IMPORTANT NOTICE
This judgment was delivered in private.  The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.  All persons, including representatives of the media, must ensure that this condition is strictly complied with.  Failure to do so will be a contempt of court.

Case No: PR16C00038
THE FAMILY COURT SITTING AT BLACKBURN

64 Victoria Street
Blackburn BB1 6DJ

Date: 14/09/2016

Before :

HIS HONOUR JUDGE BOOTH

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RE J (FACT FINDING) 

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Hearing dates: 12, 13 & 14/09/2016

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JUDGMENT
HIS HONOUR JUDGE BOOTH:

1.	This case concerns J who was born 15.12.02.  She is 13, she will be 14 in December.  The proceedings are care proceedings brought by Lancashire County Council (LCC).  The application was issued on 19.1.16.  Protective measures were taken on 28.2.15 when J was accommodated by LCC with the consent of S who is J’s cousin and has parental responsibility and has cared for her for the majority of her life and has had the role of J’s mother as her birth parents were unable to care for her. What makes this case particularly significant is that S, against whom LCC seeks adverse findings, is a social worker employed by another local authority.

2.	In the fact finding exercise I have been conducting Mr Jones has represented LCC, Mr Semple has represented S and Mr Buchan has represented J through her guardian. I am grateful to all of them for the helpful and sensitive way in which they have conducted this case.

3.	J was born suffering from foetal alcohol syndrome.  She has displayed other difficulties.  She is a celiac and requires strict adherence to a special diet.  She has some learning difficulties and she is now being educated in a school that specialises in its provision of education for those with learning difficulties.  As things currently stand, the picture I have of J today is that she is turning into a delightful young woman who is making significant academic progress and who is thriving with her foster carers.  It is agreed by all that she will remain with her foster carers for the rest of her minority.  I hope that she will enjoy a confident future based on the secure foundations being put in place for her.  

4.	I am not going to set out the full history of how J came to be cared for by S.  S’s home was undoubtedly the best place for her when she was small.  She has grown up with what she regarded as two older brothers and acquired two younger sisters, who are S’s children by a more recent relationship.  S has proved a doughty fighter on J’s behalf.  It is through S’s efforts that she is receiving the education she now benefits from.  That came at some cost to one of her sons who was required to leave the school when J moved.  J’s celiac condition and the full extent of the foetal alcohol syndrome were not properly diagnosed by the doctor looking after her for a number of years.  Only when Dr Kate Ward took over J’s care was a comprehensive diagnosis achieved.  S has undoubtedly been loyal to the advice Dr Ward gave her about J’s care.

5.	In about 2012 I do not think it would be too dramatic to say that S’s life began to unravel.  She was at the time taking a degree in social work from the University of Central Lancashire.  She had ambition for herself and wanted to demonstrate for her children the benefits of education and the gains to be made from self-improvement.  She wanted a career to reflect her abilities.  Unhappily her relationship with her partner broke down in acrimonious circumstances.  There was a court battle about contact to her two younger daughters.  He made a reference to her University which led to S being suspended.  Her description of the reference was that it was a malicious one.  I have no reason to doubt her.  One effect of S becoming a student was to put financial pressure on the family.  Her partner’s departure put more pressure on her as there was a mortgage to service.  

6.	It was in about 2012 that J made the transition to PV Primary School. Initially all was well.  By the time J came to be in year 6, September 2013 to 2014, S now accepts that perhaps things weren’t quite as they should have been.  The teachers recorded that J was attending school smelly, dirty and with dirty clothes.  The problem generally got worse as the week went on.  The teachers became concerned about the things that J said about her home life.  The comments were made by her, not in any formal setting, but in casual conversation with members of staff.  J was one of the brightest pupils in her class of 10.  What marked her out more than anything else was her search for adult company.  She enjoyed talking to adults and was happy to talk about what went on at home.  There were also occasions when the whole class was invited to share what they had done over the previous weekend.  As a result of the things that J said, the teachers began to have a feeling that J was somehow being treated differently than her younger sisters and that they were doing things that weren’t available to J and perhaps in some other ways J was not getting the emotional support at home that she might have needed.
  
7.	It is important when considering what was going on at school to record two things.  Firstly, although the school were making notes of things that J said and things that concerned the teachers, those notes were not shared with S so that she did not get an opportunity to comment on them and secondly the staff at the school were quite certain that the matters which they were recording would have been of no interest to social services as the school was in an area of significant social deprivation and the teachers in the past had been admonished by social services for bringing to their attention cases that really did not warrant social services intervention when compared to the many other cases that social services had to deal with.

8.	I am asked to place weight on the records of what J said to her teachers.  I have no reason to doubt the accuracy the notes that were made.  One difficulty that I must acknowledge straight away is that, because there were no child protection measures taken, the recordings that the staff made and their evidence was never subject to any form of analysis by social services who would of course have been looking at a much bigger picture.  There is nothing in the evidence to tell me about S’s other children. There is very little that tells me about J at home.  I do not have the benefit of a contemporaneous overview by an expert in the field.  

9.	So what was going on at home that I do know about?  It is undoubtedly the case in 2013-2014 that S found herself under very considerable pressure. I have already alluded to the pressure of her studies.  Her degree concluded in September 2014.  Her financial pressures were unremitting.  She had no support from her partner.  Her two boys, one of whom she had lent on for support with the younger children, were at a stage when they wanted to make her own way in the world.  Her younger boy wanted to go off travelling when he had completed his time at school.  J was reaching puberty.  She was in her final year at primary school facing a move to a secondary school, albeit on the same site, but no doubt a time of some apprehension as to how J would cope.  It seems clear to me that things got too much for S.  She is very reluctant to admit that.  She is clearly very proud of her achievements and proud of running a family of five children whilst subject to all the other pressures I have described.  She is not a superwoman.  She has been variously described as abrasive and domineering.  She is certainly someone who will fight her corner.  It is perhaps unfortunate that she has not been more ready to recognise where things were going wrong, as they undoubtedly were.  

10.	As well as J’s physical appearance deteriorating, S started to grapple with a more fundamental issue as far as J was concerned.  She began to think that J’s future might be better secured in a long term foster placement.  I have no doubt that there were a number of strands to her thinking.  One of those might have been the prospect that J would get a greater degree of attention from specialist foster carers than S herself could provide as a working mother with the demands of her other children.  There was undoubtedly a financial element.  S had for some time felt that the system had rather cheated her of financial and to a lesser extent emotional support as she was the holder of a residence order which brought no financial support from the local authority.  It may be that she began to recognise what must have been perfectly obvious to her, that her inability to maintain basic standards of hygiene for J was perhaps an indicator that she simply could not give J that which she needed.  

11.	It is impossible to put a timeline on when S began to think seriously about asking for J to be accommodated.  I raised a question of S (and in some ways it’s an unfair question), namely, why it was that S decided it was J who should leave her household rather than any of the other children?  I have no doubt, though I didn’t get an answer, that the true answer is a multiplicity of reasons.  J has far greater needs than the other children.  J’s long term future and whether she can live independently are matters that must await the passage of time.  Plainly not irrelevant is that J was not her biological daughter, but in every emotional sense S was J’s mother.  There was the question of how J would react to a move away from the family home.  S’s belief was that such was her emotional development that she would move easily and readily.  In the event that turned out to be the case.

12.	Within its care proceedings the LCC seeks findings of fact in satisfaction of the threshold criteria that J suffered significant harm as a result of the care not provided to her by S that would have been reasonable to expect her to provide.  There are facts in J’s early history concerning her parents that undoubtedly cross the threshold.  I can make a care order irrespective of the findings I am asked to make. It is agreed that I will need to make a care order to secure J’s long term future.

13.	I need to set out the legal position.  I adopt the law as expounded by Sir James Munby, President of the Family Division in a series of cases including Re A (Application for Care & Placement Orders [2016] 1 FLR 1, together with other authorities that I will cite below.  
14.	The following points are of particular relevance to this case:
(1) The burden of proof lies at all times with the Local Authority.  
(2) The standard of proof is the balance of probabilities.
(3) A finding of fact must be based on evidence, including inferences that can be properly drawn from the evidence, but not on suspicion or speculation.  
(4) When considering cases of suspected child abuse, the court must take into account all the evidence and consider each piece of evidence in the context of all the other evidence.  A court invariably surveys a wide canvas.  A judge in these difficult cases must have regard to the relevance of each piece of evidence, to the other evidence and to exercise an overview of a 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.  
(5) The evidence of the parents and any other carers is of the utmost importance.  It is essential that the court forms a clear assesSent of their credibility and reliability.  
(6) It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing.  The court must be careful to bear in mind that a witness may lie for many reasons such as shame, misplaced loyalty, panic, fear and distress and maybe out of fear that the truth will not speak loud enough.  The fact that a witness has lied about some matters does not mean that he or she has lied about everything.
(7) The legal concept proved from a balance of probabilities must be applied with common sense.  
(8) The court should have regard to the inherent probabilities, but this does not affect the legal standard of proof.  That proposition was enunciated by Lord Hoffmann in Re B (Children) (FC) [2008] UKHL 35 where, at paragraph 15, he said this:  
“There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely.”
(9) The fact that the parents failed to prove, on a balance of probabilities, an affirmative case that they have chosen to set up by way of defence does not of itself establish the Local Authority’s case.  
(10) Parents may, in some respects, be good parents.  That does not necessarily mean that they are willing and able to protect their children in the way that might otherwise be expected.  
(11) Where repeated accounts are given of events, the court must think carefully about the significance or otherwise of reported discrepancies.  They may arise for many different reasons such as lies, faulty recollection or contamination from other sources.  It may simply be the effect of the human reaction of unconsciously filling in the gaps.  
(12) “The court’s function is to make the findings of fact that it is able on the evidence, then analyse those findings against the statutory formulation.  The gloss imported by the use of legal, clinical or colloquial terms is not helpful to that exercise.  The threshold is concerned with whether the objective standard of care, which it would be reasonable to expect for the child in question, has not been provided, so that the harm suffered is attributable to the care actually provided.”  (Lord Justice Ryder in Re S (A Child) [2014] EWCA Civ 25)

15.	In looking at the evidence, I must look at all of the matters that have been put before me.  I must look at the evidence from the witness box, I must look at the written material and put it all into context.  I must give appropriate weight to the different facets of the evidence.  I have alluded to the difficulties of the case given the absence of social services intervention and their expert analysis which is usually available to assist the court.  I must listen with care to S’s explanation.  I must treat with caution, what is said by a 10, 11, 12-year-old girl with learning difficulties who at one extreme may be utterly guileless and therefore likely to be truthful and equally may be unreliable for not necessarily having understood what was going on around her. 

16.	So what are the findings the LA seek.  It appears in the threshold document as follows:
“S exposed the child to neglect and emotional abuse exemplified by the following;
i) The child presented at school on numerous occasions exhibiting poor personal hygiene, unwashed with dirty clothes and smelling strongly of body odour. S struggled to maintain the child’s personal hygiene.
ii) S treated the child differently and less favourably than her biological children; the other children were afforded preferential treatment, with the subject child not being permitted to join and attend social events and extra-curricular activities, with the other children. This caused the child to feel rejected and on occasion distressed.
iii) S made comments to the child suggesting that she should leave the family home, with such comments causing the child to feel emotional rejection; S was negative when talking about the child to professionals and had requested that the child be adopted earlier in her life
iiii) The child suffered feelings of rejection to the extent that she expressed the wish not to return to the family home at the end of the school day
v) S cut the child’s hair to a short length on two separate occasions, causing the child a high degree of emotional distress. This was despite staff members at the child’s school explaining to S about how upset the child had been after previously having her hair cut so short.”

17.	I have heard evidence from three of the school teachers who have taught J.  I heard evidence from S.  I have a substantial bundle of documents including school records upon which the teachers relied.  I have the more usual social services evidence dealing with J’s current position.

18.	So let me break down the allegations.  I have no doubt whatsoever that there were times in her final year at primary school when J attended school smelly, unwashed and in dirty clothes.  It is clear to me that at that time S was struggling to meet the demands that all of her children were placing on her.  I cannot say whether her other children were similarly neglected, but it is undoubtedly the case that J was.

19.	The second finding sought is in relation to differential treatment between J and her two younger sisters.  I am not persuaded the LA has made out its case.  There were undoubtedly occasions when J’s younger sisters did things she did not do.  There may have been occasions that J did things her sisters did not do.  Extra-curricular activities at school were a source of some difficulty.  It seems that at that time, S’s reaction to opportunities for J was to say “no” too quickly, without investigating whether J could participate.  I am satisfied that financial considerations played a big part, particularly in relation to the stay at an activity centre.

20.	I am satisfied that S made comments to J and to others about J packing her bags and leaving.   This was in the context of S grappling with the issue of J’s future laying away from her family.  I have no doubt that this was a difficult decision for her to take.  I have no doubt that she will see it at times as a failure on her part.  S would have seen it as the failure of an aspiring social worker to provide the care that J undoubtedly needed, but when standing back from her emotional viewpoint, she could see the potential benefits to her going. I have no doubt that when she was under pressure she will have said things to J and about J that she will with the benefit of hindsight regret saying.  J was a child in need of considerable emotional support.  Whilst S was grappling with her future and the other pressures in her life, she was not as open to provide that support as J needed.  To that extent I am satisfied that J will have picked up upon S’s lack of emotional support and that has reflected in things she has said at school about not wanting to return to the family home.

21.	As far as S’s decisions on two occasions to cut J’s hair very short, a haircut much more suited to a boy, her decision to do that was at the very least insensitive and showed her lack of emotional communication with J at the time.  She told me that she had made the decision to cut J’s hair short to encourage her to look after her own personal hygiene to encourage her own independence.  That may have been part of it, but I strongly suspect that making the grooming of J quicker and easier played a greater role.  Had S spoken to J about what she wanted, she would have learnt that she wanted to grow her hair to be more like her sisters.  The evidence does not support the findings that the school told S what J was feeling, the evidence being ambiguous.

22.	To that extent, I make those findings sought by the LA, with the caveats that have been already expressed about the evidence relied on by a child of J’s age with her learning difficulties.  I am satisfied to the extent I have indicated that I can rely on what she has said.  

23.	S was defensive, combative and until very late in her evidence was unwilling to make even the most obvious concessions.  Mr Semple said that after she had given her evidence and had reflected on matters that she was more able to recognise the shortcomings of her care of J.  It is important that her relationship with J is conducted on an open and honest basis.  I suspect that she may have some bridges to rebuild with J, although from what I hear of J’s personality I suspect that J will be accepting of what has happened to her in the past.  

24.	In his submissions to me Mr Semple recognised that I was going to make some if not all of the findings I would make.  The kernel of his submissions was that those findings failed to amount to significant harm, such that I could not rely on them in making a public law order.  Mr Jones and Mr Buchan both suggest that whilst individually those matters may not amount to a great deal, it is the collective effect that I must look to.  Mr Semple makes the point that had J’s case relied solely on the findings I have made in relation to S, it is inconceivable that the LA would have launched care proceedings.  In that respect I am sure he is right, but that does not answer the question of whether it amounts to significant harm.  

25.	The legal barrier that must be surmounted is an objective test.  It has a degree of subjectivity, because the harm alleged may amount to nothing much when it involves a robust child, but it may amount to something more with a child with significant vulnerabilities.  I am looking at the facts of this case.  J is a particularly vulnerable child.  In 2012, 2013, 2014 she was caught up in events not of her making about which she will have had little understanding because of her cognitive functioning.  She will have been aware of her own hygiene.  She will not have been aware of its significance.  She will have been aware of the emotional distance that was growing with S.  She will have been aware of things that were said to her.  She had enough awareness for those matters to affect her.  It is plain from the records at school that the cutting of her hair was a very, very significant issue for J.  I am satisfied that collectively the findings I have made amount to significant harm for J.

Postscript:

26.	The Court has made a care order and approved the care plan including the contact plan of the local authority, which is either supported or not opposed by the other parties, which will allow for S to have contact with J on an unsupervised basis, for a full day on 4 occasions per year. In addition to this, J will have a further 2 contact sessions with S’s two daughters.