P, W and M, Re [2025] EWFC 93 (20 February 2025)

This judgment was handed down on 20 February 2025 and released to The National Archives on 11 April 2024 at 10am following the conclusion of the Father's criminal trial. There is a Transparency Order dated 19 February 2025

Her Honour Judge Nott

Preamble

1. Mr G, it's not fair to make you sit for an hour or so while I give a reasoned judgment on the local authority applications concerning your children, so I'm going to tell you now my decisions. First, I want to say - that it is obvious to me how much you love your children and want what is best for them. I recognise that you have come a long way in processing and accepting the recommendations of the Parenting Assessor Mr Gulka and I also recognise your commitment to working on the issues that impact upon your ability safely to parent your children. I very much hope that while in custody and when you are released you will be able to complete the work necessary to address your anger management, and to combat your substance misuse. Currently there is still much going on in your life which means that you cannot parent any of your children, and to your credit you recognise that. I have to think only about your children and their needs. They no longer have a Mother, and your situation is uncertain now and for the foreseeable future. As far as M is concerned, she has the chance of a permanent placement that can give her security, stability and consistently competent and loving care. She has the opportunity to grow up as part of a family that can always take care of her needs. I am therefore going to grant the local authority applications for care and placement orders as being in her best short and long-term welfare interests. Turning to K and L, they have suffered significant neglect and trauma through the adverse childhood experiences they have suffered in their Mother's care and also under your parental responsibility, and through witnessing your violence towards their Mother. They have been further traumatised by the circumstances of their placement into foster care, and by the death of their Mother eleven months ago. They know you are in prison and have conflicted feelings about that and towards you. All of this means that they each present with complex emotional, psychological and behavioural issues that are currently hampering their development. These issues also make permanent placement unachievable in each of their case. The only option currently before the court for each of them, as you know, is long term foster care. This is a very sad outcome for such young children. I agree with you that given their past trauma, given the additional trauma they will suffer when their sister is placed in an adoptive placement, they need each other. I am not satisfied on the evidence that I have heard that separation is currently in either of their welfare interests, in part because I am not satisfied that successful separate placement in therapeutic foster care is any more achievable than placement together. There is therefore insufficient evidence upon which I can break the sibling bond, notwithstanding the evidence of the social worker, the independent social worker and the Guardian about the dearth of specialist foster carers, and their fears that a refusal to separate now will lead to a more traumatic 'forced' separation in the future. While I am prepared in principle to order that each boy be placed into long term foster care, I am therefore not prepared to approve the local authority's current care plans which propose separation. Further, I am not satisfied that the boys' current functioning is satisfactorily evidenced and would like Dr Bues to assess them further and in detail so that any putative long term foster carer can have a better and more up-to-date understanding of the boys' development and their therapeutic needs, and the local authority can put in place targeted educational and emotional support both in the immediate term and in the future.

Introduction

1. This judgment is given at the conclusion of a five day final hearing of applications for care orders brought by the applicant local authority the Royal Borough of Windsor and Maidenhead in respect of K, a boy aged 6 years, having been born on XX.XX.2018, and L, a boy aged 5 years, having been born on XX.XX.2019. The care plans envisage long-term foster care for both boys. The applicant authority further applies for care and placement orders in respect of M, a girl aged 3 years, having been born on XX.XX.2021. All three children are of Polish heritage but are habitually resident in the United Kingdom; they are full-siblings and are currently living together with a foster carer under an interim care order first granted on 22 February 2024 due to concerns about their parents' ability to keep them safe and to care for them adequately.

2. The first respondent Mother, AA, sadly died by suicide in March 2024, six weeks after the children were removed under the interim care order. The second respondent Father, G, was not named on M's birth certificate and, as of at the start of this Final Hearing, did not have parental responsibility in respect of her. Since there is no dispute as to his paternity of M, and in the absence of any other parent than a corporate one, I directed that the Father should have parental responsibility given the nature of the orders sought by the applicant authority.

3. When proceedings commenced in February 2024, the Father had not had contact with his children for about a year. Contact resumed under the interim care order, and took place at a contact centre until the Father's incarceration in October 2024. The Father remains remanded in custody at HMP Bullingdon where he is awaiting trial on indictment alleging a domestically violent offence said to have been committed in the context of sexual assault. His trial is due to take place later in 2025.

4. This matter should have had its final hearing in January 2025. However the Father applied to adjourn the hearing until after his criminal trial. When HHJ Tolson KC refused that application, the Father's legal team became professionally embarrassed and withdrew. The Local Authority was concerned that the Father had become a litigant in person for tactical reasons, but nonetheless did not oppose a short adjournment of the final hearing to enable the Father to seek alternate representation or else to prepare his own case. The Guardian did oppose the short adjournment, pointing out that proceedings were already overly long, well exceeding the 26 weeks in which they should be concluded. The Guardian's view was that the Father was being deliberately obstructive for tactical reasons, hoping to delay proceedings until after his criminal trial.

5. The Local Authority assisted the Father to obtain new representation. However he did not respond from prison to his new solicitors' attempts to contact him prior to this hearing. I afforded him two hours on the first day of hearing to give his counsel instructions. Sadly, he spent those two hours failing to give instructions but rather making complaint and insisting upon another application to adjourn this hearing until after his criminal trial. He complained, inter alia, that he did not have access to a full and paginated bundle that had been translated into Polish. After hearing from the parties I was satisfied that such a bundle had been provided to him well ahead of this hearing. The local authority and the Guardian both opposed the renewed adjournment application, pointing out that we are at week 52 of proceedings, and submitting that none of the children has time to await the outcome of the Father's trial. If the Father is convicted he is likely to remain incarcerated for many more months, but even if he were acquitted and released in April, his current lifestyle does not equip him safely to care for any of his children, notwithstanding he loves them all very much. I therefore refused his further application to adjourn as antithetic to the children's welfare interests, and afforded him the remainder of the day, as well as some time at the start of the next day, to give his instructions.

6. Pursuant to the proposed care and placement orders, the local authority states that through the various expert assessments it is clear that the Father is unable to provide safe and adequate care for any of his children in the short or medium term. Further, likely due to their adverse childhood experiences - summarised within the Threshold document - these children are traumatised and are each evidencing developmental delays and behavioural problems. The boys are the most significantly affected; however M is also affected, and behaviourally is copying her brothers. In light of a comprehensive sibling 'together and apart' assessment, in light of viability assessments having ruled out all other family members as potential safe and competent carers, and having reviewed the children's progress in their interim foster placements where they have remained together, the local authority states that the only realistic option for the boys currently is long term specialist therapeutic foster care separately from each other, and that M's lifelong welfare interests will be best met by adoption. It is thought that a suitable placement for M can be achieved within six months. The local authority therefore asks me to make final care orders in respect of K and L, approving their separate placement in long term foster care, and in the case of M to dispense with the consent of the Father and to make an order that would allow her to be placed for adoption. The local authority is represented by Ella Shaw.

7. The Father G is represented by Josephine McElroy. While I am grateful to all counsel in these sad, complex and emotionally charged proceedings, I am particularly grateful to Miss McElroy who was instructed very late in the day and who worked tirelessly to get up to speed and obtain instructions from the Father in difficult circumstances - via prison video link and with the able assistance of a Polish interpreter. The Father's final position after a day of conference with Miss McElroy is that he accepts that Threshold is met, albeit minor details are disputed; he would consent to final care orders placing K and L in long term foster care; however he opposes their separation from each other and from M. He opposes the local authority application for a placement order in respect of M. He would ultimately like to care for all three children with the help of his Mother at some time in the future when he is no longer incarcerated and after he has addressed his anger management and alcohol issues.

8. The Children's Guardian Lara Guppy is represented by Hannah McSorley. Her position is that the Father is sadly unable to provide the level of parenting that each of his children needs now and will need throughout their childhood, and she notes the lack of any other viable carers with the family. She observes that the developmental and behavioural issues manifesting in K and L make it unlikely that they would find adopters with sufficient trauma-informed skill and experience successfully to parent them. Having considered the sibling assessment, the Guardian reluctantly agrees that long term foster care, in separate and therapeutic placements, is in the best interests of both boys. She further agrees that, notwithstanding the separation from her siblings, M's lifelong welfare interests are best served by placement for adoption which should be achievable in her case within a reasonable period of time. She says that M would benefit from the opportunity to be placed in a family that can meet her physical and emotional needs consistently and permanently. The Guardian therefore supports the local authority applications and their care plans.

The Hearing

9. These proceedings commenced on 15 February 2024; as already described, an interim care order was made on 22 February 2024 while necessary assessments were carried out and evidence obtained to inform the final proposed care plans. Due to the complexity of the issues and the consequent need for psychological expertise on 25 March 2024 matters were timetabled to achieve an IRH in September 2024. Although the psychological assessment was completed and filed timeously on 15 July 2024, the Mother's sudden death in March 2024, and the Father's incarceration in October 2024 each led to further delay, such that this final hearing took place a year after proceedings commenced.

10. Ahead of the final hearing, which commenced on 12 February 2025, I had the benefit of being able to read and consider the final bundle of evidence which runs to 1062 pages of witness statements, expert psychological, psychiatric, parenting and substance use reports, school and nursery reports, contact reports, correspondence from the Polish Embassy, and police disclosure; the bundle also includes material from pre-proceedings and pre-public law outline. The parenting assessment of the Father was completed and filed on 13 May 2024 and an addendum report was filed on 1 August 2024. The sibling 'Together and Apart' assessment was filed on 30 September 2024. The local authority filed its final Social Work Evidence Template together with its final care plans on 10 December 2024, with updating statements filed on 8 and 10 January 2025. The Father served a statement on 3 February 2025. The Guardian filed her final analysis on 7 January 2025 and an addendum on 29 January 2025 dealing with placement of M and consequent upon the adjournment of the final hearing that month.

11. The Final Threshold Document was filed on 12 February 2025, which the Father accepts subject to two minor disputes: he disputes breaching a non-molestation order in respect of the Mother, and he disputes being out of his children's lives for prolonged periods of time.

12. During the hearing I was provided with the MG5 - the police and CPS case summary - relating to the alleged offences for which the Father is awaiting trial. I have also had the benefit of case summaries and final position statements from the parties, as well as their careful and cogent written submissions in closing. I am very grateful to all of the advocates for their hard work and high level of professionalism throughout this very sad case.

13. During the hearing I heard oral evidence from Catherine Harris, the independent social worker who conducted the sibling assessment, from Miss C the allocated social worker who filed the various SWETs and care plans, and from Lara Guppy, the Children's Guardian. I found each of these witnesses to be honest, thoughtful and professional. They knew the evidence intimately and each provided thorough and careful analysis.

14. I heard briefly from the Father, who was not cross-examined. He was clearly doing his best for his children from a difficult position and is to be commended for his realism. It is clear that he loves all of his children and wants what is best for them.

15. I did not hear oral evidence from Dr Bues, the child psychologist, nor from Sebastian Gulka who carried out the two parenting assessments of the Father, since their evidence was not subject to challenge.

16. I do not propose to set out in any further detail here the evidence that I have read, heard and considered but I have taken it all into account when considering each of the children's best interests and in making my decisions.

Legal Framework

17. A placement order is permanent. Its effects upon all parties are profound and lifelong. The local authority's applications are therefore to be assessed under the framework of Article 8 ECHR: the rights of M and her Father to respect for their family and private life are only to be interfered with to the extent that is necessary and proportionate. The court must look to make the order of least interference, as is often stated, an order for placement away from the family is made when nothing else will do. Where M's rights conflict with those of her Father, M's rights prevail. Her welfare is paramount and should it require placement outside the family, the consent of the Father will be overridden. Before I can make the orders pursuant to s.31 Children Act 1989 and s.21 Adoption and Children Act 2002 that the applicant local authority seeks in respect of M, the applicant must satisfy me on the balance of probabilities that

(i) M is suffering or is likely to suffer significant harm attributable to the care given, or likely to be given if the orders were not made, that care being unreasonable;

(ii) there is solid evidence that M's physical or emotional safety requires the making of the orders;

(iii) that upon consideration of the realistic options, and having regard to M's welfare for the rest of her life applying the checklist at section 1(4) of the Adoption and Children Act 2002, the orders sought are both necessary and a proportionate interference with M's Article 8 rights and those of her Father.

18. M's lifelong welfare is my paramount consideration. If I make a care order I do so considering the local authority's care plan. I can only consider the application for a placement order if I make a care order.

19. Re L (Care: Threshold Criteria) 2007 1 FLR 2050 reminds me that the legal starting point is that children are best brought up within natural families; that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent, and that some children will experience disadvantage and harm, while others will flourish in atmospheres of loving security and emotional stability. It is not the provenance of the state to spare children all the consequences of defective parenting; the compulsive powers of the state can only be exercised when the significant harm criteria in s 31(2) of the Children Act 1989 has been made out. In this case, the Father accepts that Threshold is crossed, that M, like her brothers, has suffered significant harm due to unreasonable parental care, and he does not oppose the making of a care order. He does oppose the making of a placement order on welfare and proportionality grounds.

20. Turning to welfare, given M has two full siblings with whom she has always lived, it seems to me that I should have regard to section 22C(8)(c) Children Act 1989 as a starting point. While this provision requires the local authority to ensure that the accommodation into which it places children enables siblings to live together, it does not of course apply to placement under the Adoption and Children Act 2002. Nonetheless it reflects the importance of placing siblings together wherever possible, and it seems to me that the paramount consideration of the court when considering adoption - the welfare of the child throughout their life - must require assessment of the importance of any sibling attachment when considering the child's welfare in the short, medium and long term. If M were to be placed into long term foster care - the other realistic option - then the position of the local authority, supported by the expert evidence, is that placement with her siblings would not be achievable in any event, given the high level of harm and the consequent high level of need - section 22C(8)(c) would effectively be neutered by section 22C(8)(d).

21. As there are two realistic options for M, namely long term fostering or placement for adoption, I have considered carefully the relevant case law, most recently helpfully set out in Re D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948. That case involved an 11 month old girl who had two older siblings whose care plans involved long term fostering. As he had previously in F-S (A child: Placement Order) [2021] EWCA Civ 1212, Jackson LJ summarised with approval Pauffley J's assessment in Re LRP [2013] EWHC 3974 (Fam) of the contention that long term fostering can offer commitment, security and stability within a new family such that permanency might be achieved. Disagreeing "profoundly" with those contentions Pauffley J had said, "Long term foster care is an extraordinarily precarious legal framework for any child, particularly one as young as LRP. Foster placements, long or short term, do not provide legal security. They can and often do come to an end. Children in long term care may find themselves moved from one home to another sometimes for seemingly inexplicable reasons. Long term foster parents are not expected to be fully committed to a child in the same way as adoptive parents. Most importantly of all in the current context, a long term foster child does not have the same and enduring sense of belonging within a family as does a child who has been adopted. There is no way in which a long term foster child can count on the permanency, predictability and enduring quality of his placement as can a child who has been adopted."

K and L

22. The position relating to K and L is not straightforward, notwithstanding a level of agreement. The parties that agree Threshold is crossed such that the court may make public law orders if their welfare demands it, and they agree that long term foster care under final care orders is the only realistic option available to the court. The disagreement surrounds whether they should be separated from each other. In this context s.22C(8) Children Act 1989 clearly applies; I must consider carefully the interplay between subsections (c) and (d) on the evidence in this case. I assess the boys' welfare interests pursuant to section 1(3) Children Act 1989.

Chronology and Analysis

23. I now set out the relevant history chronologically, derived from the written and oral evidence. Where otherwise unreferenced, the chronology up to the date of issue of proceedings derives from Miss C's SWET dated 16 February 2024 since that evidence was not challenged.

24. In 2013 the Mother was convicted of child cruelty in relation to the children's older half-sibling, who now lives with his Father.

25. On 17 November 2020 these children were placed under child protection plans (CPPs) due to concerns surrounding 'emotional abuse.'

26. In July 2021 the Mother was arrested having allegedly assaulted another woman and at a child protection conference on 5 July 2021 the children remained on the CPPs.

27. In January 2021 the Mother and Father separated, and on 7 April 2021 the Father called the police when intoxicated. He stated he was an alcoholic and threatened to kill himself or harm someone else. He was outside the police station. When police came to him he walked to a bridge and showed them a noose he had prepared on the branch of a tree at a height of 12 feet. He was taken to hospital (police disclosure at K29).

28. On 9 May 2021 the police were called by an unknown male after the Father threatened to hang himself or stab himself. Police found the Father to be heavily intoxicated (police disclosure K34 - 35). The following day he went, again intoxicated, to another friend's house where he became aggressive and again threatened to harm himself. When police arrived he became aggressive and tried to fight police officers, resulting in his detention and a mental health assessment (K37 - 38).

29. On 4 July 2021 the Father attended the family address intoxicated and aggressive. He grabbed the Mother's arms and throat, and threatened her with a knife that he took from a block in the kitchen. The children were present (K45 - 59). He was arrested and then released under investigation. On 14 July he returned to the Mother's address intoxicated. Police arrested him and served him with DVPN. A DVPO was issued on 16 July preventing him from attending at the Mother's address or from contacting her for 28 days (K68).

30. On 5 September 2021 the Mother called police stating that the Father had attended her home intoxicated and had punched her in the face when she refused him entry. Upon attendance the police noted the Mother had a black eye. The children were present (K98 - 99). The Father was arrested, charged with assault and bailed to attend the magistrates' court on 9 November 2021 (K105). On 19 October 2021 the Father was arrested and remanded in custody for breaching his bail conditions. He had called police threatening to self-harm with a knife while outside the family home and while intoxicated.

31. On 21 October 2021 public law outline (PLO) commenced.

32. The Father's assault trial was listed in December 2021. The prosecution offered no evidence when the Mother failed to attend court to give evidence (K105).

33. In January 2022 PLO ended, the Mother having cooperated in obtaining a non-molestation order against the Father; on 16 May 2022 the CPPs were stepped down to child in need plans, and on 9 June 2022 the case was closed to the local authority.

34. On 22 October 2022 the Father was convicted of breaching his non-molestation order (Father's PNC at K23). Overnight on 20 - 21 October he had tried to gain entry to the Mother's flat, then climbed to the balcony and threatened to jump off. The children were present and awake (K6-7).

35. In March 2023 a single assessment commenced due to concerns about several adults found living at the family home in the context of the Mother's declining mental health and the Father continuing to harass and threaten her by attending the family home on numerous occasions. The assessment raised concerns once again about the children's basic care needs being neglected.

36. There was an initial child protection conference on 11 May 2023, the predominant concerns being of neglect.

37. On 21 June 2023 the local authority was informed by 'MK', a known class A drug user and suspected dealer, that he was looking after the three children and regularly taking the boys to school.

38. From July 2023 the Father made repeated reports to social services surrounding his concerns that the children were being exposed to their Mother's class A drug use. On 25 July 2023 the police found the Mother and MK using heroin at the family address. The police reported that MK was in no fit state to help care for the children: he looked extremely malnourished and was almost always under the influence of drugs. The three children were observed to be malnourished, dirty and covered in small red marks which turned out to be bites from bed bugs. Their hair was unwashed, the soles of their feet dirty; they were all still using dummies. The Mother was unable to manage the children's behaviour. The home environment was reported as incredibly untidy and unclean. Few toys were observed. There was a bunk bed, with a thin mattress. One of the boys had also urinated on the bed and it was soaked through. Dog urine and faeces were also noted and the dogs were reported to be malnourished. Police protection was considered however instead they removed MK from the address.

39. On 3 August 2023 the Father was found by police intoxicated, with a shoelace around his neck and threatening to kill himself (police occurrence report K9-11).

40. Police visits to the home address on 12 August, and on 5, 10 and 13 September 2023 revealed escalating concerns about the children's living conditions. On 13 September 2023 the social work assistant team manager, Ms S, noticed a pungent smell of urine all around the home and there were houseflies in most rooms.

41. On 9 October 2023 police received intelligence that drugs were being dealt from the family home. PLO began on 19 October 2023.

42. On 13th January 2024 Mr Gulka completed a parenting assessment of the Mother which recommended ongoing safeguarding by professionals to mitigate risks posed by her parenting.

43. On 27 - 28 January 2024 the Mother was asking neighbours for needles to inject drugs.

44. On 1 February 2024 K's school reported that he had severe toothache as a result of tooth decay. The Mother was contacted and was advised to book an emergency dental appointment for K who was said to be in 'excruciating' pain, but failed to do so; K was not seen by a dentist until 14 February 2024 (J1)

45. A section 47 investigation was then triggered, which led to the issue of these care proceedings.

46. On 2 January 2024 the Father told the parenting assessor Mr Gulka that the Mother had "breached a non-molestation order" in the past by encouraging him to hide in a cupboard, wardrobe, or bathroom, which he did during some of the visits by the Local Authority (Parenting Assessment of Father dated 13 May 2024 paragraph 27, E90).

47. On 8 February 2024 L's school reported that he had become dysregulated and was violent towards staff, which resulted in a teacher having to attend A&E having sustained cuts.

48. Proceedings were formally issued on 16 February 2024; the children were removed from their Mother and placed into foster care by interim order on 22 February 2024.

49. K and L did not attend school between 22 February and June 2024 due to their removal (Catherine Harris report, para 7.12, E239).

50. On 19 March 2024 the Father's Peth test indicated excessive alcohol use in the previous month (E51).

51. Overnight on 30 March 2024 the Mother committed suicide by hanging.

52. The initial foster placement was with a single carer who had her own children. She could not cope with the needs of these three children together (E234), and on 11 April 2024 they moved to their current placement where they remain cared for by a mother and her adult daughter of Asian heritage. The daughter speaks English, the Mother - who is described as the primary carer - does not. The local authority has been unable to tell me which language is spoken in the foster home other than it is an Asian language.

53. On 26 April 2024 the children had their first contact with their Father, under supervision, in over a year. Contact continued on a weekly basis until the Father's remand into custody on 14 October 2024. At the beginning the boys, L in particular, seemed to associate their Father with their Mother's death. M was initially very reluctant to attend contact, and on some occasions refused to enter the contact centre. As time went on contact was more successful, particularly with the boys. Although the boys are said by the local authority not to speak any Polish, and an interpreter was present to facilitate contact sessions, the Father told me that the boys, K in particular, can understand spoken Polish. This would be consistent with their Mother only having spoken Polish.

54. On 13 May 2024, Mr Gulka's parenting assessment of the Father concluded that his capacity to care for the children was impacted by his substance misuse, his history of perpetrating domestic abuse, his difficulties with emotional regulation and anger management, and his risk of reoffending. He recommended work around domestic and substance abuse. He was cautiously optimistic about the Father's ability to engage and learn (see for example his paragraph 15, E87).

55. Mr Gulka considered sibling separation in the context of and the guidance in 'Together or Apart? Assessing Brothers and Sisters for Permanent Placement' Jennifer Lord and Sarah Borthwick, 2009 and Beyond Together and Apart, Planning for Assessing and Placing Sibling Groups' Beckett 2021 (paragraph 222 at E132). He referred to the local authority's obligations under section 23(7)(b) Children Act 1989, although that section has been replaced and is superseded by section 22C(8)(c) Children Act 1989), but correctly noted that "siblings should be placed together if possible and consistent with their welfare." At his paragraph 225, he concluded, "I did not observe, nor was it reported, that the children demonstrated overly negative behaviours towards each other: showing hostility, blaming, and behaving in a way that sabotaged each other's needs." At paragraph 226 (E133) he noted, "The foster carers reported experiencing difficulties with managing the children's individual behaviours and some of their siblings' interactions, though these behaviours were not harmful and persistent to warrant the children's separation." He summarised his conclusions at paragraph 227, "...considering the positive aspects of the children's behaviour towards one another and the absence of overly negative behaviours, there was evidence of a reasonably healthy sibling relationship between K, L, and M" and at paragraph 228 pointed out the absence of factors indicating that children should be placed separately. Finally, he concluded at paragraphs 229 - 230 (E131) "Considering the nature of the sibling relationship, there was a sense of emotional closeness between the children, without any harmful degree of conflict, rivalry, and control... In this assessment, I do not recommend that the children be separated. However, any carers should be open to receiving support from professionals, which may include training in therapeutic parenting skills for children with a history of trauma."

56. Dr Bues filed her psychological assessment on 15 July 2024 (E142 - 195). She found that all three children had been cumulatively impacted by their adverse childhood experiences to date, compounded by the, then very recent, death of their Mother. She found that K and L both scored above the cut off for an ASC and possibly ADHD, with L more impacted than K. Both boys had a high level of need due to their significant emotional and behavioural dysregulation. Dr Bues recorded that all three children's brain development and nervous systems have been significantly impacted by the trauma they have suffered, and that this was particularly marked with the boys.

57. Dr Bues noted that all three children were delayed in their receptive and expressive language and indicated that both boys would likely need formal assessment for autism in the future. She recommended further assessment of autism and ADHD once the children had been in a stable placement for at least six months and had received reparative parenting. Given the children's language delays and the fact that when living with their Mother Polish was the language spoken in the home, Dr Bues was concerned that the language of their foster carers was not English. She queried whether their primary foster carer spoke to them in English and was told that she did. This is not in fact the case, and I query whether the children have had the six months or more of reparative parenting envisaged and recommended by Dr Bues back in July 2024.

58. On the issue of sibling separation, Dr Bues' opinion has been summarised in the SWET as not feeling "certain that K and L should be cared for together...because of the high level of need in each of the children." I am not sure that this is an entirely accurate or complete summary. In fact at her paragraph 40 she said that "it is beyond the remit of this report to consider in full whether the siblings should be separated." Nonetheless, at her paragraph 42 she "regretfully" considered that separating M from her brothers "may be in her best interests longer term, although... this will require further assessment." She opined that K and L being cared for together would depend to some extent on placement availability and would require a "careful weighing up of the pros and cons" of the available options. She was clear that the children needed a high level of therapeutic intervention and experienced foster carers.

59. At her paragraph 102 Dr Bues hinted at concerns regarding the current foster carers' ability to meet these children's high level needs. She also discussed the issue of "carer burnout" and a concern that as a consequence there might be a negative bias in the carers' reports. Dr Bues repeated the social worker Mr N's concern that "the current negative view [coming from the foster carers] might set a precedent in terms of how the children's trajectory is viewed...a balanced approach needs to be taken." At her paragraph 104 she described the differing views within the social work team as to whether the children, particularly the boys, should be fostered together or apart. She described at some length Miss C's firm view that the children needed separate placements, saying, "Miss C was in fact unsure whether even K and L could be placed together." While at her paragraph 105 she acknowledged that this was a particularly emotional and difficult case for the social work team, Dr Bues, in my judgement, fell short of endorsing Miss C's firmly-expressed view that separation of K and L in long term foster care would be in their long term welfare interests. Miss C's oral evidence before me was in line with her SWETs and her care plans, maintaining her firm views expressed to and described by Dr Bues back in July.

60. Finally, Dr Bues indicated that the boys would need EHCPs as soon as possible. There is no evidence before me that the local authority has actioned this, and we are now seven months on. Seemingly they have simply left it to the school to devise and implement IEPs.

61. On 1 August 2024, Mr Gulka filed an addendum parenting assessment of the Father which concluded that he would not be able to make the changes necessary safely and successfully to be able to care for his children within their timescales (paragraphs 88 - 90, 93, E221 - 222).

62. On 1 October 2024 Catherine Harris filed her sibling assessment. She also viewed separation through the lens of Lord and Borthwick, and concluded that M would do best separated from her brothers, noting that this would also have the best chance of achieving permanent stability and safety through placement for adoption (c.f. her paragraph 8.11, E260). Regarding the two brothers, on balance she concluded that they should be placed separately due to their individual high level of need. Notably, while Miss Harris clearly carefully considered Dr Bues' report, it is equally clear from her own report that she relies heavily on what she has been told about the children's functioning and inter-relationships by the foster carers (see for example paragraphs 7.8 - 7.10, 7.13, 7.15 - 7.18, E237 - 241) This concerns me, particularly in the context of the earlier concerns repeated by Dr Bues, that the overly negative approach of the foster carers might set a trajectory that isn't necessarily the appropriate one in the children's best interests.

63. Further, in her oral evidence Ms Harris told me that she had been unaware until this hearing that there have latterly been significant concerns raised about the current foster carers' ability to provide consistent basic care, and that they have been deemed unable to provide the intensive care that these children need, whether together or individually. While she had noted her concerns in her written report concerning the primary carer's limited English and the impact that this might have on the children's language development (her paragraph 7.7, E237), as well as the concern raised by M's nursery that the carers had not apparently noticed an obvious bite mark on M's arm (paragraph 7.50, E252), Ms Harris was concerned to learn during her oral evidence that at a recent medical appointment the primary carer could not recall the child's name in order to give it to the medical practitioner's receptionist. By the end of her oral evidence Ms Harris' view as to the pros and cons of the boys' separation from each other was less firm than the one she expressed back in September 2024.

64. On 14 October 2024, the Father was arrested on suspicion of breaking his partner's shoulder in a domestic incident on 11 October 2024, and thereafter threatening on 14 October to return to her home and break the other arm. He remains in custody awaiting trial in April 2025 on indictment alleging sexual assault, inflicting grievous bodily harm and using threatening words and behaviour (K120 - 126).

65. On 21 October 2024, M's care plan favouring adoption was ratified.

66. On 28 November 2024 the children's paternal grandmother, who lives in Poland, confirmed that she cannot look after the children.

67. On 9 January 2025 the Vice-Consul to the Polish Embassy wrote to the court requesting that if possible the three siblings be placed together particularly in light of the loss of their Mother (C82).

68. On 15 January 2025 the head of the children's school and nursery school, filed short reports about each of them. In respect of M she observed that she attends the afternoon nursery sessions and has in general settled well, albeit she displays some hints of early trauma. She is on the SEN register under an individual education plan (IEP) as her cognition and communication are not yet age appropriate (C88 - 90). The headteacher says that L too has settled well. He displays behaviours typical of those who have been subject to early childhood trauma and neglect. However while initially these presented as defiant and aggressive behaviour, it is reported that "this is not typically seen anymore" and rather he presents as mistrustful of unfamiliar adults. He is on the SEN Register under an IEP (C94 - 96). K too is on the SEN register under an IEP. He has reportedly settled well into school but can present as overly tearful or as having angry outbursts disproportionate to "small disappointments." He also has a short attention span and finds concentrating on his work challenging (C91 - 93).

69. The Guardian filed her Final Analysis on 7 January 2025 (E280 - 300), and an addendum analysing placement for adoption on 29 January 2025 (E301 - 303). She supports the local authority care plans for each child. Her oral evidence before me was considered, and maintained her recommendation. Her final evidence and position is perhaps best summarised in Miss McSorley's written submissions dated 17 February 2025: "The separation of these children who have lost so much in their lives is not advocated lightly or without searching consideration of what they each need. The Guardian has been struck by the extent of the children's individual needs and, as she stated in evidence, their disorganised attachment behaviours and the way in which they respond in heightened ways. Dr Bues identified an over-active threat response in the children and the Guardian sees that in terms of their behaviour... Placing the children separately would allow for their needs to be met more easily and predictably and would lessen the significant risk of placement breakdown...The Guardian's view is that living separately is likely to be healthier in the long run for each child's relationship with their siblings."

Findings

Has Threshold been crossed?

70. The relevant date is 15 February 2024. The Father agrees that Threshold is crossed as per the evidence set out in the chronology above. Where he disputes two minor matters, I find them proved - he in fact admits breaching the non-molestation order, it is simply that he doesn't see it as a breach because the Mother agreed in it; the harm to the children from the consequent conflict and domestic abuse is the same whether the breach was consented to or not. Similarly, the Father accepts that he was away from the children for much of their childhoods due to his incarceration here and in Poland. Again the difference is in the nuance - the Father would say this was non-voluntary, in that he neither chose nor consented in his incarceration. I accept that, but the harm to the children is the same.

71. I find Threshold met as per the Revised Threshold document dated 14 February 2025. The local authority has therefore established that Threshold is crossed: the court may make public law orders in respect of all three children should their welfare require it.

Welfare - M

72. I must address whether M's lifelong welfare demands her permanent removal from her Father's care and authorisation to the local authority to place her for adoption. Viability assessments were attempted in respect of the paternal grandmother and the maternal aunt and uncle. They were all negatively assessed as potential carers for M. The Father cannot and does not seek placement with him. There are therefore two realistic options in this case: long term foster care either separately or alongside her brothers, or care and placement orders permitting her to be adopted. I assess these options holistically pursuant to section 1(4) Adoption and Children Act 2002.

73. First, the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding): M is too young to express an opinion but like any infant she can reasonably be assumed to want to be raised in a loving, safe and stable environment where her needs are consistently met.

74. Turning to M's particular needs: she is a three year old girl of Polish heritage; she is not yet achieving her developmental milestones. She is presenting with symptoms of early childhood trauma. Like any young child she needs consistency of care, and to feel secure, safe and loved within her family home. She is now at the age at which she needs to form permanent secure attachments in order not to further compromise her life-long mental and emotional well-being. This is a critical period for her development and for her ability throughout her life to form and maintain attachments. These proceedings have been twice the statutory length; her prospects of finding an adoptive placement within the next six months are still promising. It is difficult to justify M's exposure to continued uncertainty.

75. There is no realistic likelihood of her Father being able to access and successfully complete the type of intensive programmes recommended by Mr Gulka within M's timescales, even were he to be released from prison in April. As he accepts, the prospects of him addressing his issues and raising his parenting abilities to provide good enough care for M are minimal. If permanence can be achieved then given M's very young age, that must be prioritised over long term foster care even though it means separation from her brothers.

76. As to the likely lifelong effect on M of having ceased to be a member of the original family and become an adopted person: placement for adoption would give M the chance to grow up within a family able to give her not just the love but the level of care she will need to thrive. I am told that there are a number of potential adopters of Polish heritage which would help M maintain that aspect of her identity. The Polish embassy has confirmed that pursuant to Polish law, M would still be entitled to Polish citizenship in the event she is adopted in the UK. Permanent placement within a stable, secure environment together with life story work and, if possible, continued contact with her siblings would reinforce her sense of identity alongside her security. This must be preferable to the uncertainty of long term foster care for such young child - M would spend the next 15 years as a looked after child.

77. Considering M's age, sex, background and other relevant characteristics, her familial history and adverse childhood experiences mean that she may have developmental delays or other neurodiversity. Dr Bues has set out some targeted therapeutic support that she will likely need, as well as additional familial and educational support as she moves through childhood. There are no specific religious or cultural factors to take into account, beyond M's Polish heritage.

78. Turning to past and future risk of harm, M has suffered a high degree of harm through significant neglect and exposure to domestic abuse. My overriding concern is M's lifelong welfare; I am concerned with current risks, not historic ones at this stage. I am concerned that M's current placement is not properly meeting her needs. The expert evidence is that there is no foster placement that could properly meet her needs were she to remain with her siblings. Her medium and long-term welfare interests can only properly be met by permanence given her history to date.

79. The most significant familial relationship M has is the one with her siblings which will be severed or at least significantly impacted by placement for adoption. It would be in in M's interests to maintain some direct contact with her brothers if possible, however forming a strong attachment to a permanent primary carer must be the priority if she is to develop successfully. M currently has a cautious relationship with her Father, of whom she is unsure, but with whom she was slowly developing a bond until his incarceration in October 2024.

80. As to the likelihood of any such relationship continuing and the value to the child of its doing so: even if placed in long term foster care I would have reservations about M having direct contact with her Father, due to the domestic abuse he perpetrated on the Mother during their relationship and post-separation particularly when intoxicated, M's ambivalence towards him during supervised contact, and his general criminality and temperament at the present time. If direct contact were to be sanctioned with the Father post-adoption then the local authority would need to carry out a PD12J compliant risk assessment.

81. Should M be placed for adoption it is possible that direct contact with her siblings will continue. I consider that this would be optimal for her sense of identity. However even if direct contact with her siblings were not agreed to by her adopters, M's age means that the value of a continuing relationship with her siblings is outweighed by the value of an opportunity to form permanent attachments within a family and to come to identify herself as part of that family unit.

82. There are no relatives who can meet M's needs now or within her timescales. Viability assessments have ruled out possible family placement and her father is currently incarcerated.

83. As much as her Father would love to meet M's needs in the future, he is not currently in a position to do so. While his preference is for M to remain with her brothers in long term foster care, this is neither feasible nor in M's lifelong interests.

Proportionality

84. The global assessment of the realistic options within the framework of the welfare checklist, strongly favours placement away from the birth family; M's need for safety and for consistently competent parenting outweighs the loss of her birth family, particularly as her Mother is deceased and she has had very limited contact with her father during her life to date. Therefore I must consider proportionality. The Father says that Mr Gulka has set out some work that he needs to do in order to raise his parenting, and he says he is willing to complete that work. He says it is disproportionate to make a placement order until such time that he can complete that work. He also submits that long term foster care could have the benefit of keeping the three children together, pointing out that the current foster carers have put themselves forward, albeit unsuccessfully, to be long term carers for all three children. Although he accepts that their application has been rightly refused due to the limitations of the placement, he says that it is evidence that a placement for all three children is achievable notwithstanding the concerns of Miss Harris, Dr Bues, the Guardian and Miss C.

85. Having considered these cogent and proper submissions against the detailed evidence that I have benefitted from, I find that the chances of the Father being able to consistently remain abstinent from alcohol, to manage his anger, and to begin and maintain a prosocial lifestyle within the next months or years are vanishingly small. There has already been significant delay to M's detriment in this case. In terms of her ability to form attachments, time is running out for M and the window in which a successful adoption can be achieved is narrowing. Further, her interim placement is far from the intensively therapeutic and reparative placement envisaged by Dr Bues seven months ago. Even in long term foster care, the chances of M being able to remain with her brothers are slim; further of the three siblings, she is observed to be the most on the periphery - perhaps due to being both younger and a girl.

86. When comparing long term foster care against adoption, I also further reflect upon and adopt the view of Pauffley J in Re LRP as endorsed repeatedly in the Court of Appeal by Jackson LJ, which I paraphrase thus: the advantages of a placement order are many and obvious. Prospective adopters are required to submit themselves to a rigorous and very thorough assessment process over many months. Those who satisfy the selection criteria are ordinarily of the highest calibre. They may be confidently expected to provide extremely good parenting to any child who is matched with them in all areas of her development. They will protect M from harm of whatever kind. The overwhelming probability is that they will be able to provide her with the priceless gift of a happy, secure and stable childhood from which she will derive life-long advantages.

87. I am therefore satisfied that the permanent placement of M away from her birth family is not only necessary but proportionate.

Conclusion

88. In all the circumstances I find that M's lifelong welfare requires my approval of the local authority care plan and the making of a placement order: nothing else will do. Given the level of risk of significant physical and emotional harm through neglect, and the high likelihood of that risk happening should the order not be made, the making of an order is proportionate. I therefore direct that parental consent be dispensed with pursuant to section 21(3)(b) Adoption and Children Act 2002, and I make M subject to the care and placement orders sought by the local authority.

Welfare - K and L

89. Notwithstanding the obvious disadvantages of long term foster care for very young children discussed above, there are only two realistic options for the boys' long term futures - long term foster care together, or long term foster care separately. Determination of their best interests now and in the longer term must be reached by application of the 'Welfare Checklist:' I must have specific regard to the criteria set out at section 1(3) Children Act 1989.

90. Starting with each boy's ascertainable wishes and feelings (considered in the light of his age and understanding), the boys have a good sibling relationship and would want to stay together permanently in a safe, stable and loving environment. While it is right that the local authority would be bound to promote sibling contact under care orders if the boys were separated, this is no substitute for the boys growing up together. I note the proposed care plans currently provide for monthly contact.

91. Turning to physical, emotional and educational needs, both boys have delays in their speech and language; both have exhibited behavioural and emotional dysregulation. While seeking to rely on her conclusions from back in July, the local authority as corporate parent has not followed the recommendations of Dr Bues: they have not organised targeted EHCPs; they have not found accommodation suited to these developmentally compromised children's particular needs. In this latter regard they appear to be in breach of section 22C(8)(d) Children Act 1989, although I accept that interim placement of these children has been very challenging for all. The children have therefore not benefitted from the six months of reparative parenting that Dr Bues counselled should occur before further ASC and ADHD assessment. Notwithstanding this, the boys have somehow made not insignificant progress in supported but mainstream education since Dr Bues' July 2024 report.

92. There is a disconnect between the current carers' description of the level of difficulty each boy has and that of their school, with the recent school reports being far more positive than they should be if the carers' accounts are accurate. The fact that, despite the assessment and recommendation of Dr Bues, the local authority has not seen the need to upgrade the current IEPs to EHCPs may reflect currently less acute educational needs than was the case back in July 2024. The concern that a placement with both boys together will fail has to be viewed in that context. It further has to be viewed in the context of the current placement, which the local authority accepts is less than ideal and which in my view is not s.22C(8)(d) compliant. Notwithstanding the boys' primary home language was previously Polish and is currently an unspecified Asian language, they have made some communication progress. How that development might accelerate in an English-speaking home environment is untested and unknown.

93. Regarding the likely effect of any change in circumstances, these boys have been able to demonstrate some not insignificant progress notwithstanding their adverse childhood experiences to date. They are about to lose their sister. In the context of interim removal, maternal death and paternal incarceration, this will cause significant further trauma. In my judgement the additional trauma caused by separating them from each other as they are placed into separate - and new - long term foster care cannot be underestimated and should only be sanctioned if there is no other realistic option.

94. As to age, sex, background and any characteristics which the Court considers relevant, I have considered these at length within this judgment. The only additional observation I make is that these siblings are close in age - just 14 months separate them. Since L's birth, they have never lived other than with the other; their history is shared; they have suffered the same adverse childhood experiences.

95. Considering all the expert assessments of their interactions in the round, I consider it likely that their communication difficulties mask the true strength of their sibling bond. I note, and accept, the Father's oral evidence that K understands him when he speaks to him in Polish even if he is unable to respond in that language. Much of the evidence about the sibling bond comes through the filter of the foster carers. The extent to which the autistic traits these boys are displaying are organic or derive from early childhood trauma is yet to be assessed. It may still be too early even for an expert such as Dr Bues accurately to ascertain the nature and extent of these traits, and the nature and importance of the boys' non-verbal communication with each other. Non-verbal communication is nuanced and may easily be underestimated by those who lack experience in neurodiverse children. I am reluctant to accept as reliable the views of their foster carers that the brothers do not appear to have a particularly strong bond in circumstances where those foster carers have no experience of or expertise in autism, and where they have not paid sufficient attention to note, for example, a visible bite mark on M's arm until queried by nursery staff, or to be able to remember the name of one of the children when registering them for a medical appointment. Further their assessment of the fraternal bond is not consistent with that of Sebastian Gulka, whose evidence is more attuned to the boys' neurodiversity and shared traumatic history.

96. The significant harm that the boys have suffered and are at risk of suffering has again been fully explored. These are highly vulnerable young children who currently need security, safety and who will likely need for the remainder of their minority high levels of therapeutic and educational support.

97. Finally I must consider how capable the boys' Father is, or putative foster carers are, of meeting their needs. The Father cannot currently care for the boys. There is some cause for optimism for the future from Mr Gulka's assessments, although those pre-date the Father's current incarceration and have to be viewed through that lens.

98. Looking at foster care, the increased likelihood of placement breakdown due to their respective high level of need should the boys not be separated has been cited by all professionals as a primary reason for approving separate foster care placements. Unlike with M, K and L's position is not as per the children in Re LRP and Re D-S: I have to look at their situation not in the context of foster care versus placement for adoption, but in the context of separate foster care versus foster care together, each of which options are intrinsically insecure and potentially transient for the reasons explained by Pauffley J and Jackson LJ. Further, notwithstanding Jackson LJ's reminder in Re D-S of the guidance in Re T (Placement Order) (CA) 2008 EWCA Civ 248 that when making a decision between fostering and placement for adoption the court is making a decision in principle and does not need evidence as to the availability of placements, here I am not being asked to make a decision about permanence over being parented corporately for the whole of the child's minority. Whatever decision I make, neither can achieve permanence. In my view it is not irrelevant to my consideration of separation that as yet no highly experienced, therapeutic foster carer has put themselves forward to care for these boys together or apart, and, current placement apart, no foster carers have been identified who would take the boys separately, albeit foster carers have expressed an interest in taking two or more of the children. Miss C says that none are suitable because they are all inexperienced. I am not satisfied on the evidence currently before me that no putative foster carers could properly meet these boys' needs together, notwithstanding each needs tailored highly-attuned care.

99. Unlike M, who may achieve permanence, neither K nor L are considered to be realistic candidates for adoption. Their only option then, aged just 6 and 5 respectively, is foster care for the rest of their minority. Given the intrinsic uncertainty of such placements, considering the boys' sibling bond and shared traumatic history I would have to be satisfied that their respective welfare interests demand separation. While I appreciate I am not considering the proportionality of placement for adoption, in the context of these boys' history, including the loss of their Mother and the poverty of care they are even now receiving, and bearing in mind the trauma that is to come when M is separated from them, I would only approve the separation of these siblings if I were satisfied that nothing else would do.

100. I simply do not have the evidence base upon which to sanction separation. I am not satisfied that placement together would be significantly more likely to lead to placement breakdown than placement apart given the additional trauma separation would cause, and given the present lack of clarity as to each boy's current developmental stage, his level of autistic traits and his consequent needs.

Conclusion

101. In my judgement, notwithstanding the lack of reparative parenting and lack of parenting tailored to these boys' speech and language difficulties, Dr Bues should be asked to undertake the detailed assessments she envisaged last July, properly to inform any necessary EHCP and properly to inform prospective long term foster carers. She should be given a copy of this judgment as well as up to date school records and medical records.

102. While I am prepared to make final care orders in respect of the boys, I am not prepared to do so based on care plans that sanction their separation.

103. While we are at week 52 of proceedings, and while delay is antithetic to the interests of the child, the reality for these boys is long term foster care one way or the other. They are still very young, they each have complex needs which require further assessment. I make clear that there is no reason why the boys should not be placed into s22(8) compliant foster care in the interim, if alternative placement can be found near their current school - which is the only stable part of their lives, and into which they have each settled well. Indeed every reasonable step should be taken to find such an interim placement if possible.

104. A copy of this judgment should be sent to the Polish Embassy, and the local authority should arrange for a Polish translation of the same to be sent to the Father via his legal representatives.

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	England and Wales Family Court Decisions (High Court Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> P, W and M, Re [2025] EWFC 93 (20 February 2025) URL: https://www.bailii.org/ew/cases/EWFC/HCJ/2025/93.html Cite as: [2025] EWFC 93

England and Wales Family Court Decisions (High Court Judges)