Chd1 & Chd1 (Children : care orders) [2014] EWFC B113 (09 September 2014)

HHJ Wildblood QC:

Introduction - These are public law family proceedings concerning Chd1, who is aged nine and Chd2 aged six. They currently live with their maternal aunt, Au, under interim care orders and have contact with their mother for one hour once a fortnight.

The options for their future care are twofold. The Local Authority and guardian argue that they should remain with Au under care orders. The mother seeks their rehabilitation to her. They have been subject to interim care orders since 14^th March 2014 having been removed from their mother’s care on 7^th March after an incident when she accepts that she hit them outside their school; as a result of that incident she faces a criminal trial before the Magistrates on 29^th January 2015 of the charge under section 1 of The Children and Young Persons Act 1933. They lived with foster carers initially but then moved to live with Au at the end of May 2014.

Although those are the two options and I will set out the law in more detail later, I remind myself at the outset of this judgment that nature law and common sense demand that it be recognised that the best place for a child to live is with a natural parent unless proven and proportionate necessity otherwise demands. Save for some short periods, these children have always lived with their mother and she is their only available natural and primary parent. They each have a right to respect to their family life and it is only as a last resort that that family arrangement between mother and daughters should be invaded – see Re B [2013] UKSC 33.

Early on in this hearing I enquired about whether Au was to give evidence. After discussion I was told that the mother did not require the attendance of Au or the social worker who assessed her (Alice Walker). The mother’s case is that, if the children cannot be returned to her, she supports the continuing placement of the children with her sister, Au. There was therefore no attempt before me to invalidate the very positive assessments that have been carried out in relation to her.

Mother of the children – She is M, who is aged 41. Her partner is a man known as X. She is Jamaican and has indefinite right to remain in United Kingdom, I was told.

These are the third set of public law proceedings in which the mother has been involved. In the first set her three eldest children (ChdA, ChdB and ChdC) became subject to care orders in March 2004 for reasons that bear some similarity to those that now arise in these proceedings (I expand upon this later). In 2005 there were lengthy care proceedings in relation to Chd1, immediately following her birth, which resulted in a supervision order being made in February 2006 following lengthy assessment.

The fortnightly contact between M and the girls shows, on the whole, that the mother can behave in a loving way towards the children [e.g. G37 and G44] but also that she can change very quickly and show her very loud and forceful anger with little restraint [e.g. G25].

The father of Chd1 is F1. He is Malawian and plays no role in these proceedings. He has had only occasional and sporadic contact with Chd1. He did not appear at this hearing.

The father of Chd2 is F2. He is Jamaican. He has had some involvement with Chd2 but has played only a limited role in these proceedings. He, also, did not appear at this hearing.

Au - The children live with Au who is aged 31. She has been living in very cramped accommodation but has now been offered a house with four bedrooms which she intends to accept; she will have moved there by the end of September. Also living with her are her own two children, Au1 [11] and Au2 [2]. Unjustifiable delays occurred within the Local Authority in assessing Au which led to the adjournment of a final hearing in July and criticism by me of the Local Authority in the judgment dated 8^th July 2014 which appears at B83. However there has now been a positive assessment of her and there is approval of the aunt as a foster carer of the children. She is described by the guardian as a very warm and loving woman who has a good and protective relationship with the children. Alice Walker, the social worker who carried out the assessment of Au, reported similarly at C99.

The Local Authority is Bristol City Council. It brought these proceedings on 10^th March 2014 [B1] after an incident occurred when M was seen hitting both children in an uncontrolled way outside their school. The Local Authority contends that that event was reflective of the harsh, emotionally impoverished and unduly punitive upbringing that the children had when living with their mother. The Local Authority also contends that the mother has declined to work with them, rendering any improvements in her parenting impossible to achieve. Those contentions feature as the threshold criteria at A8.

On 7^th July 2014 Lucy Watkins wrote her parenting assessment report of the mother. Her conclusions are stated in these terms, at para 10.1 of the report at C65-66 as follows:

§ Both Chd2 and Chd1 present with significant emotional and behavioural difficulties which impact on their education, ability to form friendships, identity and social presentation. They have been harmed in their mother’s care through both physical and emotional abuse and they now require consistent, nurturing care to assist them to overcome their difficulties. Chd1 and Chd2 will continue to be negatively affected, which will extend in to adulthood, if their emotional and behavioural needs are not met.

§ M has shown a complete inability and unwillingness to work with the Local Authority in looking at her parenting and reflect on what she needs to change or could do better. M presents consistently as a person who abdicates all responsibility for her 3 boys being removed from her care and is continuing with this pattern of behaviour in relation to her care of Chd1 and Chd2….M demonstrates an intense fear of persecution which is transferring to her children, which will in the long term have a negative sense of identity and belonging.

§ Whilst at times M can present with warm affectionate sentiment with her children and with jovial interaction, this does not appear to be consistent and is heavily dependent on M’s mood. M does not recognise that her parenting has negatively affected her children in any way and believes the only harm they have ever come to is in the care of the Local Authority. Should the girls return to the care of their mother it is certain that they will return to being parented in a way that is harmful to their emotional and behavioural development, as has been described above. It is therefore the conclusion of this assessment that M is unable to provide good enough care to Chd1 and Chd2 and the children not to be returned to their mother’s care’.

The guardian is Sarah Stott. She is very experienced. She filed her main report on 7^th July 2014 in which she recommended that the children should remain living with Au but under care orders to the Local Authority. She has found the mother difficult to work with, too, and has experienced her, at times, as being extremely angry, dismissive and cold. She says that the mother undoubtedly loves the girls and can reveal a softer side to her personality and parenting.

She also reports that the mother had had an extremely difficult life and views the world as hostile and racist. The difficulty of the mother’s life is a feature of each report that relates to her. I have read those reports and do not think that it is necessary to repeat that aspect of the background.

Ms Stott filed a supplemental report on 1^st September 2014 in which she maintained her recommendations and supported the Local Authority’s care plan that contact between the girls and the mother should be reduced to once a month.

In her oral evidence Ms Stott continued to abide by her recommendations. She hoped that the contact arrangement could become more relaxed in the future; however in the short term Au will need the support of the Local Authority if the placement with her is not to be undermined and monthly contact would reflect this need. Although the girls are polite, delightful and articulate girls (which is a credit to them and the care that they have had) they do also have some very significant problems, Ms Stott said. Those problems are apparent in their behaviour (e.g. as reported by the psychologist, Dr Downs) and also in the complexity of their relationship with their mother. Ms Stott said that the school had made a referral to the Local Authority about the children on each of the three months prior to the 7^th March; there were fairly established problems with the girls before the 7^th March.

Ms Stott said the problems are not correctly portrayed as being the mother’s strict parenting. The problems arise due to her use of physical force against them and also the neglect by her of their emotional wellbeing. The mother’s response to professionals makes it very doubtful whether she would be able or ready to engage in therapy. The mother does not appear to recognise the need to change, she said.

The girls – The guardian reports that the girls say that they would wish to live with their mother. However she also reports that the mother has told the girls in very strong terms that they should live with her (E100: ‘when I witnessed M berating Chd1 for saying that she wanted to live with her aunt…I gained an insight into how frightened Chd1 was by her mother and how she could consequently be very wary of expressing her true feelings’ - this related to the contact on 23^rd May 2014 and the events that are set out at G24-25). I have no doubt that the mother has communicated in strong and clear terms to the girls that they should not be living with their aunt but should be back living with their mother. I also have no doubt that she has told the girls that they are living with their aunt due to the wrongful intervention of the Local Authority.

It is very apparent that the girls are happily placed with their aunt. Their previous school, (which they attended before moving to their aunt), noted an improvement not only in their functioning but also in their level of overall happiness when they first moved from their mother.

Dr Maria Downs – she is the clinical psychologist who has filed a report dated 29^th May 2014. Her conclusions are stated at page 3 of the report. She said:

§ M experienced abandonment, physical, emotional and sexual abuse as a child and was raised in a deprived socio-economic, volatile and unsafe environment. As an adult she has engaged in a number of abusive relationships and experienced discrimination, marginalisation, extreme poverty and homelessness.

§ Her experiences have impacted on her self-esteem and led to the development of strategies in order to suppress, dissociate from and dismiss difficult emotions in connection with adverse experiences. She has built a tough shell around her which makes it difficult to trust others.

§ Her experiences with the Local Authority and the loss of her children have further reinforced her belief that others cannot be trusted. It is possible that some of the difficulties in terms of the relationship between professionals and M are exacerbated by cognitive difficulties. Given M’s difficulty in trusting others, in particular, her mistrust and contempt for professionals connected with the Local Authority it will be difficult to establish a collaborative relationship between M and professionals.

§ There appears to be a replicative script in terms of expectations regarding obedience, respect and submissive behaviour, and physical chastisement, in M’s parenting of her children. Despite this there was evidence, from a number of sources of warm reciprocal interactions between M and her children and behaviours suggestive of secure attachment.

§ M expressed her feelings of anger in relation to experiencing discrimination due to being black and expressed significant concerns about any negative consequences for her children being more severe due to their being black. It is possible that she is transmitting these concerns to her children in a way that is impacting negatively on their psychological wellbeing.

§ Results of this assessment did not suggest that M is currently struggling with mental health difficulties, although results of psychometric assessment suggested that she is experiencing significant feelings of paranoia.

§ Chd1 and Chd2 have talked about being hit by their mother, both during this assessment and in conversations with their foster carer and professionals. Chd2 has also spoken about her mother making negative comments about her. Results of assessment suggest that both Chd1 and Chd2 are struggling with their self esteem and that Chd1 is also experiencing significant anxiety and some depressive symptoms.

§ The main risks centre on concerns in relation to M’s over strict parenting, both in terms of physical chastisement and criticism. Although she was able to concede that hitting her children could be a cause for concern, if they were repeatedly beaten, or if this led to bruising or marks, she was dismissive of the harm, including emotional harm caused to her children by the punishment inflicted by herself. Criticism and punishment appear to have been the predominant methods used to shape the children’s behaviour. This will impact negatively on the children’s psychological wellbeing whether directly or by exacerbating other difficulties such as problems at school.

§ It is my opinion that M’s strict parenting is largely due to the fact that her high expectations regarding her children’s behaviour, in accordance with norms of Caribbean culture are significantly increased due to her fears of them facing discrimination due to being black.

§ Given the psychological defences M has built, it is difficult for her to acknowledge the negative impact of her own parenting and this is compounded by the problematic relationship she has with the Local Authority, making it difficult to see how she can be assisted to bring about changes in her parenting which will facilitate improving the self esteem of her children.

§ In my opinion both Chd1 and Chd2 would benefit from therapeutic intervention to assist them in expressing their feelings and to assist them with their low self esteem.

§ Should the court consider returning the children to their mother, family / systemic therapy involving the children and their mother may be valuable in providing a safe space within which to make sense of their experiences as a family, especially from the perspective of the children. Such an approach would also provide space for them to explore issues of discrimination and racism in a constructive way.

§ Prior to this it would be important for M to engage with therapy using a Cognitive Analytic therapy (CAT) approach to enhance her insight into how her own childhood experiences have impacted upon her. I am unsure whether she would engage with this. However, I feel that using a collaborative, and culturally sensitive approach, focussing on the coping strategies she has developed as a result of her own experiences would enable her to have a deeper understanding of the difficulties her children face, and the potential challenges they will meet. Such an approach will assist her in responding to her children’s needs now and in the future.

§ It would be helpful if the person providing the therapy were of Caribbean ethnicity or had a good understanding of the cultural and social issues faced by M, as this would increase the likelihood of meaningful engagement’.

The earlier proceedings- The first set of proceedings, relating to the mother’s older three children, were completed by order of Deputy Circuit Judge Wroath. I have seen a note of the judgment that he gave on 20^th February 2004. At paragraph 16 of the note of his judgment he said: ‘To summarise the concerns, they are basically that the mother had a hostile and abusive relationship with ChdA since he has been in England and she has inappropriate ideas as to discipline and feeding and that she has on occasions physically abused the children. She is emotionally cold, has little or no understanding of the children’s emotional needs and she is unable to meet their needs. Finally she has left them unattended regularly for long periods of time’.

In those proceedings Dr Hibbert, the consultant psychiatrist, gave evidence. The Deputy Judge cited and accepted this passage from his report: ‘M is capable of good enough parenting and has many good qualities. Unfortunately she is inconsistent and when affected by her moods becomes unreasonably harsh, emotionally unavailable and inconsistent in her parenting. She has a dysfunctional approach to feeding the children and pressurises them to eat unreasonable amounts. She expects complete obedience from her children…Quite apart from the concerns about M’s parenting when she is angry or under stress, the inconsistency itself is a great concern…M showed herself unwilling to work with us to try to change her behaviour and address these problems’.

As in these proceedings the mother complained in those earlier proceedings that the assessment of her had been culturally inappropriate in a way that the judge found unjustified [paragraphs 25 and 27 of the judgment of Judge Wroath]. Also in those first public law proceedings, an experienced psychologist, Dr Banks reported on the mother’s lack of empathy and attunement to those elder children and concluded that she was an emotional risk to them.

In the proceedings concerning Chd1 the guardian, Charles Place, did not support the Local Authority’s care plan that she should be made subject to a care order and freed for adoption. I have read the final report of Mr Place. During those second proceedings the mother underwent a positive residential assessment at Jamma Umoja and then a further assessment in the community. No judgment was given at the final hearing which settled on the basis of a supervision order on the third day of the trial. Thus, at the time and based upon a very full array of evidence the court must have been satisfied that the mother could care for Chd1 adequately.

In 2007 the mother applied unsuccessfully to discharge the care orders in relation to those three children. In those proceedings that Mr Charles Place, the then guardian, filed a final report dated 31^st August 2007 in which he recommended that the three older children should remain in care but also said: ‘M appears to be maintaining a reasonable standard of care of Chd1’ [para 30 of his report]. I have not seen a judgment from those proceedings and understand that the proceedings did not result in a contested hearing.

There was a brief period of intervention by the Local Authority in 2009 when Chd2 had arrived at school with a black eye (C124). On 1^st February 2010 there was a core assessment which concluded that the mother was meeting the children’s basic needs [I take this from the chronology]. In September 2010 the children were removed from the child protection plan and in January 2011 the ‘case was closed’ by the Local Authority. There was resumed involvement by the Local Authority in 2011 but the ‘case’ was again closed in June 2011. In December 2012 the Local Authority received a referral from the school after Chd2 had complained about being hit with a wooden spoon; no further action was taken by the Local Authority but, following further referrals, a core assessment was completed in June 2013 and a recommendation was made that the case should again be closed (as it was). The Local Authority’s next involvement arose at the time of the event on 7^th March 2014. Given what is now known (as now asserted by the Local Authority itself) the chronology of assessments between 2009 and 2012 do not speak well of the quality of the Local Authority’s investigations.

Issues of fact – The Local Authority has pleaded a schedule of allegations of fact that are to be resolved in these proceedings. It has also filed a threshold document that is at A8. The first five matters in the threshold document are the same five matters raised in the schedule of allegations. The threshold document adds three more allegations. I will set out the schedule of allegations and then the three additional threshold matters that are raised.

The schedule of allegations is as follows:

i) On 7 March 2014, in the vicinity of their school, the Mother hit both children a number of times to their heads, using her hand.

ii) The Mother’s actions at paragraph one above, amounted to more than reasonable chastisement.

iii) On a number of occasions the Mother has beaten both children on the hand/arm with a wooden spoon. For example, Chd2 reported this to the school on 17 December 2103 and Chd1 informed the police of this in interview on 14 March 2014

iv) The Mother’s actions at paragraph three above, amount to more than reasonable chastisement

v) The children have also suffered emotional harm as a result of the Mother’s violence towards them.

The three additional allegations are as follows:

i) The mother’s over-strict parenting and unrealistic expectations of the children has caused them emotional harm.

ii) The inconsistent parenting the children have received has impacted negatively on their self identity, social presentation and education.

iii) The mother does not work openly or engage with professionals. In particular she has contempt for and mistrusts professionals connected with the Local Authority.

Schedule of allegations - I now wish to deal with the allegations in the schedule. In relation to those allegations (and the additional allegations in the threshold document) the burden of proof is, of course, on the Local Authority and the standard of proof is the civil standard. Thus I have to ask myself in relation to each separate allegation: ‘Has the Local Authority demonstrated on evidence that it is more probable than not that the alleged event occurred’? If it has, the event is proved. If it has not, the alleged event is treated as not having occurred. At no point does the burden of proof shift on to the mother.

7^th March 2014 –The mother’s account is at C126-127. She says that she tapped each of the girls 3 or 4 times using her three fingers [C126], saying to them ‘wake up, these people don’t care’. In her oral evidence she described an action where she was poking down on Chd2’s head with her fingers and said that she then did the same thing to Chd1. This arose, she says, outside the school after she had received a letter saying that Chd2 was excluded from school for two days [C126]. The mother says that, having seen the letter, she had not been able to see the head teacher as she had requested and accepts that she became frustrated. Her frustration about being told that the head teacher could not see her was very obvious when she gave oral evidence at this hearing (‘I am fed up with the crap that is going on at this school. I am fed up of the principal not being able to meet me…so far all that the principal has done is to phone social services….).

‘Witness 1’ was the school crossing patrol officer on duty outside the school. He filed a statement (of sorts) at C19. His police witness statement is at H37. He says at H38: ‘At around 3.25, when most of the children had already left, a mother who I know as Witness 2 and her friend Witness 3 approached my crossing with their sons. I pressed the button and as the traffic stopped, I stepped out into the middle of the road to allow the group to cross. I had my back towards Stockwood with the pedestrian entrance to my left. As Witness 2 and Witness 3 passed behind me I suddenly heard a loud scream to my left, as I looked I saw Chd2’s mother strike Chd2 with her right hand, very hard, across the back of her head. As they continued walking down towards the bus stop the mother seemed to be in a frenzy and was swinging both arms wildly, each time hitting Chd2 around the head with alternate hands. Chd2 was screaming and cowering with her hands and arms trying to protect her head area. I could see that Chd1 was also walking with them’.

I asked ‘Witness 1’, when he gave oral evidence, to show me what she did. He showed her slapping Chd2’s head with open hands. He said that he had never seen anyone hit a child like that. He described her as hitting Chd2 repeatedly as they walked about 40 yards down the road. He described it as though the mother was knocking a rag doll. The mother was not poking Chd2’s head, he said; of that he was quite sure. He had an unobstructed view and says that the incident began when the mother was no more than 20 yards from him. So concerned was he that he left his post and went down the road. By the time that he got down the road to where they were, the mother had stopped slapping Chd2 and was shouting at the top of her voice in Chd1’s face. He says that Chd1 was absolutely petrified. He says that he did not see the mother hit Chd1. He ended his statement, as he did his evidence, by saying that since this incident the girls have seemed much happier (i.e. since their removal from their mother). I regard him to have been an accurate witness.

‘Witness 2’ is a mother who was there on that occasion. Her statement at H1 describes what she says that she saw. She says: ‘As we reached the crossing, Witness 1 pressed the button for us to cross, as he did so I then heard a woman’s voice shouting very loudly and a child screaming. I looked to my left towards the bus stop…to my utter disbelief the woman then raised her right arm with her hand in a fist and started hitting the child, who was now cowering, on the top / back of the head. She punched her at least 4 times and was shouting whilst she was doing so….I was absolutely horrified and in shock at what I had seen’. In oral evidence she said that it is possible the mother could have been using her fingers rather than a closed fist as she could not be sure about the configuration of her hand. She said that the incident was shocking and lasted ‘a good few minutes’.

‘Witness 3’ is another mother who witnessed the scene. Her statement is at H8 and she gave oral evidence. She describes M as swinging Chd2 round and ‘the female then used her right fist and started to punch the girl on the head. The girl cowered, bending over, putting her arms up over her head to protect herself. The female punched her at least 5 times. The punches connected with the top of the girl’s head, the girl was screaming. This lasted for about 2 seconds’. She describes the mother and girls as being about 20 yards away from her when this happened and that she had a clear and unobstructed view. In oral evidence she said that she was 100% clear that she saw punches rather than pokes. ‘Witness 3’ was an impressive and careful witness but I was less convinced that she did see punches rather than slaps as described by ‘Witness 1’.

‘Witness 4’ is a member of the public who was outside the school in her car. She says in her statement: ‘I thought that the lady was adjusting the little child’s hood but saw her moving her arm in a circular motion towards the head. I can’t say if it was a slap or a clenched fist. But she continuously hit her for about 3 or 4 times. The child was looking down, tilting her head in, trying to protect herself’. ‘Witness 4’ said that she wanted to say something to the mother but she was so upset that she could not get her car window down. Therefore she held her hand on the horn of the car. The mother was not poking the child’s head, she said. The mother’s arm was coming down in a circular motion onto the child’s head. She described it as the sort of thing that you would see when drunken men fight – that was the best description she could give when asked about the force of the arm’s motion.

‘Witness 4’ says that she then drove off but then saw the mother hit the older girl (Chd1). She said: ‘as I moved forward I looked in my rear view mirror and saw the lady moving her arms towards the girl, at her head. She was hitting her, I am unsure if it was a slap or clenched fist. This was on two occasions’. She said that she only saw the mother hit Chd1 twice but, as she was driving, she could not observe what was happening for long and the mother could have hit Chd1 more. Her view was clear and unobstructed. It was a clear day.

When the social workers were investigating events on the 7^th March 2014, Chd1 told the social worker, Sarah Lee, that nothing like this had happened before. She said that, as a punishment, they were usually grounded or M would slap her on the hand [C6]. However, Chd1 gave more detail and a somewhat different picture when interviewed by the police. I also think that for Chd1 to be asked questions in the immediate aftermath of events that day must have been very difficult for her.

It was on 14^th March that Chd1 was interviewed by the police. The transcript is at H119 and I listened to the recording of it. She said:

i) Mum whacked me and Chd2 with her hand…she just kicked off coming out of school and she started whacking and beating me and Chd2 [H121];

ii) She slapped us with her hand …round the head …it really hurt because she was really…I used to have these plaits in my hair and she was slapping me, they were like digging into my head and it hurt’[H122-3]. Chd1 then said that she ‘was whacking me here [indicating the top left side of head]. She then went on to say that the mother was whacking Chd1 on the throat as well [H123].

iii) The mother used the palm of her hand to hit Chd1 and did so more than once but Chd1 could not say how often [H124];

iv) Before hitting Chd1, the mother had hit Chd2 in a way that ‘was quite scary really’ [H126].

v) The mother was hitting Chd2 on the side of the head and, she thought, on Chd2’s neck. She could not say how many times she hit Chd2 but she hit Chd2 with the palm of her hand [H126];

vi) The mother used to stare at them before hitting them and did so on this occasion. Chd1 said at H128: ‘and she stares at us and then her eyes like shake a little bit’. Asked whether they saw that look very often Chd1 replied ‘yeah’. She said that when the mother had that look she then hit them [H128]. She said at H128: ‘when she can’t be bothered to do it with her hand she uses a wooden spoon. She described this as making their hands go red and said that the mother also hit them with the spoon on their arms. She said that the mother used the spoon when she was angry and had used it about ten times on Chd1 [H129]. She also uses the wooden spoon on Chd2 [H131].

vii) At H130 she said that mummy makes her happy sometimes but sad a lot. She makes Chd1 sad ‘by hitting me…it really hurts’. Mummy hits her very often [H130].

viii) Living with the foster carer is different from living at home ‘because there is no violence in the house…there’s violence in our house…Jane is nicer than Mum...because she let me have a birthday party and Mum never even lets me have a card or a birthday present’ [H133-134].

ix) After being beaten outside the school Chd1 was scared that Mum was going to beat her again. Chd1 said at H138: ‘she said as soon as she gets home she’s going to beat me’. Chd1 said that she felt frightened.

x) She felt dizzy after being hit but did not have any injuries [H139]. I record that it is right that there is no evidence of injury to the girls.

xi) Asked whether she would like to go back and live with Mummy she said ‘Mmmm don’t know’.

Unrelated to this specific event, I was shown photographs that the mother had of bruising that the girls had suffered when in foster care and with Au. Photograph 3 shows a mark on the back of Chd2 which the mother says was a bite mark which she thought had been caused to Chd2 by Au2 (Au daughter) although M did not assert that the bites were caused malicious (‘Au2 does bite’, she said). These photographs were produced during the hearing and were the immediate focus of the mother’s evidence when she came to the witness box.

The purpose of this photographic evidence being produced by the mother, I was told by the mother’s counsel, was that the mother wishes to assert that they showed that the girls do bruise easily and, since there were no bruises after the 7^th March, it suggests that there was no great force used by the mother in the incident that day. The mother also wanted to suggest that she had been treated unfairly in relation to bruising. She said that, if this type of bruising or biting had occurred in her household, her door would have been ‘booted down’ by the social services. As an example of how unfairly and disproportionately she said that she had been treated by the Local Authority, she said that, in 2009, the children were removed from her care for a week after Chd1 had arrived at school with pain in her side and Chd2 had a black eye [the mother refers to this at C125].

The social worker, Ms Watkins, was recalled to answer questions in relation to the bruising and marks shown in the photographs. I cannot comment about the events of 2009 because the facts of the event are not before me although I note from C3 the following account of events in 2009: ‘On 20^th July 2009 Chd1 and Chd2 were made subject to police protection orders and placed in foster care. This was due to M refusing access to the children and Chd1 disclosing that her mother had hit her. Following enquiries the girls were returned home on 23^rd July 2009’.

As to the bruising or bite marks (if that is what they are) that is shown in the photographs there is nothing to found any suggestion that they were deliberately inflicted or that they were inadequately or unfairly investigated.

Finding in relation to 7^th March – The Local Authority alleges that ‘the Mother hit both children a number of times to their heads, using her hand’ and that her actions were more than ‘reasonable chastisement’. It is plain that those allegations are substantiated. I do not accept that the mother simply poked or tapped the girls with her fingers. She hit them in an uncontrolled manner and did so with force and repeatedly. I am not persuaded that the mother punched the girls although I accept that it may have appeared to an onlooker that she did so. The lesser allegation is that of repeated and forceful slapping and I am left in no doubt that the mother repeatedly and forcefully slapped both children about the head in anger and having lost control. Her actions could not possibly be regarded as ‘reasonable chastisement’. Given where she was slapping them I am not surprised that there was no bruising. The force of the mother’s actions was sufficient to cause shock in those who observed her and to cause pain and distress to the children.

Use of the wooden spoon – In evidence M said that she did ‘slap’ the girls with a wooden spoon to discipline them. She would use the wooden spoon on the palms of the girls’ hands, saying that she would ‘slap’ Chd1 4 times and Chd2 two or three (because she is younger than Chd1). She said that started when the children moved to their current school because the principal there did not communicate with her about difficulties with the children and so she was left to work out the problems with the girls on her own and deal with them.

I do not accept that the incident on 7^th March was a ‘one off’. The mother herself described hitting the girls with a wooden spoon but I do not accept for a moment that the mother’s use of force against the girls was confined to its use. I find it highly probable that Chd1’s account in interview was precisely what happened on previous occasions. The mother used her hand on occasions (as she admitted in police interview herself at H103) and also used the wooden spoon. Initially the mother said in evidence that she never used her hand and it was only after she had been shown her police interview that she said that she had used her hand; at that point she suggested that she had not used the wooden spoon for a year, which I also do not accept. I do not accept that her use of the spoon and her hand were ‘rare’ as she contended.

The Local Authority alleges that ‘on a number of occasions the Mother has beaten both children on the hand/arm with a wooden spoon. For example, Chd2 reported this to the school on 17 December 2103 and Chd1 informed the police of this in interview on 14 March 2014…The Mother’s actions at paragraph three above, amount to more than reasonable chastisement’. The mother accepts that she used the wooden spoon and I am left in doubt at all that she did so in a way that cannot be described as reasonable chastisement. I find that the mother has repeatedly used force against the girls, including the use of the wooden spoon and slaps with her hand, when she has lost control of her own emotions and, as a result, has caused the girls emotional harm.

Therefore I make each of the findings sought by the Local Authority. I also find that the mother has repeatedly used excessive force against the children. In the simplest language she has repeatedly beaten them harshly and well beyond reasonable chastisement.

Oral evidence: During the course of this hearing I heard oral evidence from the following witnesses (and have already recorded much of what they have said ) :

i) Lucy Watkins, the social worker who has filed four statement and who also prepared the care plans in enclosure D.

ii) ‘Witness 1’– the school crossing patrolman.

iii) ‘Witness 2’, a mother at the school.

iv) ‘Witness 3’, another mother at the school.

v) ‘Witness 4’ who was present outside the school on 7^th March 2014.

vi) Dr Maria Downs, the psychologist.

vii) The mother.

viii) The guardian.

Lucy Watkins - She said that the children would continue to suffer physical harm if returned to the mother. She said that the mother tells her that she does not see her actions as abusive because the girls were never marked. The girls have been affected by the regime that the mother creates; Chd2 presents as an angry and aggressive girl and Chd1 appears as a withdrawn girl. As the children get older and bigger this will create an environment where there is damaging conflict if they remain with their mother.

The mother’s moods change very quickly (Ms Watkins has seen this herself, she said) and her inconsistency causes anxiety in the children. The mother does not like to engage in play with the children, saying wrongly that they do not enjoy it and does not see the benefit of socialisation of the children; she does not let them go on school trips or for birthday parties. Chd1 says that she has never had a birthday party.

Ms Watkins thought that the children would be physically neglected by the mother. The children have said that they have been left on their own at night whilst the mother went to work at Tescos. The mother denies this but the children have given very clear accounts of this, Ms Watkins said. I have not heard more evidence in relation to this allegation and so do not express any opinion about whether the mother had left the children unattended.

Overarching all of this, Ms Watkins said, is M’s inability to accept that things need to change or that she needs to work with anybody in relation to the children; this is not just related to social workers.

During the parenting assessment, M refused to sign the parenting assessment plan at the first meeting and said that Ms Watkins could not go into her home. The mother suggested that the Local Authority had persecuted her for years and that the three older children had been removed from her without any reason. M became angry and shouted at some point during each assessment period, Ms Watkins said. When asked to fill out an assessment scaling sheet, which is used to help to identify where the problems might lie, the mother became very angry and left. When she was asked questions that she did not want to answer the mother became very angry and refused to answer them. For instance, when Ms Watkins asked: ‘in what circumstances do you hit your children’ she refused to answer and said that the Local Authority were wasting her time and money. Each session involved her shouting and saying that she would parent her children as she saw fit.

55. In relation to the suggestion that the assessment was not ‘culturally’ sensitive Ms Watkins said that it was never possible to get on to how the mother’s background had affected her because of the mother’s angry approach to the assessment. She said that she was concerned that, when M did not want to answer a question, she would suggest that the assessment was not being conducted in a culturally sensitive manner.

56. In relation to Dr Downs suggesting that therapy might be valuable if the children were returned to the mother [E18], Ms Watkins thought it very unlikely that M would engage in that type of work, given her attitude to professionals. It was put to her that, following the receipt of Dr Downs report, an email was sent by the mother’s solicitor to the Local Authority asking that therapy for the mother should be arranged; Ms Watkins responded by immediate email that the Local Authority would not support the mother in finding therapy (even to the extent of the an initial consultation) in the light of the mother’s reaction to the Local Authority’s work. The email states: ‘Having discussed this with my manager…the Local Authority will not be providing any support to M with regards to her accessing therapy as suggested by Dr Maria Downs’. I think that the contents of the email are very regrettable even if the children are not to go back to their mother; it might well be valuable for the mother to have therapy if the children remain with Au and the mother has contact with them. It could have been tried, at very least.

57. Ms Watkins said that Dr Downs observed one contact session between the children and the mother during which they watched a DVD. Ms Watkins did not agree that the children have a secure attachment to their mother; she regarded the attachment to be anxious and, in relation to Chd1, avoidant. She accepted that there has been some very positive and warm interaction in contact but said that she has seen how quickly that can change. There have also been other occasions when the mother has ignored the children. She thought that the mother’s care of the children has been inconsistent.

58. Ms Watkins said that she speaks to Au about three times a week and has visited her usually once a week. She regards Au as having provided a good quality of care for them. Au has worked well with the girls’ school and the school are nothing but impressed by her. Au has taken and followed advice. She does not foresee any difficulties about Au encouraging the girls to have contact with their mother.

59. Ms Watkins thought that the mother would find it very difficult to accept that the girls were living with Au and responds with hostility when there are discussions with the girls about their care by Au. For that reason monthly contact at this stage would be appropriate. Ms Watkins had initially proposed that contact should be reduced to once every three weeks [C73] but, in the light of the undermining influence of the mother in relation to the placement with Au, she thought that once a month would be more appropriate. She accepted that the girls would find the reduction in contact difficult but thought that it was necessary to support the placement with Au.

Ms Watkins said that the children do say that they want to go home but she emphasised the amount of pressure that the mother has put them under. She did not feel that the children were saying what they really feel due to fear of the consequences from their mother.

I was disappointed by the response of the Local Authority and Ms Watkins to request for assistance in finding therapy for M. However, beyond that, I find that she has attempted to work with M in very difficult circumstances and gave accurate and professional evidence.

Dr Maria Downs – She has extensive and international experience. In her report she said that, based only on her observation of one contact visit and also on the basis of the test that she put into effect at E74 (asking for Chd1 to come to her as a stranger and witnessing Chd1 turning for reassurance from her mother), she noted signs of a secure attachment between the children and their mother but did not feel that she could give a conclusive view on this.

She also thought that there were also significant indicators of an insecure attachment (as she said at E75). However she did not think it helpful to have an evidential battle of opinions about whether given behaviour can be compartmentalised into secure or insecure or avoidant attachment. I agree. Unsurprisingly, she said that, if Chd1’s experiences of her mother are as she described at H130 in the police interview (‘mummy’ hits her often, it hurt and it makes her sad) that is bound to affect her relationship with her mother and be damaging to her emotional welfare.

She said at E18, E80 and E81 that it might be valuable for the mother to have cognitive analytic therapy. She thought that, given the mother’s history, there would need to be a ‘corrective script’ to prevent the repetition of the mother’s past behavioural patterns. If the mother engaged in Cognitive Analytic Therapy it might help her to think about her past, analyse it and change her own response to past events. Dr Downs was however left with some reservations about whether the mother would engage in that therapy; when she tried to discuss past events with the mother and how the mother might have done things differently she found it very difficult to engage the mother in the discussion. If that therapy were to start the mother would need to engage with it for at least six months for her to show some signs of change in her behaviours; however therapy beyond that might then also be necessary. Whatever the outcome of the proceedings it would be beneficial for the mother to have therapy, either as a custodial parent or as a mother having contact with her children.

In addition she recommended that, if the children were rehabilitated, there should be family therapy involving mother and children. This might need at least six months again. Before family therapy could take place she would need to have engaged in her own therapy before family therapy could be beneficial.

She said that Chd1 is struggling with anxiety, low esteem and some depressive symptoms. She shows some signs of ‘splitting’ which means that she divides things into good and bad and into ‘all or nothing’; if this continues it will have a significant impact on how she functions as an adult. As a result, it is very important for her that she lives in an environment that is warm and emotionally nurturing. If she lives in a harsh environment then her anxiety, low self esteem and depressive symptoms will not change.

The household regime that the mother created for the children was not correctly classified as a product of her culture, Dr Downs thought; it was more accurately viewed as a result of the mother’s own background and personality. A harsh and strict upbringing will not necessarily cause significant damage particularly where it is consistent with a cultural norm. However, that depends on the effect of the upbringing on the specific children concerned and also the extent of the harshness and strictness. Violence against children and emotional impoverishment cause them emotional and physical hurt whatever might be their culture.

Dr Downs gave very carefully considered evidence and was a very impressive witness.

Evidence from the school. I was not asked to hear oral evidence from the school. However, there are statements from two school teachers at the school. They are ‘Teacher 1’ (C31) and ‘Teacher 2’ (E91).

‘Teacher 1’ says that Chd1 was in his class from September 2013. He says that the school had a number of issues with Chd1 when she was stealing items. Chd1 seemed to show a need for ‘items’ and was extremely eager to please. ‘Teacher 1’ said that he had very little interaction with Chd1’s mother but that, when he did meet her, she was ‘short tempered and snappy with both her daughters. Chd1’s mother never booked parents’ evening appointments or responded to messages I left her wanting to meet to discuss Chd1’s progress. Chd1’s mother would not allow Chd1 to go on school trips. I did eventually manage to get permission for Chd1 to join us on a museum trip in the autumn term following a series of phone calls. Chd1 was not granted permission to join her classmates on our residential trip. Chd1 used to get upset on a Friday because she didn’t like the weekends. She told me that this was because she wasn’t allowed to play with friends and had to do jobs around the house. She told me she wasn’t allowed to play at home and always had to do housework and her homework’.

‘Teacher 1’ also observed a significant change in Chd1 after she went into care. He says at C32: ‘she became impossibly cheerful, presented more tidily with a new coat and new school clothes and formed better relationships with children in her class. Additionally she was finally granted permission to go on camp which was an experience she really enjoyed and allowed her to build stronger friendships with her classmates. She spoke highly of her foster mother and because less needy for praise as time went on’.

‘Teacher 2’ was Chd2’s teacher from September 2013 also. She says that, initially, Chd2 would run away from class and assemblies but had settled more by December. However, she continued to be a difficult child who became very distressed when she did not get what she wanted. She says that ‘when angry, Chd2 will shout and wail loudly. She can stamp and throw objects around the classroom. Chd2 had a controlling relationship over another child in the class. She would only play with that one child and would become violent towards others who would play with her instead. In January 2014 Chd2 strangled a child because they were standing too close to her friend.’

‘Teacher 2’ describes Chd2 as being late for school most days and was often picked up late as well. ‘Teacher 2’ noted little affection or interaction between Chd2 and her mother and observed Chd2 as being upset if she got dirty (saying on one occasion that her mother would beat her if she had mud on her coat). Chd2 was allowed on one school trip (in March 2014) but, ‘Teacher 2’ says, M never attended school parents’ evenings. The mother says at C131 that she was never told about any parents’ evenings relating to either of the girls. When Chd2 first went into care there was an improvement in her behaviour, ‘Teacher 2’ says; however, when she changed home and went to Au she became unsettled at the time of transfer.

Law - I remind myself of the following principles of law:

i) In relation to the application for a care order, I must first consider whether the threshold criteria in section 31(2) of The Children Act 1989 are fulfilled.

ii) Where the threshold criteria are fulfilled it is necessary to consider the provisions of Article 8 of the European Convention on Human Rights and section 1 of the Children Act 1989 when deciding whether to make the care order sought.

iii) The court must conduct a global, holistic approach to welfare issues weighing up the various available options before it. The court must avoid a linear analysis to those options because that can lead to the piecemeal elimination of the least interventionist solutions, leaving the most interventionist solution of a placement order as the only remaining solution - Re G (A Child) [2013] EWCA Civ 965, paras 49-50;

iv) Article 8 of the European Convention on Human Rights states that: ‘1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society …for the protection of health or morals, or for the protection of the rights and freedoms of others.’

v) Care orders amount to a very significant invasion of the rights encapsulated within Article 8(1). For such orders to be justified they must satisfy the provisions of Article 8(2) and therefore must be: a) in accordance with the law (here the Convention compliant Children Act 1989); b) necessary for the protection of the rights and freedoms (i.e. welfare) of others (i.e. the child) and c) proportionate to the proven harm that has been identified in the family environment under consideration.

vi) Welfare issues must be based on the totality of information available to the court and, unlike threshold issues, it is necessary to conduct a contemporary evaluation of what is best for the child concerned.

vii) By section 1(1) of the 1989 Act the welfare of the children is the court’s paramount consideration when considering the making of orders under that Act following the satisfaction of the threshold criteria;

viii) Section 1(3) of the Act contains the welfare checklist. It provides that, in making welfare decisions under the 1989 Act, a court must have regard in particular to —

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of her age and understanding);

(b) her physical, emotional and educational needs;

(d) her age, sex, background and any characteristics of hers which the court considers relevant;

(e) any harm which she has suffered or is at risk of suffering;

(f) how capable each of her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting her needs;

(g) The range of powers available to the court under the Act.

ix) It is of fundamental importance that there is discipline in the approach to welfare issues in care proceedings. The court is not a court of social engineering. The court does not decide welfare issues by considering whether, on an individual judge’s analysis, a child might be considered to be ‘better off’ in care. Nor does the court apply a test of whether a child will receive ‘optimal care’ with a given parent since there would be many parents who would fail that test.

x) For myself I find the passages from the judgment of Lord Neuberger in paragraphs 77 and 78 of particular assistance. They include the following at paragraph 77: ‘It seems to me to be inherent in section 1(1) that a care order should be a last resort, because the interests of a child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. That is reinforced by the requirement in section 1 (3)(g) that the court must consider all options, which carries with it the clear implication that the most extreme option should only be adopted if others would not be in her interests’.

xi) Although care proceedings are quasi inquisitorial (see Re W [2013] EWCA Civ 1227), it is for the Local Authority to justify its applications and to substantiate its proposed care measures on evidence – P, C and S v United Kingdom [2002] 2 FLR 631.

Threshold – Section 31 of The Children Act 1989 provides that ‘a court may only make a care or supervision order if it is satisfied –

a) that the child is suffering, or is likely to suffer, significant harm;

b) that the 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 to him

(ii) the child being beyond parental control.

Ms Hunter argued that the threshold criteria are not fulfilled. The sudden and brief events of 7^th March did not amount to significant harm and the overall quality of the mother’s care would not satisfy those provisions either, she contended.

I regret to say that I cannot accept Ms Hunter’s submissions. I have already set out my findings in relation to the schedule of allegations. It is perfectly plain on the basis of the evidence that I have set out that the mother’s style of parenting the children has caused them significant emotional harm and has impacted negatively on their self identity, social presentation and education. It is also very clear that M would not work with the Local Authority to improve her parenting. The chances of her engaging in therapy, I accept, are slim.

In my opinion, it is not remotely surprising that the children have been emotionally harmed by the environment in which they were living and that that harm is so apparent. Chd1 made her feelings very plain in the police interview. She did not like being hit and hurt by her mother. She found her mother frightening when she shouted at them. Having seen the mother in the witness box and heard the accounts of how she speaks to professionals (e.g. the guardian on 23^rd May) I can well imagine how frightening her manner can be to a child. The descriptions of the girls by the school and also by Dr Downs show how their emotional welfare has been affected. Chd1 is struggling with anxiety, low esteem and some depressive symptoms. Chd2 has a tendency to be an aggressive and difficult child, as ‘Teacher 2’ described. I have no difficulty at all in finding that the threshold criteria are fulfilled in the terms that I have set in the previous paragraph.

Welfare checklist – I accept that the girls express a wish to return home. I also accept that they have been materially influenced in what they say by the mother’s conduct towards them. M has left them in no doubt that they should not be living with their aunt and it is not surprising that girls of this age do not express any contradictory opinions.

It is quite apparent that the girls’ emotional and educational needs were not being met when they were with their mother and would not be met if they returned to her. There is no reason to think that the significant emotional harm from which they were suffering would change if they went back home.

I take into account the negative aspects of the case presented by the Local Authority in relation to the girls’ emotional needs. The girls express a wish to go home, there is a natural emotional magnetism between a child and the home provided by a natural parent and a child may suffer a stigma as a ‘child in care’ who is not living ‘at home’.

Whatever may have been the position at the time of the previous proceedings relating to Chd1, the position now is that the mother does not have any real insight into the harm that has been done to the girls. If the girls did go home the mother would be very resistant indeed to any professional involvement with the girls and would inevitably make it known to the girls that she regarded the social workers as responsible for the involvement created by these proceedings. The environment to which they would be returning would bear the additional harm that the girls would be actively encouraged not to talk to professionals, including teachers, when problems arose, as they would. In relation to their education there would be the same problems as there were in the past; the relationship between the mother and the school (if that is where they went) would be even more strained than it was.

I have given very careful thought to the needs of the girls and regard it as unthinkable that they could be returned to the environment that the mother offers, having found an emotionally supportive and violence free environment with their aunt. Thus a change in their circumstances by which they returned home would be positively harmful to them. This mother deserves every sympathy for the hardship that she has suffered and I extend that sympathy to her. However, it is also very plain that her own background has fashioned her style of parenting and has left her with such a backlog of emotional difficulties that she is unable to offer the girls the emotional parenting that they need.

At the ages of nine and six the girls still have the opportunity to settle with their aunt and have a childhood with her before the independence of adolescence starts. I accept the evidence of Ms Watkins that, if the mother and the girls were to live together, there would be very foreseeable difficulties when they approached adolescence given the nature of their respective emotional functioning. Their backgrounds have been of an emotionally neglectful upbringing with their mother and it would be quite wrong now to return them to it. With their aunt they are being brought up in an environment that is culturally compatible with their own backgrounds. To describe the regime offered by the mother as a product of Jamaican culture is to do a great disservice to Jamaican culture; I do not accept that hitting children, shouting at children and giving them an unnecessarily harsh upbringing is acceptable in any culture. Nor does that sort of regime amount to boundary setting and necessary punishment. It is an environment where the mother’s own difficult background and frustrations have become displayed through her conduct towards her children.

I have already described the harm that the children have suffered. There is a high probability, not just a risk, that that harm would be repeated if the children went back to the mother. On the evidence before me it would not be a feature of their lives with their aunt.

M does not understand the deficiencies in her parenting and therefore she does not have the capability to alter her parenting; even if she did find and accept therapy, the chances of which are slim, it would be at least six months before that therapy would influence her behaviour. On the evidence that I have read and heard Au can offer the children a loving and secure home.

A supervision order would be of no benefit to the girls if they returned home. There is no prospect of the mother co-operating with it. Therefore, the court could either return the children to the mother knowing that there would be no effective supervision or they could remain with the aunt under a care order. I am left in no doubt at all that it is necessary and proportionate for the children to be made subject to a care order on the basis that they will remain with their aunt. It is simply not possible to devise a method, consistent with their welfare, by which they could be returned to their mother.

I therefore make care orders in relation to both of the children.

As to contact, I think that the Local Authority’s plans are necessary in the short term. There is bound to be a strong emotional fall out from these proceedings and I would not expect the mother to offer any support or recognition in relation to the children’s placement with their aunt. I think that there should be a review of contact after Christmas (i.e. in just over three months) to see whether contact cannot then become more frequent. I accept the reasoning of the Local Authority and the guardian in relation to the need for contact to be once a month at present.

Stephen Wildblood QC

9^th September 2014.

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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Chd1 & Chd1 (Children : care orders) [2014] EWFC B113 (09 September 2014) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B113.html Cite as: [2014] EWFC B113

England and Wales Family Court Decisions (other Judges)