This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court
No. UK13C00603
IN THE PORTSMOUTH COUNTY COURT

Winston Churchill Avenue
Portsmouth
Thursday, 31st July 2014

Before:

HER HONOUR JUDGE BLACK
(In Private)

IMPORTANT NOTICE
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B E T W E E N :

		PORTSMOUTH CITY COUNCIL	Applicant

-  and  -

		O	Respondents
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MS. N. TAWFIK  (instructed by Legal Services of Portsmouth City Council)  appeared on behalf of the Applicant.

MR. M. TOOLEY, Solicitor of Larcomes LLP, appeared on behalf of the First/Second First Respondent Mother.

MISS. Z. RUDD (instructed by Saulet Ashworth LLP) appeared on behalf of the Second Respondent Father.

MR. D. WICKS (instructed by Heyes Samuel Solicitors) appeared on behalf of the Guardian.

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J U D G M E N T
JUDGE BLACK: 

1.	The local authority, Portsmouth City Council, on 19th September 2013 issued applications for care orders in respect of four children: A, B, C and D Those proceedings were brought as a result of longstanding concerns that the local authority had concerning the mother's care of those four children.  An agreed threshold was agreed on 13th November 2013 which set out the agreed parties' position as to the significant harm and risk of significant harm that all four children would suffer from.  The document reads as follows:  

"It is agreed that as a result of the facts set out below the children have suffered and are at risk of suffering significant physical harm and/or emotional harm and/or neglect.  The children are at risk of significant physical harm as a result of domestic violence and abuse between Mother and the father(X) of A and B.  

"On 10th August 2013 X physically assaulted The mother and A attempted to intervene.  There were further reports of domestic altercations in January and July 2013.  The children are at risk of being caught in the cross-fire.  The mother obtained a non-molestation order on 15th August 2013 yet X was found hiding in a cupboard at the family home during an unannounced visit on 17th September 2013.  
"The children have suffered and are at risk of suffering significant emotional harm from witnessing their mother being subjected to domestic abuse and violence and from Xs aggressive behaviour.  

"Mother has a long history of substance misuse which places the children at risk of significant harm from neglect as a result of not being able to meet their physical and emotional needs when under the influences of substances.  Mother tested positive for opiates on 4th September 2013 and 10th September 2013 and has previously failed to take her methadone prescription as prescribed having stockpiled prior to D birth.  

"X abuses alcohol and becomes violent when under the influence and the children are at risk of physical harm as a result.  A school attendance has historically been very poor and she is behind her peers in terms of education.  This places her at risk of significant emotional harm.  The local authority asserts that the children have been left unsupervised placing them at risk of physical harm.  It is also reported that A takes on a caring role for her younger siblings placing them at risk of neglect and causing emotional harm to A.  Mother does not accept the children were left unsupervised or that A did take a caring role for the children.  Finally, that there is a history of mother entering into unsafe and harmful relationships."  

	The court found that the threshold to be met in respect of all four children on the basis of that agreed document. 

2.	On 7th October 2013 the local authority were directed, amongst other things, to undertake parenting assessments of the mother and the fathers in this case.  By the time the matter came back to the court on 7th February 2013 the local authority's position in respect of A and B was that those two children should, subject to further assessment, be placed in the care of their wider family, the local authority having formed the view at that point that the mother had not changed her lifestyle sufficiently or really at all to warrant any further assessment of her or to consider the placement of any of the children in her care.  The position in relation to C and D  were that the local authority had undertaken a PAMS assessment of their father, Y , the PAMS assessment being necessary because of the father's learning difficulties and, as a consequence of that assessment, it had highlighted sufficient positives in relation to the father's parenting to warrant further assessment.  

3.	The agreement at that IRH hearing in February therefore was that separate orders and timetables would be fixed for all four children. A and B case was dealt with I think by April with special guardianship orders being made to members of the wider family in respect of those two children.
 
4.	The position in respect of C and D was that it was agreed that the matter would be adjourned over to a further IRH on 30th May to enable the local authority to implement a plan of the children living with their father Y. That plan itself was problematic because at the time the father was living with his family which all agreed was not an appropriate place for his children to be living with him and therefore, the local authority, with a certain degree of arm twisting, were able to find a placement for the father and for the children in  specialist supported accommodation   the matter being further complicated in that different local authorities were involved in relation to the housing issues.  That meant that Y moved into that specialist accommodation (SA)  towards the end of February.  

5.	The plan at that time,( which has continued through to this final hearing), was that he had the children from a Monday through to a Tuesday with different times depending on school collection and pick-up times, the same sort of arrangement on a Thursday running through to Friday and then a period of contact on the Saturday.  

6.	I suspect that the court and others anticipated that from February, certainly running through to May, that there may have been some increases in the time the children spent with him but that did not occur.  The local authority were directed obviously to file final evidence and care plans.  The court's hope in February was that on 30th May final orders could have been made.

7.	  The local authority's view of that period of assessment to May was that it was not positive, that there were too many deficits in the father's parenting abilities, that he had not been honest and frank with the local authority in respect of some matters, and they considered that the only plan for these two children were that they should be subject to placement orders with a view obviously to them being placed for adoption.  

8.	The guardian had been aware of that position at the end of April because the father had contacted the guardian because an adoption social worker had turned up at SA.  On the one hand that possibly was understandable in that the local authority were under a duty to parallel plan and, indeed, directions had been made for the timetabling of a placement application to be filed for the IRH if that was their intended route.  

9.	But the guardian and SA staff were surprised that that was the local authority's plan because the guardian's understanding of how thing have progressed since February was that things had been much more positive and that this was a plan that was succeeding.  

10.	The guardian's concerns were heightened as to the local authorities position when she spoke to the social worker, Miss Hart, (who the guardian is quite clear in her evidence about what was said  ) who said that adoption had always been the plan for these children.  I accept that there may well have been some misunderstanding about that that conversation , but the guardian goes on to say that she questioned with Miss Hart what the point had been in proceeding with this residential assessment if adoption was always the plan to which there was no adequate answer It is a worrying piece of evidence.  They may well have been at cross-wires about it, but when one considers some of the  notes going back to the beginning of February of conversations with the previous social worker and with SA staff at the time that Father was being placed in that accommodation, those notes  would suggest that the local authority were pretty pessimistic about the father's prospects of success and that it was more a question of when this father was going to fail rather than if he was going to.  That is also evident from the father's perception of how things were in that he - and again it is recorded in some of the notes from SA - was concerned about really how some might describe things as being set up for him  to fail.  From all of the evidence that I have read and heard that this perhaps was something that the father has been genuinely concerned about throughout and it may have impacted to some extent on, for example, his ability to discipline the children, as he was too worried about the consequences of doing something considered by others to be wrong and therefore criticised for it. I accept the evidence given by the guardian and in my judgement there is a real doubt as to whether this local authority were ever supporting a placement of these children with their father and it seems far more likely that they were going through the motions waiting for this father to fail. 

11.	The local authority for the IRH on 30th May filed their final evidence and care plan and a placement application. The guardian filed a position statement which made it quite clear that she did not support the local authority's plans and stated that her view of the rehabilitation process had been much more successful and recommended orders which would result in the children living with the father full time.  

12.	It is not my recollection that at that IRH I had the documentation from SA, in particular the letter which is now within my court bundle.  I will be corrected if I am wrong about that, but if I was it certainly had not been drawn to my attention.  The conclusion of the SA assessment prepared apparently for the hearing at the end of May reads as follows:  

"I feel that given Father only has care of his children twice a week it has been challenging to ascertain a fuller picture and any firm patterns that might emerge in terms of boundaries, diet, routine and basic care.  From what I have been able to observe and recorded is my belief that Father would be able to parent his children to an acceptable standard but he would require on-going support as their needs change and evolve over time.  SA feel that it would have been more beneficial if father had been given a period of time living here full time with the children to observe and assess his abilities and to determine whether advice and guidance given can be implemented by him."  

	The reason why I question whether I had seen that was that at the IRH I had two stark positions.  One from the local authority, not only saying that this was now an adoption case but actually my recollection of wanting to bring the assessment to an end there and then,  and the guardian on the other hand saying that the children should live with the father full time.  

It is an unusual circumstance although one that is becoming more frequent in this court, where the local authority and guardian's views diverge, and certainly my view in such cases is that it is inappropriate unless it is so stark on the face of the papers that one assessment over the other has such significant merit that it is not appropriate to express an opinion at that point and for the matter to come to trial.  The local authority, however, were encouraged by myself  to continue the current level of arrangements until that trial took place, which they agreed to do.

13.	As I say, had I known of the recommendations of SA I may at that point have been much more forceful in suggesting that some increase in the current regime was implemented so that the court would have that fuller picture that  SA recommended.  However, having said that, the local authority's position was very stark at that point and that is reflected in the order that was made on that day where it recorded that: 

"The local authority has a number of concerns about the physical safety of the children during overnight contact with Father, but agreeing to continue to facilitate the current contact and contract of expectations to be agreed before the next contact."  

	It is surprising that a contract of expectations had not been entered into in February when these children were placed I have to say.  I would have expected that to have happened  as a matter of just good practice, and it is surprising in this case that it did not occur in particular when the father is now criticised in respect of some matters which since a contract of expectations was prepared there is no evidence to show that he has not complied to the letter with what has been required of him in that document.  

14.	At the IRH, however, I did direct, Although for some reason it is not recorded into the order, that the local authority to refer the matter back to the agency decision maker.  It was unclear what information he or she had had when reaching the decision that adoption was the appropriate care plan for these children.  Certainly, he or she ought to have been aware of the guardian's position and also the position of SA.  Good practise would suggest that that should have occurred, but certainly when a court indicates that that is appropriate it would expect it to be done. 

15.	It is regretted that no referral back to the ADM has taken place, and I have not received a sufficient or full explanation as to why that has not occurred.  That seems to me to be of particular concern in this case having regard to the letter that was prepared in May by SA which sets out clearly their views.

16.	I also directed at the IRH that all the notes from SA were disclosed to the parties and to the local authority and those notes that I have seen set out in  much fuller detail the continued assessment that they have been able to undertake whilst Father has been living there.  Those notes run through to some time in May and on the whole show a positive picture.

17.	The local authority prepared their care plan without reference or consideration to those notes.  They did not ask for them, nor does it seem to me did they ask for information from the workers as to how they saw the situation. I do not know what information they gave to the ADM but it has to be questioned as to whether he/she were given an accurate picture of the views of others.

18.	There has been no consideration by the local authority of the emerging positive picture from those notes.  It is also of particular concern that the local authority has not sought to update their knowledge by seeking more up to date notes from SA.  As I say, the last set of notes I think are sometime in May and today is 31st July.  

19.	There has been no reference back to the ADM. There are a number of occasions when this would have been appropriate 1 Because the court  requested it on 30th May. 2 after receipt of the May letter from SA referred to above 3 when they received the notes from SA. 4 after the receipt of the guardian's position statement in May 5 after receipt of the guardians report which again confirmed her clear views for this father to care for the children 6 After the more recent letter received from SA which seems to have been dated 28th July.  The conclusions in that letter read as follows.  The first paragraph is a complete repeat of what was in the May 2013 letter, so I will not repeat it, but it is again repeated in this letter.  It says: 

"Father shows a genuine emotional warmth and love towards his children and this can be seen to be reciprocated by them.  Father extends his care towards to his former partner's daughter, A with whom he keeps in regular contact and ensures that C and D have contact with her.  Father has been a consistent and constant figure within her life and although this court hearing does not relate to her directly I feel I want to add this to demonstrate the care and warmth he has towards the children in his care.  My concern for C and D is that they have a very clear attachment to their father and I would be concerned for their emotional wellbeing should he not figure within their lives."

20.	In addition to those six opportunities, the independent reporting officer a couple of weeks ago sent an email to the guardian, which was also sent to the social worker, which questioned the viability of the local authority's plan for adoption.  It is quite clear that no-one in the local authority has taken any notice  or given the sort if consideration that is appropriate to the independent reporting officer's recommendation.  

21.	It has been questioned in this court on many occasions as to what the status/purpose is of an independent reporting officer and the extent to which the local authority will take any heed of any advice or recommendations they make.  This seems to be a clear example where, quite frankly, the independent reporting officer has been given no respect and no consideration has been given to his recommendations.  It beggars belief that a local authority in this day and age can behave in such an arrogant way, and simply disregard what I would consider to be good practice let alone court directions.

22.	The local authority yesterday morning were asked by myself, given the support that the father had from the guardian and SA  as to the realities of them persuading the court that nothing else would do other than a plan for adoption. I explored with them that as they had not gone back to the ADM as required and he/she had not been updated with all the emerging evidence that they needed to spend some time to reconsider the matter.  Counsel asked for some time to take further instructions from senior managers. I am told that Miss Newman who is the service manager was contacted, although an order was required from me for her to come out of a meeting so that she would speak to counsel.  I was told then later in the morning that she would come to court in the afternoon to give instructions, but she failed to attend and I have had no explanation as to why she failed to do so.  The last message was that the guardian could go to her offices at four o'clock and meet with her if she so wished to do.  The guardian chose, not unexpectedly, not to accept that invitation from Miss Newman.  Miss Newman apparently turned up at court this morning and told the guardian that she had read the updating documents and that there was no need to change her care plan. Fortunately  in the intervening period I had decided to continue the hearing of this final hearing given that decisions needed to be made for these children and there could be no reliance that the local authority would reflect on their position given that no senior manager seemed to be remotely interested in giving any instructions to those representing the local authority at court. 

23.	On the morning of the first day I heard firstly the evidence of L  the key worker from SA.  Her evidence was fair in it acknowledged deficits that the father still had in his parenting, those matters that she felt that progress had been made on, those matters which she felt he now seemed to have nailed and those matters where he ought to have done better on and that further work was required.  Her clear view was though that these children should be living with him, and she indicated that this was not only her view but the view all of those who had been involved with Father and the children since February, that they would be able to continue to offer a place for him to live there for up to to two years and that they would be able to continue the support and the work that they have been doing in their view with positive results.  She was also fair that if there was any child protection matters that arose she would be the first to be contacting the local authority to report those, and yet there have been no child protection issues so far as she was concerned that had warranted her notifying the local authority during the time that she had been there since the children had been there since February.  None of that evidence, quite frankly, was a surprise.  It simply was a record and further exploration of what she had said in the letters that she had produced to the court and was reflected in the notes that have previously been provided.  

24.	The only other evidence I heard yesterday was the evidence of the social worker who was clear that these children had suffered significant harm, that the father could not meet the needs of these children and that these children would be at risk of significant harm in his care.  As a consequence of that, nothing else would do other than an adoption order.  That was her clear evidence to this court.  It was the evidence given having reflected on the evidence of L.

25.	Despite what Miss Newman said to the guardian before court was convened this morning, the local authority came into court at 10:30 with a revised care plan which now said that the children should be living with the father, albeit subject to a care order.  The social worker completed her evidence to explain that the local authority needed a care order because they needed to share parental responsibility because of the risks in this case.  She set out how the plan was to evolve in terms of placing these children with the father which was fairly much in line with what was contained in the statement that I had directed to be filed so that I had that option fully discussed prior to the hearing commencing.  

26.	At no time, I have to say, did the social worker in the evidence she gave to me today, nor counsel in her closing submissions  explain adequately why it is that the risks that the social worker was so clear about yesterday have reduced sufficiently overnight to the point where this father can now care for these children.  

27.	This case has always had two stark options available to it.  One would be that the children would be placed away from their family.  The other that they would be placed with the father.  If the former, then of course there were two separate arguments, whether that should be under adoption or under long term foster care.  It seemed to me, as a matter of principle, that on the facts of this case that the local authority's care plan for adoption was always going to be one that would trouble the court, given their ages, their life history, the particular difficulties that they have, the level of attachment that they have not only with their father but also with their siblings, the issue of on-going contact between their siblings and certainly the father, less so initially in relation to the mother. In considering all of those matters, if one had been going through the holistic balancing exercise and looking at the matters in the welfare checklist and applying current case law, it seemed to me to be difficult at the commencement of the hearing and more so as the evidence proceeded, to get to a point of saying that adoption, with all of the draconian aspects to the making of such an order, would be the appropriate order for these children.  However, that did not of course stop the local authority from proceeding with a plan of still saying this father just is not going to make it with these children, that the risks are too high, and recommending that the children were placed in long term foster care.  It would alleviate all the issues in relation to the termination of all the birth relationships, but would provide the safe parenting, the good enough parenting that the local authority say that these children need, which they had said very firmly that the father could not provide. It is an option that they could have proceeded with.  

28.	I have still no understanding as to why it is that that was not something that they proceeded with.  It may still not have had favour with this court but at least would have been the natural follow on from the evidence that I heard yesterday about their views of this father.  Even in the examination of the social worker today, the social worker was unable to identify any aspects of the fathers care which  had less risk now than it did yesterday.  Her view was that the whole situation was still of risk and that related really to every aspect of the care that this father could afford to these children in the future.
  
29.	The local authority have made it clear that the levels of support that will be offered to this family, whether under a care or supervision order will be the same, and the local authority really have not been able to give any concrete examples as to why it is that they need a care order rather than a supervision order other than they would like to share parental responsibility so that if an emergency arose that they would then be able to exercise their powers under the care order to remove the children, although subject to their reassurances that that would not be done other than in emergency situations.  

30.	This is a local authority who, in my recollection, has never agreed -- despite numerous occasions where judicial encouragement has been given for them to agree, for a care order to be made to children placed at home.They have been constantly completely resistant to any such judicial indication and have always said that it is not appropriate for them to try and exercise parental responsibility to children when living at home.  It is not a view shared by their neighbouring local authorities but it is one that they have persisted with.  

31.	I have grave concerns about granting the local authority care orders in respect of these children.  The local authority have, in my judgment, been clear for many months that the outcome for these children should be adoption.  They have been unable to recognise the positives that this father is able to offer to these children.  They have been unable to recognise or give the father credit for the efforts that he has made and the changes that he has made to his life.  They have failed to take into account the clear recommendations and information that has been provided to them by SA and they have failed to take into account the views of the guardian or their own independent reporting officer. More seriously they have steadfastly ignored all that evidence and have failed to refer the case to senior managers for the position to be reviewed by them.   
32.	This court would have no confidence in this local authority exercising their duties under a care order in an appropriate, reasonable and proportionate manner.  Given the local authority's position that all of the support and help that this family need could be given under either order, when I consider which orders to make I should always make the less draconian order unless there are good and cogent reasons to suggest the alternative. 

33.	The local authority said that if I granted a supervision order they would be worried that the father would not be able to express his concerns to the local authority or ask for help for fear of removal.  I find that argument extremely difficult to accept when it is submitted that I should make a care order where, without recourse to this court or without further notification to the parents the local authority,( subject of course to the case law which in my experience seems to be acknowledged more in the breach than anything else) the children could be removed from the fathers care.

34.	I cannot see how the local authority, given what has happened over the course of these two days and the concern that this father has had from the start as to whether he has been set up to fail (quite justified in my judgment given the comments that these social workers have been making) how they could expect him to work in an open and honest way with them when he knows that the local authority think that these children should not be living with him and that they are looking for the first opportunity to remove, to think that he would behave openly and honestly with them strikes me as being a difficult  square to circle.  

35.	 In this case only a supervision order would be appropriate.  It allows the local authority to give what it should be giving, advice and support to this family.  As I have indicated, this is probably a case where it will need to consider renewal of the supervision order.  There is a considerable amount of additional support being offered by SA and the local authority would be well advised to actually take heed of their views in this case.   

36.	I have been troubled by the local authority's conduct of this case over these two days and, indeed, in their lack of transparency in the way that they have dealt with these proceedings from at least  some time in April where it is quite clear, if not before, that their mind was made up.  They have acted in bad faith to this father and to the court. They are responsible for poor practice and even now they have failed to explain adequately why this case was not referred back to the ADM, why they have not complied with court directions, nor why their senior managers have acted so disrespectfully towards the court.

37.	I think just finally, father , you should be aware that you have come within a whisker over these last two days of not only your children not living with you but them going off for adoption.  There are certainly things over this year that you should have done and you have not done.  There are times when I think you have probably not been as straight as you should have been when talking to people about what you have done, or how many times you have been doing things. The court and everyone here is giving you not only the benefit of the doubt but giving you a further opportunity to prove that you can care for your children.  The guardian has confidence in you.  SA and their staff have confidence in you.  The local authority do not.  You are at risk that if you slip up that the local authority will issue further proceedings.  That is something that they are quite entitled to do and if they have significant concerns, certainly from a child protection point of view, I would expect them to be issuing those proceedings.  You are being given a second chance by this court.  You should have done more since the time the children have been living with you and I expect you now to do exactly what is required of you, when you are required to do it and to your best of your ability.  These children have had a pretty grim start to their lives and they have not got time to wait for you to get yourself together and to get your act together.  They deserve your 100% care and attention and for you to do absolutely everything that is in your power to give them the best lives possible.  If you cannot do that first of all you should be man enough to tell the authorities that you cannot so that the local authority can make other plans for them.  If you think you are doing your best and others do not then you are going to be back here.  Do not expect any second chances from this court.  This is your chance.  If you mess this up do not waste your time coming and saying: "Well, I did not quite understand" or "Yes, I was going to do that but I did not quite get around to it or my  third cousin died, or something like that, and so I did not get around to doing that, but I will do it if you give me another chance.  You will not get any more chances.  This is it.  I hope that you will be successful.  I expect you to comply with the contract of expectations in the same as I will expect this local authority to do so.  I expect you to stay at SA until such time as someone says to you, you are ready now to move on.  I know it is going to be tough for you to work with this local authority given what has happened but you are going to have to because at the end of the day they have responsibilities for making sure that the children in Portsmouth are safe and they would be failing in their duties to these children if they do not do that.  

38.	So I will make a supervision order for 12 months.  There is an expectation though that this case will come back, but I would hope just on a short hearing before me to extend the supervision order at some point in the future.  I will make a child arrangement order which will enable the children to live with father, although on a phased basis with them being back in your care in the next couple of weeks or so, and I will make orders as agreed  between the parties in relation to the contact arrangements for mother.  Certainly once a fortnight seems to me to be an appropriate level of contact.  These children certainly need time to settle, but in any event I would not want these children's lives disrupted so that every single Saturday or Sunday they have to spend time with their mother.  The father needs an appropriate period of time including chunks of weekends or all weekends on an alternate basis to be able to spend with his children.  There is also all the other sibling contacts that need to be factored in as well.  These children's lives are pretty complex and complicated as it is with the numbers of different people that they need to maintain relationships with and that needs to be taken into account.  As things stand at the moment I would not see the contact moving beyond fortnightly, so that would be my view at the moment, but of
course nothing is cast in stone.  I will leave you to sort out the details of any 
appropriate prohibited steps.