The London Borough of Barking and Dagenham v R & Ors [2023] EWFC 338 (B) (08 December 2023)

Reporting Restrictions Applied: No

Her Honour Judge Suh:

1. Today I am concerned with N , and D. Their mother is RS, their father is E. N has been in the care of the Local Authority since 10 December 2021, and D since 21 July 2022. I have three applications before me, an application for a Care Order for N dated 10 December 2021, an application for a Care Order for D dated 14 July 2022, and a Placement Order for both children, that application being dated 18 April 2023. I think technically I need to dismiss that application because it is no longer being pursued.

2. I heard this matter on 5, 6, 7, and 8 December. Ms Hendrick represents the Local Authority, Ms Courtney the mother, Ms Wiseman the father, and Ms Choudhury the children through their Guardian. The final positions are that the Local Authority seek a Supervision Order for 12 months with a Child Arrangements Order that the children live with their mother. The Cafcass officer supports a Care Order being made in relation to the children, as does both the mother and the father.

Background

3. By way of background, I will sketch some of the chronology. Much of the chronology has already been set out in my fact finding judgment, but there are a few updating matters. Looking back over the papers, I can see that in May 2022 the Local Authority were seeking separation of N from her mother following a negative residential assessment. They said that the unit was unable to keep the family any longer. On reflection, they did not pursue that separation, but that was their position at the time and much to their credit, they secured an alternative provision, a mother and baby placement at court.

4. Following my judgment in October 2022, a risk assessment of the parents was carried out. This was delayed due to the father not providing hair strand tests in time in line with the court order. Both parents filed a response to my judgment. The father clearly did not accept any of the findings, and the mother gave a minimal response, saying that:

"I cannot go behind the Court's finding."

5. Given that I find in my judgment that she told one story and then lied about her second story to explain events, her response did not give me an idea of whether she accepted that her second story was untrue at that stage. By April 2023 the Local Authority provided their final evidence and Care and Placement Order applications. They wished the children to be placed for adoption. At that April 2023 hearing, the Guardian had a strong view that the parents should be given every opportunity to reflect on their relationship and the court judgment, and Parenting U were engaged to do work with both of them.

6. The final hearing listed in June 2023 was vacated. In June 2023 the uncle and aunt attended court and I ordered an addendum special guardianship assessment, the first of them being negative. They were given a copy of my judgment to help them understand the Local Authority's concerns. In June I extended the timetable for the father's drug and alcohol testing and asked the parents to file their final evidence on 16 October 2023. When we came back to court in November 2023 the parents had still not filed their final evidence. I listed the matter for a December final hearing and I will later set out how the evidence for this hearing came to be filed, and the timing of that.

Issues

7. Everyone is agreed that the children should stay with their mother, and the issue for the Court is whether I should make a Care Order or a Supervision Order, and I remind myself of the case of Re H [2021] EWCA Civ 319, that it is incumbent on a judge who has reached a particular conclusion to identify the best points that have been made in opposition to it, and explain why they have not prevailed.

8. Ms Hendrick's submissions say that in reality on the ground, whether I make a Care Order or a Supervision Order, it would be the same for the children. Either way she says, the Local Authority would test the father for alcohol misuse. Either way, they would make referrals for work for both parents. Either way, they would make sure that contact is professionally supervised for eight weeks, and visit the mother more frequently if she moves out of the mother and baby foster care placement.

9. She says that a Care Order would not assist with housing or immigration, and that her instructions are that on the ground, giving parental responsibility to the Local Authority does not alter the treatment that the family would get. She was clear that the level of risk in this case did not lead the Local Authority to suggest a Care Order, and she submits that this case is not exceptional.

10. The Cafcass view is that the children are in a perilous and high risk situation due to their lack of immigration status, lack of housing, and the threat of deportation hanging over both of their parents, which Cafcass says poses an immediate threat to their safety and their welfare.

11. The Cafcass view was that the risks the father poses to the mother and the children have not reduced, and that a higher level of intervention was needed from the Local Authority in relation to his contact. The mother supports the making of a Care Order because she wants all the support and assistance the Local Authority can give her and the children, because there are so many unknowns in this case and it is submitted that only a Care Order addresses the safeguarding issues. She accepts that a Care Order is necessary and wants the wraparound monitoring that it provides.

12. The mother is still very young. Her English is improving, and she remains socially isolated and vulnerable to the father.

13. The father supports a Care Order for a different reason. He wants to see his daughters, and he has concerns about whether the uncle and aunt who the Local Authority propose will supervise contact, would be able to do so outside their home, or if the mother and children move out of the area. Although the uncle and aunt are happy to sign a Working Together agreement, they would not be able to supervise contact any distance away from their home, and the uncle has long Covid. They have got two children of their own and limited resources.

14. The father is worried that with a Supervision Order there is no clear framework for contact, that there is a risk it will not happen or it will happen in an unsupervised manner. No party has asked me to extend the timetable for the children. The family have been in proceedings for two years, and the vexed issues that give rise to the complexity of this case, the housing and the immigration and the status of the parties' relationship are unlikely to be easily and clearly resolved in the short or even the medium term.

15. I remind myself of the need to deal with all cases justly, allocating to each one a fair share of the Court's resources, and I can only extend the timetable for these proceedings if it is necessary to resolve proceedings justly. I remind myself of the no delay principle in the Children Act 1989, and I am satisfied that I should not extend the timetable or the Court's oversight of this case which has been going on for two years now, and that now it is in the children's best welfare interests for me to reach a decision.

Law

16. I have already found that the threshold for public law orders is made out by reference to my Fact Finding Hearing, and the Local Authority set out my findings in their threshold document. I am very grateful when I look at the law for Ms Hendrick taking the time and care to set out the law in relation to Care Orders and Supervision Orders in her note. She takes me through with some care and detail the recent case of Re JW (Child at home under Care Order) [2023] EWCA Civ 944 which I have read and reread several times, and the statutory framework and considerations that govern my decision today.

17. I am grateful to Ms Hendrick for her summary of the main points of the case JW. As she rightly says, the case highlights Oxfordshire County Council v L [1998] 1FLR 70 where Hale J (as she then was) held that there must be 'cogent and strong reasons' to force a local authority to take on a more Draconian order than that which they requested. Hale J went on to highlight the 3 possible reasons in her view that a care order at home could be made:

a)The authority needed the power to remove the child instantly if circumstances required and also to plan for the child to be placed long-term outside the family;

b)That it was necessary for the authority to share parental responsibility with the parents, but the fact that considerable help and advice may be needed over a prolonged period was not itself a reason for making a care order;

c)That it was necessary to place duties upon the local authority, but it would be wrong to impose an order which was not in the interests of a child simply to encourage a local authority to perform its statutory duties towards a child in need.

18. This was reiterated in Re O (Supervision Order) [2001] EwCA Civ 16. This judgment went further to emphasise that intervention should be proportionate and where a supervision order is the proportionate order it is 'always hoped it would be made to work'.

19. Paragraph [28] summarises this evolution:

In summary, looking at the statutory scheme and the case law as a whole, the following is clear:

i) making a care order with a subject child placed at home in the care of their parent(s) is plainly permissible within the statutory scheme and express provision is made for such circumstances in CA 1989, s 22C and in the placement regulations;

ii) the early post-CA 1989 authorities established that a care plan for placement at home was an appropriate outcome where the facts justified it, without the need for exceptional circumstances;

iii) the analysis of Hale J/LJ in Oxfordshire and in Re O laid particular weight upon the need for the authority to have power to remove the child instantly if circumstances required it, or to plan for the child to be placed outside the family;

iv) since Oxfordshire and Re O, the High Court decision in Re DE, containing guidance endorsed by the President, has been widely accepted so that, in all but a true emergency, the local authority power to remove a child from their home under a care order should not be exercised without giving parents an opportunity to bring the issue before a court;

v) the difference concerning removal of a child from home either under a care order or where there is no care order is now largely procedural. In all but the most urgent cases, the decision on removal will ultimately be taken within the umbrella of court proceedings, rather than administratively within a local authority;

vi) sharing of parental responsibility by the local authority with parents is an important element, but, as Hale J/LJ stressed, the fact that considerable help and advice may be needed over a prolonged period is not a reason, in itself, for making a care order;

vii) it is wrong to make a care order in order to impose duties on a local authority or use it to encourage them to perform the duties that they have to a child in need;

viii) the protection of the child is the decisive factor, but proportionality is key when making the choice between a care and supervision order for a child who is placed at home;

ix) supervision orders should be made to work, where that is the proportionate form of order to make.

20. The court goes on to consider the appeal and the law from paragraph [68]. The local authority highlights the following:

a. [70 - summarised] On the facts of this case although the risk was of potential sexual abuse the risks that had been identified were possible reconciliation, a mother who was said to be vulnerable, a late separation of the mother and Mr P in the proceedings, a partner who did not accept the risk he was said to pose, there had been breaches of an agreement which queried the mother's ability to cooperate, there was continuing work for the mother to engage in

b. [71] Against that background, it is difficult to understand the basis for holding that the situation in the family was exceptional or rare when compared to other families where the children are placed at home with parents at the end of care proceedings

c. [72] The judge's principal reason for making a care order was that a supervision order did not have 'the safeguarding features' of a care order and that it was necessary for the local authority to share parental responsibility, and if necessary take the whip hand, if there was a falling down in the safeguarding position at any point. The judge did not, however, identify what 'the safeguarding features' of a care order in this case were. In circumstances where the local authority plan was the same under either order, it must be presumed that the judge was referring to the fact, as he expressly did, that under a care order the authority would share and control the exercise of parental responsibility. But, the judge did not give any consideration of the consequences, on the ground, were the mother to refuse to comply. In particular, he did not consider whether, in 'taking the whip hand', the authority would be justified in immediately removing the children from their mother's care

d. [72] Unless it was likely that immediate removal would be justified, then, on the basis of Re DE, whether the final order was a care order or a supervision order, the issue of removal would have to come back to court. In those circumstances, it is difficult to understand just what additional power the judge was contemplating that a care order would give to the local authority in order to maintain adherence to the safeguarding plan or add to the authority's ability to protect the children.

21. The judge was held to have been in error in finding that this case was 'exceptional' or 'that a care order was the proportionate and necessary order to be made'. Further that:

For the reasons that I have given, the reality is that, in a case such as this, where the risk is slow burning and the plan for monitoring and support is the same under either order, and where any attempt to remove the children from home would be likely to lead to further court proceedings, there was nothing that making a care order would add to the local authority's ability to provide protection.

Evidence

22. I move on to the evidence. At the November Pre Trial Review, I included the following recital:

"Upon the Court impressing upon the parents the importance of them filing their final evidence so that the Court and the parties are aware of exactly what their position is in relation to the issues of welfare and also the judge's findings."

23. It was crystal clear that the Court and everybody else really needed to know what the parents thought. The deadline for their evidence was extended to 27 November. The mother's final response to threshold was dated 29 November, and statements from the parents were received from the mother on the afternoon of 4 December, and from the father on the morning of 5 December, that first hearing morning of the final hearing.

24. The Guardian sadly has been on long term sick leave and was unable to complete a final analysis or attend the hearing, but a Cafcass manager kindly agreed to step in. She has reviewed the bundle and formed a view on the welfare of the children. She produced a detailed position statement which was shared with the parties and the Court on the morning of 5 December in which she advocated for a Care Order.

25. I am very mindful that the late provision of evidence has led to I am sure out of hours meetings for Ms Hendrick and her social work team and the senior management for the Local Authority, and that they have not had the benefit of ongoing discussions with the Guardian who has been on long term sick leave, so I want to commend the Local Authority team for responding so quickly to the number of issues that have arisen at the last minute through no fault of their own. I am particularly grateful to Ms Hendrick for her assistance on the law in relation to those matters.

26. I will sketch an overview of the evidence I heard in court. I make it clear that I have read and reread the bundle, and I am not going to set out everything I have read, but I bear it all well in mind. I will just refer to the evidence that has been most material to making my decision. The Cafcass manager adopted her position statement in evidence, and she gave clear and child focussed evidence why she thought a Care Order was in the children's best welfare interests.

27. She thought that this was an exceptional case, and was well familiar with the work of the Public Law Working Group and the recent case of JW. She said she could count on the fingers of one hand the times she had recommended a Care Order placing a child with their parents, and she was an impressive witness who has mastered the detail and the evolution of the case, even though she had come to it late. The Cafcass manager was clear that there should be a Care Order for the remainder of the minority of the children, with any application to discharge being made after the significant risk factors in this case had been addressed.

28. In submissions, Ms Choudhury was clear that Cafcass were content for it to be recorded on the face of any order that their view is that once the safeguarding issues have been addressed, they anticipated the children would be old enough to articulate their lived experience and would be more settled, there could be an application to discharge the Care Order, but there should be active review and monitoring.

29. The Cafcass manager took the view that the risk of domestic abuse, harm to the children, and trigger of alcohol for the father remained high, even at the end of the proceedings, and was adamant that a Care Order was both necessary and proportionate. She said they have a duty of care, and that is a duty to protect the children and make sure they are safeguarded. They need to be actively safeguarded. There are too many variables and vulnerabilities for the mother and the children for the Supervision Order to be robust enough. She was clear this was a case that needed active risk management, not befriending, advising and assisting.

30. She asked rhetorically what the Local Authority would do if the parents did not comply with the supervision plan and ventured, "probably nothing". She said a Care Order was necessary for the Local Authority to assess the level of care given to the children by their mother.

31. I heard the parents' evidence, and the mother's evidence was markedly less evasive than when I first heard from her in the witness box during the Fact Finding Hearing. The impression I gained is that her main priority was to avoid the removal of the children from her care, and to have as much support as the Local Authority could give her. She had no objection to the Local Authority sharing responsibility, helping her to access GPs or schools. She accepted she had lied to the Court during the Fact Finding Hearing.

32. My impression is that she has begun to develop insight into the risk that domestic abuse poses to her and her children, but this is at a very early stage, and her evidence lacked depth and complexity, and she seemed to see things in quite one-dimensional terms. She came across as somewhat naïve and immature at times, and it seems to me that she is in the beginning of a process of growth and change in which she must continue to put her children before E.

33. E had a tendency as in the Fact Finding Hearing to answer questions with a question of his own, and he denied doing any of the things I had found he had done in the fact finding judgment. He did not accept the hair strand testing even now, and gave evidence that his drinking was not excessive or out of control. He maintained he knew his limits. He said he was never involved in violence and arguments, he did not consider he was a risk to the children in any way. He said that the mother could also become angry and this was an issue too, which seemed to me to place a degree of blame on the mother.

34. He gave a somewhat simplistic response when he was asked what he learnt on his course.He said you would take a few minutes outside or go away if you are in an argument. He stated he would do whatever was required of him, but that did not seem to me to come from a position of acceptance or insight. I note that the mother was absent from the courtroom for the majority of the father's evidence, and that he was absent from the courtroom during hers. That may just be coincidence, but I think it was so striking as to make it noteworthy for my judgment.

35. The social worker gave evidence and she is a committed and dedicated professional. She has had the professional courage and integrity to change her care plan from one of adoption to a Supervision Order when she observed change in the mother, and that shows an open mind. I commend her for this. The Local Authority also changed their position to their credit during the proceedings and said that they would remain the designated authority if the mother moved out of London during a Supervision Order, having reflected on the difficulty that the transfer of the case would pose, should a receiving local authority not be minded to follow their supervision plan, and that shows a real sense of the personal responsibility that this social worker takes for her work, and her sense of service.

36. She said for example:

"This is a crucial time. The Local Authority will not go back on their commitment."

She said:

"Under a Care Order or a Supervision Order, I would never let the children become destitute."

She said:

"We would not see them destitute under a Care or Supervision Order, but I cannot tell you the legal basis for that."

37. She described how she visits her families more often than is required in law, and she has built a really good working relationship with the mother in particular, so this is an impressive and caring social worker. She does not expressly consider the option of a Care Order with the children placed with Mother in her final evidence, and said she had never heard of that before, but went on to clarify it was an option, but it was exceptional. The social worker I am told would remain the social worker under a Supervision Order, but not under a Care Order, and I was grateful to the Local Authority for that indication.

38. I think Ms Scott is an exceptional social worker with a real willingness to work with this family, an admirable flexibility and openness in her thinking, and because I know she has to slip out maybe before this judgment is finished, I want to thank her expressly now for the work she has done on this case. The work she has done on this case and others of hers I have seen has been of the highest quality. She always goes the extra mile. She does a hard job, and she does it well.

39. Ms Choudhury very wisely however reminded me that this case is not about an individual or their commitment to the family, but I as a judge have to look at the legal framework to mitigate risk. I am very grateful for that reminder, because there is always a possibility that something unexpected might happen which we cannot foresee, that might prevent Ms Scott from remaining this family's social worker, and I know that everything Ms Scott has said to me is in utmost good faith and how committed she is to this family. Indeed, I would like a social worker like her in every case I hear, but it is my role to choose the right legal framework around this family that is both necessary and proportionate, given all the unknown factors.

40. I cannot rely on one individual and the burden of ensuring a plan or an order is put into place. It needs to be that of the Local Authority as a whole, rather than shouldered by one particular committed worker.

Welfare

41. Looking then at the welfare assessment for these children, their welfare is my paramount consideration. I remind myself of the no order principle, and I know that if the children could tell me their wishes and their feelings, no doubt they would want to stay with their mother and spend time with their father if it is safe for them to do so. No doubt they would want somewhere safe and comfortable to live.

42. I look at their physical, emotional, and educational needs. The mother is able to meet their basic care needs. She has taken on board the advice about helping them grow. She has taken an ESOL course. She has begun to explore baby and toddler groups to allow the children to play independently, and she has accepted a nursery place for N. This educational provision is essential for the children's socialisation and the involvement of the family in the local community. It brings a professional oversight of the children's wellbeing as well as educational benefits.

43. The parenting work notes done with R suggest she had some reservations about nursery to start off with, and we do not know where she will be living with the children in light of her immigration and housing situation, but in my view it is imperative that these children remain engaged in education and that there is no gap in N's education provision. I am told there is no bar on children accessing education due to their lack of immigration status, however the mother is quite passive and reliant on others to do things for her, and English is not her first language, and I have real reservations about her ability to ensure that there is a nursery provision without input from the Local Authority.

44. If the children were subject to a Care Order they have an educational priority as looked after children in relation to school places. No such advantage is conferred by a Supervision Order.

45. In relation to their emotional needs, they need consistent, predictable routine, they need to be safeguarded from the impact of domestic abuse, and of course by virtue of section 3 of the Domestic Abuse Act 2021 they are themselves treated as victims of domestic abuse. They need to be physically safe, and in the past N has not been, and they also need a relationship with their father, but one that is conducted in a really safe way.

46. I look at the likely effect on them of any change of circumstance, and throughout these proceedings the children have been with their mother, save for a short stay at the beginning when N was in foster care on her own. The removal from their mother's care would be a dramatic change of circumstance for them. No party suggests that, but there are other things that may change dramatically for them. Both of their parents are at real risk of deportation. It is concerning that neither parent had made any application to regularise their right to remain within this jurisdiction. The mother's student visa expired on 10 September 2022, and the father has no right to work or remain in the UK.

47. I think he has been here for five years now, so the mother's immigration status gives her no right to work, hold a tenancy, seek relief through public funds, and she may be charged for NHS treatment. It is in the evidence the Local Authority have provided that she is committing a criminal offence by remaining in the UK, pursuant to section 24 of the Immigration Act 1971, so there is no barrier to her being removed or detained with a view to being deported from the country, and this position leaves the children incredibly vulnerable.

48. I look back over the papers and immigration has been an issue for the parents throughout these proceedings. I mention it in my fact finding judgment, and when the special guardians were being assessed back in January 2023 the assessor notes that the mother is advised she is due to put in an application with the assistance of the Local Authority who have put her in touch with an immigration lawyer. R advised me she had an appointment with the immigration lawyer on 26 January 2023. Nothing appears to have come of that.

49. The no recourse to public funds statement suggests that that team have given the mother advice. They say she was signposted to the counselling and community based support service with an immigration specialist service in the borough. The service is of the view R's only option is to regularise her stay in the UK by seeking asylum. Rwas initially of this view also, and intended to contact the Home Office on Monday 27 November, but she has now changed her mind, stating that her solicitor had discouraged her from applying for asylum because if she does so, she is not going to be able to go back to her home country.

50. The mother has spoken to an immigration lawyer but they are in her home country, according to her final statement, and she confirmed in the witness box this was the lawyer who essentially advised that she could regularise her immigration status by staying in the UK until the children reached the age of seven. She said you have to pay money to consult a UK lawyer. Her visa expired over a year ago, and her plan is essentially to sit it out and to wait until N is seven to regularise her immigration status.

51. Cafcass take the view that the mother should have tried to access information available to her, and she has relied on the professionals to remind her she has not got legal status, and she is not entirely convinced that she is at risk of deportation. They describe her as passive in the extreme, and irresponsible for not taking advice and active steps to regularise her children's status as well as her own, and I agree with that assessment.

52. Another change of circumstances for the family is in relation to housing. This family cannot remain in foster care. They will need to move. It is not clear where they will live and how this will be funded. No criticism of the Local Authority, because this is a very complex matter. The Guardian highlights the children do not have a secure status and that is a risk factor. It is traumatic for the children because they are going from a settled environment in foster care to uncertainty. The manager says:

"I am concerned they have been protected and they will now lose that stability."

53. The mother will be alone as a parent for the first time in a new area, and these are two young and vulnerable children facing a change of home, potentially a change of nursery, and I am not satisfied that either parent are proactive or thoughtful enough to manage this actively in their best welfare interests. There is also a lack of clarity from the evidence about what resources are open to the mother, so the no recourse to public funds statement says that:

"Normally with families with no recourse to public funds who have active applications for stay, can be provided with support under section 17 of the Children Act 1989 if they are at risk of destitution."

54. Since R is in breach of immigration laws by overstaying her visa, she is excluded from this support and this is set out in section 54 and schedule 3 to the Nationality, Immigration and Asylum Act 2002. Ms Hendrick on instructions from the management team said that the mother needs to make an application, any application, in relation to immigration status, and then she is able to accept no recourse to public funds payments. It is the same if it is a Supervision Order or a Care Order.

55. If the mother applies for asylum, the accommodation will be provided by the asylum team. If she makes any form of immigration application the no recourse for public funds team will provide the accommodation. There is a difference of evidence between what the social worker confirmed in the witness box compared to what the no recourse to public funds team say in their statement, and it is not clear to me what exactly the legal position is, and that is no criticism of Ms Hendrick.

56. The barristers in this case as I understand it are not immigration specialists, and neither am I, and it is not clear to me how the children exactly would be safeguarded against destitution by reference to that immigration law framework, and I am very mindful that the late emergence of the evidence and subsequently Cafcass' position means that the Local Authority have no doubt not had as much as they would like to explore the complexities of the issues that arise from the Cafcass position.

57. I know that they have been working around the clock to try and assist the Court, and I am very grateful for the material I have been sent and significant time in particular Ms Hendrick has spent researching matters for me. I took care to read the links to the immigration material she kindly sent over by email yesterday afternoon, and as I read I became even more aware of the complexity of this area of law in which the Family Court has no particular expertise, and what struck me repeatedly is that the advice given in the Coram Legal Centre's factsheet about children in care in immigration is good.

58. Coram Legal Centre say that high quality legal advice and representation should be sought in every case as it is required, and funded by the Local Authority if legal aid is not available for children in care. They suggest every care plan should have a section devoted to immigration. This is a complex area with a profound impact for the children and their status in the UK, and I think it would be unwise for me to try and piece together what I think the position is. There is no substitute for the children having their own advice separate from their parents, and maybe this is particularly so in a case where the parents are passive or driven by a degree of their own self interest.

59. Another potential change for the children is a house move out of London, and there is a real possibility that the mother could be offered accommodation outside London, and if she turned this down I am then unsure what provision would be made for her. If she moves away she would be parenting on her own for the first time in a new area. The list of support that the worker set out, having done some domestic abuse with her, is at E420 to E421 of the bundle, and that highlights her vulnerability and her lack of independence, because they say she needs really a degree of ongoing support and work, so she is a vulnerable young lady who in my view does not always think through her decisions, and a move outside London in my view is a safeguarding issue in and of itself.

60. Of course, if the Local Authority had a Care Order, they could advocate for the family not to be moved too far away, and they may hold greater weight than if they did not have parental responsibility for the family. Should the children be moved out of London under a Care Order, that placement decision would need to be looked at with reference to Regulation 11 of the Care Planning, Placement, and Care Review Regulations 2010.

61. That says that a decision to place a child out of the area of the responsible authority must not be put into effect until it has been approved by a nominated officer, and in the case of a proposed placement which is also at a distance, must not be put into effect until it has been approved by the director of children's services.

62. Contact is another area which may lead to a change of circumstance. Any change which reduces contact is not in the children's best welfare interests. They are used to seeing their father, and a change which increases or moves the contact on to unsupervised or overnight is a change which in my view needs to be very carefully managed.

63. I look at their age, sex, and background. They are still very young. and therefore vulnerable by reason of their age. They cannot tell us their lived experiences yet. Their family are still in my view somewhat socially isolated. Both parents are still using interpreters at court.

64. I have already looked at the harm that the children have suffered by reference to the fact finding judgment and my threshold documents, but the findings made, it is worth saying, are serious, and N suffered significant harm through inflicted injuries perpetrated by her father when she was just five months old in the context of a parental relationship characterised by domestic abuse and the father's alcohol misuse, and I found that the mother failed to protect the children by colluding with the father in lying to professionals and to the Court by attributing N's injuries to an accidental cause, so I look at the ongoing risk in relation to E, the children's father.

65. I looked back over the papers and saw that Dr Campbell when he met E said he could not detect any sign or symptom of poor mental health. As I say, any difficulties he is experiencing are not primarily due to poor mental health. If he has a problem with alcohol, anger or aggression, this would be related to mental health, but he denied having any problems.

66. In his first statement after the fact finding judgment, the father says:

"I feel that the lies have prevailed. I have lost trust in the system."

He has gained a degree of insight into the dynamic of relationships, but he still does not accept the specific findings of the Court. He does not express any regret for what he has done. He does not accept he has harmed his daughter, and the Cafcass manager was clear that the risk he poses to his wife and daughters remains high despite two years of proceedings with reflection, professional guidance, and the provision of courses.

67. Cafcass are clear he poses a risk of harm to the children and the mother which places them in a particularly precarious position. Without full acceptance of the findings, the work completed by him in my view has limited value of reducing the risk of the future harm. Ms Courtney submits that the father is arrogant, entitled, and untruthful, and that the mother is particularly vulnerable to him if she was moved out of London, and she may have no option but to think that she should put her trust back in his hands.

68. The harm that the children have suffered is one that the Local Authority in their evidence describes as significant in relation to the risk of physical and emotional harm to N and D, should they reside in their parents' care. They of course have moved on from that assessment, but they have taken that view prior to the mother demonstrating a degree of change.

69. The role of alcohol in the father's life gives rise to a risk of harm. I have already referred to the first set of hair strand tests which cover October '21 to January '22, which the father did not accept at the Fact Finding Hearing, and he continues to dispute them, so see the social worker's statement at C55, and as late as April 2023 was saying to her he does not have any issues with alcohol use.

70. The later hair strand tests dated June '22 suggest a chronic excessive level of alcohol consumption in the earliest hair sections. The February 2023 tests do not suggest that the father has consumed chronic excessive levels of alcohol, and the blood analysis was not in the excessive range. The social worker has clearly been working with the father to address his issues, but her statement of March 2023 says he refuted he has ever struggled with alcohol misuse and he did access a service local to him, but he attended only a few appointments before being discharged.

71. I then had the alcohol tests from April to June '23 which do not show chronic excessive levels, and the PEth test which is consistent with social or moderate alcohol consumption. A further test dated 21 November 2023 is consistent with alcohol consumption, but not at a level suggestive of chronic excessive use, and the PEth test was in the moderate range.

72. The father declared he consumed alcohol at weekends and last consumed spirits the weekend prior to collection. The father does not see his consumption of alcohol as problematic, and in his final statement does not think it is necessary for him to stop drinking or address it, but the Cafcass manager points out that alcohol was the trigger for his aggressive behaviour, and yet he still drinks with that trigger unaddressed.

73. The mother's response to threshold accepts the father is intoxicated when he injured both her and N, and she says he had been drinking like that most days. In the witness box she attributed his behaviour to alcohol, and the risk arising from alcohol misuse remains unaddressed and high in my view. Although this risk can be mitigated by the plan to test for alcohol and supervise contact, unless there is some change in the father's alcohol usage, insight, or acceptance, this may be a risk that remains beyond the duration of a Supervision Order.

74. The risk that the father poses from domestic abuse, alcohol, and nonacceptance of the findings is ongoing. The Local Authority's supervision plan agrees to review contact and undertake a risk assessment in the week beginning 11 December 2023, that is next week, and Cafcass point out that the Local Authority have sufficient concern that they are undertaking a risk assessment even at this point of nearly completed proceedings.

75. The father did not accept that contact should remain supervised, but if you think it is necessary he says, you can have it. He wants overnight and unsupervised contact in his witness statements, and it concerns me that he may put pressure on the aunt or uncle or mother to move contact on. He is a forceful personality and he has clearly, when you read the special guardianship addendum, told his family that the police have taken no further action as evidence of the fact that there is nothing to worry about.

76. He told the potential special guardians that nothing happened on 4 December 2021, and in fact the aunt and uncle do not appear to have a real understanding of any risks arising from his alcohol misuse, so if the mother moved out of London and the aunt and uncle cannot supervise the contact, there is a risk arising from the father that the contact will not happen which would not be in the children's best interests because they would not be seeing their father, or that it might happen in an unsupervised manner.

77. Of course, under a Supervision Order there is no duty on the Local Authority to make sure contact happens. Of course with a Care Order, there is section 37 of the Children Act 1989, Regulation 32 of the 2010 Regulations, and schedule 7 to those regulations. Those are the frameworks around which the risks from alcohol use and contact can be managed.

78. I look now at the parents' relationship, and it seems to me that there is a real risk of harm to the children if the parents resume their relationship without a significant change in the way that they relate to each other. The mother's level of insight has developed. When I look back at Dr Campbell's report, he says:

"She came across as inclined to reveal nothing negative to me, or almost nothing. It would be difficult to even attempt to develop a risk profile of her on the basis of not having facts. I cannot address the risk at this time."

79. He did note that R's reflective functioning does not appear to be well developed, which could impact on the decisions she has made. She then did of course the Freedom programme, had one to one work and of course worked with the social worker, but none of this seems to have addressed her understanding of the risk that the father poses to her for a number of months, so when Ms Scott comes in February 2023 to assess risk she says both parents demonstrate minimal reflection and acceptance of the Court's findings.

80. This stance is very concerning and strongly suggests that they are protecting each other, rather than placing the children's welfare at the centre of their thinking. It is to the mother's immense credit she has begun to shift in her thinking, and agreed at the Case Management Hearing in April to do that parenting work, and the social worker's updating statement of November 2023 sets out the impact of this Parenting U work. She has been able to develop an understanding through the programme of the behaviours E was exhibiting which could be considered as abusive, which were once normal to her due to her cultural upbringing, and something she felt she just needed to accept.

81. The assessment does highlight that R, similar to many women who have left an abusive relationship, shows some indications she has hope from her partner E will change, and there are signs she seeks to explain his behaviour by him drinking excessively. Therefore, whilst she has made some significant progress in her thinking and understanding of the risks posed to her and her children, there remain some vulnerabilities, and she will need to continue on her journey of challenging her own thinking and ensuring she is realistic about the future of her and her children, and how E plays a role in the lives of N and D.

82. Listening to the mother in the witness box, it struck me that her understanding of domestic abuse was not yet well developed. She showed a developing understanding of the risks E posed to her and the children, but there are some things that she attributed to her culture and she thought were normal but said were not normal, but she also attributed the father's behaviour to drinking still, and gave the impression if he stopped drinking, that could remove the difficulties.

83. She had said the children she would prefer to be supervised when with the father, but showed a basic understanding of why this was necessary. I note in the Parenting U work they say she will only reunite with the father depending on the findings of the Court. That suggests that she may have remained separated through the latter part of these proceedings with a degree of expediency in view of the Court's involvement.

84. In relation to E, I have read that the facilitator in his group was able to assist him unpick his thoughts around his own cultural beliefs and expectations regarding his partner. One particular session the supervisor stated E had profound reflections on both himself and on society. The facilitator highlighted that E has made significant progress in both his understanding of domestic abuse in all its forms and its impact, and was seen as genuine by the programme facilitator.

85. I have to say that this level of insight was missing when I listened to the father's evidence in the witness box. He did speak about culture and the rules of UK society, but took no sense of personal responsibility for his actions, and did not apply anything he had learnt to his own behaviour. He did not indicate any understanding of the continuing need to reflect and change. When Ms Choudhury put it to him that he assaulted his wife, slapping, pulling her hair, pushing her into the furniture, he simply responded:

"No, never."

86. When I look at this risk arising from domestic abuse, I need to look at whether the parents have separated and continue that separation. R remains separated from E, but does not rule out reconciliation, and reading back over the file and my fact finding judgment, she separated from the father right at the beginning of proceedings, and in her position statement with HHJ Venn in January 2022 said she had no intention of reconciling with him. She did however, and then retracted her statements about how he had treated her, and when I look back over the residential unit assessments, they were clearly working with her so intensively to try and disabuse her of the notion that her best option was allying herself with E.

87. By the time of the social work evidence in spring 2022, R and E are clear they are in a relationship, and that they wish to care for N on a joint basis, with her unborn sibling. In the parenting assessment of April 2022 each parent remained rooted in the position they were going to jointly care for their children, and therefore the future contact arrangements are not relevant. It is therefore misleading for E to say in his final statement that the parents have separated since December 2021, when at times they were clearly presented together after December 2021.

88. In the final social worker evidence of March 2023, it is said that:

"Whilst R has stated she will separate from E, there has been no evidence of her taking steps to do so. As outlined, R's statement is that she will separate if directed by the Court, but this does not instil confidence that she is committed to doing so."

89. It concludes that:

"She remains emotionally enmeshed to E and there are real risks of them reconciling. Neither parent would have any incentive to promptly report concerns for fear of further statutory measures."

90. Even taking into account the cultural pressures placed on R, the independent social worker notes that the lack of movement in her position in relation to the findings is very troubling. In her first statement after my fact finding judgment, the mother is silent on her relationship status, and in her final statement at December 2023 she says that she has separated from her husband, but as I have said, told the Freedom programme she did not rule out getting back together.

91. She has colluded with the father by lying in court in the Fact Finding Hearing, and said she was doing that because she was hoping for reconciliation of the family. She now wants to be with her children and does not want to jeopardise their future, and it seems to me that the mother has a track record of doing whatever she thinks is best to serve her interests at any given time, so here at the final hearing she says she will remain separate, but I am concerned that resolve has yet to be tested.

92. She gave evidence she could divorce from the father but has not taken steps to do so, and did not think that divorcing would cause trouble with her sister in law. Again, this might be somewhat simplistic thinking. I think there is a real risk that should she think it benefits her, she may align herself again with the father. She seems to take whichever path she thinks most beneficial to her at the time, and if she moved back in with the aunt and uncle, that might put her under particular pressure to reconcile.

93. The father is very clear in his final statement:

"I would wish for my wife and I to reconcile and raise our daughters together, and I accept at this time my wife does not want to reconcile. I accept her wishes and if we reconcile, it is because we both want that, and because it will be in the interests of out daughters."

94. The parents have given evidence that they have been in touch by phone. The mother said she had called N on a video call with her father after contact, and the father said he had called the mother two or three times, or maybe three or four times a month. The mother's view of her relationship has fluctuated during proceedings, and even now they have been in touch outside contact and there is a real ambiguity about their separation in my view.

95. I accept that the mother is putting her children first at the moment, but she is socially isolated and when these proceedings started she did not have a network of family or friends, and she does not have a great deal bigger network now, and because the parents have lied previously, it makes it harder for me to take what they say at face value. Understandably, their main priority at this hearing is making sure that the mother stays with the children, and the social worker was frank in her evidence:

"We cannot rule out these parents getting back together. What we would expect is them to be open and honest and work with us about that."

96. The history of this case does not give me great confidence that they would always be open and honest with the social worker, and the social worker was very concerned that if the mother returned to the father, that would be something that would worry her, and she is right to have that level of concern.

97. Another source of potential harm to the children is it is not clear where the mother and the children will live. I have already referred to the lack of clarity about the legal structure around their housing and financial support, and Ms Courtney fairly asked the social worker in the witness box about the care plan at C123. Should it be agreed by the Court for the children to remain in the care of R, R will be transitioned with the support from her current placement into identified accommodation, but the social worker very openly said:

"I am afraid I cannot answer that, I am not part of the no recourse team, and this is all I can provide for the Court at this time."

98. The Cafcass view is that if the mother was on her own she would be very vulnerable because she does not have proactive and protective thinking, and I accept that evidence. The mother is ill equipped to advocate for the children, and has shown herself in these proceedings to be somewhat simplistic in her thinking.

99. The Local Authority submits that having parental responsibility does not add any added benefits when it comes to the issue of housing, and whether I make a Care Order or Supervision Order on the ground, it would be the same, but by law I think there is a statutory difference. I have that conflicting information about whether the mother is entitled to section 17 assistance, but if the Local Authority had parental responsibility they may be able to exercise it in the children to obtain bespoke advice from a specialist housing or immigration practitioner.

100. We looked at section 22C to 22G of the Children Act which does place local authorities with duties in relation to accommodation and looked after children. Of course, not all of those provisions are applicable to this factual scenario, but they are part of the legal framework more broadly. I look at Regulation 17 of the 2010 Regulations, and that applies where a local authority is assessing a parent's suitability for a child, they must expressly take into account the proposed accommodation, and those matters set out in schedule 3 in making their assessment. Schedule 3 includes a requirement to ensure the home and accommodation is suitable.

101. I look at Regulation 32 of the 2010 Regulations, which is the duty to have regard to review each children's case, then the local authority must take into account the matters set out at schedule 7, including whether the child's placement appears to be the most appropriate available, and any other aspects of the arrangements made to provide the child with accommodation which is or likely to become necessary or desirable before the next review of the child's case.

102. I look at Regulation 39 which provides that the responsible local authority when they are considering ceasing to look after a child, must carry out an assessment of the suitability of the proposed arrangement for the child's accommodation and maintenance when the child ceases to be looked after by them, and I have already I think referred to Regulation 11 which is about moving out of area.

103. Another factor giving rise to a risk of harm is the children's immigration status which makes them vulnerable. I think Cafcass is right that the mother has been passive in seeking to secure her legal status in the UK, and that this shows a lack of thinking about the security of the children. She is not thinking says the Cafcass manager, about what it means for the children. That is an aspect of her parenting that concerns me. She comes across as naïve and dependent on others to sort it out for her. She does not believe she is going to be deported, and what does it mean for the children if she is deported.

104. The parents' immigration status puts them and the children at risk of harm from homelessness, destitution, or separation from each other. Either parent could be served with a notice of deportation at any stage, and this would be a risk to the safety and welfare of the children. This is a risk that the parents personally have taken no adequate steps to mitigate as far as I can see. It is a risk to the children's immediate safety and welfare.

105. Cafcass makes the point that when it comes to the risk of deportation, the Local Authority with Parental Responsibility under a Care Order would be able to exercise it in light of the children's welfare, whereas if their mother were to be deported, a Supervision Order merely requires the Local Authority to advise, assist and befriend, and they would as far as I can see, have no rule under the Children Act in looking at the removal of the parent or the children from the UK.

106. Cafcass says if the removal from the UK was a live issue with a Care Order, the Local Authority would need to be assured that this was a safe arrangement for the children, and under section 33 of the Children Act they would be entitled to be heard and make representations on behalf of the children. I also look at Regulation 12 of the 2010 Regulations which expressly deals with placements outside England and Wales, and the Local Authority would need to look at that.

107. With parental responsibility, the Local Authority would need to actively risk assess and be involved in any consideration of whether the children should be removed from the UK. Without parental responsibility, it seems to me that there is nothing to stop the mother and father reuniting tomorrow, getting on a place together, and setting up life together in [redacted country]. That seems unlikely given that they are both wanting stay in the UK, but in such circumstances the Supervision Order does not give the Local Authority a say in those arrangements.

108. There is also a risk in my view arising out of the parents' lack of planning, and the decision making that the parents have exhibited during these proceedings appears to be a basic decision making process in the extreme, so an example of this is the proposal that the move in with the paternal family in their one bedroom flat. When I look back on my fact finding judgment, the parents lived with the uncle and aunt during Covid when the paternal grandmother was visiting the UK, and I refer in my judgment to the tensions with the paternal family.

109. I have looked back at the first statement of Autumn Dawkins who says:

"R has made an allegation that E's sister told her to wait until three month scan with her current pregnancy to see if the baby is a girl, and they will have her aborted."

110. R has made allegations of the wider paternal family's involvement in domestic abuse, stating there was an incident where E's family was visiting and she reports they locked her in a room and said she needs to use the toilet, and her mother in law took her to the garden and said she is not capable of using their toilet, and needs to do what she needs to do there. I asked the mother about this in the witness box and about the reports she made of the father and his mother being abusive to her.

111. She said that the aunt tried to resolve the situation and reason with everyone and make sense by saying:

"I am your daughter, and she is someone's daughter too."

This has not been fully explored in the special guardianship assessment, where the aunt and uncle give the impression they were unaware of any elements of abuse, and in the recent Parenting U work the mother refers to her in laws interfering and affecting her relationship with her husband.

112. Whilst I make no findings about the truth of what was said, there is clearly tensions in the relationship with the paternal family, and the mother does not seem to have thought this through in agreeing to the suggestion that she might go and live with them. Reading carefully the special guardianship assessment, R and E the aunt and uncle, shared they are not sure if the mother is being honest about what happened about her and the father, because she has changed her statement several times. It seems that that would make the working relationship between the family members quite difficult.

113. The aunt and uncle acknowledge the father to the children may have changed during the course of the marriage to become the person described in the information shared by the Local Authority. The views of the difficulties that the aunt and uncle see in the marriage could be read as inclined that the mother was somehow instrumental in causing the father to behave in this way, rather than being a victim of his abuse. I appreciate that the aunt and uncle have not had long to reflect on the judgment, but their first reaction was to align themselves with their family members, and that is telling.

114. Even in the addendum assessment it said they need training on neglect and alcohol abuse, and further input in order to support the children. I am concerned that the aunt and uncle may not be fully ready to place boundaries around the family if the mother is in their home. The father is a forceful character and he does what he thinks best for him, and I cannot rule out that he might exert some pressure on them.

115. In the social work statement of April '22 it is clear that the father used to live with his sister and brother and law, and in the special guardianship assessment he visits every week at their house. He said in oral evidence he would follow advice not to visit and abide by a Non Molestation Order, but that would be a change of behaviour that he would be required to put into place. Looking at the aunt and uncle, they are hoping to formalise their immigration status in the UK. I am informed that they will be making an application as parents of a British born child.

116. Their own immigration status therefore according to the special guardianship assessment seems questionable too, and they may be waiting for their own child to be seven years old in order to apply. The mother's conversations at the residential unitsuggest a degree of cultural and religious pressure to remain married, and the mother herself alluded to the cultural expectations in her Parenting U work and in the witness box. She has not started divorce proceedings, and if her desire to remain separated from E is a permanent and sincere one, this may bring her into tension with the aunt and uncle.

117. On reflection at court, the aunt and uncle decided they could not offer their home to the mother at this time. The uncle is unwell, he has long Covid, and I got the impression it was not financially viable. The father's position is he could not financially support the mother which may have been a factor which made the aunt and uncle reflect on whether they could offer the mother a home. When I look at the family as a whole, it seems to me that they do not have a mechanism for planning or taking decisions together for themselves.

118. The aunt and uncle have obviously very generously considered the role that they can play in these proceedings, but it does not seem that anybody has thought through how this would actually work on the ground, and whether above all it would be good for the children. In my view, if the possibility of living with the aunt and uncle arises again, this would have to be properly risk assessed to explore the impact of the parents' separation on their attitude towards the mother, and whether past tensions have really been resolved, and the aunt and uncle's protective ability.

119. They, the aunt and uncle, would be required to be part of quite a difficult balance of risk factors in this case. There is a risk of harm to the children I think, that the parents do not seem to have a thorough and sophisticated process for planning their own lives. Drawing together the risks of harm, the Local Authority, Cafcass point out, will be working with the family either under child in need or child protection plan so they, the Local Authority, Cafcass suggest, are still thinking actively about risk.

120. The Cafcass manager was particularly clear that her desire for a Care Order is not about getting resources for the mother, it is about the risk that remains at the conclusion of long proceedings which requires the more robust mechanism of a Care Order.

121. I look at how capable each of the parents is of meeting the children's needs, and the mother can meet the children's day to day needs, subject to having the resources to do so, and she can provide emotional warmth. A loving, kind, caring, gentle, dedicated mother to N, is the way she is described in one of the assessments.

122. The children of course have health needs, and the residential unit says the mother needs to continue to take responsibility for her own health and ensure the children's health needs are met by working with the health services in an open and honest way, and of course looking back it was to the hospital staff on 4 December 2021 that the mother first described in detail the treatment she had received from E and how N sustained her injuries.

123. She then of course later retracted what she said, but it is key to meeting the children's health needs in future that she shares information accurately and honestly, and the residential unit report stresses the importance of this. The social worker was unable in the witness box to tell me the level of healthcare the children were able to access given their immigration status. To their credit, the Local Authority then researched this and by the time of submissions, their view was that the children are entitled to primary level care, and emergency care.

124. It is not clear to me therefore if the children are entitled to free dental care, optician's care, and at what stage medical care for chronic or non-life threatening conditions would be charged for, and of course the mother has no means to pay. I look at Regulation 5 of the 2010 Regulations, and in the preparation and content of the care plan the Local Authority have to make arrangements in relation to the children's health, including the information set out at paragraph 1 of schedule 1 to the Regulations, the health plan, and that includes dental health and screening for vision defects, among other things.

125. You then have Regulation 7 of the 2010 Regulations which talks expressly about health care, and the need for a medical practitioner to provide a report at each review of the child's health, addressing the matters in paragraph 1 of schedule 2 to the Regulations, and that regulation sets out that the healthcare plan must include medical and dental cate and treatment, and advice and guidance on health, personal care, and health promotion issues.

126. You then look at Regulation 35 of those Regulations, and that sets the duty on the Local Authority to review each case for which they hold a care plan, and in schedule 7 that sets out that the most recent assessment of the child's health is subject at that review, and that the Local Authority have to look at whether any change to the arrangements for the child's healthcare is or likely to become necessary or desirable before the next review of the child's case, having regard to the advice of any medical professional received during the time running up to that review period.

127. A looked after child clearly has the Local Authority with duties to make sure that their medical needs are adequately met. The question of what the children and the mother are entitled to is a complex area, and I doubt that the mother will be able to navigate it on her own. I look at the children's need for safety, and they need to be safeguarded from physical harm and domestic abuse, and again, there is a long history of concern in this case. The residential unit was very concerned that the pressures placed on R by her culture, religion, and family, and likely E do not negate the fact that she is unable to be a protective parent to Nand her needs throughout her childhood, and as recently as June the Local Authority were asserting that the risks were so high in this case that nothing else would do, short of adoption.

128. Whilst I commend the mother for a shift in her thinking, it seems to me that her understanding of the risks posed by E are not fully developed. The independent social worker took the view that E faces difficulty in meeting the child's overall needs for safe and stable parenting. Whilst I commend him for doing the Parenting U work, he did not connect any of the findings I made with himself or his children, and I did not hear evidence that his views had even begun to shift as so far as it affected him personally, and of course the ability the parents have to meet the children's needs for safety and security does depend at least in part on their ability to change in the light of the Court's findings, and I commend the mother for her final response to threshold, but this was served in November 2023, and still does not expand beyond the bare minimum of accepting the Court's findings.

129. The father does not accept the Court's findings, and notes that the police have NFA'd their investigation, telling that to his sister judging by the addendum special guardianship assessment. He says:

"I accept I have not always behaved as I should and I am sorry if this caused my wife distress, but I cannot accept what I have not done. I have not physically hurt my daughter N nor my wife."

130. Whilst it is good that he is beginning to work with domestic abuse groups and unpack his thinking around a relationship, he shows no sense of accepting responsibility for his behaviour that led this family to court, even two years on. The level of understanding that both parents have, as demonstrated in their statements, is somewhat simplistic without a real depth or appreciation of the gravity of the situation for their children, and it is telling that in the addendum special guardianship assessment the uncle and aunt report discussing the incidents of December 2021 with the parents.

131. The father told them that nothing happened, and the mother told them that there were no concerns, and that is as recently as August 2023.

132. I look at the ability of the parents to work with the social worker, which is vital if the children's needs are to be met in their care, and I take on board that compliance with a Care Order cannot be enforced other than by a threat to return the matter to court for removal, which is a high stakes intervention, and we all hope that that would never happen.

133. A Supervision Order is dependent on the parents allowing the social worker to advise, assist and befriend them, and it is in truth only after the Local Authority placement application there was a glimmer of willingness to do the hard work to address the underlying issues that led to the Court's findings, and the family have not been open and honest throughout these proceedings.

134. Although they say that they will work with the Local Authority and do further courses, their general approach within these proceedings has not been respectful of authority. Both of the parents are in the UK illegally. They have not abided by court orders to file evidence and responses during these proceedings in a timely way. They maintained lies to the Court and professionals over a period of months and repeatedly in the witness box, and that track record of dishonesty and misleading the Court and professionals does not provide a firm foundation for working together with the Local Authority when the pressure of court proceedings has gone.

135. The father says in his final statement:

"I have done all that has been asked of me. I want to continue to do what is agreed or ordered."

But I am not sure that is accurate. His evidence and his hair strand testing has been late. I have told him at every hearing he must not cut his hair, but he has done so repeatedly, even after I have told him not to, and he had declined help and failed to actively engage right up until when the Local Authority made their placement application.

136. I think that Cafcass are right, the mother is shifting in her thinking, but does not yet have the desired level of insight, and I do not doubt that she has built a constructive relationship with this social worker to both of their credit, but what will be critical to meeting the child's needs is that ability to keep working with people when the spotlight of the court has been removed.

137. The children need stability, security, can the parents meet their children's need for stability and security? In failing to regularise their own or their children's immigration status, or provide them with a place to live, they have not met that need for safety and security. The mother of course has been housed by the Local Authority for two years, and it has always been the parents' case that the children should remain in their care, but their failure at a basic level to think through how they might provide for the children financially, housing and immigration wise is in my view a failure of parenting, and this poses an immediate and ongoing risk for the children's welfare and safety.

138. Neither parents as I have said, has made any application in relation to immigration, and that is a dereliction of their parental duties at the most basic level to provide security and stability for their children. Their children are small and vulnerable, and cannot do that for themselves. The father has not been supporting the mother financially in any way to promote the children's welfare, so if there was a Supervision Order we would be reliant on the Local Authority encouraging the mother and father to make applications in relation to immigration.

139. That has not borne fruit over the 15 months that the mother has been here illegally, or the five years the father has been here without settled status. If the Local Authority had parental responsibility under a Care Order, they could take independent immigration advice for the children in their own right, and could make an application on the children's behalf in their own right, and the complexity of immigration law is manifest from the material Ms Hendrick has kindly provided to me.

140. It might well be argued that the Local Authority would be exercising their duty wisely to obtain such advice for the children, and again meeting the family's needs involves meeting their need for housing and avoiding homelessness, and both parents look to the Local Authority to house them, and the plan to move in with the aunt and uncle is one that has not been thought out in great detail.

Options

141. The Local Authority submit that the Supervision Order and the Care Order make no difference on the ground, but it seems to me that the duties I have already referred to in legislation and the parental responsibility a local authority gains with a Care Order enables them to make more powerful representations and advocate and take decisions on behalf of the children. If the Local Authority have parental responsibility they have a duty for the children that they do not have under a Supervision Order.

142. I look at the range of powers that the Court has, and I weigh up the pros and cons of the two realistic options, one being a Supervision Order, and the other being a Care Order. A Supervision Order is less intrusive. The Local Authority have a role to advise, assist, and befriend the parents. I have a well thought through supervision plan. This is a Local Authority who have followed the Public Law Working Group Guidance and they are not paying lip service to a Supervision Order.

143. I bear in mind there must be strong and cogent reasons to force a Local Authority for a more draconian order than the one for which they have asked, the authority for that Oxfordshire County Council v L [1998] 1 FLR 70. The Local Authority are committed to retaining designation under a Supervision Order, and this social worker would remain with the family. That avoids the risk of a supervision plan being watered down or shelved by anybody who inherits the case in another local authority, although of course I cannot guarantee that his social worker would not be moved on or something might change within personal circumstances that prevent her retaining the case.

144. Against that, the risk in this case in my view is significant and remains multifaceted and high. If the mother was served with deportation papers or indeed the father, the Local Authority would have no statutory mechanism under the Children Act to prevent the children's removal from the UK or assess the risk of it. Ms Hendrick suggests there may be a mechanism under immigration law for their views to be sought, but I do not have sufficient clarity to confidently state what this is as a matter of law.

145. The mother's situation is greatly vulnerable. She is at risk of homelessness and a Supervision Order places no statutory duties on the Local Authority to assist in assessing the suitability of accommodation or the lack of it and its impact on the children. The parents have not worked openly and honestly during these proceedings, and their willingness to work with a social worker is very recent indeed. That calls into question the effectiveness of their ability to work with a social worker under a Supervision Order.

146. Over two years of social work involvement, there has not been sustained and long term changes in the parents' thinking. The risks posed by reconciliation, domestic abuse, physical harm, remain high in my view. The father does not accept the findings of his early hair strand test, does not think alcohol is a problem, and conversely the mother thinks that his use of alcohol is the cause of the problem. A Supervision Order according to Cafcass are not a proportionate response to those risks.

147. Their immigration status is complex with no meaningful attempts to regularise it, and this places the girls in a very vulnerable position, because their immigration status is unsettled too. The Supervision Order places no duty on the Local Authority to seek advice on behalf of the children or take steps as a corporate parent to regularise their position.

148. The mother has changed her mind about the father within these proceedings, and the father wants to reconcile. That would pose a significant risk to the children unless there was meaningful and sustained change, and the Local Authority would need in my view to start care proceedings again if the parents were to reconcile without that change.

149. The paternal family supervising contact is not risk free because I have talked about the history of tension between the mother and the paternal family. Their understanding of the issues, the aunt and uncle, is relatively recent, and if the mother moved out of London they would not be able to assist with contact. Under a Supervision Order the Local Authority have no duty to allow reasonable contact with the father, and there is a risk that contact might even stop or become unsafe should the mother move out of London.

150. The social worker gave evidence there is a need for an active period of intervention working with the mother, aunt and uncle to assess the risk of contact. It is hard to know how long that process will take, and it may be dependent on where the mother is located. The children under a Supervision Order are afforded no priority in relation to their education. I have looked for completeness at the powers of paragraph 12 of schedule 3 to the Children Act.

151. Those are the powers the Court has to make an Education Supervision Order, but those powers are not as specific and effective as the duties about education in the 2010 Regulations to which I have already referred. The Local Authority under a Supervision Order has no statutory role in ensuring health needs are addressed, unlike in relation to a Care Order. I have looked for completeness at the powers in paragraph 4 of schedule 3 to the Children Act 1989 about medical examinations under a Supervision Order, but those do not fit the needs of this case.

152. If the mother had moved out of London I do not doubt this social worker's commitment to going to see her under a Supervision Order, but she would be very vulnerable and isolated in practice this mother, and for the social worker to advise, assist, and befriend effectively from a distance may be more challenging. I note as part of the supervision plan there is the plan for a child in need meeting. This of course I cannot prevent the children being stepped down from being children in need should the Local Authority take the view that that was reasonable.

153. In relation to a Care Order, the difficulties of a Care Order is it is intrusive. It involves the Local Authority in the life of the children until they are 18 unless it is discharged. These children would have corporate parents with all the stigma and difference that that may involve, and the Local Authority would have parental responsibility for the children, together with their parents. That is an intrusion in family life, but in favour of a Care Order, the Local Authority can make immigration applications or take immigration advice on behalf of the children themselves.

154. Their duty to consider the adequacy of accommodation is set out in the 2010 Regulations. Their duty to consider health care and education is set out in the 2010 Regulations. This may be particularly significant because the children would have looked after children medicals which is relevant to these children who have strictly limited rights to access healthcare in the UK.

155. Similarly, the powers that the Local Authority has to consider education may be particularly significant if the mother moves out of London and needs to access a new provision, and given the reservations that the mother had about whether N should start nursery in the first place. Under a Care Order the children could not be removed from the UK without the consent of the Local Authority or the leave of the Court. That means there would need to be an active consideration of the risks and benefits of the children of their removal, and the duties I have talked about in the 2010 Regulations would kick in.

156. That means there would need to be an assessment of the impact of the removal from the UK of the children by their corporate parents, and the children would have a voice through them independent of their parents in this process. If the children themselves need legal advice in the event of removal, this could be put forward as a possibility that the Local Authority could exercise their duty to obtain.

157. The Local Authority of course could return the matter to Court swiftly for removal if the parents reconciled, but I bear in mind expressly what is said in the case of JW about that, and Baker J's as he then was guidance in DE that was expressly endorsed by the Court of Appeal. The onus would be under a Care Order on the Local Authority or the parents to apply to discharge it, and then the Court would determine if the children's welfare demanded the discharge of the order.

158. A local authority with Care Order is involved with the life of the family until such time as the welfare of the children no longer requires it. If a new local authority is designated, they may change the care plan, but the clear structure of a care plan and the Care Order remains in place under the 2010 Regulations, and Regulation 5 sets out the specific matters that must be included in that plan, including those duties about health and education.

159. Under a Care Order the focus is on the children and their welfare as opposed to advising, assisting and befriending their parents. They are front and centre of a Care Order. The intrusive nature of a Care Order and the Local Authority's involvement in the life of the family can be mitigated by a considered and focussed approach as to how the Local Authority will exercise their parental responsibility.

160. For example, under section 33 they have the ability to decide the extent to which a parent may meet their parental responsibility for a child, so they could delegate matters like schools and day to day care of the children to the mother, but retain their overarching parental responsibility in relation to contact, immigration and housing matters.

161. Any application for resource panel funding for counselling or courses may bear more weight if there is a Care Order in place, although of course I remind myself that a Care Order should not be used to martial resources and the guidance of JW on that point. Under Regulation 35 and schedule 7 of the 2010 Regulations the Local Authority would need to assess the level of care provided by the mother and whether she had reconciled with the father, and domestic abuse would no doubt come into that assessment process.

162. There would be active risk management built in at each care plan review, and those PEP and LAC reviews could be used to monitor. The Local Authority would be able to intervene if contact arrangements were unsafe. They would have duty to ensure that E has reasonable contact and to mitigate the risks that contact may stop or take place without adequate safeguards.

163. If a Care Order was granted, the Local Authority would continue to have statutory role in how the aunt and uncle would supervise contact and the progression to overnight or unsupervised would be undertaken under the auspices of the Local Authority's duty to keep the children safe, and any plan that the mother moved in with the aunt and uncle would be assessed by the Local Authority under their duties to consider the suitability of accommodation.

Conclusion

164. Having looked at the pros and cons of each option, I need to consider what order is necessary and proportionate, because I should only intervene in the life of this family to the extent that it is necessary and proportionate to the risks posed to the children, and I have never made a Care Order at Home before, but the constellation of risk factors in this case and the limitations I have set out in relation to the parents drive me to the inescapable conclusion that this is an exceptional case, so I will be inviting the Local Authority to draw up a care plan.

165. Much of the work done to do that is already in the excellent supervision plan. We should include going to the resource panel for counselling, the risk assessment of contact before it becomes unsupervised or moves to overnight, the alcohol testing, the referrals for parenting work and domestic abuse work, the fact that visits will be three weekly when the mother immediately moves out of the foster placement, dropping down to fortnightly. I think there should be as the Coram Legal Centre suggest, a separate part of the care plan entitled immigration, in which consideration can be given to getting immigration advice for the children and housing advice too should be included in that care plan as something that the Local Authority may need to take on the children's behalf.

166. They may also make provision to consider an immigration application in the children's own right. The health and education aspects of the care plan to which I have already referred by reference to the Regulations of course should also be included, and we need to include a recital today about the Cafcass view of the fact that this Care Order should be of course made subject to an application to discharge once those risk factors I have set out in my judgment have been mitigated, and it is safe to do so.

167. In relation to a Non Molestation Order, the father agrees to the Court making one if I think it is necessary, and I do think it is necessary to make an order that he should not attend anywhere the mother is living or anywhere he has reasonable cause to believe she is living, and of course he can apply, should he wish to do so, at any time to have that set aside or discharged if factors change, but that provides a basic level of separation and safety for the children whilst matters are still evolving.

168. I will no doubt be told by advocates shortly if there is anything I have neglected to mention, but I do want to remind the solicitor for the child who is in court that I would be incredibly grateful if a note of this judgment when transcribed went to Dr Campbell and the independent social worker. I have looked back at their reports in providing this final judgment, and that has helped me see the evolution of this case and how the parents presented to them.

169. I am glad the social worker is still in court for me to formally thank her for her hard work on this case, and I hope that the Guardian who is on sick leave may receive a message if appropriate that the Court is really grateful to her for her dedication to this case and it was her very focussed intervention earlier this year that brought about further assistance for the parents and the degree of change that we have begun to see. It is fair to say that she has made a real difference, the Guardian, in the lives of these children.

170. I want to thank the Cafcass manager for stepping in to give evidence, reading into this case, and assisting the Court with the Cafcass view. The alternative was not having the benefit of her guidance and adjourning the matter potentially till 2024 at some point, which would not have been in the child's interests. I want to thank the interpreters for their assistance. Without them as ever, we would have really struggled to communicate the judgment clearly, and I trust that formal thanks may be passed to the foster carers who have supported the mother and the children throughout these proceedings.

171. Finally, I want to thank Counsel for their assistance. Both Counsel, the Cafcass manager and the social worker have I think put in a lot of their own time out of hours to assist the Court, and very often in these public law cases judges are so conscious that the system only works because people go over and above and give generously of their time and commitment and expertise, and I am particularly grateful for continuity of counsel.

172. Ms Hendrick, Ms Wiseman, Ms Choudhury have been assisting me throughout many hearings, and I am very grateful for the service that they have given their clients, and although I must never enquire as to what is said between counsel and their client, it seems to me Ms Courtney's involvement came at a pivotal point in proceedings, and she has offered her client the best of service as well.

173. I have been very grateful for having such excellent members of the bar throughout this difficult case. I hope that N and D continue to thrive in their mother's care and the framework that I have wrapped around them is the best one for meeting their welfare needs.

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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> The London Borough of Barking and Dagenham v R & Ors [2023] EWFC 338 (B) (08 December 2023) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2023/338.html Cite as: [2023] EWFC 338 (B)

England and Wales Family Court Decisions (other Judges)