Case No: TR14C00360
IN THE FAMILY COURT AT TRURO

Courts of Justice
Edward Street
Truro
TR1 2PB

Date: 21/11/2014

Before :

HIS HONOUR JUDGE VINCENT
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Between:

	Cornwall Council	Applicant	
	- and -		
	EM (1)
AP (2)
LP and CJ (3)
MP (4)	

Respondents	

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Mr Perry for the Local Authority
Ms Patterson for the 1st and 2nd Respondents
Mr Lobb for the 3rd Respondents
Ms Wiles for the Child

Hearing dates: 20 and 21 November 2014
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JUDGMENT
1.	Key:  
a.	The child is MP
b.	The mother is EM
c.	The father is AP
d.	The paternal aunt is LP
e.	The aunt’s partner is CJ
f.	The parents’ first child is HR
g.	The parents’ second child is AR

The child concerned in these proceedings is MP. He is a little boy born on 28 June this year and therefore almost 5 months old. His parents are EM and AP. They are both 20 years old and have been in a relationship for some time. As at the date of this final hearing of care proceedings, they are looking after MP in a parent and child foster placement having first entered foster care with him on 8 July 2014, with MP just a few days old.

2.	EM and AP are not first-time parents. They have had, together, two other children, namely HR and AR, who were the subject of care proceedings during 2013 which culminated in care and placement orders for each child as a result of the judgement that I gave on 17 December last year. HR is now 3 ½ while AR is 2 ½.  Both of them have now been placed for adoption. The judgement that I gave within their proceedings forms an important backdrop to these proceedings about MP. In short, I found that HR and AR had been badly neglected both physically and emotionally and were inadequately supervised and under-stimulated despite quite extensive support put in to help address the parenting deficiencies.

3.	It was one of those relatively rare cases where, because of what I found to be the lack of parental insight into the importance of proper supervision of the children and the very extensive needs of the children flowing from the earlier neglect of their needs, interim separation of the children from their parents, during the proceedings, was permitted.

4.	The signal feature of those proceedings was just how badly HR and AR had been affected. As I rehearsed in the judgement, they were manifesting extremely problematic behaviours that shocked a community paediatrician and came close to defeating experienced foster carers who had not previously encountered such depth of difficulty.

5.	On the scene at that time and offering care for the sisters were AP’s sister, LP and her partner CJ. They were looking after LP’s young daughter L. They were found to be capable parents and the reason that they were regarded as incapable of meeting the needs of HR and AR was that the presence of L in the household represented a strong contra-indication. They were also found short on insight into just how damaged the sisters were.

6.	Now, as that case was decided, EM was already pregnant with MP. She and AP were saying that their relationship was at an end but they remained friends. If rift between them there was, then it was swiftly repaired and they have been together as a couple throughout these proceedings and remain such.

7.	In a sense, it was, perhaps, unsurprising that the local authority had acute concerns about the welfare of MP at birth when he arrived premature. They contended, on the basis of the facts found in the previous proceedings, that MP should, on an interim basis, be separated from his parents. They said that a parent and baby foster placement would not keep him safe enough. The local authority was willing to concede that EM  had attended parenting classes and that both parents showed a better level of engagement than had been evident in the previous proceedings.

8.	MP’s Cafcass Guardian, who had not represented the interests of HR and AR in the previous proceedings, is Mike Coleman. He disagreed with the local authority about the strength of the case for interim separation and contended for a family placement in foster care. This was the way forward devised for the case and Capstone Foster Care provided the placement in Devon. It has provided also the reporting structure and parenting assessment that flowed from it.

9.	Before I address that, LP and CJ have offered themselves again. Of course, MP has been protected from suffering the same harm as HR and AR and many of the worries that stood in the way of them caring for those sisters are absent in MP’s case. In short, they have been positively assessed by the local authority for special guardianship of MP and this represents the local authority care plan. The position over them is uncontroversial in the sense that EM and AP support them in the event that EM and AP are discounted as carers for MP. We are therefore in the tolerably happy territory that placement outside of MP’s birth family is not an option that has to be considered.

10.	Before I go further I want to deal with the legal framework within which the proceedings fall. Although the local authority is not seeking a public law order, the threshold test set by section 31 of the Children Act 1989 remains an important issue for me to examine before I tackle the question of what orders, if any, are needed to meet MP’s needs. The threshold in this case is founded entirely on the underlying facts that led to the December 2013 outcome for HR and AR. The harm that they had suffered was found by me to be attributable to very poor parenting. Both parents were implicated in that to the full. The fact that those proceedings began and ended in 2013 and MP came along halfway through 2014 means that those issues remain highly relevant in MP’s case. It is beyond doubt that the threshold test is satisfied as contended for by the local authority.

11.	I shall tackle the question of what orders to make, if any, with the welfare of MP as my paramount consideration and with a review of the welfare checklist within the Children Act of 1989. Before doing that, I just want to make a general point about the state of the law and it is this. When I come, in a little while, to my assessment of the ability of EM and AP to meet the needs of MP, I will not be looking for some sort of ideal standard of parenting. I will not be comparing them with, for example, the standard of very experienced foster carers. The law has to recognise that, in general, children experience deficient parenting at times and that all parents fall below the ideal. It has been said that, as a society, we must be prepared to tolerate parenting that is erratic, inconsistent and barely adequate. The law is not there to protect children from that type of parenting. It is there to protect them from wholly inadequate and harmful parenting.

12.	I now go through the welfare checklist and will tackle the evidence that I have received as that process unfolds. I begin with wishes and feelings. MP is, of course, far too young to form or articulate wishes and feelings about his future. Adults must make his decisions for him.

13.	I turn to MP’s physical, emotional and educational needs. These are undoubtedly conventional. MP is believed to be a normally healthy baby. He needs what every child needs. He needs his physical needs addressed consistently. He needs his emotional well-being safeguarded. He needs to be kept safe from harm. He needs to be stimulated in order to develop. Looking wider than that, he needs a sense of his own identity which can come from being raised within his birth family.

14.	Moving on from there, I deal with the effect on MP of any change in his circumstances. There are, broadly speaking, two changes contemplated. On the one hand, there is the prospect of going home with his parents. He has been in their care from birth and, provided that they are capable of meeting all of his needs, there would be no particular cause for concern. The question of whether they can meet those needs lies at the heart of the case and I will return to it later. The other change contemplated is a move to live with his aunt and her partner. There would be, undoubtedly, an element of disruption in this but this couple has been assessed as capable of meeting MP’s needs and, given that the move would be accomplished quite swiftly, there is good reason to believe that he would settle and swiftly begin to form secure attachments.

15.	The next item on the welfare checklist relates to MP’s age, gender and other characteristics. There is nothing of particular moment to mention here except perhaps his age. He is under six months old but it does need to be said that this is an important period in his development. His prospects for the future will be best served if he is with his permanent caregivers as early as possible, whether they be his parents or other members of his wider family.

16.	The next item on the checklist is any harm suffered or risked for the future. MP has not suffered harm to date. He has been living in a protective environment. There may have been some element of artificiality about it but that has not occasioned anything that could properly be described as harm. The risks, if they exist, are in the future. I intend not to hark back to the findings in HR’s and AR’s case, save to say this. The stakes are very high. For a period, HR and AR fell below the radar of the local authority protection. There had been local authority involvement but, sadly, it was not enough to change the daily life experience of those two sisters and to prevent profound harm being caused to them. This does not mean that EM  and AP have to meet some higher standard than would ordinarily be expected or that some burden rests upon them to prove that they are adequate parents. The burden still rests with the local authority. But it is a timely reminder to the court and the parties that experimenting with MP would be a risky business indeed.

17.	I turn to the all important part of the welfare checklist within which I shall consider much of the evidence that I have received. This is the capability of, in this case, EM and AP to meet MP's needs. I can regard the capability of LP and CJ as a given that I do not need to explore within this judgement.

18.	As mentioned, Capstone Foster Care has provided the protective environment for MP and his parents pending this final hearing. Whilst that has been commissioned by the local authority, it is worth reflecting that Capstone is entirely independent of Cornwall Council and that the views of its assessor, Purdy Giles, may be regarded as being those of an independent expert in her field. She was the author of not only the interim assessment dated 15 August but also of the final report which came in, dated 20 September.

19.	There was some reasonable progress shown in the interim report and a sense of the young couple working collaboratively with professionals. The point was made, however, that there had been considerable coaching, modelling and mirroring from the carer to address any gaps in knowledge and Ms Giles specifically identified that the remainder of the placement would need to focus on whether the couple were able to incorporate the intensive learning that they had experienced into their existing narrative of parenting which was deemed to not be good enough in respect of their daughters.

20.	The final report amounted to a very detailed critique of the performance of EM and AP. It has become a document of record and I therefore only touch on some of the themes from that report. The sense that I have from it is that EM and AP were identified as very needy in their own right, EM particularly so. Their ability to reflect on past parenting deficiencies was profoundly compromised by their own personal histories and the defensive mechanisms that they employed to simply function as adults. They appear to be signed up to an agenda that they have been the victims of a miscarriage of justice in respect of HR and AR. They vilified Angie Chapman, the social worker. They give superficial regard to advice but there is a strong element of compliance without internalisation in their performance. They are often, in fact, resistant to professional advice saying that they or their family members know best.

21.	In the previous proceedings Dr Candy had had the opportunity of carrying out a baseline cognitive assessment and she formed the view that EM has a borderline learning disability. Although she was not tasked with a full-scale psychological assessment, Dr Candy offered the view that EM's mental health and her disrupted early life experiences were likely to have a significant impact on her capacity to parent.

22.	That part of the Capstone final report that addresses support networks makes telling reading. Ms Giles points to the fact that the couple’s support network contains both positive and negative elements. She reflects on the fact that both parents were known to social care for a significant period of their early lives and that therefore their own experience of parenting within their respective birth families may well have caused both of them significant trauma. She goes on to offer the view that they have unconsciously parented their own children in the same way without ever having made sense, from an adult perspective, of the damage caused. She then says that, further, the received wisdom is inherently flawed but is steadfastly maintained by both who have adapted their own worldview and a co-dependency on each other which is difficult to penetrate and at times difficult to understand. They are both operating at a very concrete level and appear rigid and inflexible in their views on parenting which are supported by their respective mothers. This was evidenced on several occasions when the couple required prompts from the assessment team to enquire about health matters relating to MP and the couple deferred to AP’s mother on the grounds that she had parented nine children with the youngest being just 20 months old. AP was of the view that professional opinion could not always be trusted if the person concerned had not themselves been a parent. Ms Giles goes on to suggest that the couple find it very difficult to trust professional advice and are resistant to any calls to change or adapt their parenting because to do so would mean a deconstruction of their defence mechanisms which they have built in response to their own trauma. She refers to a documented history of them sabotaging relationships with professionals and comments that the same scenario has been played out within the parenting assessment. The significant issue for her is that neither parent appears able to prioritise MP’s needs above their own significant unmet needs.

23.	The conclusion of Purdy Giles from her final report is that, on return to the community, EM and AP would be very likely to return to their past parenting practices that so compromised the wellbeing of HR and AR.

24.	The final report brought the formal assessment to an end and the issue of exit planning raised its head.  In the event, the local authority has maintained the parents with their child in order to avoid disruption for MP and in the face of the test for interim separation still presenting problems to them.  It was felt that the previous period in assessment had involved EM and AP spending considerable time with MP in their bedroom, unobserved, and that it would be useful to have further updating reporting on the basis of them agreeing to become more visible. A new “holding” placement was identified to which the family moved.

25.	The addendum report has now come in.  It is dated 10 November and is therefore up to date.  It covers the period of time since 30 September when the family moved into the further Capstone provided placement in Plympton.  Rather better basic care was noted and the young couple were rather more responsive to advice than hitherto.  Ms Giles contends that the underlying serious concerns remain and the recommendations she makes are unaltered.

26.	What I have related so far is drawn from the written reports of Purdy Giles but she attended court and gave oral evidence. I found her to be a thoughtful, measured witness who recognised a number of positives in MP’s parents but maintained her conclusion that they would likely revert to neglectful parenting in the community.  She observed that the parents have taken on considerable learning in response to teaching and prompting but their learning has proceeded at a superficial level.  She points out that they are fundamentally lacking in their insight into the past.  Their default position is one resistant to accepting advice.  Any awareness that they tended to show had to be imposed on them from outside.

27.	Ms Giles seemed to find this all the more frustrating because she recognised that the couple had genuinely tried their utmost to effect change.  They were incapable, however, of changing their mindset.

28.	The sense that I had from Ms Giles is that this issue of insight and recognition of the past is centre-stage in her concerns about EM and AP being able to meet MP’s needs in the community.  This view is one that she was not shaken from in cross-examination.

29.	Angie Chapman, MP’s social worker, was the next witness. It is fair to say that her final evidence and care plan draw substantially on the Capstone assessment process. But, on the evidence, she has made her own observations and, frankly, has both very great experience in social work and long experience of this family to bring to bear on her own reflections on the way forward. Importantly, she regards Purdy Giles’ findings as congruent with her own observations and thinking. She was not slow to draw the court's attention back to the plight of HR and AR. She was able to update the court that, despite considerable reparative parenting from very skilled foster carers, HR and AR, full siblings of similar young age, have had to be placed apart for adoption. They are still plainly very affected by the parenting they received from EM and AP.

30.	Ms Chapman was making the point that EM and AP had started from a very low base indeed in terms of parenting ability and that she is unable to detect that they have made anywhere near enough progress. She emphasises how crucial MP's current stage of development is and feels that he cannot wait. She could see no mechanism for safeguarding MP's well-being in the community if he were to remain in the care of his parents.

31.	I should here make mention of the fact that there have been, during the currency of these proceedings, two family group conferences organised, involving the wider family on both sides. The purpose of those has been to examine and allow the family to reflect upon the support that they would be able to offer each other on the two care scenarios that the court is contemplating. I have the record of both conferences. I am anxious not to over-interpret what was said during them but two themes seem to me to emerge. First, there is a sense that LP and CJ have a better appreciation of the difficulties presented by EM and AP in parenting than do other family members. This is, of course, unsurprising because they have the benefit of party status within these proceedings and have had access to case papers. Angie Chapman has been concerned that the wider family narrative of the cases of HR and AR remains one of an injustice being perpetrated upon the family. Whilst they offer much physical support to EM and AP it remains doubtful that they are capable of being protective in the fullest sense.

32.	The second matter that emerged is that the help offered seems to be at a very basic level in terms of visits and respite care for MP. While that, undoubtedly, would be necessary, much of the local authority's concerns would not be addressed. Such matters as the attachment relationship between the parents and MP would remain problematic as would MP's emotional development.

33.	Both EM and AP bravely gave evidence in court. They had each prepared statements in the run-up to this final hearing. It seems to me to be appropriate to relate the evidence that they gave together within this part of my judgement. What was manifest from those statements, from their live evidence and from their conduct in court, was their unity and their love for their son. MP came to court with them and I permitted him to be with them in the court room for parts of the hearing.

34.	Given the concerns expressed by Purdy Giles and shared by Angie Chapman, one of the main things that I was looking to explore, within the couple's evidence, was the issue of insight. It is clear that they each realised, or had been told, that this was a concern and had attempted to deal with the issue in their written statements. What EM says in her statement is this, “a lot of criticism has been made of me and AP for not accepting that things were not good with the way that we parented HR and AR. This is a difficult subject for me as it is so emotionally painful. However, I do know that when I look back now I can see that we had a lot to learn when we parenting the girls. I know that my emotional bonding with the girls was nowhere near as good with the girls as it is with MP. I particularly had difficulties bonding with HR. One of the main differences is that when I had the girls I had to share my time between them. Now that I have just got MP, I am able to concentrate all my care and attention on him."

35.	AP deals with the same issue in this way. "I know that things were wrong in our parenting of the girls. It has been hard for me to talk about this. EM and I have tried to do things differently with MP to avoid us making the same mistakes. We have done all we can to show that things will be different with MP but the local authority still say that we have not changed enough."

36.	It would not be hard to see that these professions of insight within the couple's witness statements were very vague and appeared quite superficial. I was therefore anxious to probe a little during the course of their oral evidence to get a sense of the depth of the insight. 

37.	I of course need to make allowance for the cognitive limitations of both of these young parents. In no sense was I looking to them to articulate, in a sophisticated way, their insight into what had gone wrong with HR and AR. But I was looking for evidence that they have reflected on the position and had a sense of where they had gone astray. What I got, from each of them, was little more than was contained in their witness statements. EM described some of the problem to their youth but she seems to have pinned most of the issue on her difficulty in bonding with her first two children. That apart, she suggests that the task of looking after MP and attending to his needs is likely to be more manageable than trying to cater to the needs of two separate children.

38.	I was looking for some level of insight into the emotional dimension of parenting and, to my mind, it was unsurprising, given the findings from the parenting assessment, that that insight was deficient. AP really struggled to identify areas of parenting deficit and whilst one could imagine that HR and AR might have suffered deficits from the parenting standard that this young couple have acknowledged, they have given no explanation from their own perception that would be anywhere near adequate to explain the presentation of HR and AR upon reception into care.

39.	They are each plainly devoted to MP. They want what is best for him. They genuinely believe that they have made very substantial progress within foster care and, in fairness to them, they have made some significant progress. They have done that in an environment of nurture and really quite extensive support, coaching, modelling and so forth. Whatever support package were put in place, it is difficult to contemplate that anything near that level of support could be replicated in the community. I could not expect EM and AP to understand the niceties of attachment theory but it is probably in this area of attachment that I consider they will struggle most.

40.	The last witness that I heard from, with nobody requiring either LP or CJ to give live evidence, was Michael Coleman, the Cafcass Guardian for MP. He had filed an initial analysis of the position and followed up with his final report. It is a report that supports the local authority position that MP's needs cannot be met by EM and AP but can be met by LP and CJ. He commends the care plan of a special guardianship order to that couple. He obviously brought his own experience to bear. It is fair to say that he was not the Guardian within the proceedings relating to HR and AR and therefore he brought a new perspective to the case. Importantly, he had the opportunity of a quite lengthy dialogue with the latest foster carer which puts the progress that EM and AP have made into perspective. It is creditable but, to a significant degree, superficial and limited.

41.	Mr Coleman was unable to see away of bolstering the abilities of EM and AP to meet MP's needs in the community.

42.	The last item on the welfare checklist relates to the range of orders available to the court and it is in considering this that I draw the strands of the case together. I want to emphasise that this is not a contest between EM and AP on one side and LP and CJ on the other. Happily, none of those adults sees it as such. From a legal perspective I am not choosing which of the two couples could look after MP better. Consideration of LP and CJ does not really arise unless I was satisfied that EM and AP could not meet MP's needs and that their parenting would fall below that limited standard to which I referred earlier.

43.	Notwithstanding the obvious love of EM and AP for MP and their very clear motivation to look after him as well as they possibly can, I consider that the evidence shows quite clearly that they lack the ability to meet his needs. Equally, I am persuaded that their abilities cannot be bolstered by any realistic form of support to enable them to meet his needs in the future.

44.	I turn therefore to LP and CJ. Although their position is uncontroversial, I have looked carefully at the special guardianship assessment of them. To my mind it represents a cogent and balanced piece of work and leads me to the conclusion that the right order for MP is a special guardianship order to that couple. That will be a bitter disappointment to EM and AP and I hope that they can find some solace in the fact that they will be able to maintain a very important relationship with MP throughout his lifetime. Things that they have said lead me to believe that they will be respectful of LP’s and CJ’s position in relation to MP and one dares to hope that, once the dust has settled and, importantly, MP has been able to settle into a new environment, the entire family will come to terms with what has happened.

45.	The contact arrangements suggested by the local authority aimed at once per month seem to me to be a reasonable starting point. I can envisage the possibility that they may be varied by agreement over time and I am reassured by the local authority confirmation that it will provide an ongoing advice service to LP and CJ.

HHJudge Vincent