therapy and for accepting, at least outwardly, that the children cannot return to their care at this time, they have only just started on the process of understanding and it is not clear how much progress they will be capable of making. 

15. The central question now is whether the grandparents have the capacity to meet the children's needs now and for the foreseeable future.  I would like to acknowledge the commitment that the grandparents have shown to their grandchildren.  They stepped forward a year ago when the placement with the uncle could not continue.  They are devoted to the girls and have reorganised their lives around them.  They are providing daily care of a good quality and the children have made progress in their home.  These things should not be forgotten.  They led to the local authority and the Guardian recommending that they be appointed as special guardians to the children as recently as the end of April.

16. Unfortunately, the investigation that has now taken place shows that the previous assessments were unduly optimistic.  Because things appeared to be going well, that was limited analysis of the underlying attitudes of the grandparents and of the family's overall plan.  The evidence that I have heard makes it clear that a continued long-term placement of the children with the grandparents would not be a sustainable way of meeting their emotional needs.  It would have built-in instability.  The family nurses the unrealistic hope in their own minds and in the minds of the children that the family will be reunited in the foreseeable future.  J in particular, would see it as a temporary arrangement.  The parents do not truly believe that the children should not be with them and nor, crucially, do the grandparents.  None of the adults accepts that the parents' care of J was dangerously harmful and as time passes, the temptation for the grandparents to allow the parents to take over will in my view be overwhelming.  Arrangements prompted by J's strength of feeling and increasing age would carry MM in their wake.  Further, by the time MM reaches secondary school age and the grandmother will be 78 and the grandfather 81.

17. I also regret that the relationship between the family and the local authority does not offer the children adequate protection.  Social workers relied upon the grandparents to be protective and to be frank.  Instead, the grandparents are, as a result of their natural feelings, in the parents' camp and have placed themselves in a position where the local authority now realises that it has to monitor and check up on them too.  Unfortunately, the evidence of the grandparents gave no confidence that they can reliably put the needs of the children before family loyalties.  Like the mother, the grandmother was not, I am afraid, fully truthful about what has taken place and she repeatedly suggested that it was up to social services to find out and tell them what was going on.  The grandfather was too sad and angry to be able to give evidence at any length.  Looking at the position overall, I am afraid that the family presented a rehearsed position, apologising for the breach of trust and urging that the girls should not, as they put it, be punished for one mistake by the adults, and asking for one more chance.

18. I am not satisfied that court has had a full description of the contact that has taken place.  There is evidence of the mother's car being outside the grandparents' address on a regular basis outside contact times.  It is more likely than not that the mother was seeing the children at the grandparents' home outside agreed contact times by way of 'sneaky visits' and that this explains why the family progressively stopped going to the contact centre: it was not necessary.  I also find it probable that there was a general understanding that there would be a return visit by children to the parents' home on 3 May, as soon as the proceedings were over, and that it was this (rather than simple remorse) that prompted the mother's eventual admission that morning.  Another indicator of the situation is the united attitude of the family in accusing J's school of telling lies and in deciding that MM, who starts school in September, should go to a different school.  This wish for 'a fresh start' is of a piece with the family's overall approach.

19. I do not believe that the children have been coached to keep secrets: J understands what is meant to be a secret without needing to be told.

20. On behalf of the parents and grandparents, it is said that if they are given another chance, they can be trusted in future.  Had this been an isolated aberration, running against the grain, that submission would have been likely to succeed.  The court would not separate the children from the family because of a single, untypical mistake.  However, that is not what happened here.  It is not a question of 'learning from one's mistakes', as the family put it.  The reason why contact took place at Easter was a natural consequence of the beliefs of the whole family.  The ill-advised contact was a symptom of the fact that a return to the parents' care is regarded by the adults and children as being the right solution, and this shows that a placement with the grandparents is not a workable long-term solution for the children.  The parents and grandparents are too close, geographically and psychologically.   Together with the children, they form an inner circle in this family, from which even the uncle and aunt (from whom knowledge of the Easter contact was withheld) are excluded, and which professionals would be unable to monitor effectively.  The fact that the family came within hours of achieving special guardianship orders on a false basis demonstrates the difficulties that social workers would face.

21. The conclusion that I have reached is that it is in the interests of both children for them now to move to the foster placement identified by the local authority.  This will be a long-term foster placement for J.  MM's position will be urgently assessed and if it is proposed that a search for an adoptive placement is realistic and in her best interests the matter will return by way of an application for a placement order.  Contact with the parents and grandparents will be progressively reduced in the manner set out in the care plans.  I acknowledge that this will be a change of circumstances that will be distressing for the children in the short term.  MM has been with the grandparents for a long time in her terms and J may struggle to settle at first, but placement away from the family will allow both children to grow up in an environment that is free of the pressures described above and the tantalising closeness of parents to whose care they cannot return.

22. I therefore make care orders in relation to these children and approve the care plans.  The fact that the girls cannot remain within the family is undoubtedly a sad outcome, but I am satisfied that it is what their welfare demands.  There will be significant future contact for J with her parents and grandparents, and continuing contact for MM, at least until her future is clarified.  I hope that the parents will continue with their therapy and that the family will be able to support the children in the move that will now take place.