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.

SN15C00044 & SN15C00059
IN THE FAMILY COURT AT SWINDON
FROM 7 – 9 OCTOBER 2015 & 29 OCTOBER 2015

BEFORE 
DISTRICT JUDGE RALTON 

B e t w e e n :
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SWINDON BOROUGH COUNCIL
-and-

(1) NA
(2) AW
(3) DWR
(4) ---
(5) THE CHILDREN
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Representation
SBC		M. Gallagher (counsel)
NA		L. O’Neill (counsel)
AW		N. Shravat (counsel)
DWR		L. O’Sullivan (counsel)
Children		N. Owen (solicitor)

- - - - - - - - - - - - - - - - - - -
JUDGMENT
INTRODUCTION

1.	References to page numbers within round brackets in this judgment cross refer to the final hearing bundle. 

2.	By these consolidated proceedings issued on 27th March 2015 and 27th April 2015 Swindon Borough Council, “SBC”, sought care orders in respect of 5 children. They are:

(1)	“JA” born on 9th May 2001 now aged 14, the child of the First Respondent mother NA, “M” and Fourth Respondent “BG”

(2)	“AN” born on 7th April 2006 aged 9, the child of M and the Second Respondent “F”

(3)	“KA”, born on 18th March 2007 aged 8 the child of M and F

(4)	“MC”, born on 19th June 2009 aged 6 the child of M and F

(5)	“KY”, born on 9th February 2012 aged 3, the child of M and the Third Respondent “DR”.

3.	The children are parties and their guardian is Ms Anne Mackenzie.

4.	The proceedings concerning JA were concluded at the issues resolution hearing on 3rd September 2015 when I made a child arrangements order for JA to live with BG (who was granted parental responsibility for JA) together with a supervision order to SBC for 12 months (B125 to B129)

5.	Therefore JA and BG are no longer parties and feature no more in this judgment.

6.	The current circumstances of the children are as follows:

(1)	AN lives with F

(2)	KA and MC are in foster care

(3)	KY lives with M’s mother “MGM” and her husband.

7.	The so called “threshold criteria” for the purpose of establishing jurisdiction to make care or supervision orders under section 31(2) of the Children Act 1989 are not in issue (A90) and the court adopts that document as its findings. The court remains concerned with welfare evaluation and the orders (if any) it should make after having regard to the welfare checklist found in section 1(3) of the Act, the legitimacy of the aim of any orders and whether such orders are proportionate given that any court order amounts to an interference with the right to respect for private and family life enshrined in Article 8 of the Convention Rights.

PARTIES’ FINAL POSITIONS UPON PLACEMENT & ORDERS

8.	The final positions of the parties at the conclusion of evidence and the realistic options for the children are as follows:

(1)	AN

(a)	SBC seeks a care order to implement its plan to remove AN from the care of F and into a specialised therapeutic foster placement out of area (i.e. away from X town); see the final care plan. Ms Mackenzie supports SBC.

(b)	M seeks the return of AN into her care but if that is refused she supports AN remaining in the care of F.

(c)	At the start of the hearing the court was informed by Mr Shravatt, F’s counsel, that F supported the move of AN into a therapeutic foster placement. F changed his position during the first day of the hearing and his final position was that he wanted to continue caring for AN but would agree to the making of a supervision order.

(2)	KA & MC

(a)	SBC seeks care orders to implement its plan to move both children from their current foster placement into a specialised therapeutic foster placement which is out of area to give them “a fresh start”; see the final care plans. Ms Mackenzie supports SBC.

(b)	M seeks the return of both children into her care

(c)	F does not put himself forward as a carer for these two children and agrees to foster care.

(3)	KY

(a)	SBC seeks a special guardianship order in favour of MGM together with a 12 month supervision order; see the final care plan. Ms Mackenzie supports SBC.

(b)	M seeks the return of KY into her care but if that is refused she supports placement of the child with MGM but under a child arrangements order.

(c)	DR does not put himself forward as a carer for KY and does not actively oppose SBC.

THE HEARING & REPRESENTATION

9.	The hearing took place over 3 days on 7th, 8th and 9th October 2015. This judgment was handed down on 29th October 2015.

10.	The parties were represented by advocates as follows:

SBC		M. Gallagher
M		L. O’Neill
F		N. Shravat
DR		L. O’Sullivan
Children		N. Owen

	and I am grateful to all for their assistance.

11.	Given the parties’ final positions most of the court time was devoted to the question of whether AN should remain in F’s care or be put into foster care under a final care order.

HEARING  BUNDLE

12.	Written evidence is found within the trial bundle and amounts to some 1,473 pages plus.

13.	At the IRH I gave SBC permission to file a hearing bundle which exceeded 350 pages but I expected SBC to otherwise comply with Practice Direction 27A in particular paragraph 4.1 which states that the bundle should contain:

	… copies only of those documents which are relevant to the hearing and which it is necessary for the court to read or which will actually be referred to at the hearing. …”

14.	As far as I can see this bundle was prepared with no care or thought at all and in breach of PD27A in the following respects:

(i)	there was no attempt to remove redundant documents such as earlier, outdated, case summaries, threshold documents, documents relating to JA
(ii)	there was no attempt to reduce section B (applications and orders) to documents relevant to the final hearing
(iii)	there was no apparent need for the interim care plans in section D and they were not referred to at all
(iv)	most of section F was not required or referred to
(v)	the police disclosure should not have been in the bundle (see paragraph 4.1(g) of PD27A and no one referred to it at all.

15.	As far as I can see no effort was made to put the papers within the sections in a sensible order. We have Ms Mackenzie’s initial analysis at (E3 to E27) but then we have to go to (E530) to find the final analysis. The expert report of Dr Surgenor is at (E121 to E307) but we have to go to (E505) to find the addendum. This slapdash preparation was exacerbated by section E being spread over two lever arch files.

16.	This is entirely unsatisfactory. All the relevant documents could have been contained within one lever arch file, possibly one and a half files if undue caution is deployed. On another occasion SBC might find that the court rejects their bundle and makes a costs order should time be lost and costs be wasted whilst all concerned wait for a proper hearing bundle to be prepared.

EVIDENCE

17.	The documentary evidence is found within the hearing bundle to which I have already referred.

18.	For SBC I heard from:

(1)	Ms Karen Mead, Social Worker from 10th August 2014 and throughout this case until (I think) September 2015 when she left the employ of SBC

(2)	Mr Alsmeier, Social Worker and successor to Ms Mead

(3)	Ms Davies, assistant team manager.

19.	M chose to not give any oral evidence.

20.	I heard from F.

21.	DR has not fully engaged with these proceedings but did appear at the final hearing with his advocate. DR did not ask to give any evidence

22.	For the children I heard from:

(1)	Dr Surgenor, expert psychologist

(2)	The Guardian Ms Mackenzie.

23.	No challenge was made to the credibility of any witness who gave oral evidence and I am confident all witnesses were honest with the court and sought to assist to the best of their ability. However, I record the following:

(1)	SBC failed to produce within any part of their social work evidence a thorough and robust assessment of all realistic options for those children for whom there was more than one option further to the judgment of the Supreme Court in Re B [2013] UKSC 33 and of the President in Re B-S [2013] EWCA Civ 1146. In her final statement Ms Mead purports to consider all realistic options but doesn’t. She does not address placement with M and, notwithstanding the fact that AN is living with F, she does not thoroughly assess this option. It follows that there was no identification of the services to be provided to F and AN if AN remains with F.

(2)	SBC failed to comply with the direction to provide a special guardianship report in respect of KY and MGM by 7th August 2015 as required at paragraph 17k of the order dated 2nd June 2015 or by 30th September 2015 as required at 17k of the order dated 3rd September 2015. These appeared belatedly during the first day of the final hearing.

(3)	Mr Alsmeier seemed to have little knowledge of the case which he had recently inherited; this is not a criticism but his brief evidence really did little to advance the case. He had not made a statement. The advocates should have spent a little more time between themselves to decide whether Mr Alsmeier needed to be called.

(4)	F impressed me especially given his background (considered later in this judgment). He was thoughtful and measured, ready to accept his own shortcomings and the need to do something about them. In my judgment he was able to show some insight into AN’s needs and the challenges he would face if he continued to care for AN. I shall return to this later.

(5)	By the time of the IRH it had become common ground between SBC and Guardian that AN and KA and MC required specialised therapeutic foster placements and the court expected SBC to provide the Guardian before the final hearing with details of the availability of such placements (see the order at paragraph 14 (B121)). Ms Davies was tendered to provide evidence on the process of arranging such placements which can be a very complex exercise. However, none of her evidence excused SBC from their plain failure to try to identify availability of any placements until the first day of this final hearing.

BACKGROUND & PRECIPITATING EVENTS

24.	SBC’s chronology begins on 3rd November 2000 when M is pregnant with JA and in a relationship with BG against whom she alleged domestic abuse.

25.	The chronology runs for 19 pages and there are many references to domestic abuse, drug and alcohol addiction, neglect and abuse on the part of M, BG, then F, then DR together with references to missed important appointments concerning the children and serious neglect such as sending KA to school on 15th May 2013 in a soiled and wet nappy that was too small.

26.	It seems quite extraordinary that SBC did not make the children subject to child protection plans until 3rd December 2014. There was no satisfactory explanation.

27.	On 13th January 2015 at a Core Group meeting M reported a deterioration in AN’s behaviour and that he was beyond her control. On 15th January 2015 M contacted Children’s services to say that she was at the end of her tether and by agreement on this day AN was moved into the care of F.

28.	Children’s Services remained concerned with the welfare of the other 4 children and M’s declining mental health; by agreement on about 11th February 2015 KA and MC moved into the care of DR’s sister whilst JA and KY moved into the care of MGM.

29.	On 17th March 2015 KA and MC were in the care of M because DR’s sister was unwell; there was concern that DR was also in M’s home and on about 24th March 2015 the two children were placed in the care of F who cared for them (and AN) until 26th March when he asked Children’s services to make alternative arrangements for KA and MC.

30.	Ms Mead sets out precipitating events in section 5 of her second statement (C39); after perusing SBC’s account of the history it is apparent that the real precipitating event was SBC finally realising that it needed to intervene in this family. In her statement of 24th April 2015 Ms Mead said (C62):

	“On 16th November 2013 and 4th December 2013 disclosures were made by the children in respect of alleged physical chastisement by [DR]. On the first occasion [KA] told school staff that [DR] was still smacking them. On the second occasion [AN] informed the GP that [DR] smacked them
	On 16th November 2013 X primary school staff were contacted in connection with the disclosure made by AN. School staff stated that they had supported the family over the past six years but that, despite this, nothing had changed in terms of M’s ability to parent her children ….”

	That was in 2013.

	NEEDS OF THE CHILDREN

31.	Plainly all the children require good enough parenting. What is “good enough” turns on the needs of each child

AN

32.	AN is in good physical health. He has needed much dental treatment due to inadequate dental care and decay.

33.	AN’s psychology was assessed in depth by Dr Surgenor who concluded at paragraph 317 (E189)

	“Overall, [AN]’s need to control the interview process, his use of contradictory statements that were impossible to reconcile, difficulty providing specific episodic memories, the need to provide substantial prompts during the course of the interview, his apparent level of anxiety when the questions focused on the attachment relationship (and less so on more neutral topics), his pervasive use of avoidant strategies, and his striking inability to identify and reflect upon mood states without significant prompting during the CAI suggests that [AN] has a disorganised attachment with dismissive features to both parents”

34.	Dr Surgenor’s conclusions are at paragraphs 608 to 614 (E247 to E249) and they are accepted by all parties. In short it is concluded that AN has developed a negative working model:

	“He has a pessimistic, cynical view of himself and caretakers, which interferes with his development of healthy attachment relationships”

KA

35.	KA has a heart defect requiring only checkups. He has a problem with enuresis and soiling and is under the care of a paediatrician. He has needed much dental treatment due to inadequate dental care and decay. KA has been damaged by the parenting he has been exposed to and requires more than ‘normal’ care.

MC

36.	MC is in good health. He has needed much dental treatment due to inadequate dental care and decay. MC has been damaged by the parenting he has been exposed to and requires more than ‘normal’ care

KY

37.	By reason of his young age thereby meaning he has had the least exposure to the damaging parenting to date it seems that KY does not have needs that require additional comment.

	ASSESSMENT OF M’S ABILITY TO CARE

38.	By 11th February 2015 M was not caring for any of the children because they had suffered chronic neglect and poor home conditions whilst being exposed to substance abuse and domestic violence whilst in M’s care and she herself rightly recognised that she could not care for the children.

39.	What has changed?

40.	As at about 1st April 2015 M was telling Ms Mead that she denied drinking or using any sort of drug (C44) and notwithstanding her complaints of domestic violence and abuse she had let DR back into her life (C44).

41.	Testing for drug and alcohol use has been commissioned. In the report dated 11th June 2015 M tested positive for crack cocaine, heroin, cannabis and chronic alcohol consumption from about November 2014 to about May 2015 (E59)

42.	In her only statement filed shortly before the final hearing M said (C138):

	“I accept that historically I have had difficulties with my mental health, drugs and domestic violence … however I now believe that I am in a position to have all of the children back in my care”

43.	At paragraph 19 of her statement M said she agreed with Dr Surgenor’s analysis of herself and the children although she challenged Dr Surgenor’s analysis of her ability to parent. She feels aggrieved that Ms Mead commenced assessment of her parenting before proceedings commenced but I cannot see how such action on the part of Ms Mead could be criticised.

44.	Inevitably M’s possible substance misuse would be the subject of ongoing testing. In her final statement M admitted recent smoking of cannabis and taking of crack cocaine but gave the impression her drinking was measured (paragraph 41).

45.	Further testing was undertaken and the report dated 2nd October 2015 is found at (E556). The most relevant conclusions in respect of the time period from Mid May 2015 to mid September 2015 are:

(1)	crack cocaine has been used; the levels of cocaine are in the medium range
(2)	chronic excessive levels of alcohol have been consumed.

46.	Whilst there is no evidence of current use of heroin the evidence before the court shows that M is still abusing alcohol and cocaine to levels which would adversely affect her ability to care for herself and any vulnerable person.

47.	M was the subject of expert psychological analysis by Dr Surgenor whose conclusions are found at paragraphs 560 to 578 (E237 to E431); they were not challenged. I note that M’s life experiences thus far have caused her severe psychological difficulties and Dr Surgenor tells us at paragraph 578:

	“Unfortunately [M]’s experiences have meant that she has not managed to develop adequate coping mechanisms. At times of heightened stress she resorts to maladaptive coping strategies, such as substance misuse and alcohol misuse in the form of binge drinking. These strategies serve to block out the overwhelming emotions she experiences when she encounters stress in her life”

48.	M also has a difficulties across a number of areas of cognitive functioning but not sufficient to amount to learning disability.

49.	SBC’s parenting assessment of M is found at (E308). The assessment incorporates Dr Surgenor’s opinions. It is clear that M loves her children and there have been some positive aspects to her parenting such as achieving good school attendance (E349). During contact M is observed to be warm and attuned to her children.

50.	However, the fundamental problems that caused M to lose the care of the children in the first place continue unchanged and undiminished. 

51.	I do not doubt M’s wish to resume the care for her children but in my judgment return of any of the children to M’s care would expose them again to the bad parenting which caused them the significant harm identified by SBC.

	ASSESSMENT OF F’S ABILITY TO CARE FOR AN

52.	F has been addicted to heroin for most of his adult life and has not sought to deny the addiction or his past level of use. He openly accepts that he continues to take cannabis.

53	In evidence F told me that he had been clean from heroin for some 2 years and was now off methadone altogether. He was tested for cocaine and opiate use; in the report dated 29th June 2015 (E95) it is said that there is no evidence he used cocaine or any opiate drug from about March 2015 to about June 2015. 

54.	It is a serious concern that F still takes cannabis which is a class B drug but there is no evidence before me that his use of this drug has had any ill effect on his ability to parent AN to date.

55.	F has some issues with pain and treatment for DVT but there is no evidence of physical health issue(s) which would prevent him from caring for AN.

56.	M alleged alcohol abuse on the part of F (E148 para 108) but there is no cogent evidence before the court or finding sought with respect to alcohol abuse.

57.	Plainly F has been addicted to a Class A drug for many years and one has to be concerned with the risk of relapse. He recognises his addiction (E150 para 119). F stopped receiving support from Swanswell Addiction Services because he did not perceive that he was receiving anything useful; he has now resumed attendance. Dr Surgenor was concerned about F’s attitude to support services (E261) considering his view of their value to be naive. In SBC’s parenting assessment of him at paragraph 16.4 (E392) it is said:

	“[F] reports that he knows he has further work to do in respect of his addiction. He also reports he still catches himself lapsing back into the habitual ‘blagging’ behaviour of an addict at times, but is able to remind himself that “the new [F] doesn’t do that”. Unfortunately F is no longer engaging with his drug worker as he wants to put his drug use behind him, rather than spend time talking about relapse prevention, lifestyle choices and triggers. Therefore F will need to do the work he has identified without outside support. F has considered working with a psychologist at his GP surgery but as far as I am aware has not yet done this.”

	Having read the evidence and heard from F I am satisfied that F is not dismissive of support services but that his reason for ceasing attendance was that he did not perceive that he was getting any value from that particular service. In the circumstances I do not think that F is downplaying his vulnerability to relapse or undervaluing the need for support.

58.	F has a history of offending but this and any was not explored in oral evidence and was not put before me as a reason for F not to retain the care of AN.

59.	There is no evidence of F inflicting physical violence on M (whereas M accepts she was violent to F when she was drunk) but there are allegations of emotional abuse. The relationship between F and M ended 5 years ago and there is no evidence of any domestic abuse on the part of F since then although SBC tell me that communication between M and F is fractious (E393).

60.	Thus I do not consider that AN is at material risk of being exposed to domestic abuse whilst in the care of his father.

61.	Dr Surgenor discusses F’s cognitive ability at paragraphs 126 to 135 of her report (E152 to 154) and concludes:

	“However, there are no significant problems in terms of his overall cognitive functioning”

	and I could not see any cognitive shortfall when F gave evidence and was cross examined.

62.	Dr Surgenor did not find any personality disorders albeit that F had some:

	“fairly extreme personality traits”

63.	Dr Surgenor’s overall conclusions are found at paragraphs 579 to 590 (E241 to E243) and a number of serious concerns are identified; in particular:

	“Characteristically [F] displays an edgy irritability and broad-based negativism. Innumerable wrangles and disappointments with others tend to occur as he vacillates among social withdrawal, sullen passivity, and explosive anger. He is prone to feeling misunderstood, unappreciated, and demeaned by others and tends to be pessimistic and disillusioned about life. His resulting low self-esteem may be further compounded by a tendency toward introspection and self-derogation”

64.	Although Dr Surgenor refers to F’s use of substances as a coping strategy she seems to have overlooked that the only substance taken is cannabis.

65.	F has cared for AN since 15th January 2015 in his one bedroom flat in X town.

66.	Notwithstanding F’s circumstances SBC thought it appropriate that F should also care for KA and MC. F had sufficient insight to note that he could not cope with all 3 children and he asked for alternative arrangements to be made for KA and MC on 26th March 2015. They have since been in foster care. In my judgement any perceived ambivalence on the part of F about caring for all 3 children shows thought and consideration on his part with recognition of his own limitations and should not be the subject of criticism which could be inferred in Ms Mead’s final statement (C122).

67.	As soon as 10th February 2015 AN’s then school, X, noted improvement in AN’s appearance and that he was less tired at school (C10). Improvements continued to be noticed; see Ms Mead’s second statement dated 1st April 2015 (C43) in which she says:

	“Improvements in respect of [AN] coincide with his move to the care of [F]. [AN] needs to remain in the care of [F] so he can experience a safe and stable environment where his needs can be met consistently over time ….”

	M in her final statement also noted improvement (C138)

68.	AN started at Y School in the summer of 2015 and AN seems to have prospered there and is receiving reward certificates. 

69.	In SBC’s parenting assessment of F it is recorded at paragraph 9.1.1 (E374):

	“School staff provided a verbal report at the Review Child Protection Conference held on 20 July 2015. Staff report that [AN] is ‘fitting in’ in his new school and there is nothing in respect of his behaviour or learning that would cause him to stand out as different to his peers”

70.	Since 9th September 2015 F has been receiving 1:1 support for parenting strategies from ZZ, pastoral manager at the school. F arranged this for himself.

71	Notwithstanding the evidence above, in her final statement dated 13th August 2015 Ms Mead was saying (C113):

	“[AN] has been in the care of his father, [F], since 16 January 2015. Although [F] has managed the day to day care of [AN] during that time, there is evidence that [AN] is suffering significant emotional abuse in the care of [F]”

	The justification is put at (C115) as:

	“[F]’s inability to remain calm, consistent, and supportive towards [AN] in the face of [AN] making demands upon him”

72.	In oral evidence it became clear that until she read Dr Surgenor’s report Ms Mead was planning that AN should remain in F’s care and that the change in heart on the part of herself and SBC was due only to Dr Surgenor’s report rather than any assessment undertaken by SBC independent from that report.

73.	I should record that the care plan for AN contains a serious error as paragraph 1.1.3 states:

	“These assessments are negative in terms of the possibility of [AN] being rehabilitated to the care of either of his parents…”

	And that I was troubled by this error as the balance sheet exercise for rehabilitation cannot be identical to the balance sheet for removal and it is removal which SBC seeks.

74	On page (D79) SBC present as a further concern:

	“However, if [AN] is not removed from [F]’s care, he will continue to be mis-socialised and any opportunity for therapeutic work will be lost”

	but I could not follow this as F was plainly open to AN receiving therapeutic work.

75.	The greatest concern is whether F can cope with and manage TJ in terms of boundaries, discipline and behaviour. SBC are concerned that F does not recognise the deficits in his parenting and at paragraph 20.8.4 of the parenting assessment (E409) it is said:

	“F’s lack of recognition of the work that would be necessary to ensure [AN]’s placement with him meets [AN]’s needs, makes me question the level of F’s commitment to any such work, and, his ability to be open and honest with professionals about how much he is struggling to parent [AN]”

	although this conflicts with the earlier viability assessment where it is said (F4):

	[F] would be willing to accept support in respect of boundary setting …

	And at (F9)

	“[F]’s long years of substance misuse have impacted upon his physical and mental health and most likely have impacted upon his emotional development and intellect. Having said that [F] has demonstrated he can manage his own day to day needs well, can cooperate with professionals, and can ask for and use support when he needs it. This suggests there is potential for [F] to take on the care of AN”

	and

	“The two dangers that may lead to [AN]’s placement with his father breaking down are that caring for a child will be too much for [F] and he will lapse into drug misuse and that [AN]’s needs (as a result of his upbringing to date) will prove beyond [F]’s capacity to manage. These dangers will only become apparent over time.”

76.	Given SBC place so much weight on Dr Surgenor’s assessment I must return to it.

77.	When he was assessed by Dr Surgenor F thought SBC were in agreement to AN remaining in his care. In his evidence, which I accept, he told me he felt he did not give his best to Dr Surgenor because at the time he was very unwell and in much pain; this seems consistent with Dr Surgenor’s report (E141 paragraphs 80 and 81).

78.	Dr Surgenor saw AN at school on 19th June 2015 not long after he had started at Y School and some concerns were reported; see Dr Surgenor’s report (E179) paragraphs 263 ff.

79.	It is also apparent that AN was quite disrespectful to Dr Surgenor and that she was concerned F might have influenced AN in how to engage with her; this allegation was withdrawn.

80.	It is apparent from Dr Surgenor's report that F has some insight into AN’s shortcomings; see paragraph 259 (E178).

81.	At paragraph 537 of her report (E232) Dr Surgenor was concerned with the dynamic between AN and F who struggled to remain within the parent role and easily slipped into childish interaction. I can see from the evidence a very real concern that F struggles to maintain authority when AN challenges him but in turn I can see that AN would now challenge anyone attempting to parent him. In oral evidence before me it was apparent that F was alive to this and was taking positive steps to improve this aspect of his parenting.

82.	Dr Surgenor concludes at paragraph 614 [E249]

	“[F’s] inflexibility and lack of adequate parenting skills means that he lacks attunement with [AN] and is unable to respond to his needs. A complicated dynamic has been established between father and son, where they attempt to exert control and power over one another, bringing about a high level of conflict and unsatisfying interactions. [F] can feel exasperated within this role and openly expresses this to [AN]. This, combined with his fragile emotional and physical well-being, means that [AN] feels a high level of anxiety in his father’s care, displayed in erratic and uncontained emotional and behavioural outbursts.”

	And at [E263]

	“[F] is emotionally vulnerable and can become highly stressed in the parenting role with minimal provocation. He lacks reflective capacity and struggles to accept feedback. … When under pressure [F] states that he is unable to cope in the presence of the children. At such times he tends to ‘step out’ of his parent role, acting like a petulant child. This is particularly the case in his interactions with [AN]; F lacks adequate parenting skills to manage AN and he argues criticizes and pleads with [AN] in an attempt to manage his behaviour. F seems oblivious to [AN]’s internal emotional world; his own needs are prioritised as he focuses on the personal impact of F’s behaviour without considering the role that he himself is playing in contributing to the complex dynamic that exists between them”

83.	I am concerned that F’s achievements in his parenting of AN have not received the attention that they deserved. I do not criticise Dr Surgenor because:

(1)	I am not sure her attention was drawn to the positives especially those already identified by Ms Mead and
(2)	A number of significant pieces of evidence (such as reports from the school) post date her assessment.

84.	However, I do not consider SBC’s parenting assessment to be balanced and reliable because other than confirming that F meets AN’s physical needs it does not appear to properly weigh in the balance F’s parenting achievements. I have the impression that so much focus was put on Dr Surgenor’s report and conclusions that sight was lost of other significant material. I cannot find evidence that the success of AN’s placement with his father to date has been properly assessed and taken into account.

85.	I have no doubt and I find that F’s own psychological makeup combined with AN’s psychological makeup and the difficulties that have existed in the parenting relationship to date reveal that there are risks leaving AN in the care of his father and I accept that AN needs to receive good enough parenting sufficient to meet AN’s needs now.

	ASSESSMENT OF DR TO CARE FOR KY

86.	A viability assessment was carried out (E77) which DR did not challenge. It is exceedingly negative and as DR does not put himself forward as a carer for KY I shall not comment further other than to accept the report and its conclusion.

	ASSESSMENT OF MGM TO CARE FOR KY

87.	A positive viability assessment of Mr and Mrs Whale is at [E456]. They put themselves forward as potential special guardians for KY and the court directed that the appropriate report be filed by 7th August 2015 [B92].. SBC did not comply. The date was changed to 30th September 2015 [B122] which also required the special guardian support plan. The plan was not available until the first day of this final hearing. The report is positive.

88.	Given my conclusion that M is not in a position now or the foreseeable future to care for any of her children I shall not comment further other than to accept the report and its conclusion with respect to placement..

	WISHES & FEELINGS

89.	AN

	It is common ground that he wants to remain living with F and to spend time with M and his brothers. Plainly those wishes need to be considered in the light of his age and understanding but F’s wish to remain living with his father is rational. I accept that no one could expect AN to understand the subtle and difficult complexities in his own and his father’s psychological makeup which has resulted in Dr Sturgenor, SBC and Ms Mackenzie concluding that he should be moved into foster care.

	KA, MC and KY

	The wishes and feelings of these three children do not assist with respect to their placement.

	GUARDIAN’S ASSESSMENT

90.	Ms Mackenzie has carried out a thorough analysis which is found at (E530). At the conclusion of her oral evidence she agreed with me that this is a difficult and finely balanced case with respect to AN.

91.	I agree with her conclusions in respect of M and MGM.

92.	Generally, Ms Mackenzie identifies, quite correctly, the concerns raised by professionals (really being those identified by Dr Sturgenor and incorporated by Ms Mead as opposed to being identified by Ms Mead or any of her colleagues) but there have been useful developments:

(1)	F is now seeking further support for his addiction (contrary to the position in paragraph 7 of Ms Mackenzie’s report)
(2)	F now agrees with the assessment of AN’s needs (contrary to paragraph 8); in cross examination by Ms Gallagher F agreed that AN needed “exceptional parenting”
(3)	The school are providing very positive reports about AN now (contrary to paragraph 9)
(4)	F has sought and is receiving help with his parenting (contrary to paragraph 10)
(5)	AN has developed friendships within his new school (contrary to paragraph 47)  and in oral evidence before me I have the impression that AN has settled more into his father’s care and into the school thus making him not such 
	“a little boy quite lost and fragile on many levels” 
	as eloquently described by Ms Mackenzie in paragraph 41 of her report.

93.	At paragraph 25 of her report Ms Mackenzie states:

	[F] has tried to look after [AN] in the best way he knows. Unfortunately this falls very short of what AN requires in terms of sensitive and consistent parenting. F’s own limitations and strategies to deal with his nine year old son have been observed to be deficient on many levels. There has been a comprehensive psychological assessment which gives a dialogue to carefully unpick the complex behaviours and dynamics AN displays and the relationship between him and his father.

	Ms Mackenzie considers that all the children, including AN, need placement with two primary carers 
	“as a single carer would soon fatigue as happened in the initial foster placement”
	but F has managed to date to parent AN as a single parent.

94.	I do not think that Ms Mackenzie has attached sufficient weight to the harm that would be caused by extracting AN from his family. She draws attention to the fact that AN sees a lot of his father’s side of the family (paragraph 42) but no weight seems to be attached to this point. I am concerned that insufficient weight has been attached to the harm engendered by extracting AN from everything that he is familiar with – home, school, school staff, friends and so on.

	CONCLUSIONS - AN

95.	This is a difficult and finely balanced case.

96.	I accept as three propositions:
(1)	AN has exceptional needs
(2)	F is struggling and will struggle to meet those needs; there is a risk that he will not provide parenting good enough to meet those exceptional needs
(3)	a therapeutic foster placement is likely to better meet AN’s exceptional needs provided that the placement does not break down and AN accepts it.

96.	However, I must not decide the case and place AN in foster care on the basis that a foster parent will provide better parenting than F because that would be social engineering. 

97.	I am well aware of the advantages of removing AN from the care of his father but as emphasised already within this judgment insufficient attention has been placed on F’s success to date and the disadvantages of removal; insofar as I have not identified them all to date they include the following:

(1)	There would be a change in CAMHS; the process of change is not seamless and the services may differ

(2)	There would be a change in school; the new school has not been identified and I do not know whether it can match the benefit that has been brought to AN by his current school

(3)	Not only would AN lose the care of his father, he would lose his wider family on F’s side (sisters, cousins, grandfather) friends, acquaintances and other adults with whom he may have developed a trusting relationship such as school staff, dentists and suchlike. In Dr Surgenor’s report at paragraph 267 (E180) the school reported that AN:

	“found breaking into friendship groups difficult”

	I was told in evidence that AN has now formed friends. It must be very detrimental to AN to force him through the process of making new friends and acquaintances again.

(4)	It is highly unlikely that AN would perceive a change in his care as a reward.

(5)	Whilst SBC insist they are optimistic that an appropriate therapeutic placement will be found within 4 to 6 weeks I must take on board their belated search for such a placement and the negative returns they have had to date.

(6)	SBC do not seem to have addressed the risk of foster placement breakdown. We know that AN will be challenging to any carer and that he wants to live with his father. He is 9 ½ years old. In oral evidence Dr Surgenor agreed with Mr Shavratt that long term fostering is not secure although the degree of insecurity must be entirely case specific.

98.	I have come to the conclusion that the risks of harm to AN by being left in the care of his father are not outweighed by the perceived benefit of extraction and placing into care in the home of therapeutic foster carers. State parenting delivered by a foster parent may well provide better parenting than that which F can provide AN but that is not a proportionate response in this case to the risks engendered by leaving AN with his father given the value to AN of being brought up by a parent.

99.	I have come to the conclusion that a supervision order should be made for 12 months in favour of SBC in order to support the continued placement of AN with F. I do consider such an order to be a proportionate response to the ongoing concerns.

100.	In order to engender stability and certainty I shall make a child arrangements order that AN do live with F.

	CONCLUSIONS: KA and MC

101.	I have already concluded that M cannot provide safe and good enough parenting to any of the children

102.	The only other option for KA and MC is long term foster care but in a placement able to meet their additional needs. I am satisfied that it is in their best interests for this option to be applied and that  care orders are necessary to give SBC parental responsibility to implement its care plans. There is no other outcome to consider.

	CONCLUSIONS: KY

103.	I have already concluded that M cannot provide safe and good enough parenting to any of the children

104.	The only other options for KY are:
(a)	long term foster care or
(b)	remaining in the care of MGM

105.	I am satisfied that it is in KY’s best interests to remain with MGM (and her husband) and that they require parental responsibility. I have considered whether the making of a special guardianship order is proportionate. In oral evidence Dr Surgenor pointed out the complex push/pull dynamic between MGM and M which KY could be caught up in. In my judgement a special guardianship order would protect KY from this known danger and therefore I consider it to be in his best interests to make such an order.

106.	Given the above, the need to support the placement and the need to regulate contact it is necessary, proportionate and in KY’s best interests to make a supervision order in favour of SBC.

	CONTACT

107.	There was disagreement with respect to the frequency of contact post the making of care orders (so this does not concern KY). The final position on the part of SBC is that the children should see M and F 4 times a year but on the same day to minimise disruption to the children. No proposals were set out with respect to DR who all parties, understandably, believed had disengaged himself from the proceedings.

108.	Ms Mackenzie agrees with the plan for contact.

109.	Because of the orders I have made F need no longer be troubled about the time he spends with AN.

110.	In my judgment the court is concerned with placement and in the absence of an application relating to contact it is not to make any orders about contact. Importantly, insofar as a child is in their care or under their supervision, SBC must review contact every 3 months.

111.	I shall limit myself to saying that I acknowledge the wish of a loving parent to spend as much time as possible with a child for whom s/he does not care but I understand the immediate need of the children for stability and to attach themselves to their new primary carers and that this need is likely to require constraints on contact with the natural parent at first. Therefore the contact proposals seem reasonable.

112.	There shall be public funding assessment of the costs of the assisted parties.