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In the Matter of A and B [2010] EWHC 3824

Case No. SQ08C00087
Neutral Citation Number: [2010] EWHC 3824 (Fam)
07 September 2010

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In the matter of A and B
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(Transcript of the Handed Down Judgment of
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Mr Messling and Mr Watson for Y County Council
Mr Hayden QC and Mr Singh Hayer for the paternal grandparents
Mr Keehan QC and Miss Cheetham for the father
Mr Cobb QC and Miss Collins for the maternal grandparents
Miss Hobson for the children through their Guardian
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Re A and B (One parent killed by the other)

The Background
1. In October 2007 a mother was killed by a father.  The parents had two children: A, born in 2005 and B, born in 2006.  Three days later the mother's body was discovered in a remote lane.  The father was arrested, charged with the mother's murder and remanded in custody.  The father's parents took over the care of the children that night.  It was not ultimately known whether the children had in fact seen or heard anything of the final row, or of the father's removal and final depositing of the body.  In September 2008, the father was tried and convicted of the mother's manslaughter due to her provocation.  He was sentenced to 7 years imprisonment.

Local Authority X and the private law proceedings
2. The day after the children went to the paternal grandparents the police referred the case to the Local Authority X in whose area the children and parents had been living.  Within four days of the referral a social worker completed an initial assessment which recommended financial support until appropriate benefits could be arranged and assistance in finding nursery placements for the children.  On 12th November the police notified the social worker that the maternal family wished to care for the children.  On 14th November 2007 the case was reallocated to a student social worker in a long-term team.  On 23rd November 2007 the police informed the student social worker that the maternal grandparents had requested contact with the children.  The social worker attempted unsuccessfully to arrange this.  On 17th December 2007 the paternal grandparents applied for residence orders in respect of the children in the local county court.  On 7th January 2008 interim residence orders were made in their favour, the maternal grandparents were joined as parties and Cafcass were asked to prepare a section 7 report on residence and contact.  On 19th January 2008 the children resumed contact with their maternal family for the first time since the father's arrest.  On 29th January 2008 the student social worker closed the case, recording in her transfer summary that as Cafcass were now instructed to prepare reports there was no role for her Department.  On 13th March 2008 Local Authority X (having by then closed the case) proposed that that a section 7 report on residence and contact which the Court had directed them to produce should be undertaken by Local Authority Y (the local authority in whose area the children were now living).  On 17th March 2008 the Court did so.

Local Authority Y
3. On 8th April 2008 therefore (more than 5 months after the mother's death) Local Authority Y became involved and allocated a social worker to the case.  The social worker produced a number of reports during 2008 which included recommendations that the children remain with the paternal grandparents for the time being and that their relationship with the maternal grandparents be developed.  On 19th May 2008 the Court appointed a rule 9.5 Guardian.  On 25th October 2008 Dr Harris Hendricks reported.  She emphasised how extraordinarily difficult it was for the two halves of a family divided by an unlawful killing to cope with the consequences of this and therefore the importance of the Local Authority taking statutory responsibility by initiating care proceedings, rather than allowing the future of the children to be determined in private law proceedings between grieving and very distressed grandparents.  On 1st December 2008 the social worker filed a section 37 report stating that care proceedings would be issued.

Care Proceedings
4. On 10th December 2008 (more that 13 months after the mother's death) Local Authority Y issued care proceedings.  In March 2009 the proceedings were transferred to the High Court and the private and public law proceedings consolidated.  Meanwhile the children continued in the care of the paternal grandparents.  The Court sought expert advice and commissioned various assessments regarding the suitability of the paternal and maternal family to afford the children long term care.  The experts met together in July 2009.  At that stage no expert supported placement with the paternal grandparents but there was a division of opinion as to whether the alternative should be placement within the maternal family or adoption by strangers.  During the autumn of 2009 work was undertaken with both sides of the family by Local Authority Y's Family Group Conference Service.  This reduced acrimony and increased understanding between the two sides, such that all the experts considered a family placement viable, although they differed as to whether the children should remain with the paternal grandparents or move to the maternal grandparents.

5. The final hearing took place between 23rd February and 11th March 2010 (more than two years after the mother's death).  All parties agreed that the threshold criteria set out in Section 31 had been crossed in that the children had suffered significant harm by reason of their mother's death at the hands of their father.  The main issue for the Court was with which set of grandparents the children should live.  The local authority sought care orders but did not recommend one family placement in preference to the other and therefore prepared alternative care plans.  The Guardian had formed the view that the children should be placed with the maternal grandparents under care orders.  The Court found that there were advantages and disadvantages to both families. Both could provide loving, stable, secure homes.  They were thoroughly nice, decent, law abiding people who had only ever wanted to do what was best for the girls.  All parties agreed that the paternal grandparents had provided excellent day-to-day care both physically and emotionally. The children  had become firmly attached to those grandparents and looked upon them as their primary carers.  The Court determined that it had to consider whether there were sufficient grounds to break that attachment and move the girls to the other family.  All parties agreed that the children should have very substantial contact with the 'non resident' grandparents.

6. The Court acknowledged the expert opinion regarding cases where one parent has killed the other and the difficulties which the planners, carers and families of such bereaved children will face.  There was a general recognition that at its inception this case was typical of many.  Whilst the Court accepted the expert advice that generally children should not be placed within the perpetrator's family, the Court had to accept that this had already happened through no fault of the paternal grandparents or indeed of the maternal grandparents.  With excellent loving care the little girls were thriving, and had formed a secure attachment with their carers, who were the parents of the perpetrator.  They had two loving, committed families, both of whom would play significant parts in their childhood but a move to their maternal grandparents would be disruptive of their current attachments and there were risks attached to such a move.  The Court found that the best interests of the children lay with the girls continuing to live with their paternal grandparents, but having increased contact as agreed with their maternal family.  Contact with their father would be very limited indirect contact.  Direct contact was an uncertain future possibility subject to careful review.  The Court made injunctions against the father in support of the placement and contact arrangements.  Later the Court made special guardianship orders in respect of the children in favour of both sets of grandparents in order to confer on them parental responsibility for the children which would then endure during the currency of the care orders and upon and after their discharge, and care orders.

Cases where one parent has been killed by the other the other are relatively rare but raise particularly difficult issues. The following guidance is intended to provide a framework in order to avoid compounding the very significant harm which the children involved in such cases have already suffered by poor management and unnecessary delay.

1. In all cases where one parent has been killed by the other the threshold criteria will be met.

Intervention by the local authority
2. The local authority should give immediate consideration to the issue of proceedings and, whether it considers it appropriate or inappropriate to issue proceedings immediately, it should appoint a social worker specifically for the affected sibling group who should offer immediate practical help and keep the decision under constant review in conjunction with the local authority's legal department.

3. In the majority of cases the surviving parent with parental responsibility will be in custody or otherwise unable to exercise parental responsibility. In the aftermath of the killing there will be strong emotions on both sides of the extended family. It is critical therefore that the local authority is able to undertake that function.  Any dispute regarding the responsible designated authority should be resolved at an early stage and should not cause initial assessments to be delayed. It is not appropriate to leave the extended family to attempt to resolve matters through private law proceedings. In the event that the case comes before the court as private law proceedings in the first instance then the court should direct that a Section 37 report is prepared by the relevant local authority.

Case management
4. In the event that proceedings are commenced Children's Guardian should be appointed at the earliest available opportunity.

5. Following issue the case should be transferred to the High Court for urgent consideration by a High Court Judge at the first appointment. There should be early and effective consideration of interim placement and contact arrangements by the local authority. Emergency arrangements made in the immediate aftermath of the killing should not be allowed to drift into becoming long term due to a lack of planning. Consideration should be given to the effect of any press coverage on the children.

6. Where there are concurrent criminal proceedings there should be liaison between the local authority solicitor and the CPS case manager. In areas where there is a protocol in place for the joint listing of Criminal and Care Directions that should be utilised. Where there is not, consideration should be given to joint criminal and care case management hearings. Joint case management hearings have been strongly recommended by the Court of Appeal, Criminal Division, in the case of R v Levey [2007] 1 FLR 462: [2006] EWCA Crim 1902. Those involved in the case should give consideration to the Good Practice Guidance Related Family and Criminal Proceedings: A Good Practice Guide (Editor Annanda Hall).

The role of professionals and support for the children and carers
7. Professionals involved with the family should familiarise themselves with the issues involved in cases where one parent has killed the other and seek specialist guidance and advice from an appropriate Child and Family Psychiatrist or clinical psychologist. It is important that the backdrop of the tragedy against which the decisions are made does not paralyse the professionals involved.

8. The children may be traumatised whether or not they have witnessed the killing. They are likely to require therapeutic help. Carers, whether they are local authority carers or family carers, will require specialist help in managing the children's reaction and a referral to CAMHS for support for the children and the carers should be made expeditiously. If specialist therapeutic input is not available through local services then a referral should be made to an outside service.  Where a child is a potential witness in the criminal proceedings there may be an issue as to whether therapy should commence before the child has given evidence.  In certain circumstances therapy may be regarded as potentially compromising the child's evidence. There should be careful liaison between those involved in the criminal process and the local authority in those circumstances to ensure that any delay in the provision of therapy to the child is kept to the shortest possible period.

9. If the children are of school age the school should be kept informed of their situation. Consistency of personnel and the regular provision of support and appropriate information to all members of the family and the school by the social work team is particularly important.

10. If the killing has taken place in the family home it will be a crime scene and there may be difficulties for the carers in securing access to the children's belongings. The local authority should liaise with the police in respect of recovery of some of the children's familiar toys and clothes. Immediate financial and practical support for carers should be put in place by the local authority.

11. Contact is the right of the child and expert advice should be sought regarding the planning of contact between the children and other key relatives, particularly in relation to visits to prisons and hospitals. Where there is conflict within the extended family decisions in relation to contact should be made by the court. Communication between the family members can be difficult particularly in the immediate aftermath of the killing, during the criminal trial and when the killer is released from prison. Consideration should be given by the local authority to family group conferencing and help should be offered to members of the family in facilitating communication.

12. Each case should be considered on its own individual facts and the merits of each placement looked at individually. It would be a misreading of the otherwise helpful research in this area (Hendricks/Black et al) to assume that there is a presumption that the family of the perpetrator should be discounted as carers for the child(ren). The research does not advance such a proposition rather it emphasises that it is important to consider each case individually.  Assessment of family members who wish to care for children in these circumstances should include not just child psychiatric assessment but consideration should also be given to adult psychological or psychiatric assessment.

13. Where appropriate professionals involved in the assessment should receive a copy of the Judgment so that they are able to reflect on the work that they have done in a particular case.