Introduction
- These are care proceedings brought in relation to D a girl aged 6; E a girl born aged 8 and F, a boy, aged 16. D and E are currently living together in foster care under interim care orders made in February 2024. F is living in a residential unit following an interim care order being made on the same day.
- The youngest children are represented through their Children's Guardian, Rose Marie Bennett-Nfonsam, who is represented at court by counsel Ms Hine. The Children's Guardian has not been present at court, but she has been available remotely to give instructions.
- F has been assessed as competent to provide his instructions directly and is therefore separately represented. He has been represented in this hearing by counsel, Ms George.
- The mother is Ms A who attended the hearing in person and has been represented by counsel, Mr Potter.
- The father is Mr B who has attended the hearing and has been represented by Ms Rhone-Adrien.
- The London Borough of Lewisham, who I will call the Local Authority (LA) in this judgment, have been represented by Mr Harris.
- The applications before me are the Local Authority's applications for care orders which were issued in February 2024.
The position of the parties
- The Local Authority seek care orders in respect of all three children. These orders and the LA's care plans for all three children are supported by the Children's Guardian. F's wish has remained consistent that, if possible, he would like to return to the care of his parents.
- The parents' positions have changed during this final hearing. At the outset Ms A sought that the girls return to her care, but she did not oppose a final care order for F. Mr B wished for all three children to be returned to the care of their parents.
- The parents should be commended that on day one of this five-day final hearing they both reconsidered their position and confirmed that they no longer oppose the final care orders and care plans in respect of all three children. I know this will have been a very hard decision for them to make and I commend them for being able to reflect and make this decision for the welfare of their children.
- That meant the only issues of contention on day one was that threshold had not been agreed and the parents did not agree with the LA's contact proposals. LA were initially saying the parents would spend time with the three children once every four weeks, but then in line with the Children's Guardian recommendation increased the contact plan to once every three weeks. As a result of the dispute in respect of contact, all parties sought the child and adult psychologist, Dr Bentley, give evidence on the afternoon of the first day of the final hearing.
- In addition, all parties agreed the LA needed to provide a contact reduction plan, a working together agreement and update their three final care plans which were prepared several months ago, and certain matters have evolved since then. There was also an agreed threshold document prepared. I am pleased to confirm that the LA prepared these six documents and I am very grateful to all the advocates, social worker and Children's Guardian, who all inputted into these documents being amended and agreed by all parties save for F on the morning of day three of this hearing.
Background
- The family has been known to the LA for many years with concerns of poor school attendance, substance misuse (alcohol, cocaine and cannabis), domestic abuse, and mental ill health of both the parents and the children.
- In previous proceedings in respect of these three siblings and their older brother, G, a Care Order was made with respect to the eldest son, while these three children (F, E and D) were made subject to Supervision Orders, which were due to expire in April 2024. While the parents were initially able to make improved changes, it quickly became obvious that these changes were not meaningful, and the home situation deteriorated once more. F was subsequently arrested for possession of an imitation firearm, possession of an offensive weapon and in January 2024 for attempted robbery.
- The LA's concerns for the children, as set out at the commencement of these proceedings included:
i) F was not staying at home and his parents were not reporting him as missing.
ii) F was involved in increasing offending behaviour and appears likely to be criminally exploited.
iii) F has reported being threatened by a knife by his older brother, G.
iv) F has disclosed smoking cannabis.
v) Limited school attendance by all three children.
vi) Ms A is experiencing a mental health crisis which the children are exposed to.
vii) The children have been exposed to conflict and indications of domestic abuse between Mr B and Ms A.
viii) The children were all displaying indication of poor mental health
ix) The parents had not engaged with all the requirements of the Supervision Order Support Plan.
- On February 2024, ICOs were made for all three children and a recovery order was made for F. E and D moved together to a foster carer in Lewisham and F was placed in a residential unit.
DURING PROCEEDINGS
- During proceedings, the parents have not complied with directions, contact sessions have been suspended due to disruptions caused by the parents' arguments, and there are heightened concerns regarding F, who disclosed at contact that he is struggling with his mental health.
- During these care proceedings, several assessments have been undertaken:
a Dr Mayer completed a Psychiatric Assessment of Ms A in May 2024 and an Addendum Report in August 2024 (after receipt of medical notes). Dr Mayer concluded that the mother's problems with emotional regulation (likely contributed to by substance misuse) would impact her ability to provide safe and consistent care for her children and favoured an emotionally unstable personality disorder over bipolar affective disorder.
b Dr Bentley undertook a Psychological Assessment of the family in August 2024. The mother and the father did not fully participate in this assessment and therefore Dr Bentley's assessment of the family was limited. On a positive note, Dr Bentley was able to observe an exchange of emotional warmth between the two girls and their parents, but she also noted an impact on their emotional wellbeing and behaviour due to their exposure to parental conflict. Dr Bentley noted a protective relationship between F and his sisters but does not believe F is currently in a place to be the best role model for the girls and that E and D have a moderate degree of anxiety.
c Ms Baker-Lowe of the Meliot Centre completed a Joint Parenting Assessment in August 2024, delayed due to parents' poor engagement and Dr Bentley's late filing of the family psychological report noted above. Ms Baker-Lowe noted many positives in both the mother's and the father's capabilities as parents and observed an immense love for their children. However, it was noted that this love does not always translate to the parents taking the necessary actions to work with the Local Authority and other professionals to ensure the return of their children into their care. Mr B specifically often minimises the impact that the Mother's mental health has on the children. Further, both parents have failed to acknowledge the risk that their eldest son G poses to his siblings, by allowing them to have unsupervised contact, which demonstrates the parents' inability to safeguard their children. Ms Baker-Lowe notes that the parents' mutual dependence on one another and how they disrupt one another's time with the children by arguing would prohibit either parent from being able to safely care for their children as the sole carer.
d The viability of the maternal grandparents was negative and the maternal aunts did not engage with assessments of them – none of the outcomes of these assessments have been challenged.
e An HST test completed in May 2024 showed that Ms A had used a medium level of cocaine and cannabis in the previous four months. This contradicted Ms A's assertions to social workers that she had stopped using cocaine two months previously. This period in which Ms A tested positive for drug use is the same period that her mental health was reported to have deteriorated.
f As of September 2024, Mr B has not engaged in the drug and alcohol testing, despite several attempts by the service, his solicitor, and Local Authority. He has refused to communicate and instruct his solicitor. The father was warned at the hearing in February 2024 that the Court may draw a negative inference against for failure to comply with the drug testing direction.
g The Children's Guardian's report states "I have no doubt that Mr. B and Ms. A love their children. However, I am concerned that without engaging in the services that are recommended, the parents are unable to safeguard their children and subject them, intentionally or unintentionally to significant harm. They lack insight in respect of the impact of their parenting thus far on not just the older children, who are not engaged with schooling but are engaging in potentially criminally exploitative activities/ situations, but also on the younger children."
Evidence
Dr Bentley's oral evidence
- I was grateful to Dr Bentley giving oral evidence via video link, despite being ill. Her evidence was helpful to the parties' subsequent negotiations and the court. She considered the parents' contact should be at the level of every two weeks, unless the parents do not engage with all the interventions she had recommended in her report such as DBT for mum and CBT for dad, mindfulness etc. It should be noted that Dr Bentley praised and considered the medication the mother is now taking has certainly helped her and her presentation is calmer.
- No party required any other witness to give oral evidence to the court.
The law
- The Local Authority bring this case, and it is for them to prove their case. In deciding any disputes of fact, I remind myself the tests I need to apply. I have to be satisfied on the balance of probabilities and that the burden of proof rests with the person making the allegation. I am required to consider the evidence as a whole, which I have done. I have considered the relevant law in respect of this case under the Children Act 1989.
- Before considering whether to make any public law order, I have to consider whether the threshold criteria is met, subject to section 31(2) of the Children Act 1989. This sets out that a Court may only make a care or supervision order if it is satisfied (a) the child concerned is suffering or likely to suffer significant harm and (b) that that harm or likelihood of harm is attributable to (i) the care given to the child or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him or (ii) the child being beyond parental control.
- When considering likelihood of harm, this means no more than a real possibility it will occur, but a conclusion to that effect must be based on a fact or facts established on the balance of probabilities as set out in Re B [2013] UKSC 33.
- It is important to bear in mind the need for rigorous analysis of the threshold, as pointed out in Re A [2015] EWFC 11 which sets out two fundamental principles which must be borne in mind in doing so. Namely, the first is that the Local Authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove. The second fundamentally important point is the need to link the facts relied upon by the Local Authority with its case on threshold. The need to demonstrate why, as the Local Authority asserts facts A plus B plus C justify the conclusion that the child has suffered or is at risk of suffering significant harm of types X, Y or Z.
- There is not, in this case, a dispute about threshold. Through negotiations in these proceedings there is an agreed threshold document.
- In determining what orders I should make, I have borne firmly in mind the welfare of the children and that that is my paramount consideration under section 1(1) of the Children Act 1989 and that I need to consider the factors set out in the Welfare Checklist under 1(3) of the Children Act 1989, which I will go through later in my judgment.
- I must therefore weigh up all the realistic possibilities in this case and identify and analyse the harm which may flow from each plan, as well as the benefits, before coming to my decision. I must analyse whether any harm I have identified could be reduced or mitigated. In this regard, I must also consider what resources the Local Authority could make available to enable the family to meet the child's needs. I have to be satisfied there is no practical way of the authorities or others providing the requisite assistance or support, before I make a care order.
- In Re O [2001] EWCA Civ 16, it is stated it is the duty of everyone to ensure in those cases where a supervision order may be appropriate as a response to the risk presented, that a supervision order can be made to work, as indeed the frames of the Children Act 1989 have always Ad. The Local Authority must deliver the services that are needed and must secure the other agencies, including the health service, to play their part and the parents must cooperate fully.
- My task is to evaluate all the realistic options for the children and weigh them up, side by side. This was considered in the test in Re BS Children [2013] EWCA Civ 1146. It is also the case as set out at paragraph 29, that there is a need for me to be vigorous in my exploring and probing the Local Authority's thinking in cases where there is any reason to suspect that resources may be an issue affecting the Local Authority's thinking.
- In considering the evidence, I have also reminded myself of the case of R v Lucas [1981] QB 720 which although was a case heard in the criminal courts, is nonetheless one I can rely on. This case reminds us that just because a person may have lied about one thing, it does not automatically follow they are lying about everything. The more recent decision in the Court of Appeal in Re A, B and C Children [2021] EWCA Civ 451 sets out the three reasons when I must consider it. Namely, it is a deliberate untruth; it relates to a significant issue or thirdly, we were not told the reason advanced, such as shame, humiliation, loyalty, etc.
- I have also considered the test identified by Sir James Mumby in Re S [2014] EWFC in terms of evaluating the capacity of demonstrating change. This case was a case in the drug and family alcohol court, but I still found it helpful to consider.
- I have been mindful of practice direction 3AA in respect of the mother's mental health vulnerabilities and the views of Dr Bentley that the father may have ADHD. The Court had the benefit of considering the contents of the psychiatric report of Dr Mayer and the child and adult psychological report of Dr Bentley. The parents have had regular breaks and indeed much time has been spent by the parents outside of the court room with the parties agreeing the various matters of contention and settling the outstanding documents.
- I have also had regard to the overriding objective in Part 1(1) of the Family Procedure Rules 2010 and in particular, that sets out I must deal with this case justly, fairly and quickly.
- Throughout this judgment, I have considered the parents' and children's rights to a fair trial and family life under Articles 6 and 8 of the Human Right Act 1998. I must bear in mind the need for the Court to adopt the least interventionist approach. The Court should only interfere with those rights if it is necessary and proportionate to do so.
- Lastly, I must only make orders if I consider these orders are necessary, just and proportionate.
Threshold
- There is a threshold document which is agreed as between the local authority, the parents and the Guardian, that I would ask is appended to the final order. I find threshold met and I endorse that threshold document, which should be read with this judgment. As it is a document agreed just this morning, I do not consider it necessary to read it to the parties again in this Judgment.
Welfare
- The way in which I must carry out my holistic evaluation of each of the options is with reference to the Welfare Checklist. I am mindful of the President's guidance as set out on 29 November 2022 which relaunched the public law outline and is set out in the Family Procedure Rules and in Practice Direction 12A and in section 14 of the Children and Families Act 2014. These require the Court to draw up a timetable with a view to disposing of an application without delay and in any event, within 26 weeks.
- The children's case before me has now been running for almost 51 weeks. It is in the children's best interests for a final decision for them to be made.
My welfare analysis
- It is clear from my reading of the papers and the evidence I have heard, the strength of love both parents have for their three children and how they all enjoy their time together in contact. It is also clear from the evidence the difficulty these parents have in meeting their children's needs safely and in accordance with the children's welfare interests.
- The parenting assessment of the parents was negative. I have already highlighted the conclusions of the professionals and experts in these proceedings, so I will not repeat them again here. I also know how difficult it has been for the parents to reflect and reach their respective decisions not to challenge the making of final care orders and to agree all three children's final care plans. Therefore, I do not think it is helpful for me to highlight in any more detail than I have already in terms of the evidence and the threshold particulars about the concerns in respect of these parents' inability to care for their children at the current time.
- My conclusions in respect of the parents' ability to care for the children include that there are significant issues in relation to the mother's mental health, but I am also heartened to hear she is taking her medication and that this is having a positive impact on her mental health presentation. Both parents need to engage with the various work identified for them.
- The children's welfare means they need a final decision made about where they will live. I do not consider it is in the children's best interests for these proceedings to be adjourned for the parents to undertake any further work, nor was an adjournment something I was asked to consider.
- For all of these reasons, I conclude that the parents are sadly not be able to meet the children's needs either together or separately in the short, medium or long term. They both need to engage with the respective therapies recommended to assist with their emotional and mental health difficulties. I conclude they cannot meet the needs of the children at the present time. There is no realistic support package that can be put in place to address the concerns about the parents ability to care for them.
Welfare Checklist
- In terms of the Welfare Checklist within section 1(3) of the Children Act 1989, I consider from the evidence that I have heard that the children would, of course, wish to be brought up by their parents if that were safe. The issue for the Court is whether this can be done safely and in accordance with their best interests. I am also aware that the children would want to maintain a relationship with each other which is, of course, the plan.
- The children have all the needs you would expect of children of their ages. There is a need for them to be in a family where they can be kept safe, where their needs for emotional support and stimulation are met and where they can develop. All the children need access to education.
- The Local Authority's care plans mean that the children would not move from their current placements. The interim care orders would become final care orders, and they would become looked after children in the long term. I am aware this would not be easy for the children. It will mean they will have a social worker in the long term, LAC reviews and more intrusion in their lives than those children who do not have state involvement. However, these interventions have to be weighed up with the balance of the children being kept safe from harm.
- In terms of the children's characteristics, they are all of mixed heritage F is now aged 16, D is aged 6 and E is aged 8. All of the children are said to be experiencing emotional difficulties caused by their experiences. The girls are having twice weekly intensive therapy at school and F is being referred for mentoring support.
- The children were at risk of harm when these proceedings were initiated. This harm is detailed in the threshold particulars I have found to be met today.
- The parents accept they cannot care for the children at the present time. There are no other family members assessed who can care for the children. F would like to return to the care of his parents, but this is not possible as his parents are not opposing the LA's final care plans.
- The powers open to the Court include making no order, or a child arrangements order with the children placed in their parent's care, or a supervision order for the children to live with their parents, or a care order and the children remain living in their current placements.
- With the exception of F, all parties agreed the children should be made the subject of final care orders and remain in their current placements. F, as I have said, wishes to return to the care of his parents. However, they both acknowledge they are not in a position to care for F at the present time and so this is not an option open to the court.
- My paramount consideration is the children's welfare and I have borne that in mind throughout my welfare evaluation. I recognise the parents would have dearly loved to care for the children again for the rest of their minorities but, as I have said, they accept and I conclude on the evidence, that they do not have the capacity to meet their children's needs and there is no other family member who is able to do so.
- In respect of arrangements for contact, these are now agreed and having heard the evidence of Dr Bentley I endorse the contact plan. I do not consider the contact arrangements need to be ordered.
- For all these reasons, I make the final care orders in respect of F, D and E, as sought by the Local Authority. I am satisfied that the children's welfare requires I make these orders. The Local Authority's plan for the children is that the children will remain in their current foster placements.
- Again, I want to end by commending the parents for their child focussed decision to not oppose the making of the final care orders. I want to thank all the professionals in the case for their hard work and careful consideration of what they considered to be in the children's best interests when they made their recommendations to the court.
- I would also like to thank all the advocates for their hard work during the final hearing and for assisting the local authority, the parents and Guardian to reach an agreement on all of the matters and to prepare and agree all the updating documents. F did not agree on all of the matters as he wished to return home. This was not possible as his parents did not oppose the care plans. F did not agree the updating documents although they do reflect matters which I consider to best meet his welfare needs. Please can the LA ensure the experts are all told of the outcome of this hearing and that Dr Bentley is informed of how her evidence helped the parties reach an agreement. Given she was ill when she gave her oral evidence, I am sure it will benefit her to know how much her evidence assisted the court and the parties.
End of Judgment.
