IMPORTANT NOTICE
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.

Case No:  NE14C00153  
IN THE NEWCASTLE-UPON-TYNE COUNTY COURT 

The Law Courts
The Quayside
Newcastle-upon-Tyne
NE1 3LA 
 
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: R (A CHILD)

Thursday, 2nd October 2014

Before:

HER HONOUR JUDGE MOIR

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Re: R (A Child)

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Transcribed from the Official Tape Recording by
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Counsel for the Local Authority: Not Known
Counsel for the Mother: Miss Hodge
Counsel for the Child: Not Known

Hearing dates: 
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JUDGMENT
DRAFT JUDGMENT

1.	THE JUDGE:  This is an application brought by Northumberland County Council in respect of A, who was born on 23rd July 2014.  She is the daughter of M and F.  The Local Authority took out care proceedings because of their concerns about the risk that F presented.  The forensic history of this matter is that the case came before DJ Atherton on the Local Authority’s application.  The district judge, at that stage, refused the interim order that the Local Authority sought, which was interim care order with removal of A from her mother’s care.  The Local Authority appealed to this court and the case came before me on 7th August, DJ Atherton’s order having been made on 28th July 2014.
2.	Upon 7th August, the court gave the Local Authority permission to withdraw the application for permission to appeal and to withdraw the appeal on the basis that A was placed in the care of Northumberland County Council until a finalisation of the proceedings or further order on the basis of an interim care plan which had been drawn up.  The court also made an exclusion order in respect of F with a power of arrest attached to that order.
3.	The discussions at court that day involved discussion of a contract of expectation which was drawn up and agreed by M.  The order that day recognised that the parenting by M of A was good parenting.  There were no concerns at all in relation to M’s ability to provide day-to-day care on a practical basis for A.  She was breastfeeding and continues to breastfeed.  The view at that stage, and, indeed, the view today, is that mother and A are well-attached.  I am told that A spends all her time with her mother and M is devoted to her daughter.
4.	The concerns were around F and the contract of expectation was to address, as far as possible, those concerns and to assist and educate M in relation to those concerns.  There had been considerable anxiety on behalf of the Local Authority prior to A’s birth in relation to M’s attitude towards F and, indeed, her failure to engage satisfactorily with the Local Authority.  However, it was recognised that, following A’s birth, the engagement had much improved and it seemed that M was developing some insight into the risks posed by F.  She maintained before the court that the relationship was at an end and she agreed that she would attend the Freedom Programme, which she knew was designed to assist those who may be subject to domestic abuse to enable those who may be subject to domestic abuse to understand and protect themselves and their children.  She agreed to attend.
5.	There was also a requirement that she cooperated as far as the health services were concerned and presented A at health appointments as required.  Clearly, the expectation was also that she had no contact with F, that she cooperated with the Local Authority and she engaged in respect of their work with her, assessments of her and the implicit expectation that she kept them informed in relation to A’s welfare.  It was hoped that following upon that hearing, A would remain with her mother and that the matter would progress to a final hearing, having taken account of whatever assessments were undertaken.  
6.	This matter came back before the court last week, on 26th September, on the Local Authority’s application to remove A from her mother’s care.  The Local Authority expressed considerable concern about two incidents which had occurred involving F and also the lack of visits by A to the baby clinic, her failure to attend the Freedom Programme and the fact that the Local Authority had provided a mobile phone to M to enable her to be readily contactable by the Local Authority.  The concern was that this phone had been consistently switched off, such that the health visitor struggled to make contact, as did the social worker.
7.	On 13th August 2014, the police attended at the home address of M following the activation of a public protection alarm as it was reported that F was smashing up the house.  It seems that when F embarked upon this behaviour, M, along with A, who was at that stage two weeks of age, was locked in a room, it seems with her mother and brother, locked in the room by themselves to keep out of the way of F.  The police had attended and it was clear that there had been considerable damage.  He had obviously been in the property because there was damage occasioned to the bedroom.  He was arrested for criminal damage and remanded on bail.
8.	Clearly, this incident was known at the time the interim order was made.  However, on 23rd September, there was a further incident involving F and it is this incident along with mother’s failures to meet the contract of expectation which prompted the Local Authority to bring the matter back to court.  On that occasion, M had planned on Sunday, with the knowledge certainly of her mother and, clearly, of her sister, to go to her sister’s house on the Tuesday night, the 23rd, because her sister’s partner was working that evening.  M, it is fair to say, had not been out very much with A.  I am fairly sure that this was the first time she had been out in the evening with A and she had arranged for one of her mother’s friends to give her a lift through to South Shields from Cramlington to see her sister and had arranged that the same person would give her a lift back at 9.30.
9.	The social worker Wendy Jet attended at the home that day and was there until half six, quarter to seven.  M made no mention at all of the fact that she was going out.  Of course, she did not have to seek permission but bearing in mind that she was about to go out with A, as I understand it, for the first time in the evening and very shortly after the social worker left, it is surprising that she did not mention it.  
10.	It seems that she left at about ten past seven and went to her sister’s.  They decided to go out for a meal.  They went out, returning about ten to ten, by which time mother had missed her lift.  She indicated that, in those circumstances, she would probably have ordered a taxi.  However, when they returned, the door was left unlocked, it seems, and when they were inside the flat, F entered the address, acted in an extremely aggressive manner and possibly had with him a knife.  Z, M’s sister, pushed M, who I think was in the kitchen feeding A, with A into the bathroom.  Z sustained a cut to her arm which necessitated attendance at hospital before F left.  
11.	Z had phoned the police and they attended.  They enquired of Z and M whether they knew who it was that had broken in and they denied that they knew any of the persons who had come into the flat.  Z knew F.  She clearly knew who it was and M also knew that it was F because she heard him even if she did not see him.  She says that, effectively, she just went along with what Z said.  She said, and I quote from her statement, she did it:
“... initially because I did not want to say anything different but, afterwards, because I feared that if I said it was [F] I would be blamed for his attendance and also because I was terrified that if he knew I had told the police it was him, we might be at more risk.”
12.	No call was made to the out-of-hours service.  The police, of course, had no idea who it was.  Although two of the participants have been arrested, it seems, F has not been apprehended and is still at large.  It may have been the case that if the police had been told immediately that F was one of those who had broken in, the police may have been able to apprehend him at an early stage.  
13.	The social worker was not told until the following morning by Y at a meeting.  M made no contact with Social Services to inform them as to what had happened.  
14.	The police still do not know where F is.  He is being actively sought because he is in breach of his bail conditions as well as being required to answer questions in relation to the offence on 23rd September.
15.	I have had the opportunity to read the statement of the social worker and the statement of the health visitor as well as the statement provided by M.  The statement of the health visitor sets out the failure to attend the baby clinic.  Mother accepts that she failed to attend the baby clinic in Seghill.  It is right to say she has attended at A’s checks and immunisation appointments.  She said that attending Seghill was a problem because it would mean having to get on a bus with A or [relying on?] her mother or grandmother who were not available for these appointments.  She said she raised it but certainly the social worker was unaware that it had been raised with anyone and was unaware that M was saying it was a problem because of the distance.
16.	Mother failed to attend the Freedom Programme.  She has missed all three appointments that have been offered to her.  She indicates in her statement that she was told that she did not have to take part in it if she did not want to and she assumed that it was a matter of choice.  I accept that the social worker did not tell her it was a matter of choice but, rather, that Social Services could not force her to attend, but she knew it was part of the contract of expectation.  The reason that mother gave as to not wanting to attend was because she found the idea of sitting in a group talking about her life in front of strangers daunting.  I have no doubt that it is daunting but she was well aware that it was part of the requirements and part of the framework of protection for A to remain at home.
17.	As far as the mobile phone is concerned, mother accepts that she had the phone but explains within her statement that it was not charged and thus was not usable and meant that the line of communication was difficult.
18.	The Local Authority pursue their application for removal of A.  They set out that there has been an escalation in gravity and magnitude of the risk posed by F and the fact that the mother appears to have failed to adhere to the terms of the written agreement.  
19.	The GP phoned the Local Authority because of her concern that M had attended and asked for contraception.  In her statement, mother sets out that it was because of a heavy menstrual cycle and that she had discussed it with Val Rendell, the health visitor, and that although she was not in a relationship, it would assist if she did have a new partner.  There is no evidence that mother has a new partner.  She says she does not and I accept that.  More particularly, there is no evidence that she continues in a relationship with F and although the request for contraception raises suspicion, it is no more than suspicion.
20.	Clearly, in an application of this nature, it is the welfare of A that is my paramount concern.  I have to ask if A can be kept safe if she remains living with her mother.  I have to have regard to those matters set out at section 1(3) of the Children Act.  They guide how the court approaches matters of this nature. There is already an interim care order so the court was satisfied as to the s 38 criteria being made out. The removal of the child is a very draconian step and should only be contemplated if the safety of A demands it. 
21.	The Local Authority, as I have indicated, pursue their application.  Mother, understandably, resists the application.  Mother’s proposal is that she goes into a refuge out of the area with A and that that would be sufficient to keep her safe from any threat or risk from F as he would not know her whereabouts and she could continue to care for A. 
22.	The guardian, at the outset of this hearing, made it clear that she wanted to hear the evidence.  Having heard the evidence, the guardian clearly found it an extremely difficult case in which to make any recommendation.  She balanced the effect of a change of circumstances upon A and the harm separation from mother could cause to A against the risks to A of being with her mother while F remains at large.  She explained to the court her belief that A was very attached to M and that if a mother is well-attached to the child, the mother will look after the child and have her interests at heart.  I accept that A is well-attached to M and it is clear that A means everything to M and that she acts as far as she can with A’s interests at heart.
23.	The guardian explained her position by saying that what is missing as far as M is concerned is M realising that she is an adult and with that comes responsibilities which she cannot pass over to other people, that thus far she has accepted all help from her family and has not thought for herself.  Her family are very supportive.  The guardian took the view that a refuge would be very testing for M because, quite clearly, she would find the environment difficult and different.  She believed that the environment of the refuge would give M the opportunity to experience a protective environment and have professional help to think through such things as issues of domestic violence in a positive way.  She said that whether M was able to benefit from it depended on M being an adult and also depended upon how many people M told about her location.
24.	The paramount concern of this court, as I have said, is A’s welfare and I have to look at the risks to A.  The problem is that the behaviour of F is extreme.  His violence has been demonstrated.  What is not clear is what his intentions are in relation to M and A.  Nobody is clear about the reasons for him pursuing M and A and behaving as he has done.  
25.	The court does not know how F knew about M and A being at her sister’s.  Clearly, he had the information from somewhere.  It is not apparent where he obtained that information.  Clearly, someone told him.  There is a history of the family, of course, knowing F.  It seems at one stage, as I understand it, he lived with the grandparents of M.  I am told that X, Z’s partner, is still friends with F and that X’s friends know F.  However it arose, he pursued M and A and placed them both at substantial risk.  It is not dramatic to say that only a door and a flimsy lock separated them and, indeed, Z was injured within this incident.
26.	Miss Hodge argues that if A is removed from M’s care, it is effectively a final conclusion.  It is like having a final hearing at this stage.  I do not accept that.  This is an interim stage.  We do not know what assessments or arrangements are to be made.  We do not know what the risk in respect of F actually is because it is unassessed.  All we know is that he has behaved in a violent manner now on two occasions when A has been present.  It is argued that the risk is manageable enough, that one cannot protect A from everything and, clearly, of course, one cannot protect A from everything.
27.	The court has to question how much reliance can be placed on mother to take protective steps to keep A safe.  Sadly, she has not managed to do so thus far and knowing how important such things as the baby clinic and the Freedom Project were, in that they formed part of a contract of expectations which had been drawn up when the Local Authority withdrew its appeal, mother can have been in no doubt as to the Local Authority’s concerns about the situation and the fact that they were appealing against the order whereby A remained at home.  Of course, that appeal was withdrawn but the net result of the appeal being launched is that mother could have been in no doubt as to the seriousness of the situation.
28.	If M and A go to the refuge, clearly, it is not a prison.  Mother, quite properly, would expect to go out and about.  The refuge workers are not jailers.  They are there to support and, indeed, educate but they are not in a position to prevent mother leaving the refuge.  
29.	What this court has struggled with, as, indeed, I think the guardian struggled, is how much reliance can be placed upon M to keep the information as to where she is safe and secure so that F cannot find out where she is.  Clearly, to isolate M without any contact with her family, bearing in mind what a close family they are, is unrealistic.  Thus there must be contact with her family and the court has to be satisfied that such contact with her family and A herself would not result in information being provided which would enable F to find out where M is.  I am told that the great-grandmother, who is old, had indicated that she thought that F had seen A and that M still loved F.  I do not place reliance on that information because she is old and, I accept, may be confused, but the relevance is that F knows where great-grandmother lives, where grandmother lives, where mother lives and that M herself indicated her fears, in fact, she said she was terrified, in respect of her family and how F may confront them.
30.	The guardian raised the question whether M was sufficiently aware of what she needs to do and said that she, the guardian, did not know.  The problem, as the guardian put it, is that M can see it in retrospect but the question is whether she can see it in anticipation, that M does not think thinks through and that the whole atmosphere when she was living at home was that she was not alive to the risk.
31.	So we come back to whether A can be sufficiently protected in the refuge.  I need to balance up the fact that to separate A from her mother will be to separate a child who has been well looked after and continually looked after by her mother.  It will be a big change.  Mother is breastfeeding, and the effect upon A must be weighed in the balance.  
32.	I have come to the conclusion that A cannot be protected in her mother’s care with the present information and knowledge that we have.  I do not accept that that is the final situation.  It is not.  There are many positives in mother’s care.  It is assessing the risk that F poses when full information is provided that may be the key to the future.  At the moment, I cannot be satisfied that A will be safe even in the refuge.  F is unpredictable.  He has been referred to as resourceful and dangerous and even if M herself does not have contact and communication with F as to where she is, she will inevitably and understandably tell her family and it has already been demonstrated that, with family knowledge, F has been able to track down M and A and put them at considerable risk of harm.  A is still a very young baby.  She needs to be protected and I cannot be satisfied that, at present, with F at large, with limited knowledge as to his reasons for the dangerous behaviour in which he has engaged, the risk can be quantified accurately to enable me to take the risk of A being within the community with her mother, albeit at a refuge.
33.	It is a very difficult decision.  It is finely balanced and it is not one I come to without a great deal of thought.  The guardian clearly took the view that for mother to go into the refuge would enable mother to effectively have the experience and education and professional help to assist her to deal with her situation where she is a threatened victim of domestic violence but I cannot concentrate only on mother.  It must be concentrating on A’s welfare and being satisfied that mother could understand the risk and act accordingly.  Sadly, even if the mother was progressing towards that situation, her contact with her own family at the moment poses a risk of her whereabouts being known and if her whereabouts are known, then, presently, neither the police nor the court are in a position to protect the mother.  She sees that as unfair, that if they cannot protect A, why should she be criticised or, indeed, as she probably sees it, punished, for her inability to do so?  That is not what this is about.  It is about protection and safety for A. 
34.	I am going to sanction A going into foster care. It is necessary to safeguard A and protect her from risk of very serious harm.  However, that is a situation which will have to be kept under very careful review.  It is apparent from the judgment that I have given that without the risks that this man poses, A can be well cared for by her mother and thus his apprehension by the police or, indeed, some better understanding of the circumstances must bring about further consideration.  Equally, as far as mother is concerned, her abilities to engage, to understand, must be fully assessed to see whether safe reunification can be achieved.  It is not the final hearing.  It is not a permanent decision.  It is a decision to keep A safe within the next immediate future and while the risk remains unassessed and F remains at large.
[Judgment ends]