Neutral Citation Number: [2017] EWFC 12
 
IN THE FAMILY COURT

 
Date: 14th February 2017 

Before :

Mr Justice Moor
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Between :

 	ZA Council
Applicant
-and-
MT
First Respondent
-and-
WA
Second Respondent
-and-
DT
Third Respondent
-and-
LT (by his Guardian)
Fourth Respondent

			

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Hearing dates:  13th to 14th February 2017

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JUDGMENT

MR JUSTICE MOOR:- 

1.	This is a tragic case.  The court has enormous sympathy for LT who is aged only three.  He has lost his mother at the hands of his father.  As a result, he has been deprived of both his parents, one forever, and the other, at least as a normal father, for the entirety of his childhood if not beyond.  

2.	LT’s father is entirely responsible for this.  LT’s father has destroyed one life completely.  He has caused immense distress to many more including to LT’s grandmothers.  In due course, when the full impact of what has happened is known to him, this enormous distress will include LT as well.  Moreover, the Father has, in reality, ruined his own life.  It is a very heavy burden of responsibility that he bears.  

3.	There is also real concern as to what LT witnessed, in part because of comments he made to his foster carer last month.  He will need very careful support in the years ahead.

4.	I am very pleased that a way forward has proved possible.  I am quite satisfied that section 31 of the Children Act 1989 is established.  In other words, LT is suffering significant harm as a result of the actions of his father.  It was inevitable that the court would so find.  

5.	I am equally satisfied that a care order is required.  There is no other alternative in the circumstances presented to this court.  The Local Authority must have parental responsibility for LT given that his mother is no longer with us and his father in prison.  

6.	The assessments of the grandmothers have both proved negative.  I accept, of course, that both love LT enormously.  They are also very important to him.  The last year will have been almost unbearably painful for both.  They have sat at the back of my court and conducted themselves with great dignity in very difficult circumstances for them both.  They have given very sensible instructions to their lawyers.  I make it clear that absolutely no blame attaches to either for what has happened. 
  
7.	I certainly do not wish to make this any more painful for them than it needs to be.  I do not intend to set out why the assessments of them were negative other than that I have read them with care.  Having read them, I understand why both were negative.  Indeed, although they are not happy with the assessments and have sought to appeal the decisions, both grandmothers have sensibly accepted that, as there has to be a care order, they cannot ask me to place LT with either of them.  I agree with that and pay tribute to both of them for what must have been a difficult decision for them to come to.  I consider it was the right decision in the circumstances of the case.  That does not mean that they do not have an important role to play in the future.  They are both of great significance to LT and should continue to see him and play a full part in his life.  

8.	They must, however, recognise that, once I make a care order, it will be for the Local Authority to regulate the contact both as to its frequency and its duration.  The Local Authority has to balance a large number of factors, including ensuring stability for LT in his long term placement.  The Grandmothers will be involved in the LAC (Looked After Children) reviews but it will be the Local Authority that will decide.  They can take comfort that the Local Authority has decided that this is not a suitable case for adoption.  LT will not therefore be lost to them forever.   

9.	I should say a word or two about the maternal great aunt and her partner.  They had wished to apply for orders to enable LT to live with them.  The assessment process for them was also negative.  Very recently, they have decided that it would be too painful and difficult for them to attend court.  I understand that, although I am sure they can understand that it would be impossible for a court to place a young boy in the care of adults who, for whatever reason, were unable to come to court, certainly in the absence of the Local Authority and the Guardian agreeing.  I recognise that they have made a great success of parenting their two daughters and that their lives are very much back on track.  The main difficulty was caused by a difficult and distressing incident from the past.  I am sure it will not assist if I set out any details.  I merely say that a court concerned with what should happen to a young child cannot ignore such matters.  A conviction does not become spent by the passage of time when a court is dealing with the best interests of children.  Moreover, it is a real problem for a court if the person concerned is, for whatever reason, not able to accept the findings of a previous court.   

10.	I now turn to the question of direct contact between LT and the Father. The Father has to recognise that he has done a very wicked thing that will have very serious long term consequences for his son.  He also has to understand that prison is most certainly not an ideal environment for contact to take place.  A Local Authority or a court would have to be absolutely satisfied that direct contact was in LT’s interests before it was agreed or ordered.  I am absolutely satisfied that I should give the Local Authority permission to refuse to allow contact pursuant to section 34(4) of the Children Act 1989.  I am told it is intended that there be indirect contact by letters/cards twice per annum at Christmas and LT’s birthday.  I approve that.  Indeed, I also approve there being no direct contact at present.  The matter will be reviewed by the Local Authority but I very much doubt there will be direct contact without expert advice that it should occur.  

11.	The next matter on which I need to say something is the question of long term placement.  I accept entirely that LT needs a stable and secure long term home with carers who will love him, protect him and deal with what may be some very difficult times ahead.  

12.	The paternal great aunt and her partner are being fully assessed as long term carers.  The initial viability assessment was very positive but a full conclusion will not be available until May 2017.  Once I have made a care order, it is for the Local Authority to decide on LT’s placement but I am being asked to approve the care plan and I must deal with this aspect.  It is obvious that placement with the paternal family can, in certain circumstances, lead to difficulties.

13.	I have read with care the decision of Mrs Justice Hogg in Re A and B [2011] 1 FLR 783.  She said this at Paragraph [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.  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.”   

14.	In this particular case, I directed an expert report from Dr FJ, a Consultant Psychiatrist in Psychotherapy.  I have a very comprehensive report from her.  It is right to note that she was not specifically asked to deal with the question of placement with the paternal family but she was well aware that members of the paternal family, including, at the time, the paternal grandmother, were seeking to care for LT.  She specifically refers to this and she does not say placement with the paternal family is undesirable or should not occur.  

15.	I am therefore prepared to approve the care plan on the basis that this full assessment will proceed and that, if the paternal great aunt and her partner are approved, the Local Authority is likely to move towards such a placement.  I am sure the Local Authority will bear in mind the potential difficulties and ensure that steps are taken to deal with any possible future problems.  If necessary, I am confident the Local Authority will take further advice from Dr FJ.  I recognise, of course, the advantages of placement with family if at all possible.  I do want to make one thing clear.  If there is placement with the paternal great aunt and her partner, I am clear that both grandmothers should be treated equally.  It would not be right if the paternal grandmother was treated more favourably than the maternal grandmother, such as in relation to access to LT’s home.  Both should be treated the same.  

16.	There are a number of other aspects to the care plan which I approve.  LT must clearly have his play therapy, which should commence as soon as possible and continue for as long as is necessary.  LT should also have speech and language therapy.  Finally, I welcome the mediation offered to both the maternal and paternal families and, in particular, to the two grandmothers.  I am sure they will benefit from this.  I do not in any way underestimate the challenges they face and the support they deserve.

17.	It follows that I approve the care plan and the agreement reached between the parties for which I commend them.  I also commend the lawyers for the very sensible way in which they have approached this difficult case.

Mr Justice Moor
14th February 2017