England and Wales Magistrates' Court (Family)

       X Local Authority    

Applicant

and

Ms A Mother

1^st Respondent

E, D and A children through their Children’s Guardian

2^nd Respondent

1.

This is an application by The Council for interim care orders in respect of three children E born [a date], D born [a date] and A born [a date].  The mother of all three children is Ms A, who opposes the applications.  The identity of the children’s father is still unknown but he is believed to be living in a country outside this court’s jurisdiction.  The children themselves are represented through the duty Children’s Guardian Ms M who supports the applications.

2.

On 27.11.09 I made emergency protection orders in respect of the children and my judgement can be found at pages 2 and 3 of the bundle.  Up to that point the family were not known to the council.  However on 23.11.09 E informed a teacher that her mother had hit D with a stick when he had wet the bed and she went on to say that all the children are sometimes hit using a stick or a shoe.  E repeated this disclosure during a video interview with the police and D also confirmed what E had said.  At that time the council were considering returning the children to the care of their mother pending further investigation but it was the children themselves who became upset for fear of their mother’s reaction at the disclosures they had made.  This is significant in my judgement as it demonstrates that the council albeit on limited information did not feel that it was necessary to remove the children under emergency powers.  It was the police who exercised their emergency powers of protection followed by the application for an EPO on the 27.11.09. 

3.

On the 3.12.09 the case came back before me for the first hearing of the council’s application for an ICO.  After much discussion between the parties at court the council confirmed that they would be able to complete their initial assessment of mother by 21.12.09 and the early signs were that that assessment was going well.  Mother therefore agreed not to contest the making of an ICO until 21.12.09 but made it clear through her counsel that should the children not be returned home to her by that date she would contest any further renewal of the ICO.

4.

To their credit, the council did complete their draft parenting and risk assessment by 16.12.09 and this can be found at pages C1 – C24 of the bundle.  I accept that the assessment was completed more speedily than most but it is nevertheless a relatively thorough document with only one section, namely section 5 needing completion.  Within the assessment the children were spoken to and E told the social worker, that her mother had hit all the children with a stick at some time.  In particular, at page C3 E told the social worker that she had marks from being hit with a stick on her back and described these as being long and black.  However, this is not consistent with the medical examination carried out by Dr W who noted that E had some unusual pigmentation on her body but there was no evidence of scarring and the pigmented areas appeared to be a birth mark rather than injury (E11).  Dr W concluded that there was no evidence of physical abuse having occurred (E11).  This was also the case for A.

5.

D was examined by Dr H who noted a number of lesions on the back of his thigh and buttocks consistent with an earlier skin eruption probably of an inflammatory nature and within these were some linear marks that were suspicious of trauma although it was not possible to age them.  Otherwise Dr H’s examination revealed a healthy well grown child with no obvious signs of neglect (E5).

6.

In short, therefore, other than the allegation of physical ill-treatment there were no other concerns about the mother’s care of her children.  This was confirmed by the social worker in her assessment (C16).

7.

Mother herself was spoken to about her chastisement of the children and admitted hitting them by way of punishment but stated that she had hit D only once with a stick (C19).  Since then mother has filed a statement in which she describes at paragraph 4c how she found a stick at the side of the road about a month ago and took it home to use it as a deterrent against the children misbehaving   In my judgement this is a concern as it shows some pre-meditation on her part notwithstanding that she says that she did not intend to use it.  In my judgement, there was always a risk that if the deterrent failed to work mother would use the stick which is what in fact happened.

8.

Nevertheless, the social worker concluded that although there was a risk to the children should they return to their mother’s care the risk was manageable (C23).  She proposed intensive support on a daily basis around appropriate forms of chastisement and discipline and concluded that she did not feel that mother would physically chastise her children again due to the fear of them being removed from her care (C24).  The social worker did identify some areas of concern namely inconsistent emotional warmth given by the mother to the children (C17) and also challenging behaviour by D (C22 and C23).  In order to address these concerns the social worker therefore recommended that further sessions needed to be undertaken with mother but she was still able to recommend that all the children be returned to their mother under a supervision order whilst this work is completed.  I find this assessment to be balanced and well argued and it has much in it to commend it to the court.  However, prior to this hearing commencing on 21.12.09 the social worker filed an addendum to her report at C25 – C26 which in essence states that following a discussion with the Service Delivery Manager, it is now felt that the children should not be returned home to their mother as they would be at risk of continued significant harm. Accordingly, at the last minute the council changed its position to that of seeking interim care orders with the children to remain in foster care.  The addendum identifies three risks:-

1                 Mother does not demonstrate an understanding of the inappropriateness of physical chastisement but simply states that she will not do it

2                 D’s behaviour which mother struggles  to deal with without using physical chastisement

3                 Consequent on the above, mother will return to previous forms of chastisement until further work is undertaken with her

However, in my judgement what the addendum fails to identify is the extent of the risk of mother returning to previous forms of chastisement and an analysis of the harm the children would suffer if she were to do so.  During the course of this hearing the council have at my invitation filed an intensive support plan but on the face of it, it does no more than offer mother 30 minutes per week more contact than she currently has together with 2 social work assessment sessions at which the children will not be present.  Furthermore, although there is to be a LAC review on 13.1.10 there is no guarantee that the children will be returned to her care even if things are progressing well and the plan envisages further work being done up until the end of January before the core assessment is complete.  This could mean that the children will have been in foster care for more than 2 months by that time.

9.

For the purpose of this hearing mother has conceded that the threshold criteria for the making of interim orders is met and I am also satisfied that this is the case. However, the issue is the type of order and whether all or some of the children can be returned home immediately.

10.

In addition to having read all the documents within the bundle I have heard evidence from the social worker, the mother and the duty Children’s Guardian.

11.

The Children’s Guardian has also prepared an initial analysis and recommendation and I am grateful to her for the amount of work which she has put into this case as a duty Guardian, some of it in her own time.  The Guardian’s report was prepared prior to the council filing their addendum report and expresses concern about the children returning home at this stage.  The Guardian has spoken to the children who appear to have given mixed messages about their own wishes and feelings.  E had previously told the social worker that she wanted to return home and she initially said the same thing to the Guardian (page 3 Guardian’s report). However, when told that no one was working over the weekend she said that she wanted to go home the following Monday, not realising that it was the school holiday.  She then dictated a letter to the Guardian saying she wanted to go home when it is school time because if her mother beats her she will be able to tell her teacher.  However, it is clear that E loves her mother and misses her despite what has happened.

12.

D seems happier in foster care and has been consistent in saying that he wants to remain there although this seems to be because he likes playing on the foster carer’s computer.  A is very young to express a view but she clearly misses her mother and cries about this. 

13.

The Guardian believes, like the council, that further work needs to be done with the mother and I agree with this.  The issue I have to decide is whether it is safe to return some or all of the children now so that the work can be undertaken with the children at home rather than them remaining in foster care for a prolonged period.  E made her original disclosure to a support teacher and she continues to identify school as a protective factor.  The Guardian is therefore concerned that over the holiday period this protective factor will be removed  particularly as the intensive support workers will not be working from 25^th – 28^th December inclusive.  Therefore, over these four days there will be no one able to visit the family home to check on the children other than, perhaps, the emergency duty team (EDT) if they can be persuaded to visit, but this cannot be guaranteed.  The same is also true for the period 1^st – 3^rd January when none of the usual support services are working.  The Guardian therefore recommends that there should be a planned return home after the mother has learned and practiced (during contact) new skills and strategies for managing the children’s behaviour.  This course would clearly reduce any risk to the children but in my judgement would lead them to spend a protracted period of time in foster care and I must ask myself whether that is really necessary in the circumstances of this case.  I recognise that the court must always be slow in acting contrary to the advice of the Children’s Guardian and particularly one as experienced as Ms M but with the greatest respect I believe that she and the council are being too cautious in this case.  This family were unknown to the council until 23.11.09.  All the indications are that the children are well cared for and attend school regularly.  No serious concerns were noted there.  Medical examinations of all three children have again confirmed that the children are well cared for and there are no signs of physical abuse beyond the linear marks on D’s thighs and buttocks.  Certainly, there is no medical evidence to corroborate E’s assertion that she was beaten regularly with a stick leaving long black marks.  Furthermore, following the making of the initial allegations by the children the council were content to allow the children to return home and this was also the conclusion of their draft parenting/risk assessment.  Mother now says that she knows that she must not chastise the children in this way.  Having heard her give evidence I think that she is being truthful when she says this.  I accept that it is less clear whether she has internalised this behaviour but that is a matter for the future. Mother now clearly knows that if she does use excessive physical chastisement the matter is likely to come to the attention of the authorities and the children are likely to be removed. I do not believe that she will risk this. I therefore believe that with continued monitoring by professional agencies the risk to the children of mother using physical chastisement in the future is minimal and is certainly manageable.  Furthermore, whilst not in anyway condoning what has happened I believe that any harm to the children that would result from mother using physical chastisement is not so great that they need to be removed from her care.  However, there are two caveats to these observations.  The first is that mother clearly finds it more difficult to manage D’s behaviour than that of E and A.  Indeed, the social worker told me of a contact which she observed on 17.12.09 where D was running over tables, took E’s glasses and left the contact room and would not return.  The social worker told me that D would not listen to either her or his mother.  The social worker also notes within her initial assessment report that mother finds D’s behaviour challenging and she finds it difficult to deal with this without resorting to physical chastisement.  As against this, I am told that the foster carer believes that D’s behaviour is within the normal range and at a contact which took place yesterday D’s behaviour appeared to be better although at one point he did run round the room with a pair of scissors in his hand.  It was during this contact that E and A both expressed a wish to go home but D said he wanted to remain in foster care to play on the computer.

14.

I therefore believe that in the short-term mother would struggle to cope with all three children at home and in particular D which could adversely affect her care of the children.  Given that E and A appear to be expressing the stronger wish to return home I believe that they should be returned home immediately under an Interim Supervision Order subject to monitoring (the second caveat) which I will deal with in a moment, but that D should remain in interim care at the foster home.  When I mooted this suggestion with the Guardian she was concerned, as am I, about the emotional impact of this decision on D and whether he would feel that he was being made a scapegoat.  When my suggestion was tentatively broached with him by the foster carer I am told that he did not raise any strong opposition but assumed that A would be remaining in foster care with him.  The emotional effect on D of my decision has troubled me and I have given it much thought.  Nevertheless, I believe it is the least damaging course which I can take in trying to balance the competing welfare needs of all three children.  However, I realise that D may not wish to remain in foster care when he knows that his sisters have returned home and I therefore propose that this case should come back before me on Tuesday 29^th December 2009 at 2 pm for a further review of the interim care order.  Under the council’s intensive support plan all three children were to have contact with their mother on 29.12.09 between 10 am and 12 noon supervised by an intensive support worker.  I would like this contact to go ahead and for the result of it to be reported back to the court at 2 pm.  I would also like all of the children to be spoken to in private so that E and A can have an opportunity to raise any concerns that have arisen over the Christmas period whilst at home and D can be asked about his views on returning home.  I would also need to be assured that mother is able to handle all three children in contact as she appears to have done on the 22.12.09.

15.

With regard to support, I would expect the intensive support worker to visit the family home tomorrow between 10.00 am and 12 noon as set out in the intensive support plan and I hope that a family aide worker may be able to visit later on in the day.  If there are any immediate concerns then the EDT can be notified.  I would also hope that the EDT can be persuaded to visit the family home if only for a short period each day from 25^th -28^th December but I accept I have no control over this.  In any event such visits do not affect my decision in this case and I still believe that any risk to E and A is low.

16.

In arriving at my decision I have had regard to the test set out by Thorpe LJ in Re L-A (Children)(Care Proceedings; Interim Care Order)[2009] ALL ER (D)53 that a child should only be removed from his parents at an interim stage if his safety demands immediate separation.  I do not believe this to be the case for E and A and I therefore make Interim Supervision Orders to the council until 29.12.09.  However, for the reasons given I believe it is appropriate to make an Interim Care Order for D to the council until the same date when I will review the matter in light of any additional information.

17.

Before a District Judge on the 23.12.09.