JUDGE ROBERTSHAW:
- On 10th December 2014 I handed down orally and in writing an outline judgment comprising detailed Findings, Initial and Final Comments. Temporary illness prevented me from delivering a full judgment. Those Findings and Comments are repeated and incorporated in this full judgment.
Introduction
- This is the third final hearing of care proceedings brought by the London Borough of Barking and Dagenham (the 'Local Authority') concerning A, born 16th August 2012. At the time of handing down my Findings in December 2014 she was almost 2 years 4 months. Her mother is SG and her father VC. A has been represented throughout this final hearing by her guardian, Ms Julie Slaughter.
- The first final hearing took place in June 2013 before His Honour Judge Turner QC. He made full care and placement for adoption orders. These orders were set aside and replaced with an interim care order by the Court of Appeal on 21st January 2014 and the case was remitted to the High Court for re-hearing (Re C (a Child) [2015] EWCA Civ 128).
- The second final hearing began in September 2014 before Holman J. It could not be completed due to deficiencies in the assessments of the mother and the local authority's care plan. It was re-listed for a third final hearing before me: it began on 19th November 2014 and lasted for ten days. The hearing was interrupted by illness of the mother and then the guardian. As noted above, on 10th December 2014 it was only possible for me to hand down an outline judgment and not this full judgment as intended, due to my loss of my voice. This was undesirable but in the circumstances unavoidable. An oral judgment was essential in this case in view of the need for it to be interpreted for the father. Today is the first time when it could be listed for full judgment; it being particularly important for the parents and their counsel to be able to attend. This, therefore, is the judgment that would have been given on 10th December 2014 had I been able to do so.
- A has now been looked after away from her parents' care for the two years, three months leading up to the final hearing before me - virtually the whole of her life - and the vast majority of this time in foster care. The rehabilitation of A to her father - a plan opposed by Miss G, but supported by all professionals and the guardian, and the plan I endorsed and approved at the conclusion of the final hearing on 10th December 2014 in light of my findings - was not delayed and was able to progress. The period since 10th December has also given the local authority the opportunity to review and amplify its support package for the father and prepare an amended care plan incorporating also its planned work and support for the mother, particularly in respect of her contact with A.
- For the reasons I gave on 10th December 2014 it was not appropriate for final orders to be made. The deficiencies in the care plan, as the local authority recognised, were too great and the continuance of the proceedings would have been necessary in any event and in the best interests of A. This matter is now listed for the making of final orders on 17th February 2015, by which time it is hoped that all outstanding issues in respect of the care plan and support package will have been resolved, including a review and reassessment for what further support, if any, Mr. C needs following A's move to live with him.
Background and circumstances leading to this hearing
- A's mother: SG is a young woman of 23 of Turkish Cypriot origin. A is her only child. Miss G has a low level of cognitive functioning and, although she has a degree of speech and hearing impediment, it is clear she can hear and speak in English without the need for interpreters. She can make and receive telephone calls. The experts, Dr. O'Rourke and Dr. Willemsen, were able to assess her without sign interpreters and without any other assistance. Miss G was able to hear and speak during these assessments. Throughout the course of this final hearing she was able to give instructions directly to her counsel, Mr. Phillips, and give evidence without assistance. She functions substantially as a hearing person.
- Miss G has had a troubled and difficult upbringing, although the nature and extent of the abuse she has suffered is not clear. She has been known to the local authority since May 2011, when she was referred to mental health services by Queen's Hospital, reporting suicidal thoughts, regular mood changes, anxiety and depression.
- A's father: VC is 36. He originates from the Angolan Portuguese community. He came to the United Kingdom when he was seven. Most of his family remain in Portugal. Mr C is profoundly deaf and cannot speak. He communicates by using British sign language ('BSL'). He is a very intelligent man. Like Miss G, Mr. C has no children other than A.
- Throughout this hearing, the father has been assisted through BSL and relay interpreters, to whom I am extremely grateful as I expressed at the conclusion of the last hearing and at the hearing in December.
- Miss G and Mr. C never married. Mr. C is named on A's birth certificate as her father and he has parental responsibility for her. DNA testing has confirmed paternity.
- Immediately following A's birth on 16th August 2012, the caring professionals involved with the family (particularly hospital staff) identified deficits in the parents' ability to provide basic day to day care for A. On 19th August 2012 Miss G informed the community midwife that Mr. C was emotionally abusing her and that he had hit her the previous day. Miss G left the family home and only returned when requested to do so by the midwife. The midwife was concerned that Miss G was showing signs of postnatal depression. Arrangements were made for A to be taken to Queen's Hospital on 20th August 2012. When A was admitted, Miss G said she wanted to place A for adoption. Miss G left the ward and was subsequently admitted to the postnatal ward with A for psychiatric assessment.
- The immediate background to these proceedings is summarised by the Court of Appeal in Re C[2014] EWCA Civ 128. On 22nd August 2012, when A was only six days old, the parents ostensibly gave consent under s.20 of the Children Act 1989 for A to be accommodated by the local authority in foster care, although no interpreter was present for Mr. C when this consent was given. The parents withdrew their consent two weeks later, triggering the application by the local authority on 7th September 2012 for a care order. The local authority sought an interim care order and the immediate removal of A from the care of her parents.
- The parents agreed that A could be placed in the care of MB, a friend of Miss G, and her husband. An interim supervision order was made as there were concerns that Miss G and Mr C had breached the written agreement on several occasions by not engaging with the local authority or attending contact. As a result of enquiries made by the local authority and information received from the police that Mr. B was suspected of being involved in the possession of class A drugs, in public indecency offences and in driving with excess alcohol, the agreement was amended to ensure that Mr. B did not have unsupervised contact with A and that Mrs. B would be her sole carer. However, the B were not happy with these requirements and made it clear they could no longer care for A.
- On 27th September 2012, therefore, an interim care order was granted and A was placed back with her previous foster carers on 28th September 2012. Various assessments were undertaken and reports obtained. As already noted, following the first contested final hearing, final care and placement orders were made in June 2013.
- Following the hearing before Judge Turner QC and in preparation for his appeal, the father obtained permission from Ryder LJ, to instruct Dr Cornes, permission for such instruction having been refused at first instance. Dr. Cornes undertook his assessment within a very tight timetable and produced a report which, as McFarlane LJ records in Re C [para.13]:
… changed the climate of the case. The local authority now see what is said about the father in the light of advice from an expert who, whilst not deaf himself, has had a lifetime of experience in matters of communication between deaf people, the fact that that expert identifies substantial detriments in the process undertaken by the local authority and by the court has led to the state of agreement that exists between the parties resulting in the consensus that the appeal should be allowed.
- During the course of the proceedings before Judge Turner QC, expert opinion about the father's profound deafness was obtained. The focus of this opinion was in respect of the father's ability to care for A, his ability to work in partnership with professionals who might give him advice and his ability to implement that advice and in respect of his ability to communicate what he wanted to say, involve himself in the proceedings and to understand them. In their detailed reports, as McFarlane LJ records in his judgment in allowing the appeal, both experts:
… expressed profound concern as to the provision of interpretation support for the father in the lead up to the proceedings and in the early stages of the proceedings.
Furthermore, significant criticism was made by Dr. O'Rourke and the independent social worker, Suzanne Robinson, of the local authority's parenting assessment of the father which had been conducted without any adequate provision to accommodate his disability and, therefore, to communicate in any meaningful way his response to the assessment process.
- The further expert reports and assessments of the parents since the conclusion of the proceedings before Judge Turner QC have informed and completely reshaped this case, the local authority's thinking, and the care plan now before the court. Inevitably, therefore, this hearing has largely focused upon examining these further assessments and reports, but the errors and failings that occurred prior to and during the course of these proceedings continue to have relevance in view of the difficulties and delay that the father has had to face since the June 2013 hearing, particularly in securing vital elements of the necessary support package. However, I do not propose to revisit areas that are no longer relevant or have little bearing on the issues now to be addressed and will not be drawn into detailed further scrutiny, examination and dissection of the local authority's previous actions, inaction or attitudes in this case that led to the care or placement orders being set aside, save where it is necessary for me to do so. I have been driven to address, however, some of the failings and errors of this local authority and lessons to be learnt from these at the conclusion of this judgment, it being absolutely fundamental and crucial for the success of the rehabilitation plan that these attitudes, errors and failings are not repeated.
- It is also important not to overlook the mother's position - in respect of which there was also consensus before the Court of Appeal, albeit on a different basis. I quote from para.14 of the judgment of McFarlane LJ:
The perspective that required prominence in evaluating her [the mother's] case and her response to the proceedings, namely her learning disability compounded with her hearing disability, had not been adequately provided for before the County Court, and that therefore there is, as with the father, a need to revisit the mother's potential with a targeted and suitable expert assessment. There is agreement, as I understand it, that two named individuals recommended by Dr. Cornes should be instructed to undertake work with both of the parents.
The purpose of this hearing and the key issues
- This is a combined threshold, fact finding and welfare hearing. I identify the key issues as follows:
20.1 Is s.31 threshold established?
20.2 Determination of the mother's allegations against the father.
20.3 The future placement of A. Can she be rehabilitated to the mother or to the father?
20.4 If rehabilitated to the father or the mother, the necessary support package.
20.5 Contact.
20.6 The legal framework supporting A's placement.
The parties' positions
- The local authority
(a) The local authority maintains threshold is met and seeks findings in respect of threshold relating only to the mother. It pursues no findings against the father.
(b) In the light of further assessments of the father, the local authority no longer seeks a full care order or a placement order. Its plan at this final hearing is to rehabilitate A to the care of her father under the legal framework of a supervision order with continuing direct supervised contact with the mother. The care plan is accompanied by a Contact and Reunification plan with a timescale of ten weeks. The implementation of this plan was accelerated and amended during the course of the hearing: the local authority planned for: 1 A to be in the full-time care of her father within approximately six weeks from around 19th December. The local authority plan was for there to be monthly supervised contact with the mother. This plan was changed to fortnightly contact following my detailed findings and outline judgment.
(c) The local authority does not adopt the mother's allegations against the father. If proved, these findings would not cause the local authority to change its plan to rehabilitate A to her father. Findings adverse to the father would, however, result in additional elements and work being incorporated into the care plan and support package. In view of the high level of negativity and conflict between the parents and the likelihood that, if not determined at this hearing, Miss G would seek to resurrect her allegations, all parties ask that findings one way or the other need to be made. I agreed with this approach. It is clear that the factual matrix concerning the parents' relationship needs to be established.
(d) The local authority recognises and accepts that a substantial and bespoke support package must be in place if their plan for A to be rehabilitated to her father is to succeed. This support package is extensive and has been subject to considerable scrutiny during the course of this hearing. I found it lacking in significant respects and made those areas clear in my outline judgment of 10th December. I will be repeating and revisiting these later in this judgment.
- The mother
(a) SG seeks the return of A to her care with the support of her mother, AG. She vehemently opposes rehabilitation of A to her father. In her written evidence Miss G said she would rather A was adopted if it was not possible for her to care for her. She was rather more hesitant about that during her evidence. I do not think Miss G truly wishes for A to be adopted, but she struggles to contemplate A being with her father.
(b) Ms G seeks findings against the father relating to what she alleges was his abuse and control of her during their relationship. In addition she has very recently alleged that the father slapped A during supervised contact. Her allegations against the father are detailed in her Schedule of Findings and amplified in a statement filed during the course of this hearing at my direction.
(c) If A is rehabilitated to her father, Miss G seeks a greater level of contact than that envisaged in the care plan and wishes for it to be unsupervised.
- The father
(a) Mr. C contests threshold so far as any findings against him are concerned (none is now, in fact sought) but accepts threshold is crossed in respect of the mother. He denies the mother's allegations against him. He agrees to the making of a supervision order. He wishes to care for A and welcomes the accelerated rehabilitation plan but continues to have concerns as to the sufficiency of the support package. He asks for A's placement with him to be confirmed under a child arrangement order so that he can obtain the necessary benefits, appropriate housing and can travel abroad with A for up to 28 days without Miss G's consent.
(b) Mr C has concerns about managing the role of Miss G in his and A's life, and A's contact with the maternal family.
- The Guardian
Ms Slaughter, (who was not A's guardian within the previous proceedings before Judge Turner QC), supports the making of a supervision order and the plan for A to be rehabilitated to her father. She does not support unsupervised contact with Miss G.
Earlier Findings and Conclusions of Judge Turner QC
- Intending no disrespect to Judge Turner QC, I have put to one side the findings he made in respect of threshold and welfare and I have considered all issues afresh and independently of his analysis and his previous findings. I have, however, considered and taken account, where relevant, of the evidence before Judge Turner QC, the transcripts of this evidence form part of the trial material before me. As McFarlane LJ recorded and as noted above, with the additional expert and other evidence, the shape of this case is now wholly different from what it was in June 2013.
Personnae dramatis and timeline of local authority involvement
- AG: A's maternal grandmother. AG gave evidence before me and attended substantial parts of this hearing to support the mother. She does not put herself forward as an alternative carer but told me she will do what she can to support Miss G.
AC: AC is Mr. C's sister. Mr C put her forward as an alternative carer during the first set of the proceedings but at that time Miss C was intending to return to Angola to take up work and residency there and she did not wish to be a carer for A. Consequently, the special guardianship assessment of her was not positive but only because she was no longer putting herself forward. AC has confirmed that she will support the father in his care of A. Indeed, she is now residing in the United Kingdom and is likely to do so for some years.
MB: MB is friend of Ms G who cared for A for a brief period following their revocation of the s20 consent. MB has not taken any part in these proceedings or this hearing.
The local authority:
A number of social workers and family support workers were involved with the parents and A (and when I say "involved with the parents", their involvement in some respects was much less than would have been expected)
Carla Gross : 'targeted family support worker'. Ms Gross attended the first meeting at the hospital following A's birth. Her involvement with the family officially ceased on 13th September 2012.
Carly Walsh : the first allocated social worker. She was involved between 21st August 2012 and mid-October 2012.
Siobhan McNully : the social worker to whom Carla Gross initially handed the case to on ceasing her involvement to carry out parenting assessments of the mother and father. However, it remains very unclear if she formally became an allocated social worker for the family, albeit very briefly.
Sean Dixon : described as a 'second allocated social worker'. He was involved from November 2012 until April 2013, a period of five to six months. Despite his involvement with both parents, no statement has ever been produced from Sean Dixon. He gave evidence during the hearing.
Amber Reynolds : the third allocated social worker. She took up her position from 9th May 2013 and ceased in about November 2013. She did not meet either parent. Her only contact with the family was to telephone the mother about the adoption medical. She did not attempt to contact the father. She has not played any role in this hearing and did not give evidence before me.
Sandra Panton : family support worker who assisted Miss McNully in the parenting assessment. Her role was to provide training in respect of basic parenting skills. Miss McNully's role was to assess the parents' competence after that training. Subsequent assessments and reports have overtaken those assessments.
Sheryl Montack : was the fourth and, at the time of the hearing before me, the current allocated social worker. She took up her position on or about 17th November 2014. I now know, although I did not know at the time of my findings in December 2014, that she no longer works for the local authority. She was an agency worker, and although she expressed her commitment to this family and to continue working with the father and A throughout the course of a supervision order, she is obviously not able to do that, given that she no longer works for the local authority. A new social worker has now been allocated to A. This was not something that was either desirable or anticipated. Given the history of the number of different workers who have been involved with and allocated to this family, it is not surprising that these parents feel, justifiably, apprehensive and concerned about having to establish, yet again, further relationships with a new social worker.
Fabian Runani: prepared the special guardian's report in respect of the paternal aunt, AC. I have already referred to the report not being a positive one and the reasons for this. Mr Runani has not give evidence during this hearing.
Experts: A number of independent experts have assessed these parents:
Assessments of the mother were carried out by:
- Dr. Hessel Willemsen, Clinical Psychologist
- Wendy Anderson, Independent Social Worker (and a native user of British English Language)
- Lynne Ferdinando (of the Sycamore Trust, formerly Mencap) carried out a parenting assessment
- Dr. O'Rourke, Consultant Clinical Psychologist
Assessments of the father were carried out by:
- Dr. Andrew Cornes, Chartered Psychotherapist
- Suzanne Robinson, Independent Social Worker. She carried out the parenting assessment and advised in respect of the support package
- A Ms Marinnan, an Independent Social Worker, was instructed to assess the father but the work was beyond her expertise and this assessment was not carried out
- In addition to these experts' assessments and reports in respect of both parents, they also participated in various professional meetings with the guardian (eg 14/2/14, 27/3/14, 6/8/14 and 5/11/14)
The hearing
- During this final hearing I heard oral evidence from Carly Walsh, Carla Gross, Sean Dixon, Sheryl Montack, Lynne Ferdinando, Suzanne Robinson, Dr. O'Rourke, Dr. Willemsen, the mother, the father, the maternal grandmother and the guardian.
The Experts' contribution
- Assessments of the mother:
Dr. Hessel Willemsen brings to this case a high degree of expertise. He specialises in child, family and adult psychology. He qualified in 1995 and has worked with the Tavistock Clinic in London and the Great Ormond Street Hospital for Children. He is now in private practice. He does not have a background in deafness and I note that Dr. O'Rourke initially was critical of that, referring to that factor having received what she called "scant attention" in his report. Dr. Willemsen assessed mother's cognitive functioning in November 2012. He was instructed to carry out a further assessment in March 2014 and was asked to consider;
- whether there were any aspects of this mother's psychological functioning which would impact negatively upon her parenting
- her insight into any difficulties identified
- the extent to which she is likely to engage with treatment during any rehabilitation programme
- whether she could undergo such treatment and work fully, or in part, prior to rehabilitation
- Dr. Susan O'Rourke is also a Consultant Clinical Psychologist who has worked predominantly in the field of mental health and deafness. She qualified in 1989 and has been involved with the deaf community since 1986. She is fluent in BSL and is registered as a qualified sign language interpreter. Dr. O'Rourke carried out a further cognitive assessment of the mother in October 2014, and considered previous assessments of her.
- The key conclusions of Dr. Willemsen and Dr. O'Rourke were that there were no areas of disagreement between them. Having seen and assessed the mother herself, Dr. O'Rourke's initial concerns that the methodology used by Dr. Willemsen in 2012 and, indeed, the Neuropsychologist, Dr. Hassan in June 2014, may have led to invalid conclusions were no longer relevant. The difference in scores between WAIS 3 and WAIS 4 is not significant. The results indeed from the two cognitive assessments are similar.
- Dr. Willemsen agreed with Dr. O'Rourke's assessment of the mother's functioning that, taking account of the test results and day to day functioning and presentation, the mother should be viewed as someone with a learning difficulty rather than a learning disability. Both doctors agreed there is potential for some development and learning when some areas of missed learning are recoverable. They further agreed that the mother's difficulties would not preclude adequate parenting but support and teaching would be needed to take account of her learning difficulties. She is able to think hypothetically and can anticipate consequences which would be important in teaching new skills and anticipating a range of responses. However, the mother tends to be somewhat literal and concrete in her thinking and she has a particular difficulty in retaining information, transferring anything she has learnt and maintaining new skills consistently. Her learning will be slow but not impossible.
- Despite close scrutiny of his assessment and conclusions on behalf of Miss G, Dr Willemsen stood by his views and conclusions. He found the mother lacks adequate ability to attune to A's emotional needs. She also lacks an ability to protect A from harm because of her inability to protect herself from harmful relationships with others. The consequences of this are that A would develop insecure attachments if she was looked after by Miss G and may be at risk of harm due to any relationship the mother may engage in which could put herself at risk as well as A. A treatment plan would need to include counselling or psychotherapy to address Miss G's own emotional needs. This would take a year, if not longer. Miss G's emotional limitations are deeply rooted in her childhood development. A's safety could not be adequately guaranteed if placed with Miss G during the time she is undertaking therapeutic work. Dr Willemsen concluded that his concerns are not necessarily related to Miss G's cognitive abilities; although these limited cognitive abilities may have hindered the processing of emotional difficulties she endured during her childhood. Her cognitive abilities would probably also affect the pace at which she may be able to undertake therapeutic work.
- Dr. Willemsen identified that Miss G has difficulties with her insight into the consequences of the lack of emotional care she received herself and her consequent vulnerability. She has difficulty understanding the manner in which she engages with people and the trust she places in people. She lacks insight into her own relationships and also into the emotional needs of A. Initially Miss G would be happy to accept help but with time she would become overwhelmed with A and may seek to rely on professionals to the point where she may need them to look after A; as effectively happened during Dr Willemsen's observed period of contact. Miss G first needs to undergo treatment, therefore, before rehabilitation of A to her care could be considered. If rehabilitation was carried out in conjunction with treatment, this would put A at risk of neglect of her emotional needs and would expose Miss G's limited ability to protect herself and, therefore, A from others. It is unlikely that the NHS would fund Miss G's treatment, and this was because the prognosis for change was not significant enough.
- In evidence, Dr. Willemsen explained that it is not so much Miss G's cognitive difficulties that stop her providing adequate parenting, it is much more the emotional development of the mother herself. He was particularly worried about Miss G's bonding with A, her relationships with adults and her ability to protect herself. He was disturbed and concerned by the two examples of mother being taken for granted by others to her own detriment, and of being unable to stand up to adults, again to her own detriment. She had not been able, for example, to stand up to a man who had befriended her and had engaged in sexual intercourse with him which she then described as rape. A further example was the mother feeling overrun and abused by her father and uncles. Whether or not Miss G was in fact raped in the technical sense by the man who had befriended her, it was a matter that mother found deeply traumatic. Dr. Willemsen said she still had not processed this and did not have an understanding as to why it might have happened.
- Dr. Willemsen observed contact on one occasion; during it he noted that the mother had difficulties in leading and initiating play. A ran away from Miss G; this he considered, was a manifestation of her not connecting with her mother. A struggled to find an effective connection with Miss G. The crucial question, said Dr Willemsen, was whether or not A could form an attachment to her mother. This is what would guarantee and hold A's emotional development. Could A feel safe with Miss G? Dr. Willemsen could not see enough of this during the single contact he observed on 10th March 2014 even taking into account the gap of six months after June 2013 (when Miss G did not have any contact and had, therefore to rebuild her relationship with A) and taking into account the fact he had observed only one contact, Dr. Willemsen was clear about his assessment and analysis. There was something, he concluded, intrinsic in the mother that stops A from attaching to her. What he observed was that the mother's world does not resonate with that of A. He stood by his conclusions which he noted were very much replicated in the work that had been carried out after his involvement:
What I am, and remain very worried about, is Miss G not being able to manage [A's] distress in contact. This ability to tune is not something that is in the mother". [Dr Willemsen oral evidence]
- Dr. Willemsen had read extensive and additional contact notes that reflect some physical closeness between Miss G and A. He agreed there were moments where contact and their relationship seemed good, but even on reading those notes his opinion remained clear that contact was being carried by those who were observing. He gave examples of this [eg at pp.135, 149, 154 and 165]. This reflected the dependency he observed. It is not only about seeking help, but also about the fear of doing it herself and mother's capacity that she might not be able to do it.
- Dr. Willemsen's overall clear conclusion was that if A was in the care of her mother her emotional development would be at risk and he would fear for her physical and emotional safety.
- He also drew attention to attempts by Miss G and the maternal grandmother to draw A into conflict concerning the father and he noted it would be very important that the conflict is kept away from A.
- Dr. Willemsen concluded his evidence by expressing the importance of Ms G's being supportive of A's placement with her father if this is the outcome of these proceedings:
Miss G needs to be able to support the plan for A to be with her father, if this is the outcome of the court hearing, even though she does not agree with it. Social services will need to be clear with Miss G and work with her towards her being able to support the placement. It will be a huge adaptation for A to go to her father, and if anything she will need her mother at contact to support that. It is extremely important for the child.
- Miss G is to be applauded for presenting well for her assessment with Dr. Willemsen and on time. He was impressed with how she made every effort to engage and she responded well. But Dr Willemsen remained fearful that Miss G would neglect A and particularly her emotional needs. A simply cannot find "that latching on with her mother". This is more intrinsically about her mother than A. Dr. Willemsen was very clear about this risk in evidence:
A would not form a secure attachment, possibly an avoidant or insecure attachment. It is not so much disorganised, not so much aggression that A will meet in Miss G, but it would be more an absence of emotional availability and the consequence of that is you will see a child develop in a way where she internalises relationships. The harm to A would be severe. She would not form these attachments. It would not work for her to be with her mother. The treatment for Miss G is bound to go very slowly, and it will only work if Miss G really engages with it.
- Dr. Willemsen's conclusions were consistent with those of other professionals, and he confirmed that had he needed to observe more contact, he would have asked to do so.
- Dr. O'Rourke assessed Miss G in October 2014. As with other assessments, Miss G arrived promptly and engaged in the assessment process. She confirmed that English was her preferred means of communication and she confirmed that she could hear Dr. O'Rourke (Dr O'Rourke noted that the medical records did not match Miss G's presentation and language)
- Dr. O'Rourke similarly concluded that Miss G could not care safely for A. Miss G has limited coping skills at times of crisis, albeit that with appropriate support she appears to function well on a day to day basis. She presents as someone who is keen to please, who does not want to make a fuss and who lacks confidence with professionals.
- There were positive aspects to Dr. O'Rourke's assessment of Miss G. Miss G presented as warm and friendly. If carefully dealt with, Miss G could be taught; albeit timescales would be difficult for A and Dr O'Rourke disagreed with the Mencap assessment of Miss Ferdinando that Miss G could only focus on things in the present.
- Dr. O'Rourke's role was to consider mother's cognitive ability and not, as she accepted in cross examination, to question or review the validity of the fuller assessments in respect of emotional functioning. Dr O'Rourke deferred to Dr. Willemsen in respect of all issues concerning parenting capacity and parenting assessment. She had not been asked to consider Miss G's parenting.
- Lynne Ferdinando of the Sycamore Trust (formerly Mencap) carried out two assessments of the mother. Again, there were positive points from these assessments. Miss G attended punctually and tried her best for the majority of the time. There was no doubt, said Miss Ferdinando, that Miss G loves A wholeheartedly. Miss Ferdinando noted that, overall, contact was fairly positive. She did not find Miss G difficult to understand. That is important when one considers the difficulties that mother had in accepting the accuracy in some respects of Miss Ferdinando's recordings. Miss Ferdinando and her team observed some warmth between A and her mother but, as with Dr. Willemsen, they also observed difficulties in this relationship and in A's bonding. Miss Ferdinando's assessment was carried out over a very lengthy period of time; the team had hoped to have seen some more emotional attunement and more warmth develop but this did not happen. There remain concerns in most areas of Miss G's parenting, even in basic care - feeding, nappy changing, safety – as well as in communication, language and stimulation, reasoned stability and emotional attunement.
- The overall outcome of their assessment was, sadly, negative and Miss Ferdinando concluded that the hurdles for this mother are just too great. The fact she loves A wholeheartedly does not mean that she can care safely for her. Love on its own, said Ms Ferdinando, is not enough and, although Miss G has made some improvement in some areas, these improvements have not been sufficiently significant. The assessment highlighted Miss G's inability to take on board and apply advice. She continues to need fairly constant prompting. As Miss Ferdinando put it, what happens when someone is not there to give advice 24/7?
- Although Miss Ferdinando agreed that a bespoke specialised parenting could be devised, this would not benefit Miss G. Miss G needs considerably more than such a course to build upon her parenting skills. A would come to physical and emotional harm in Miss G's care. Ms Ferdinando highlighted, as did Dr. Willemsen, mother's vulnerability. There is a significant risk that this mother could befriend people who are not safe for A. At the moment, A is a very bright little girl and she needs to be able to develop but she would falter developmentally in mother's care.
- These are the significant areas of concern about Miss G's ability and capacity to care for A that arose from Lynne Ferdinando's assessment:
- her difficulties in bonding
- her basic skills were inconsistent
- her inability to 'pick up' on A's cues
- her inability to learn and transfer skills
- her capacity to meet the emotional needs of and be attuned to those A
- her lack of emotional warmth
- her capacity and ability to stimulate and manage A for anything other than very short periods of time
- her significant difficulties in moving on and keeping up with A's developmental stages
- Miss Ferdinando also observed competition between Miss G and her mother which was very confusing for A - it was almost as if the maternal grandmother was taking on the primary role at times - and Ms Ferdinando and her team would be concerned about Miss G's plan for her to be the main carer for A with her mother supporting her. They would not be consistent in their parenting. Not only do they live in very different geographical areas but they also have a different approach to parenting. Ms Ferdinando was further concerned that the relationship between the mother and grandmother had only been rekindled in very recent months. She concluded that, together, Miss G and her mother could not manage the care of A successfully. Even in a period of two hours problems arose. The grandmother was not, as Miss G contends, taking a back seat. Miss G lacks confidence in her parenting skills and to some degree she is controlled by her own mother. It was noted, for example, that Ms G made less progress when her mother was present. For future contact, Ms Ferdinando recommended a pre-contact session for Ms G a week before each contact to teach her and help her; for example, teach her a game, cook, talk about how to keep a child safe. A will be developing and changing quite rapidly and Ms G will need help to try to move with her. Help and advice should also be provided for Ms G after contact sessions, as well as before.
- Of relevance to other matters I have to determine, Ms Ferdinando found Miss G to be untruthful at times - for example, in the account she gave about her own mother. During the assessment Miss G also made serious allegations of abuse against her uncle, saying he had abused her throughout her childhood and that her mother allowed that to happen. Miss G had claimed her brother had joined in with this abuse. The mother described her childhood as lonely and isolated. As Miss Conn submitted on behalf of Mr. C, and as she put to Miss Ferdinando, either Ms G is lying or has convinced herself that these allegations are true. If they are true, it would be wholly inappropriate for the grandmother to be involved with caring for A. Miss G now denies she said these things to Miss Ferdinando and denies her family abused her in the way described. Having had the benefit of hearing Miss G's evidence and that of Ms Ferdinando and other witnesses, I find that Miss Ferdinando was an accurate witness who had correctly recorded what mother had told her during the course of her assessment. Where there were differences between what Miss G said she said to Miss Ferdinando and what Miss Ferdinando's recollection was, I prefer and accept the evidence of Miss Ferdinando.
Expert assessments of the father:
- I do not propose to reflect in this judgment the same level of detail and extent of the expert assessments of the father because all the experts who assessed the father, namely Dr. O'Rourke, Dr. Cornes, Suzanne Robinson, ISW, are consistent in their conclusions that they have confidence that he will be able to care appropriately and safely for A. I have, however, reviewed and taken full account of their reports and evidence. Dr. Cornes did not give evidence at this hearing but I have had the benefit of not only reading his reports but also of reading the transcript of his evidence in an earlier hearing.
- Before turning to these experts, I cannot ignore the fact that it was highly unfortunate that, following the appeal, the local authority insisted on the instruction of Miss Marinnan, as the independent social worker to assess the father. As Miss Conn submits, this is reflective of the local authority failing to take on board the judgment of McFarlane LJ and the fundamental principle that, as a profoundly deaf parent, this father requires specialist assessment, that being a reasonable adjustment within the meaning of the Equality Act 2010, and such reasonable adjustment being a legal duty owed to him. Miss Marinnan's instruction was not only erroneous and a complete waste of funds but it also resulted in the manifest waste of time Miss Conn describes. This delay was wholly disproportionate and contrary to the welfare interests of A and prejudicial to the father's position. Ms Marinnan's area of expertise could and should have been ascertained before she was even advanced as an expert of choice. A simple phone call could easily have established this.
- It was as a consequence of Ms Marinnan's being unable to help that Suzanne Robinson came into the case as the independent social worker who provided a detailed and extensive assessment of the father and identified the areas of support he would need. She too, like other experts, emphasised the importance of the father's having confidence that he will be viewed by the local authority in a manner that is not hostile:
I would argue that the local authority have worked with Mr. C in a manner that is hostile and judgmental, rather than taking a holistic view of the strengths and weaknesses of his parenting and managing the risks accordingly. It is also extremely unfortunate that they did not act upon the recommendations of Miss Anderson and initiate parenting training and further assessment using deaf professionals whilst A was only a few months. Timescales have now slipped considerably as A reaches her second birthday. [Ms Robinson's report : para 8.23]
- Dr. O'Rourke concluded that this father does not have any mental illness, personality disorder or learning disability. He does show difficulties in working with professionals and understanding their concerns about him but these difficulties can be overcome if he is approached and helped with the right level of expertise and the right means of communication. There is nothing that would preclude his ability as a parent. Similarly, Dr. Cornes concluded that this father has no significant difficulties to provide basic care. He can ensure safety, emotional warmth, stimulation, guidance, boundaries and stability for A as a sole carer.
- It is inevitable however that, as a profoundly deaf parent, Mr. C will have gaps in his knowledge, particularly in respect of his difficulty in accessing incidental information on everyday matters and, as Mrs. Robinson explained, generic words such "risk" and "abuse" are difficult for him to understand.
- Ms Robinson's assessment of the father was positive - he can parent A well. She supports the placement of A with him but he needs, and must have, she said, a detailed and bespoke support package. It is vital that he is not set up to fail. Ms Robinson did not share the mother's concern that the father would return to Portugal in the near future. He had been consistent throughout with her that he prefers to live in Britain. He had said that the only reason he had been thinking of returning to Portugal was for the support of his parents but he now realises there is much more support for him here. Nor did Mrs Robinson agree with mother that once the local authority was no longer involved, the father would not promote contact. She accepted that her assessment revealed the father has limited understanding of mental health, and that he did not appreciated the mother's difficulties after giving birth. Mrs. Robinson described how, when she explained to Mr. C that it was not good for A to hear from him that her mother was "bad", it was like a "light bulb" moment for him - he had not thought about this in the context she put before him. Having heard the father's evidence, however, whilst I do not find that the father has any intention to return to Portugal other than for holidays, I do not share Mrs. Robinson's optimism concerning the father's attitude to contact and this remains an area of work that needs to be undertaken with him.
- Mrs. Robinson supported the revised timetable for rehabilitating A to her father's care to six weeks, but highlighted there are what she called 'red flags' for him with this. His lifestyle will need to change considerably. He has to adjust to being a single father, which is new for him and, although he has experience in caring for his niece and nephew, it will be a steep learning curve. The father is motivated and very willing to do whatever is asked of him. It is vital that professionals who are themselves deaf are involved in working with him and that these deaf professionals help give feedback to him as to how rehabilitation is going. The father needs a conduit so that he will feel he is being listened to and the local authority will understand his perspective. It is also important the father is not overloaded and for there to be bespoke awareness training for the social workers. This is not a case where 'off the shelf' training will suffice as had been proposed by the local authority through their three and a half hour course. It was during this hearing that Mrs Robinson heard for the first time of the local authority's proposals for such deaf awareness training. This had not been what she had recommended or intended. The social worker working with this family needs a bespoke deaf awareness training to help with the particular issues this father will have with parenting. These issues will be challenging for the father. It is challenging being a deaf parent, and the social worker needs to learn how to communicate with him. He needs the training broken down into a different format. As Mrs. Robinson highlighted in her report [p.16], Mr. C's style of communicating requires a high level of cultural and deaf understanding; interpreters need to be aware of the need for cultural mediation when they are voicing over his signing. Mrs Robinson is able to deliver a bespoke training package and, by the end of the hearing, the local authority agreed that she should be the person to train the social workers who will be involved with the family and working with the father.
- The contribution of these experts to this case has been fundamental and essential. It has directed and reshaped this case and A's future placement. Their opinions and conclusions are based on accurate and sound assessments and have been informed by a wealth of information and evidence.
The local authority's contribution
- The local authority professionals have had and continue to have extensive concerns about Miss G. She did not engage with professionals and has continually needed prompts to care for A. She has declined adult services in psychotherapy, advice and counselling. It is said she does not show any degree of insight into the valid concerns of the local authority.
- Carla Gross, the targeted family support worker, noted that the mother was not bonding with A when she met her in August 2012 and that she did not want to be left alone with A. The mother said she feared she might hurt her. Miss Gross was rightly concerned about that. The mother also reported that she had experienced physical and emotional abuse from the father and claimed she had been punched in the head by him during the previous incident. Extraordinarily, despite the mother's making it clear that she intended to raise her child with Mr. C and despite the fact that Mr. C was registered on A's birth certificate and has parental responsibility, Miss Gross did not attempt to have any conversation with him. This was, she said, because of Miss G's allegations of domestic violence. Ms Gross told me her remit was to support the mother with her unborn child but this does not begin to excuse or justify her failure to make any attempt to communicate with the father. Miss Gross's failure to speak with the father represented, as Miss Conn submits, a major failure on the part of the local authority to assist this family and was the beginning of the father being excluded at that time from gaining access to essential information. He was effectively sidelined in the local authority's involvement and excluded from their planning for A.
- This failure was compounded by Carly Walsh, the social worker to whom the case was transferred. Although Miss Gross had flagged to Carly Walsh that A's father was unaware of the involvement of social services, and that mother was stating she wanted A to be in foster care, Miss Walsh did not recognise that as a serious flaw; nor did she seek to rectify the failing. There was still no consultation or communication with the father. There was no assessment undertaken as to whether or not he could take care of A or whether indeed he was able or willing to do so.
- Moreover, no attempt was made to ascertain if there were any close family members; for example, AC could have been approached to ask whether or not she would take on the care, even on a temporary basis, of A.
- What Miss Walsh did, in fact, was to take a decision to prevent Mr. C from having contact with A and seeing his daughter at the hospital. Furthermore, she then proceeded to ask both mother and father to sign s.20 agreements for A to be taken into voluntary care with the mother acting as an interpreter for the father; even though she knew the mother was making allegations against him.
- The course taken by these two social workers was wholly inappropriate and prejudicial to the mother, father and A. The mother had already been identified as vulnerable. She had difficulties expressing her own wishes when faced with demands from others. She had also been identified as an unreliable historian. The father, too, was vulnerable but no steps were taken by the local authority to ensure that his interests were protected and that he was not prejudiced.
- Due to what she described in evidence as the 'complexities' of this case, Miss Walsh continued as the allocated social worker for some months after the first hearing but the nature and manner of her working with and assessment of these parents did not match the complexities she said she recognised.
- There are some issues of fact that require determination concerning Carly Walsh and the mother which I address at this stage of my judgment. Carly Walsh confirmed she did not have any difficulty understanding the mother's speech. She said if she was upset she would wait for her to calm down and she could clearly understand what she was saying. She was quite clear that' on 20th August 2012 the mother had left the hospital and did not inform anyone before she did so. The nursing staff only realised the mother had left when they found A alone and unattended by the mother. The mother claimed in evidence that she had been advised by the hospital staff to leave as she, the mother, was extremely tired. The mother told me she had been told to go home to rest and did not need to return until the following day. This was not what she had told Miss Walsh. New mothers do get tired. On these occasions, nursing staff care for a baby while the mother rests. It would be an extraordinary position if a member of the nursing staff advised a new mother to abandon her baby and go home. The mother was not truthful in her evidence about this. On this issue I accept the evidence of Carly Walsh. Mother effectively abandoned A at the hospital for a short period and left, not telling anyone she had done so. The staff did not know where she had gone and she could not be contacted.
- Miss Walsh was also very clear that the mother was adamant that she wanted to return to the father and would not go to any mother and baby placement. She would not have considered that option. She would not stay in hospital even for one night and wanted to return to the father; she wanted for A to be cared for elsewhere.
- In cross-examination Miss Walsh reluctantly conceded these matters:
- she had not carried out any direct work with the mother or father
- she accepted that there had been a lack of adequate interpreters
- there had been in addition and insufficient account taken of the father's disability
- she agreed she had reached conclusions and made assumptions adverse to this father (for example, regarding the allegations made by the mother) without paying adequate attention to and taking account of the inconsistencies in the mother's accounts, the police reports which contradicted the mother's version of events and the concerns amongst a number of professionals that the mother was not an accurate historian.
- Miss Walsh was a very defensive witness. She was reluctant, even in her evidence during this hearing to accept the clear failings and errors there had been in her approach to the father. She remained dismissive of his concerns and demonstrated little understanding of or insight into the ways in which her approach to this father had been flawed, prejudicial and wholly inappropriate. Essentially, Miss Walsh overlooked this father's disability and, importantly, the means by which communication with him should have been taking place. Despite these failings and her defensiveness, however, I find she was a truthful and honest witness and, where there are differences, in her evidence and that of the mother, I prefer and accept the evidence of Miss Walsh.
- Miss Walsh was also truthful when she noted that this mother was an unreliable narrator to her; she helped in explaining that the mother had given different accounts to different professionals.
- Sean Dixon was the social worker between 2012 and April 2013. It appears on the chronology that at the second issues resolution hearing during the first proceedings on 1st May 2013, the local authority informed the court that he had been taken off the case as a result of "going off piste and ill health". Despite considerable direct involvement with this mother and father for about six months, no statement or records from him have ever been produced; a further failing by the local authority. Mr. Dixon remains in the employment of the local authority and is now based in the adoption team. He confirmed to me that he had been willing to make a statement but he had never been asked to do so by the local authority. This placed these parents at a disadvantage within these proceedings. Despite Mr. Dixon's recollection being somewhat weak and having faded, he confirmed that he had seen no sign of the father's having a quick temper or the father becoming angry easily.
- Throughout his period of working the case, the mother had denied to Sean Dixon any domestic violence and he disagreed with the mother when it was put to him on her behalf that she had maintained throughout that she was a victim of abuse from the father. Moreover, Sean Dixon worked very hard to find the mother alternative accommodation when she had said she wanted to live elsewhere. The mother lied, in my judgment, when she said that she had had nowhere else to go. She had had another property which could have met her needs.
- In his meetings with the mother and father, Sean Dixon described how it would be the mother who took the lead and not the father; and he saw no hint of any control by the father of the mother. If anything, the reverse was the case. His experience of both these parents was that they engaged very well. He expressed his concerns that this father had been placed at a disadvantage by the local authority because of his disability. He told me, "It became quite apparent that due to his hearing we, as a local authority at the time I was involved, did not give him all the facilities or options to put across his points".
- Prior to Mr. Dixon being removed from this case, the local authority was planning for mother and A to be assessed in a mother and baby placement, but their proposal changed overnight following Mr. Dixon's departure to one of carrying out a short in-house standard assessment of both parents. In this respect, particularly in respect of the father, this was wholly contrary to the recommendation of the deafness experts who had so far reported and that was a failing highlighted by the Court of Appeal.
- It is highly unfortunate that Sean Dixon was removed from the case and was unable to carry on. I do not know if he was unable to carry on primarily because of ill health but he had a good understanding of the complexities presented by this father's disability and a good working relationship with both parents.
- Sheryl Montack gave evidence in respect of the care plan, and I will address her evidence when I consider with the future plan for A.
The law
- Care proceedings involve two principal questions. First, are the threshold criteria for making a care order under s.31 of the Children Act 1989 satisfied? Secondly, if so, what orders should the court make?
- Section 31(2) provides:
"A court may only make a care order or supervision order if it is satisfied—
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(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; or
(ii) the child's being beyond parental control."
- The principles of law I have applied in respect of the threshold and fact finding elements of this hearing are these:
(a) The burden and standard of proof.
The local authority brings these proceedings. It is for the local authority to prove its case. The mother against whom the findings are sought by the local authority does not have to prove anything.
In respect of the mother's allegations against the father, these are for her to prove. She must prove her case against the father. He does not have to prove anything.
The standard of proof, or the test to be applied, in respect of both the local authority's threshold and the mother's allegations against the findings is the balance of probabilities - nothing more, nothing less. All future decisions concerning A's welfare will be based on the findings made. If the local authority or mother fail to prove the matter alleged, the court will disregard that allegation completely. As Lord Hoffmann said in Re B:
If a legal rule requires the facts to be proved, a fact in issue, a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1.
(b) The findings of fact in these cases must be based on evidence.
"… [It is an] elementary proposition that findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence) and not on suspicion or speculation." Munby LJ Re A (A child: Fact finding hearing, speculation) [2011] EWCA Civ 12:
(c) I not only take into account all the evidence but also consider each piece of evidence in the context of all the other evidence.
"Evidence cannot be evaluated and assessed in separate compartments. A judge must have regard to the relevance of each piece of evidence to the other and exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof …" [Dame Elizabeth Butler-Sloss LJ Re T]
(d) Whilst appropriate attention must be paid to the opinion of experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is for the court to weigh up expert evidence against the other evidence.
(e) When considering issues of credibility, I remind myself there are many reasons why a person in proceedings such as these might lie. They may do so for a whole host of motives, not necessarily because they are culpable, but, for example, to protect someone else, to bolster a just defence, or out of shame or a wish to conceal bad behaviour. The mere fact that an individual lies is not, in itself, evidence of guilt. It would almost never in this situation be sufficient evidence of culpability or proof to establish that someone has lied. It is, as has often been said, a more subtle and delicate process than that.
- The principles of law that I apply in respect of welfare are these:
(a) A mother and father have rights under Article 8 of ECHR to respect a family and private life.
(b) A's welfare is my paramount consideration (s.1(1) of the Children Act 1989).
(c) Any delay in making decisions concerning A's future is likely to prejudice her welfare (s.1(2) of the Children Act). The delay in this case has already been detrimental to A's welfare, and the decisions regarding her future are urgent and long overdue.
(d) In determining where A's welfare lies, and what order, if any, should be made, I must consider the welfare check list under s.1(3) of the Children Act, and in this particular case particularly A's physical, emotional and educational needs, the likely effect on her of any change in her circumstances, any harm which she has suffered, or is at risk of suffering, and 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. I have that checklist firmly in my mind throughout this hearing.
I have also considered Re L [2002] 2 FLR 730, Re M (a Child) [2012] EWCA Civ 1905, Re C and Re B [2013] 1 WLR 1911 and Re KD [1988] 1 All ER 577.
[Short adjournment]
Threshold
- By its Schedule of Findings dated 7th November the local authority sought determination of seven allegations:
(i) The relationship between the mother and father has been unstable, and A was likely to suffer significant harm as a result of being exposed to such instability.
(ii) The father and mother have had difficulties in being able to communicate effectively with each other and co-operate in the best interests of A.
(iii) the mother failed to be open and honest with professionals about the status of their relationship (as amended)
(These three findings were not, in fact, pursued by the local authority at the hearing, although the mother pursued those elements that related to her allegations of domestic abuse perpetrated by the father against her)
The following findings were pursued:
(iv) the mother was not able to give consistent parenting to A as a result of which A was likely to suffer significant harm.
(v) the mother's vulnerability as an adult is likely to have impacted adversely on her ability to parent A.
(vi) the mother was unable to co-operate with services to support her, which impacted upon her ability to parent.
(vii) The practical care offered to A when she lived with her mother and father was, at times, neglectful. This may have been due to a lack of awareness and understanding rather than intent - for example, the mother was unaware that the bottles needed to be sterilised.
The mother's position
- During the hearing the mother accepted that threshold was crossed but not on the basis advanced by the local authority. The psychiatrist and expert evidence to which I have already made reference, refers to the mother's childhood and upbringing and the impact her own experiences have had upon her. It is difficult to know where the truth lies in respect of the various histories the mother has given about this. In evidence she sought to play down and minimise her earlier reports of a very difficult and troubled childhood. She had reported being seriously assaulted by her brother and uncle and claimed her mother had failed to protect her from that abuse. In her oral evidence, she minimised this abuse and sought to back-pedal. She said she had been assaulted on only one occasion, and there was "only one bad day" when her family had abused her. She said there may have been a few "hiccups". This was very different from the picture she painted of her upbringing during her assessments. During her evidence before Judge Turner QC, she claimed her family had neglected her, had controlled her and abused her; that was a reason for her severing ties with him (again matters she now denies). She explained to me she had told lies before Judge Turner QC because she was not in the right state of mind when she gave evidence.
- Both versions cannot be true. Either the mother has lied during her assessments and to Judge Turner QC about her upbringing or she is lying now. Moreover, the mother claims that it is the professionals who have misunderstood and who have been in error in writing down things that she had said. As noted above, she denied matters for example during this hearing she had reported to numerous professionals about her upbringing.
- The mother also fabricated and told lies about her twin sister. She does not have a twin sister. She accepted she had lied about this when she told Judge Turner QC that she had not seen her twin for two years. During this hearing she tried to say that insufficient account had been taken of her difficulties with speech. I reject that explanation.
- The mother further minimised the difficulties in her relationship with her own mother, describing the falling out between them as "minor" when their falling out was such that they did not speak to or want to see each other for over two to three years. She said they are now "getting on fine" and they have no issues - again, further minimisation by the mother.
- The mother does not accept what the professionals say about her difficulties in caring for A and does not accept, therefore, any element of threshold that goes to this issue. She says her basic care is good. She does not agree she had problems with nappy changing, feeding, language, supervision, stimulation or emotional attunement.
- During her evidence before me, she apologised for having lied and given false evidence before Judge Turner QC. Looking back, she said she regretted this. She did not know how to react or respond. She said she felt scared and terrified of what would happen and that she had felt terrified and powerless throughout. I return to that matter in a moment when I deal with the allegations she brings about the father and, in particular, her new evidence that she said that she was under pressure from the father who signed to her during the course of evidence. Her position in respect of the local authority's threshold is that she disputes much of what they say about her and blames the father for the threshold being crossed.
The father's position
- The father accepts that when A was born, with all he knows now, the mother placed A at risk. He told me he did not know at the time the full extent of her background but looking back he can see that she did not have the knowledge to look after A properly. He also accepts that, looking back, he could have done more to step in but it was difficult because the mother would make plans with her friends and he was unaware of what was going on. He felt very much pushed out of things and was not allowed to be involved.
- The father does not believe the mother can look after A safely and says the local authority is right to be concerned. He says she is not responsible enough and cannot parent A properly. She needs a lot of help and does not have the knowledge. He claimed that, when A was a baby, the mother was not interested in looking after her. He even went out to purchase some milk so that she could give A the right formula but she still could not manage to feed her properly. Most mums, he said, had an innate ability to care for their baby but this was lacking in this mother.
- The father accepts he should and could have taken more responsibility when A was born than he did and he says he should have shown more interest in her. In addition to some uncertainty about paternity, it was the mother's own actions that caused him to step back.
- The father accepted in evidence that he had seen A five times a week and he also accepted that he had written to the local authority asking for that contact to be reduced. The mother contends that, rather than her being neglectful of A, it was the father who neglected and showed a lack of interest in their baby.
- I have highlighted the relevant factors that go to threshold in respect of the professional evidence from the local authority and the expert evidence, evidence which I prefer and evidence from the mother I largely reject as untruthful and inaccurate. I return to the mother's evidence in respect of the allegations she makes about the father in due course, but where there are any differences between the evidence of the mother and the father in respect of matters going to threshold, I prefer and accept the evidence of the father.
Findings
- When giving my Key Findings on 10th December 2014 I emphasised that:
These key findings are not to be taken in isolation to additional findings and observations detailed in the substantive judgment. These findings are sufficient at this stage to explain the basis on which s31 threshold is met and support welfare decisions I make now in respect of A's future placement. A has already suffered unacceptable and disproportionate delay in decisions being made regarding her future that has resulted in her remaining unjustifiably and unnecessarily in foster care since she was a few days old. Further delay cannot be countenanced
Threshold Findings
- My findings in respect of threshold were given and handed down in a typed document. They form part of this judgment verbatim, as if the same have read out. They are as follows:
The relevant date is 7th September 2012 when the local authority issued proceedings.
It is noted and needs to be recorded that the local authority does not seek any findings in respect of threshold adverse to the father. In particular, his lack of insight into and his failure to recognise and 'take on board' the difficulties the mother was experiencing in caring for A, his failure to take more responsibility for A at that time and his decision to reduce the number of contact sessions he had with A so that he could secure employment to provide for his family, are not sufficient in this case to justify and establish threshold findings against him.
Similarly, whilst the relationship between the mother and father was unstable and marked at times by arguments, these were not such as to place A at risk of significant harm. Breakdown, instability and arguments in relationships are, as submitted by Ms Conn, commonplace. They do not necessarily place a child at risk of significant harm. They did not do so in this case and the local authority does not pursue a finding as to threshold against either parent on this basis. (I have made separate findings in respect of the parent's relationship, as set out later in this judgment)
For the avoidance of doubt, Findings 1, 2 and 3 of the local authority's Threshold Schedule dated 18th November 2014 are not established in respect of s31 threshold and are not now pursued as such.
Furthermore, as Ms Conn submits, the court is not constrained by the threshold heading formulated by the local authority. I have heard a great deal of evidence during the course of this hearing relevant to threshold and my findings are not limited to the local authority Schedule.
I find s31 threshold satisfied and established as follows:
At the relevant date, 7th September 2012, A (born 16.08.2012) was likely to suffer significant physical and emotional harm. The likelihood of harm was attributable to the care that would be given to her by her mother if an order was not made, not being care that it would be reasonable to expect a parent to give.
The likelihood of A suffering significant physical and emotional harm arises as result of the following:
1. M was unable to provide and meets A's basic needs and ordinary day to day care from birth consistently, for example in respect of feeding and clothing. M expressed concern herself on 22/08/12, four days after A's birth, about her ability to care for her. The mother did not and was not able to provide a sufficient level of consistency of care for A. The practical care offered by the mother to A was at times neglectful as a result of her lack of awareness, understanding and parenting capacity, rather than any deliberate intent. As subsequent expert assessments revealed, the mother was not able to meet the needs of A or able to provide a sufficient level of care for her.
2. M was not able to cope following A's birth; either for herself or for A. She was unable to prioritise A's physical or emotional needs. On occasions she left A to the care of nursing staff at the hospital, and left the hospital leaving A unattended. I reject her contention that the staff advised her to go home. M repeatedly expressed an intention to relinquish care of A and her desire for A to be adopted or to be placed in care. She also expressed concern she might hurt A if left alone with her.
3. The collective assessments and evidence of the experts, and in particular, Lynn Ferdinando of Mencap / Sycamore Trust , Dr Willemsen and Dr O'Rourke highlight the deficits in the mother's parenting capacity and the impact her psychological functioning has on this capacity, to the extent that A was likely to suffer significant physical and emotional harm in her care.
4. M was and remains a vulnerable young woman. Her vulnerability is likely to have impacted and continues to impact adversely on her ability to parent A:
(a) M was known to social services prior to A's birth. In May 2011 she presented at Queen's Hospital, London, with suicidal thoughts. When referred to mental health services she reported suicidal thoughts, regular mood changes, anxiety and depression.
(b) Wherever the truth of the mother's allegations against her uncle, brother and mother lie, it is plain M had a troubled and damaging childhood; a considerable legacy for her of unresolved psychological issues.
(c) M has severe learning difficulties in respect of her cognitive functions and has a mild learning disability. The combination of the mother's psychological functioning and her cognitive functioning renders her vulnerable as an adult.
(d) M has had difficulties making decisions in respect of safety and precaution.
5. The mother has been unable to co-operate with services provided to support her which impaired and impacted adversely on her ability to parent.
I reject M's contention that she was not offered any help by the local authority. She was offered a considerable amount of help but chose not to accept it. M either did not engage with or refused help offered. For example, she repeatedly stated that she wished to remain in a relationship with F and did not want the services and support offered to her (she declined, for example, to take up help with Refuge Women's Aid and family support worker). Further, the mother agreed to engage with psychotherapy but did not follow this up.
6. Findings 4 (in relation to the mother), 5, 6 and 7 on the local authority's Schedule of Threshold Findings dated 18th November 2014 are established.
The mother's allegations against the father
- Miss G alleges the father was verbally and physically threatening and abusive to her throughout their relationship. She alleges he was very controlling of her. More recently, she has alleged that she saw the father slap A on the leg outside Barking station at the end of August/beginning of September 2014 during supervised contact. She sets out her allegations against the father in the Schedule of Findings at A247-251 and she provided further detail in the statement I directed be filed at the beginning of this hearing.
- The local authority does not seek findings in respect of any of the matters the mother raises against the father. The local authority, guardian and experts' position is that, even if all the allegations raised by the mother against the father are proved, that would not cause them to change or to withdraw support for the plan to rehabilitate A to father's care but they would expect the father to undertake domestic violence work. All parties say, however, that clarity about the nature of the relationship between the mother and father and findings in respect of the mother's allegations is necessary in order to inform the professionals in working with the parents in the future. The need for the factual matrix of their relationship to be established was highlighted by the mother's own evidence when she told me, "If A is placed with her father, everything I have said will need to be looked at again". These allegations will be determined now, not in the future, one way or another through this hearing.
- The father denies all the allegations, save that he accepts tapping or prodding mother's head but not in the circumstances the mother alleges. He says he does not have a bad temper, he did not get irate and angry with her. As a deaf person he uses facial expressions; but he did not get angry. He believes the mother is motivated by jealousy and is fabricating allegations against him. He gave an example of the mother's using his mobile phone to send texts to the Job Centre as if they had come from him in April 2012. When the police arrived, he did not understand what was going on. They asked him to sign a piece of paper and he had no opportunity to read it, did not understand it and signed it. He gave that as an example of the mother taking steps against his interests without his knowledge.
- Before turning to the mother's specific allegations against the father, I consider relevant matters relating to their relationship and to particular features of their evidence:
- Date of separation: This matter is not, on the face of it, a significant event in itself. Its significance lies in the credibility of each of these parents, the mother and father. The father says they have lived apart since 7th May 2013 when the mother moved out, and their relationship ended shortly before that in April. The father said he ended the relationship because he did not love the mother any more. He explained to her his love had finished and it was best they ended their relationship. He felt patronised and taken advantage of because of his deafness and the mother's seeing him as a 'soft touch'. He wanted to continue as friends but the mother was very emotional and wanted the relationship to continue. He said he was shocked when he found out about the allegations she had made and he felt their friendship had died.
- The mother says they separated in December 2013. She says she lied about their separation before Judge Turner QC because the father had wanted her to lie. He had been physically and verbally abusive to her throughout the relationship. She feared for her own safety if she did not do as he said. She further claimed that her solicitor at the time knew what was happening but gave her no support. When challenged about that by Mr. Bain on behalf of the local authority, to the effect that there was no suggestion at the hearing in June 2013 that she was frightened of the father, the mother claimed she was trying to keep as calm as she possibly could but, deep down, she was frightened and terrified. It was at this point during the course of her oral evidence in this hearing that the mother said, for the first time, that the father had placed her under pressure when she was giving evidence and that, unbeknown to anyone in the court room, while she was actually giving evidence he had been signing to her behind the back of his counsel and telling her what to say. No one had seen or picked this up. Miss G had not alleged this before, either during the last hearing, in any of her statements for this hearing - not, for example, in para.5 of her statement when she explained why she had lied herself during the hearing in June 2013 - nor is it included in her schedule of allegations against the father. It did not arise and she did not make any reference to this until she was being cross-examined. She claimed father was physically signing, telling her what to say, what not to say. When it was put by Mr. Bain to the mother that she had given her evidence in two parts on 6th June and on 7th June, she claimed he had signed to her on both days. At no point did Miss G stop and indicate that the father was signing to her and she did not mention it to anyone overnight. When she resumed her evidence on 7th June 2013, she kept quiet about his signing and she said she was being placed under pressure by him.
- The father denies signing to her. The mother's testimony about this was, frankly, unbelievable. She made that up in the course of her own evidence. The father's BSL interpreter, an experienced court interpreter and indeed court trainer for other BSL interpreters was sitting next to him during the course of the hearing in June 2013, as she has been during this hearing. It is inconceivable that she would not notice, and if notice, would not stop her client from signing to a witness in the middle of their evidence. The simple fact is that the mother has fabricated her evidence about this during this hearing to try to advance a false explanation for her own lies on oath and in so doing advance a further allegation against the father.
- Arguments during their relationship. The father denied he and the mother argued. This is contrary to what he said to Mrs. Robinson. I do not accept that Mrs. Robinson was mistaken about what the father was telling her. She refers to the father as having spoken to her about arguing with the mother. Despite very careful and close cross-examination of all the witnesses on his behalf, Mrs. Robinson was not challenged about this, and it was not suggested to her on behalf of the father that she had misunderstood or misinterpreted what he had been saying. Mrs. Robinson was acutely aware of the father's disability and was astute in ensuring she did not misunderstand or make a mistake. I find she was a careful and credible witness and I prefer her evidence to that of the father on this matter.
- The father denied keeping the mother isolated or being controlling of her. He had not been privy to the information provided by the mother to social services and says the mother has given a wholly false picture of their relationship. He was not able to correct that as he had no means of communication open to him to have that dialogue with the local authority and had been sidelined by them. He had no advocate, no support worker, no interpreter.
- Carly Walsh had wanted the mother to be his interpreter and, not surprisingly, he was not able to accept that. He said he tried to tell Carly Walsh his side of events, but she had told the mother to tell him to leave the contact centre because he was not the father.
- Evidence of the mother during the hearing before Judge Turner QC. I have already referred to the fact that the mother has accepted she clearly lied in denying domestic violence and abuse when giving evidence before Judge Turner QC if what she is now saying is, in fact, true. The mother was unconvincing when she claimed she had lied about that, that she was terrified and did not know how to react. I find she was lying in her evidence during this hearing. The mother also lied in denying she had been offered any support. She had, contrary to her assertions, been offered help with housing from the domestic violence team and from other resources. The reality is that she was offered considerable support but chose not to follow this up or accept it.
- Despite what the mother alleges through her allegations she continued to prepare with father for the birth of A, and she planned to care for A jointly with him.
- It was also plain to various professionals (as indeed as it was during the course of this hearing) that the mother had no desire to remove herself from her relationship with the father. Whatever help she had been offered she rejected. Whatever help she could have been offered she would also have rejected.
- Returning to the mother's Schedule of Findings [A247-251]:
Allegation 1 : 16th February 201:,
the father became verbally abusive to her after she informed him the child she was carrying might not be his child because she had been raped. She claims the father pushed her against the wall, grabbed hold of her throat in an attempt to strangle her. He told her she was "a horrible and bad person".
- The father denies he was verbally abusive or violent to the mother. He says they were both pleased to discover she was pregnant and he is wholly unclear as to whether or not the mother was ever raped and whether what she says about that is true; but he was upset when she told him she had been raped. He contacted the police to require the mother to report the allegation. The mother was not happy he had done so, but they did not argue about it. He denies pushing her or being physically abusive towards her. He describes how he was studying when she came home crying and upset. He was not sure what was going on. She made some mention of rape but he could not understand what she was saying, so he texted 999. Later on the mother told him it was all a lie. When the father asked who was involved with her she told him it was her ex-boyfriend. He said the mother often lied and had a habit of doing so.
- The police report at G44 contradicts the mother's allegation. She told the police she had no real concerns the father would become violent on learning about her intimacy with that man, although at the time she was not saying she had been raped. She said this as he, the father, was not a violent man, had never raised a hand to her and she was happy to remain at the property with him.
- Prior to the mother's Schedule in September 2014, the mother had not previously alleged that the father had grabbed her and grabbed her throat. Carla Gross confirmed the mother had never told her that. The mother's explanation for this was to try and say that when she cries her speech is not clear. It is for that reason that I referred to that part of Carla Gross's evidence (above). Carla Gross was clear that she did not miss what the mother had said nor did she misinterpret the mother when she was speaking through her tears. If mother was upset she would wait for mother to calm down, and she made sure she always understood what she was saying. In seeking to blame Carla Gross, the mother is clutching at straws. Miss Gross confirmed that the mother had never used the word "rape". I accept Miss Gross's evidence about this.
- The mother's narrative about this whole episode and about her history with this man has been inconsistent and contradictory. She now says she was raped on one occasion by someone she did not know, yet she had told Carla Gross that on several occasions she had agreed to meet up with a friend, C, and that that had led to them having sex. The mother's response, as I have said, was simply to deny she had ever said that to Carla Gross.
- Dr. Willemsen was asked in cross-examination on behalf of father about the mother's allegation of rape by this friend and the different narrative she had given. Dr. Willemsen opined that the mother has a concept of truth and of what is truth and what is a lie. He said she is very adaptable as to what people might want to hear and how she might use her experience to get where she needs to be, to influence where she wants to be, so she will change her stories to achieve this. He explained this in this way:
"What she does is put herself in a victim position and in that way returns to her family constellation where is overruled by all these people in her family and they do with her what they want. There is a manipulative side to that where she can put herself in that situation and say, 'Look at what has happened to me'."
- Carla Gross described confusion as to whether the mum's friend had forced himself on her or whether their sex consensual but she was clear the mother had never alleged to her that she had been raped.
- Allegation 2 : 14th May 2012 :
the father pushed the mother and verbally abused her during an argument him travelling to Portugal. His reaction and behaviour frightened her to fear for her own personal safety.
The father denies that there was verbal or physical abuse on this and every other occasion. He accepts the mother was not happy about his visiting the family in Portugal but was childish about that. He said when they communicate there are often raised voices and neighbours misinterpret that and sometimes called the police.
- The mother's contention that she had told the police about the father punching her on the head when they attended was not true. That is clear when a comparison is made of the Merlin Report for the information of the local authority. The crisis report of 14th May 2012 also provides an independent contemporary report of the incident. The mother does not accept that report as accurate. The father does.
- The police attended at the parents' home on 14th May. The mother reported to the police that she was arguing with her partner as she feels lonely due to the amount of time he is staying and visiting his friends in Portugal. She told the police she sometimes finds herself shouting as she cannot express herself in situations like that.
- Pausing there for one moment, I agree with Miss Conn's submission that the local authority's application in respect of the history was misleading. Miss Walsh must have known that what she was saying was not supported by the police report and that the presentation to the court of the father perpetrating domestic violence against the mother was, as I say, misleading.
- Carla Gross also gives relevant evidence and information about the history of this incident and the domestic violence mother alleges. The mother told the team she wanted to end her relationship but did not accept any support offered. Carla Gross also confirmed the mother had told her the father had pushed her several times during the pregnancy and had hit her on the forehead when she was about eight months pregnant. She also claimed, however, that she had been punched in the head during the last incident and that the police had been informed about that. That was clearly incorrect.
- Miss Gross also confirmed the mother said she had been experiencing emotional and physical abuse from the father and had complained about his behaviour to her throughout. Miss Gross believed the argument had taken place between the mother and father because the mother had been seeing someone else. As I say, even Miss Gross was unclear as to exactly what it was the mother had been alleging.
- Allegation 3 : In or around July 2012
The father returned home from work very angry, the mother did not know why, and for no reason at all the father grabbed her around the throat and started to shout and verbally abuse her. She had to kick him to try to get away. He told her she was a bad mother, a bad person, and when she had the baby he would take her and stop her from seeing her.
This is denied as simply fabrication by the father. Mrs. Robinson described how the father had told her he had tapped the mother on the head to try to get her to see sense. The father accepted in evidence that he had done so, although he denied any arguments at all. I find he minimised the extent of the friction in his relationship with the mother about this. He accepted he tapped her on the head because he wanted her to stop lying and wanted her to try to improve things with the counselling. He had tapped her to demonstrate the BSL sign for "think". The mother's allegation, however, goes much further than what is accepted by the father. She alleges he lost his temper and hit her hard with his knuckles on the forehead.
- Allegation 4 : 17th February 2012 to December 2012
A general allegation that the father pushed and verbally abused the mother regularly. The frequency ranged from every day to every other day. The force varied. It was not uncommon, the mother alleges, for her to lose her balance and fall on the bed or the floor. He was always very controlling, sought to control her whereabouts, sought to control her relationship with her family. The mother cannot recall specific dates because of the high frequency of the verbal and physical assaults and the time that has elapsed.
- This allegation is wide and vague. It alleges a general pattern of conduct of the father towards the mother, rather than being specific about a particular incident or incidents by date and time. The father completely denies any of these behaviours.
- I have already referred to the evidence of the mother before Judge Turner QC in June 2013 where she denied there was any domestic violence or abuse during their relationship. She now says that was untrue and I have rejected her evidence about that. There is no evidence other than that of the mother to support her allegation against the father.
- Allegation 5 : July 2012:
The father told the mother he intended to visit Portugal, he became angry and hit her hard with his knuckles on her forehead. A neighbour heard the commotion and called the police.
The father admits an incident occurred in the summer of 2012 when the mother was about seven months pregnant. This is the allegation to which I referred earlier, with the father's using the BSL sign "think" to touch her forehead. The father recalls the police attending, although there was no incident requiring their attendance and there was no record of their visit in the police disclosure.
- By 31st August, the mother's allegation of having been hit on the head by the father had been explored by Miss Walsh. Both parents, independently of one another, gave the same account of the prodding of the mother's forehead and his fingers to elaborate the BSL sign.
- Allegation 6 : 18th August 2012:
During an argument the father pushed the mother two days after A's birth. This was denied by the father. There were no arguments in the days following A's birth. He said he was left at home with A while the mother went out. His sister, Anna, visited and the incident simply did not happen. The following day, 19th August, the mother complained to the community midwife that the father was emotionally abusing her and had hit her the previous day.
- Allegation 7 : Miscellaneous dates
The seventh allegation refers to miscellaneous dates when the father was physically and verbally abusive to the mother on numerous occasions. She says she reported many of these incidents to her key worker.
- Allegation 8 : late August 2013 / beginning September 2013
The eighth allegation is the allegation the mother raised vey recently. She alleges she saw the father slap A during supervised contact. The mother claimed she witnessed this whilst A was strapped in her buggy outside the tube station on a Friday near the end of August. She saw the father smack A on the outside of the leg. She claimed in evidence that her mother was also present, although the grandmother did not agree. The mother denied fabricating that incident or being mistaken in saying that she saw father and A.
- The father denies this incident ever occurred. He says it is another example of the mother fabricating allegations against him. At the time when the mother says she saw him assault A, he was still having supervised contact. The contact notes do not support anything untoward occurring nor of A's being distressed, as the mother alleges. The mother's response was simply to claim that the supervisor must have misunderstood a hit for a tap.
- The mother's evidence then progressed in this way:
M I saw a hit on the arm.
Q Arm?
A No, sorry, I apologise, a hit on the leg. My daughter reacted and I felt powerless. I didn't do anything because a lot of my rights have been taken away.
Q When was this?
A Roughly towards the end of August.
Q When was it?
A I remember calling my mum straight away in distress, and she tried to contact the local authority on my behalf."
The mother said the father was on his own. She believed her mother then tried to call the social worker, Sheryl Montack. This was inconsistent with what the mother says in her statement at C124 saying that both she and her mother tried to call the social worker and leave messages.
- At the time when mother alleges she saw the father slap A, his contact was still being supervised. It was supposed to have moved to the community but had not done so. After mother made this allegation, the guardian expressly checked with the social worker about this who confirmed that contact was still taking place at the contact centre. The mother simply could not have seen him with A at Barking Station.
- The mother has every reason to fabricate this incident. She does not want A to be placed with her father. She also clearly thought father was having contact in the community at this time but he was not. It is also surprising, as the guardian noted, that if the mother had seen this incident she would not have walked the few minutes to the local authority's offices from Barking Station.
- This is a prime example, as I have said, of the mother fabricating a serious allegation against the father to thwart the plan for A to be placed in her care. The mother knew by this time that her allegations of violence against the father were not causing the professionals, the guardian and the local authority to halt their plan for A to be rehabilitated to him. She then fabricated this allegation that he had assaulted A.
- I also take account of the mother's own actions and responses to the local authority when she had complained about being abused. She rejected their support, as I have already noted. I have already referred earlier in the evidence of Sean Dixon that she denied domestic violence to him: it is clear that this mother will say what she thinks will help her and what will support her case.
- Dr. Willemsen agreed with Miss Conn that in mother's relationships she has a preference to make the point she feels oppressed by people, and to do that she may change the reality of events but he is not sure how consciously she does that. The constant theme in the allegations she makes is one of control, either her or others in control. Dr. Willemsen agreed that the mother's understanding of the world becomes mixed in with the reality and she begins to think this is what has happened. She is really telling us that she herself has felt very controlled and she does not know how to deal with this.
- The mother's evidence was highly unsatisfactory in many respects. It was inconsistent and often blatantly untruthful - for example, the signing during the hearing before Judge Turner QC, her evidence and lies about the twin sister, her false allegation that it was the father's fault that she was isolated from her family and not in contact with her birth family.
- Many of the professionals and experts who have worked with the mother - Carla Gross, Carly Walsh, Sean Dixon, Lynne Ferdinando, for example - have all, to a greater or lesser degree, also found her narrative to be perplexing, confused, contradictory, inconsistent and untruthful. Dr. Willemsen too described the mother's difficulties in being honest - for example, concerning her allegation of rape.
- There is clear evidence too of the mother's ability to manipulate. As Dr. Willemsen said, she will use her experience to get where she wants to be. There is concern that at times the mother has pretended to be more deaf than she is. She has invented a story, a story about her twin sister, and there is no doubt that this mother is highly motivated to make false and untruthful allegations against this father. She does not want to see A placed with him, and she is so vehemently opposed to that that she would resort to giving false evidence on oath and fabricating allegations.
- Further examples of the mother's manipulative behaviour and fabrication and false allegations against the father to achieve her own desires and goals include these allegations of domestic violence to gain the type of re-housing she wishes and to frustrate, as I have said, the progression of the local authority's plan.
- Miss Conn submits to me that the mother will, without shame, attribute faults and blame to this father, such is her extreme determination to thwart the placement. I share that concern. Miss Conn rightly describes the mother's actions.
- The mother's allegations, for example, of being in fear of the father are contradicted by aspects of outside evidence: for example, by choosing to remain in the relationship. Carla Gross said mother did not seem desperate or even motivated to leave that relationship. She left A in hospital to be with the father. She refused the refuge and the property in Chadwell Heath. She had her own property and chose not to return to it. Carla Gross's evidence that the only physical mistreatment mother ever reported was that the father put his hand on her shoulder and pushed her. She never mentioned the allegations she now raises against the father, despite the extensive and close engagement she had with Carla Gross.
- During the review on 4th May 2012, F32, the mother told the family support worker, Miss Gross, that the mother had never hit her and was only verbally aggressive.
- Professionals found the mother to be an unreliable narrator and they raised concerns about her giving different scenarios to different professionals.
Findings in respect of the mother's allegations against the father
- Save in respect of specific matters I have already highlighted, I found the father's evidence overall to be honest, truthful, accurate and reliable; and where there were differences in his evidence to that of the mother I unhesitatingly prefer the evidence of the father.
- What now follows are my findings in respect of the mother's allegations against the father and the relationship between the mother and the father. In summary, I have rejected the allegations the mother raises against the father
1. None of the allegations raised by the mother against the father as detailed in her Schedule of Findings and in her recent statement of 20th November 2014 is proved.
2. The father was not physically or emotionally abusive of the mother or controlling of her as alleged by her. He has not hit or been abusive towards A.
3. In about July 2012 an argument took place between M and F during the course of which the father tapped the mother on her forehead with his fingers to illustrate the BSL sign "think" (ie use your head) to communicate to the mother that he wanted her to think about the future. He did not hit the mother. He did not touch her with his knuckles. The mother has exaggerated and embellished what happened on this occasion in a way adverse to the father. What the father did, did not place A at risk of significant harm and is not sufficient to establish a threshold finding against him.
4. The allegations of abuse and control raised by the mother against the father are false and have been fabricated by her. What is less clear is whether or not the mother has, because of her own difficulties and functioning or for some other unknown reason, convinced herself of the truth of some of the allegations and has presented a story of her relationship with the father that she has come to believe as true, although it is not. This does not apply to the mother's recent allegation that the father hit A, an allegation she knows is not true and is one she has deliberately fabricated against the father.
Welfare
The local authority's plan
- The local authority's care plan was advanced through the social worker, Sheryl Montack, who qualified in 2007, and had been working as a social worker for seven years. She did not support A returning to the mother. Her plan was for A to be rehabilitated to the father. She recognised the need for a bespoke care and support package. It was a difficult plan to advance. Miss Montack told me that she had not prepared such a plan before. It was her first attempt at a bespoke package but she would have been assisted and informed by the expert evidence, and in particular those experts who set out in detailed reports and in their oral evidence indeed exactly what was required to ensure that the plan of rehabilitation had the best chance of success.
The mother's plan
- Whatever the findings in respect of threshold and her allegations against the father, the mother's plan in respect of the future placement for A remained for A to live with her in her current two bedroomed flat and that eventually she would move closer to her family in Islington, North London where her mother resides. The mother proposed that her mother would be able to support her in caring for A and provide any additional help she needs, although the mother told me she did not think she would need a significant amount of support. She told me she was "open" (the mother's word) to the father having contact and she would like him to be involved in all aspects of A's life but she maintained that he needs help with domestic violence because of what he had done and he requires anger management.
- The mother told me that, if A was living with the father, she would struggle to give A a message that she was supporting A in that placement. When asked what her position would be and where she wanted A to be if A was not returned to her care, the mother said, "It's hard to say where I'll stand if that happened". She said she had been thinking a great deal over the previous week and a half, and she could not say whether or not she would want A adopted if she could not return to her care.
- The maternal grandmother gave supportive evidence of the mother during the hearing. It is plain there was a difficult history between the mother and the maternal grandmother. They had not seen or spoken with each other for two to three years before resuming contact and rekindling their relationship as a result of these proceedings. The maternal grandmother has not met the father and does not know him. The maternal grandmother was not an honest witness; little reliance can be placed on much of her evidence. She was untruthful when describing having witnessed the father becoming angry in court during the hearing before Judge Turner QC and she was trying her best to support her daughter's case. In so doing was an unreliable witness. She described the mother's contact with A as "absolutely brilliant" and she believed that, if she was not there, the mother would be perfect. It was plain that the maternal grandmother has no insight or understanding of the concerns about the mother in her parenting and care of A.
The father's plan
- The father says he will have some support from his sister, AC, who is now planning to stay in the United Kingdom for some years. She can help him. He is willing to work with the local authority. He welcomes the help they now say they will provide, but he is concerned that the help promised will either not be forthcoming or will not be the right kind of help for his particular circumstances. Previously they had not given him support, but he feels he can work with Miss Montack. The father says he is not working and is dependent on benefits.
- If A is placed with him she will be his first and number one priority. He is able to read, but not at a high level, because he uses BSL and the grammatical structure of this is different. He can pick words out, but there are others that he does not understand. He plans to communicate with A through BSL which she will learn and read. He will read books with her, as he does with his nieces and nephews. He can communicate at parents' evenings through interpreters or pen and paper.
- Although he described having no family support in the UK in his statement in 2012, he now has the support of his family and friends and the deaf community. He has told me that he found the support and involvement of Sign Health around contact very helpful. He would like to be able to take A to Portugal for special occasions, Christmas and summer, and to experience his family's culture in Portugal. Although he had contemplated moving to Portugal, he was not going to do so now but might possibly in three, four, five or six years time. It was important, he said, for A to have acquired skills herself but he was not ruling out the possibility of relocating to Portugal in the future.
- The father is supportive of the mother having contact with A. A needs to see her mother and he hopes that, in the future, the mother will develop a positive relationship with A but he is also concerned that the mother and the maternal grandmother will undermine A's placement with him. He is concerned about the controlling influence that mother and the grandmother can exert over A. He also does not want the mother to come to his flat and that is what he meant when he said to Dr. Cornes that he was not supportive of contact. He believes the mother's behaviour is potentially damaging to A. It is clear to me that the father will support contact so long as it takes place in the right environment and so long as the mother does not undermine his relationship with A or her placement with him. These are genuine concerns of the father; particularly in the light of the history and my findings. It is also plain that the father has an extremely low opinion of the mother when he told Mrs. Robinson that he would tell A that her mother was "bad".
- The mother is fearful that if A is placed with the father he will not promote contact or her with A. It is plain a high level of conflict still exists between these parents who will both struggle not to undermine the other; the mother more so. It will take more than Mrs. Robinson's explaining what he should not say to A on one occasion to address this matter. There is much distrust between the mother and father but the father said he is willing to accept help to try and address these issues and to arrive eventually at a situation where he and the mother can communicate over matters concerning A.
The guardian
- Miss Slaughter has had extensive involvement in this case since her appointment following the Court of Appeal decision. She has chaired professional meetings and has met with the mother, father, foster carers and, of course, A. Her analysis and recommendations have been informed not only by the expert evidence, (in particular Miss Ferdinando of Mencap and the social work evidence) but also by her own independent assessment (so far as the mother is concerned).
- The guardian provides a warm and glowing description of A; something I am sure the mother and father were pleased to hear. The guardian described how everyone who meets A says she is an absolutely delightful two year old. She greets most people with a big smile. She is the kind of child other children are drawn to and take a liking to; she definitely enjoys a game of catch.
- The guardian considers the mother has been fairly assessed now and was not written off by professionals early in the process but she cannot support mother's caring for A. Having heard all of the evidence, the guardian remains of the clear view that A should be placed with the father. Taken at their highest, Miss Slaughter says the mother's allegations against the father, even if established, would not affect her views about placement.
- One of the most challenging aspects for A's being placed with the father will be that of communication. A will need to learn to sign. She is a robust little girl and will manage that. There is also an increasing concern on the part of the guardian that A is not indiscriminate in her interactions with others as she gets older. The father will need help in this aspect of her parenting.
- The guardian did not support the ten week programme advanced by the local authority and, although she felt that six weeks was still a long period, it was not too long for A and she supported the revised care plan. The time allowed would allow for extra help and support for A to be put in place during the process of rehabilitation if either A or the father required this. Preparation and feedback sessions were particularly important for the mother's contact according to the guardian. This would help contact be more enjoyable and a good experience for the mother and for A but it was vital that contact is managed, supervised and reviewed by the local authority.
- Contact after the expiration of a supervision order is a more complex matter. These proceedings have been very difficult for both parents and it is difficult to know how matters will be in a year's time. The quality of the mother's contact was also difficult to predict in a year's time. The guardian, therefore, wishes the local authority to carry out an in-depth review after about nine months and before the expiry of the supervision order to decide whether or not they should ask for the order to be extended.
- The guardian agrees that the maternal grandmother has a role to play. She dearly loves A too and A enjoys her contact with her grandmother; but preparation before and a debrief after each session will be important.
Discussion, Analysis and Conclusions
- I repeat here in full at paragraphs 165 -168 the Initial Comments I made on 10th December 2014.
- There is absolutely no doubt in this case that A's mother and father love her deeply. Both wish to care for her and both want what is in her best interests. Both have much to offer her.
- It is also very clear that the mother and father continue to struggle with the fall out of their relationship and are in danger of letting their negative and hostile feelings towards each other which they each continue strongly to hold and get in the way of what is best for A.
- Despite the background and the embattled nature of these proceedings and of the parents' relationship, the mother and father have behaved entirely appropriately, sensitively and gently throughout this hearing. They have both engaged in and cooperated with the assessments of them. Dr O'Rourke spoke, for example, of the mother presenting as warm and friendly. Both parents have been committed to contact with A. The mother attends well in time (often early) and is well prepared with food and a gift for A. There is much that is positive about the mother and father and it is important that sight is not lost of these positive qualities when considering the more negative aspects, difficulties and challenges of this case.
- This is a case that has called for and continues to call for objectivity, sensitivity and clarity. Objectivity from all parties in being able to stand back from what has gone before, the local authority learning from mistakes and failings and the father being able to resist seeing the future as a continuing battle with them. Sensitivity for this mother and this father who have been on an emotional roller coaster for over two years, facing the prospect of enforced adoption of their daughter and who now, both, have a realistic and sustainable opportunity to have a continuing and developing relationship with her. Clarity in respect of what needs to be done and must be done by this local authority in providing the necessary and essential support and resources to this family; particularly for the father. This has required a sea change in this local authority in their response to and support for disabled parents. That sea change now needs to be cemented and grounded with proper and adequate resources.
- Both parents have now been assessed fully and in a manner commensurate with their needs. None of these assessments is supportive of A's being with her mother. There is no doubt that Miss G loves her daughter and wishes to care for her. She told me that, as her mother, she wants what is best for her. She believes that she can give her daughter the best possible childhood. She wants to be the best parent. I find the mother is genuine in her desire to care for A. As she told me movingly in her evidence, "I love her, and no matter what happens nothing will change about the way I care about my daughter. I will be there for her to do the best I can, to the best of my knowledge. No book can tell you how to parent".
- This mother's commitment to contact has been considerable and sustained over a long period of time. She arrives early, more often than not with presents and food and is excited to see her daughter. Although she has needed prompting, in a supervised setting, she has managed contact well. The guardian described the mother's contact as being of good quality. Although the guardian did not hear Dr. Willemsen's evidence and Dr. Willemsen will have observed elements of the mother's contact that, in view of his expertise, the supervisor or guardian would not have necessarily have seen or detected, it is plain that contact has been good. The mother is enthusiastic and wants to do her very best. She is proud of A and rightly so. The mother has shown an ability to work with foster carers which indicates there is some scope in the future for work to be done if A is with the father in terms of the mother's contact.
- There is strong evidence, however, from the experts, the social workers and the guardian that the mother cannot safely care for A and has little capacity to change sufficiently. I accept that evidence. This mother is unable to address the necessary areas in her parenting and lacks capacity to change, learn and transfer learning. The maternal grandmother cannot provide sufficient compensation for the mother's deficits in these areas. Although the grandmother has the potential to be a support for the mother, the relationship between the mother and grandmother is not a stable one. Even during the proceedings the rift between them could not be bridged. Their relationship has only recently been rekindled and, although it is hoped the maternal grandmother will now be able to support the mother long term, there remain a number of unanswered questions about her history.
- The professional evidence was clear and in the main consistent. They all highlighted similar areas of difficulty for the mother and why she would find parenting for A safely quite beyond her. There are no further assessments and no further work that can be undertaken with the mother that would put her in a position of being able to care for A. It is highly likely that A would suffer significant emotional and physical harm and neglect if returned to the care of her mother. It is simply not possible for A to be cared for by her mother. Mother loves her wholeheartedly but, as Miss Ferdinando has said, "love is not enough to care for a child".
- All assessments that have been carried out in respect of the father and mother have now, albeit belatedly, been carried out on the correct basis and in a proper manner by those with the right skills, experience and expertise. All experts and professionals are supportive of the father caring for A with the right package of support. His basic care has never been in issue. The quality of his contact has been good throughout. Unlike the mother, there are no concerns about A's attachment to her father. His negative approach to the mother is not deep-seated or entrenched as that of the mother against the father but, nevertheless, it remains an area that needs addressing. It is important that the father carries out work with this if A is to have a positive relationship with both of her parents.
- I share the concerns of the guardian and the local authority however, that the mother's negativity and influence over A could potentially be damaging and destabilising for her.
- Various issues were raised during the hearing that are relevant to welfare which I now address.
1. So far as there were concerns that the father was over reliant on the mother, he was, as reflected by Dr Cornes in his report [541-543] forced by circumstance to rely on the mother but is now highly motivated to provide sole care for A; he is highly independent, he is supported by his sister and the deaf community and is willing to make connections and engage with hearing professionals.
2. The mother is vehemently against A's being placed with her father. She has said she would rather A be adopted if she is not returned to her care. The mother's position is, in essence, 'if I can't have A, neither will he' [F]. She has been and remains motivated by her own agenda and desires. She does not want the rehabilitation plan to succeed and is highly motivated and driven to ensure that it does not. She has been prepared to make false allegations against the father, including a recent false allegation that F has hit A and has been prepared to embellish and fabricate evidence during this hearing against him. She has also been prepared to involve her mother in her false allegations (eg as she did in respect of the allegation she saw the father hit A). There is a real risk the mother will continue to make false allegations against the father. In view of the history of this case, it is important that such allegations are not taken at face value.
3. The father has struggled with understanding and accepting that Miss G has a continuing and important role to play in A's life. He has struggled and still does with contact. He found it difficult during his evidence to express any positive view of the mother. He sees her as a liar who has "messed" with his life and who has little to offer A. Although Ms Robinson assisted him in understanding the value and importance to A of a continuing relationship with her mother through contact, this will need reinforcing: further work with the father as well as with the mother (so far as her negativity and hostility towards the father is concerned) will need to be undertaken.
4. As recorded above, the mother and father remain very hostile and negative towards and about each other. If this continues it will adversely affect A and has the potential to destabilise her placement with her father and jeopardise the mother's contact.
5. The mother and father need help in addressing the very hostile attitudes and feelings they continue to hold about each other. This should not be overlooked. The rehabilitation of A to F's care must take priority. It must not be jeopardised. The mother's and maternal grandmother's contact must be closely supervised and if necessary, the level reduced. But efforts must be made to address difficulties as they arise so that mother can continue to have a positive and meaningful relationship with A. The pre and post briefing and contact preparation sessions will help this.
(These findings were incorporated in the Key Findings given on 10th December 2014)
A's placement
- The welfare of A is my paramount consideration. Taking account of the welfare check list and, particularly, those elements I highlighted at the beginning of this judgment, it is overwhelmingly in A's best interests for her to live with her father. The mother cannot meet her needs and A would suffer significant harm in her care. The father can meet her needs but he requires that bespoke package of support to help him do so.
- So far as contact is concerned, the local authority needs to be proactive in monitoring and reviewing this and alert to the danger of the mother's seeking to destabilise and prejudice A's placement (for example, by the making of false allegations or influencing A against her father). As Dr. Willemsen said, it will be important to assess A's reaction to contact.
- The father does not intend to take A to Portugal in the foreseeable future; other than for holidays and to meet his family. I approve the plan to rehabilitate A to her father. I also approve the plan for the mother to have supervised contact but this should be fortnightly following a phased reduction from the current level. Contact reviews and support for the parents need to be included in the bespoke support package.
The local authority plan support package
- The plan of the local authority to rehabilitate A to her father's care is sound and overwhelmingly in her best interests but it is vital and key that the package supporting this plan is robust, sufficient, properly resourced and timeously provided and implemented. The father will be a deaf single parent and he will require significant support if he and A are to be reunited successfully. It is vitally important that this father is not set up to fail and it is imperative that the rehabilitation program and A's placement with her father is given the best chance of success.
- This will demand a fresh approach from the local authority. The local authority needs to ensure that throughout the rehabilitation period and onwards that:
(i) the father's disability and difficulties arising from that disability (particularly his communication needs) are met.
(ii) the provision and funding of necessary support services.
(iii) it complies with its duties under the Equality Act 2010. The history of this case has revealed, and clearly so, that appropriate reasonable adjustments for the father have not been made in the past. This local authority has now the guidance of experts, and this judgment, which they should heed.
(iv) it is imperative that lessons have been learnt from the past and it must not act in a judgmental, hostile or discriminatory manner towards the father.
(v) there is willingness on both sides to work through issues in partnership as they arise. This will require patience and dedication. The local authority and the father need to understand what is expected of each other. The father must also take responsibility for what he needs to do.
- The support package has been the subject of guidance and considerable scrutiny during these proceeding. It has been informed by deafness experts' reports. The father's legal team have, again rightly and appropriately, pressed hard for the resources and support identified by these experts to be provided by the local authority. Ms Conn's Schedule [F194-200] was particularly helpful and enabled gaps and insufficiencies to be identified. Most of these have now been addressed and, consequently, the support package has been amended and enhanced (even as late as this week) and will be incorporated into a further amended bespoke rehabilitation and support plan. It is plain to me that the current social worker, Ms Sheryl Montack (who will remain A's social worker throughout the life of the supervision order – and this is important) and her line manager, Mr Young, who have both been in court throughout this final hearing are committed to the rehabilitation plan and want to see it succeed. They have responded positively to the needs of the father and indeed to those of the mother, in so far as it has been in their gift to do so. [nb unfortunately following the handing down of this judgment Ms Montack left the employment of the local authority and a new social worker has been allocated to the family]
- The support package proposed is unique and bespoke. It has not been easy to put together. There remain, however, significant areas of concern; there is a lack of clarity and of sufficient provision in many aspects of the support package that still need to addressed. The current support package is woefully deficient in many respects.
- Bespoke parenting training course
(a) A bespoke parenting course for the father was recommended by Suzanne Robinson in her report as long ago as 24th July 2014. The father is still waiting for this. I share Ms Conn's concerns about this unjustifiable delay. It should have been commissioned by the local authority many months ago. In his evidence in September 2014 Dr Cornes said it should happen as soon as possible. The local authority agreed to arrange and fund this [B275]. It has still not been commissioned and the father is still waiting. It was not until this week that the local authority have committed themselves to the provision of a parenting work for the father and it is now to be included as part of the support package.
(b) The local authority has now agreed to enlarge the contract with Sign Health will be enlarged to include a bespoke parenting course for the father
(c) This parenting course is necessary and important support for the father in his care of A. It is support and training he has asked for and welcomes. It could easily slip through the net or not be met to a sufficient degree. The inordinate delay that has occurred in meeting this need is concerning.
(d) The provision of bespoke parenting work for the father needs to be confirmed, clarified and detailed in the amended plan – confirmation eg that Sign Health will take this on; when the work is planned to start and what it will include
- Referral of the father to local authority adult services
The father is concerned this is not sufficiently robust or meaningful. The detail of this needs to be confirmed
- A's nursery placement
(a) The plan is for A to attend nursery for Monday afternoon and a full day on Wednesday. It is important, as Dr Cornes and Mrs Robinson emphasised, that A remains a visible child, that she avoids social isolation and that she has sufficient exposure to spoken and heard English to continue with her development of this. Mrs Robinson considers that what is planned is sufficient
(b) The support plan needs to be flexible and include provision for A's nursery hours to be increased if necessary. The father should not have to fight for this.
- Deaf awareness training
(a) It is now accepted by the local authority that this will be provided as a bespoke training course by Suzanne Robinson. This acceptance did not occur until this hearing; after I had heard Ms Robinson underline how woefully inadequate was the then plan of the local authority to provide a half a day of very general deaf awareness training which would not be delivered by those with the necessary and relevant level of expertise for this case. Again, it is concerning that the need for this was accepted and agreed so late in the course of these proceedings.
(b) The local authority says this training with Mrs Robinson "is imminent". The date and funding for this training needs to be confirmed and recorded.
- Identification by the local authority of a deaf conduit/advocate for the father
(a) The father seeks an adult social worker for deaf people as a conduit between him / adviser for him and the local authority. The experts have been clear that services offered to the father "need to be delivered by another deaf person. This is an issue of both communication and trust. Concepts need to be conveyed in a culturally deaf appropriate way"; "if advice is delivered in a manner that is accessible to him (ie in BSL and explained in a culturally appropriate way) he is willing to take it on board" Ms Robinson E257 59/79 and 68/69.
(b) the local authority says it simply is not possible to provide a deaf social worker for A and the father. There is no such worker within their authority. It plans to enlarge the remit of Sign Health. Sign Health work with father when specifically commissioned to do so. It is, therefore, important that there is clarity and confirmation in respect of enlargement of and payment for their work with father.
(c) The father's position was that the local authority should buy in this service but he now accepts that the provisions now made are sufficient because an advocate / conduit is to be provided to assist him to communicate with the social worker through Sign Health; so long as the practical requirements around this are in place and secured.
(d) It is a matter of concern that there are plans to reduce the budget for Sign Health in a matter of weeks. This should be reviewed. There needs to be an acceptance that the level of their involvement must depend upon the progress of the plan and importantly the needs of the father
- Provision of online video phone
(a) The local authority is not willing to purchase an online videophone for the father, notwithstanding the recommendation of Wendy Anderson and that an online videophone was an essential item by Dr Cornes in his oral evidence in September 2014 before Holman J. The local authority's refusal to provide this is not based on cost or financial reasons: they do not know the cost involved. They contend that the father has sufficient means to communicate and, despite his difficulties and disability, is able to communicate by email if, for example, an interpreter was not available. Insufficient consideration has been given to how F's communication needs will be met for necessary but unscheduled meetings or meetings at short notice, for example.
(b) BSL interpreters can be difficult to source, particularly if insufficient notice is given. Even then, difficulties can arise in securing their attendance. These proceedings have been frustrated and impeded at times, for example, by lack of sufficient interpreters for the father. In the early stage of the proceedings, several hearings were affected either due to the misunderstanding of the father's needs (eg hearing 11/9/2012) or due to the unavailability / insufficiency/ inadequacy of British Sign Language Interpreters (eg hearings 27.09.2012; 05.10.2012; 17.20.2012; 06.12.2012; 18.04.2012). At times the quality of the interpreters was inadequate. Furthermore, the local authority's own Chronology reveals a similar picture with interpreters either not being available or not sufficient to meet and facilitate the father's communication needs for some meetings.
(c) The local authority should provide the father with an online video phone. Not only is it necessary for him in his communications with the local authority and other professionals. It will also help him and A to communicate in due course when she needs to speak with him when not in his immediate care.
- Provision of mini com to enable the father to contact emergency services
This has now been provided.
- Help for the mother and father to address their very hostile attitudes and feelings towards each other
This should not be overlooked. If it is not addressed now and feelings become even more entrenched (if that is possible), A's placement with her father and her contact with her mother could be prejudiced and jeopardized. The maternal grandmother needs to be included in this work. Supervisors need to be astute and alert to the possible undermining by the mother and maternal grandmother of A's relationship and placement with the father. The need for and importance of this work needs to be reflected in the support package. It may be that the work with the mother and the maternal grandmother pre and post contact can be used as a starting point of this work for them but father also needs work in respect of his negative attitudes and feelings towards the mother.
- Built in reviews of reunification plan, including review of contact
These will be very important. Dates and times should be set now as to when professionals who need to attend can do so, and interpreters can be booked for the father.
Areas of concern for the future
- There are a number of matters that have caused concern within these proceedings many of which were highlighted by the Court of Appeal and have again arisen during the course of this hearing. I give the failure as an example of Carly Walsh to speak with the father or even attempt to do so and the difficulties in providing for this father the necessary level of expertise, communication and assessment when the case was transferred. The provision from the outset of BSL interpreters for parents in the position of this father is essential. It runs through every aspect of pre-proceedings assessment and the proceedings. The father's ability to obtain and understand advice and to be able understand what is said about him is imperative.
- It is also important that parents with a disability are not placed under inappropriate pressure to agree or resolve issues without having had sufficient time to access and consider necessary legal advice and discussions with the support of appropriate and correct interpreters.
- Insufficient and inadequate account was taken of this father's disability. The initial parenting assessment was conducted without any adequate provision to accommodate that disability. Dr. Cornes identified substantial shortcomings in the process undertaken by the local authority and by the court at first instance. I accept those concerns. Furthermore, the local authority reached conclusions and made assumptions adverse to the father in respect of the allegations made by the mother against the father without giving him the opportunity to give his account; no proper account was taken of the extraneous evidence from the police report which contradicted the mother's versions and concerns which they must have known about that the mother was not an accurate historian.
- The judgment of McFarlane LJ also highlights the occasions on which the guidance had not been followed and must be heeded in the future.
- All these matters placed the father at a serious and substantial disadvantage prior to and within these proceedings. They resulted in A being unnecessarily in care and living away from her father for a considerable and disproportionate period of time.
Legal Aid Funding
- I am asked expressly by Miss Conn on behalf of the father to address the issue of the father's vulnerable position in relation to future private law proceedings should they arise. She submits that such future proceedings may well involve one or more foreign jurisdictions. Even if they do not, the father faces significant challenge of understanding court proceedings and presenting his case to the court. It is right, therefore, that I address this issue having had the benefit of hearing a wealth of expert and other evidence throughout this hearing which would be relevant.
- Miss Conn's submissions in this respect correctly and astutely analyse the issues. The father has faced immense hurdles in ensuring that he has had a full and fair hearing. If further proceedings are brought in the future either by the father or by the mother, he will face the same significant challenges in understanding the court process. He would be materially disadvantaged in trying to present his case to the court. When he is assisted by an interpreter he can communicate but it is unrealistic to assume that that removes all barriers to communication. He needs professional representation in addition to interpretation support. It would be very difficult indeed for this father to understand the issues and evidence raised in subsequent proceedings.
- If this father could not fund his own representation, it would be highly likely that he would find himself facing an insurmountable barrier to communicate between himself and the court. He and A would be unfairly prejudiced and at a severe disadvantage. There would be a real risk that a hearing would be unfair and ineffective and thus in breach of his Article 6 and/or Article 8 rights. Guidance has been provided by the Lord Chancellor and through the case of Gudanavicine & Ors v. Director the Legal Aid Casework and Anor [2014] EWHC 1840 (Admin) and in particular para.35:
"If legal aid is needed to provide that the procedure is effective and fair in dealing with Article 8 rights it will have to be provided. No doubt the threshold is a relatively high one, but, as I have already indicated, it is not in my view as high as suggested by X v UK."
If that threshold fell to be decided today, this father would undoubtedly pass it.
Final Comments
- It is right that the final comments I made on 10th December 2014 form the final comments of this judgment. I make no apology for repeating them in full.
1. The injustice of this case is that A has been in foster care since she was just six days old. She need not have been. She is now 2yrs 3m. Far from these proceeding being concluded in 26 weeks, they are only now being concluded in just over 26 months. Had proper account been taken by the local authority of the disabilities of this father and the difficulties of the mother, prior to and during the proceedings and had the assessments been undertaken by those with the appropriate skills, and necessary use made of interpreters and intermediaries, the plan which is now before the court for A to be rehabilitated to her father could have been put into effect many months ago. A would not need to have been in care for so long, if at all. It is only as a result of the diligence and determination of the father's legal team and, in particular, his Counsel, Miss Conn, that A has not been placed for adoption which would have resulted in the severing of all links with her birth family. This case has resulted in a plan for A to be reunited with her father. Had the father's legal team not persevered, the outcome could have been very different to the detriment of A and her parents – and that would have been a tragedy.
2. The local authority will be working in partnership with the father and mother but particularly with the father in supporting him in his care of A. This will require not only dedication and patience from the local authority but also commitment and work from the father. Whilst it is right that the father needs to understand exactly what is expected of him and what he can expect of the local authority, he must also take responsibility for his part in this rehabilitation plan. He cannot sit back. I do not think he will do so. He is highly motivated and committed to care for his daughter. This next stage will be, as Ms Kelly on behalf of the Guardian highlights, a testing time for the father who will now experience a change in his lifestyle and will see demands placed on him of the most challenging kind. He must avail himself of the support to him and take on board advice. He will need to become more proactive in seeking suitable support and assistance. He will also need to work on developing his understanding and tolerance of the mother's difficulties and present her to A in a positive light
3. It is also important that the father does not view the future as a continuing battle with the local authority and does not respond defensively to challenges and guidance in relation to his parenting as an attack on him because of his disability. I do not accept that this local authority is now hostile or looking for fault. Quite the reverse. Ms Montack and Mr Young want this father to succeed.
4. It is also vitally important for the plan to managed, supported and for it to be flexible. Issues will arise. It will not be plain sailing. The local authority must be committed to working through issues as they arise in partnership with the father and not view them as signs of failure.
5. The mother and father must try to prioritise A's needs and interests above their own issues, particularly with each other. This will take some time to be achieved but it is important that the mother and father are helped so far as possible to develop a means of working and communicating together so far as their daughter is concerned.
6. The father is concerned as to what will happen in terms of social work provision and the support package once the scrutiny of the court is no longer available. I can understand his concerns. There has, even in the very recent past, been a lack of diligence and commitment in implementing reasonable adjustments for the father and the clear recommendations of the experts.
7. The next period will be a critical stage in the rehabilitation plan. Bumps along the way are to be expected. Resources may need to be adjusted (if, for example, further issues are identified in relation to contact or any additional support the father may require).
8. I am not satisfied today that the support package as currently documented and before the court is sufficiently robust, clear or resourced. It goes a long way but not far enough. If this plan failed due to inadequacies in the provision and implementation of the support package, the damage to A would be immeasurable. She was failed in previous proceedings, she cannot be failed again.
9. The right order in this case will be a supervision order with a child arrangements order for A to reside with her father and have supervised contact with her mother. This has the support of all parties, save the mother. For reasons I have already given, the orders I make today are interim orders. I would like the matter to come back before me in about mid January 2015, by which time A should be in the full time care of her father and any outstanding issues can be addressed before final orders are made.
10. I am extremely grateful to all Counsel for their assistance during this hearing. All in different respects have had to manage various difficulties throughout this hearing. They have advanced their respective cases with skill and sensitivity. All have been astute and alert to the needs and difficulties of these parents.
11. We are all indebted to the team of BSL and relay interpreters, three of whom (Alison Gilgrist, Neil Magdani and Alan Murray) have been here throughout this hearing. They have shown and enabled how a parent with the father's challenges and disabilities can take a full part in court proceedings and need not be at any disadvantage as a result of their disability. There remains much misunderstanding and inaccurate assumptions as to how those who are profoundly deaf communicate. It is through cases such as this that lessons can be learnt. Parents, like this father, who are profoundly deaf can care for their children and care for them well.
12. I am not oblivious to the immense pressures on local authorities but if corners are cut, there is a serious and unacceptable risk that the most disadvantaged in society, those who are disabled and who are not in a position of confidence or ability to speak up and ensure they are 'heard', will be prejudiced. Local authorities must be astute in ensuring that assessments of parents with a disability, such as profound deafness and extremely limited speech, are carried out by those who have the understanding, expertise and knowledge to communicate with and assess such parents. If they do not, as this case has shown, that wrong decisions will be made and children will potentially be separated permanently and unjustifiably from their parents.
- This completes my detailed reasons and judgment
Post script:
Following receipt of this judgment and prior to conclusion of these Children Act 1989 proceedings, an application was made by Father under the Human Rights Act 1998, both on his own behalf and on behalf of his daughter. The London Borough of Barking & Dagenham promptly conceded liability for the claims and indeed issued a written apology to Father and child for its failures as identified in my judgment. They further accepted that such failures required financial compensation and as a result, the Human Rights Act claims for damages were settled between the parties. Having considered relevant authorities including the judgment of Mr Justice Keehan in Northamptonshire County Council v AS & Others [2015] EWHC 199 (Fam), the Father's C2 claim form and my judgment, I was very happy to approve the sum of £15,000 agreed in respect of the child. The Father also accepted damages of £6,000 as part of the overall agreement.
