A London Borough v M & Ors [2014] Ew Misc B54 (CC) (29 May 2014)

JUDGE KARP:

1 This is the hearing of the A London Borough's application for an interim care order in respect of H, born on 10^th March 2014, seeking to sanction his removal from his mother's care in a residential placement, to a foster carer. H was born out of an incestuous relationship between T, his father, and L, his mother. T is now 16 years old and L 19 years old. L has a significant learning disability.

2 Until shortly before H's birth, his parents lived in the family home. The family composition is Mr. W, born in the 50s ; Mrs. W, born in the 70s; L-M, born n the 1990s; L, born in the mid 1990s; T, born n the late 1990’s; J, born in the early 2000s and M, born about a year after J.

3 Mrs W is the mother of all the children, and Mrs W is the father of T, J and M. L-M and L have had no contact with their natural father for many years. Mr. W has two daughters from a previous relationship, with whom he has no contact. Mrs. W's mother also lives the family.

4 The parties to the proceedings are the local authority, A London Borough, L and T and H, through his guardian, Mr. Jo Adams. I have also joined the grandparents, Mr and Mrs W, as respondents to the application, and all parties have been represented before me.

5 The background and history to the matter, taken from the local authority's chronology, not all of which is agreed by the parties, is that there has been a long history of social services involvement with the family in several different local authorities. A southern county social services were involved between 2004 and 2009. Assessments were undertaken in 2004 and 2006. Mrs. and Mrs. W were found to be appropriately caring for their children and no further action was taken. In 2007, T was taken into police protection, following represents that he had been hanging from a four-storey building and threatened to jump from it. T disclosed to the police and the foster carer that Mr. W had hit him with a stick on several occasions, but later retracted these allegations. T was returned to his parents' care and made the subject of a child protection plan between May and July 2007.

6 The family became known to A London Borough social services when they moved to A London Borough in January 2009 to start a new life, as they had been continually and seriously racially abused in the southern county area. Concerns were then raised about Mr. W's suspected drug and alcohol use, the children's poor presentation and T’s absconding. In 2010 further concerns were raised about the same issues. J also reported being hungry at school and Mr. W was alleged to have exhibited threatening and aggressive behaviour, which the local authority felt may have been due to him suffering from mental health problems. In August 2010, the children were made subject to child protection plans under the category of emotional abuse. Mr. and Mrs. W were not in agreement with the child protection plans and stated that they did not intend to work with a London Borough and were considering taking legal action against them.

7 In October 2010, Mr. and Mrs. W were issued with a legal pre-action letter. Mr. W was reported to have been angry and hostile and to have refused to under a mental health assessment. A review child protection conference was held in March 2011. The local authority felt that progress had been made and the children were discharged from the child protection plans. Mr. and Mrs. W again, allegedly, refused to engage or work with a London Borough social services, and the case was closed in April 2011.

8 The local authority chronology refers to further reporting concerns in 2011 and 2012, including T absconding from his home on several occasions. On 31^st August 2012, the local authority wrote to Mr. and Mrs. W advising them that they intended to carry out a s.47 investigation in respect of the children. Mr. and Mrs. W, allegedly, refused to allow the visit to go ahead. On 11^th September 2012, it was reported that Mr. W had attended the children's school and had been ranting and raving about the London Borough.

9 The local authority reviewed their concerns about Mr. W's cannabis use which had been raised in 2008 and 2009 and were concerned about allegations of alcohol use. In 2011, T alleged that his father smoked, and drank beer and, in February 2012, T reported that he was fed up with his father smoking weed. Mr. W admits cannabis use. L-M reported that Mr. W consumed a lot of alcohol, and it was also alleged that the family's landlord had suggested that Mr. W was an alcoholic and that the property was dirty. All these allegations were denied by Mr. and Mrs. W.

10 A core assessment was carried out and, due to Mr. and Mrs. W's alleged refusal to work with a London Borough social care, the local authority commenced court proceedings in November 2012. Within those proceedings, a psychiatric report was obtained from Dr. Sumi Ratnam, consultant psychiatrist, dated 22^nd March 2013. In that report, Dr. Ratnam was asked to carry out a complete psychiatric assessment of both Mr. and Mrs. W. He concludes in that report that Mr. W gave an account of his experiences and that it appeared that some of his experiences have a basis in reality in terms of his experiences with his neighbours and the police. This has been documented in various letters from mental health professionals and also in the police report at the initial case conference. However, his belief of a conspiracy, the fact that there are various organisations involved and that the Masons are behind this, reached delusional levels. His view was that Mr. W has developed a delusional disorder. There are references to such a diagnosis in the medical records. He goes on to explain:

"Delusional disorder is characterised by the development of either a single delusion or a set of related delusions which are usually persistent. Onset is commonly in middle age. The content of the delusion and the timing of its emergence can often be related to an individual's life situation. This appears to be the case with Mr. W in that the trigger appears to be the discrimination and harassment which he and his family experienced in Portsmouth. Mr. W does not fulfil the criteria for a diagnosis of personality disorder."

There was no diagnosis in respect of Mrs. W.

11 He was asked to comment on whether Mr. and Mrs. W currently suffer from mental health or psychiatric difficulties and he reports:

"Mr. W admitted to the use of cannabis. Cannabis is not associated with a physical dependence. His account of his use did not indicate a psychological dependence, with a craving for the substances and difficulty controlling his use."

He said that Mrs. W does not fulfil the criteria for a diagnosis of drug or alcohol dependence.

12 He was then asked to comment in particular whether any of these matters could be associated with a risk to others, and he comments:

"The risk in delusional disorder is related to the nature of the individual's beliefs. The individual may respond to paranoid beliefs by being more suspicious and mistrustful of others or act in an aggressive manner. In Mr. W's case, I note the nature of his interactions with professionals. However, I am not aware of him acting in a physically aggressive manner in response to his beliefs, although he may appear verbally intimidating. The case papers refer to involvement with police regarding threats to kill, battery and ABH. However, Mr. W denied such incidents and so it is not possible to comment on their nature."

13 He was then asked to comment specifically on the impact of the delusional disorder on his parenting abilities, and he comments:

"The most significant impact would be upon his interaction with professionals involved with the children. He is likely to view such professionals with mistrust and suspicion, based not only on his experiences but his beliefs and this will impact upon his engagement with them. There is likely to be little direct impact on parenting, although the children will be exposed to Mr. W's preoccupation with his beliefs."

14 He was then asked to comment on whether there is any treatment, therapy or support which might be indicated and he comments: "Mr. W would benefit from a prescription of antipsychotic medication, which has been suggested in the past." The duration of such treatment is long term, but his view was that the prognosis for Mr. W engaging in such intervention is poor. His view is that he does not have mental illness and he rather clung on to the view that he has developed a siege mentality, as described by a consultant psychiatrist in the past. He has previously not taken medication when it has been prescribed and has not consistently engaged with services. He raises no concerns in respect of Mrs. W.

15 The main assessment within the proceedings was carried out by an independent social worker, Anna McKenzie, in a thorough, 40-page report dated 3^rd May 2013. She concludes that the concerns which were raised by the local authority in terms of the children's welfare, were serious and there has been a plethora of professionals involved with the family. It was her view and she writes:

"These proceedings appear to have brought a focus from the parents in trying to co‑operate with the social worker and this is reported to be working well. M and J are settled in their new school and reports are positive, with both parents attending meetings at the school regularly. Unfortunately, T's behaviour and his ability to settle at Insight in London continues to be challenging for him, the staff and the parents."

She goes on to say:

"There are many positives in the parenting of Mr. and Mrs. W, and I found the manner in which they describe and talk about each of their children impressive. However, Mr. W, despite his many positives as a loving father, remains locked in to trying to sue the authorities, and I cannot see how this determination will diminish in the near future. It is centre stage in his functioning, together with trying to provide for his family, and, as a consequence, diminishes his ability at times to recognise some of his children's emotional needs and those of his wife. Mr. W does not recognise that children develop coping mechanisms which allow them to adapt to chaos, bullying and unpredictability in their childhood, or that the potential exists for these coping mechanisms to become dysfunctional in later life.

My opinion is that Mrs. W's insight and strength as a parent offers the children the necessary support they need. However, she would benefit greatly from a greater contribution from Mr. W in order to offer her some respite.

Having a working relationship with professionals when parents feel that they are being listened to and the needs of the children are the central focus is different from being coerced to do so and the parents in this case would like to see themselves as voluntarily requesting help now with practical matters. In the past, they had not received it."

She goes on to say:

"These parents', like all other parents', ability to use help will be dependent upon them being able to form trusting relationships and being able to feel part of any decision-making. Mr. and Mrs. W are articulate and insightful parents but can be anxious and irritable if they begin to feel a negative response coming. Their experiences of statutory agencies throughout their lives as a family has been very difficult, as the papers and history reveal. This has forced them to survive by any means they could and they have had to develop skills in managing people and reading situations, which have enabled them to care for the children. These skills have become very adversarial and the parents' engagement has made professionals wary of their true commitment at times. Social workers will need to establish a relationship which is explicit in terms of their role in the children's lives but also that which builds on the parents' strengths and provides them with advice and support when they need it so that they can trust enough to talk with the social worker before things deteriorate, as has been the case in the past.

If these proceedings were to end and the children were to continue to receive assistance as children in need, there exists an opportunity for a fresh start in planning work with this family."

She comments very positively on the parents' relationship with the children and the quality of their interaction and the nature of each child's attachment to the parents.

16 She says her observations of the parents in the home lead her to conclude that:

"There are many factors which continue to promote resilience in the children and this is, clearly, what has seen this family through a lot of the challenging times in their life to date. They include a positive family environment, despite the home being crowded and temporary; secure parent-child attachments; benign authoritative parenting; good family communication; flexible family organisation around tasks in the home; marital relationship satisfaction; accurate expectations of each of the children's development; good parental self-efficiency from Mrs. W, which is evidenced through her determination to take on board advice about how to help J improve in his reading, through paired-reading technique; apparent good parental internal locus of control; optimistic parental style and functional coping strategies with all the children most of the time, with the possible exception of T, has been evidenced throughout my visits."

17 She then goes on consider in particular whether the parents' psychiatric condition may affect their ability to parent and meet the children's needs. She refers to Dr. Ratnam's conclusion that neither parent has a defined mental illness but that Mr. W has a delusional disorder. She writes:

"The exposure of the children to Mr. W's beliefs is likely to impact the children in two ways. Firstly, the children may adopt their father's attitude of mistrust of professionals, which would then block attempts at any positive intervention with the children. Secondly, the children, in time, may shut off from their father's talking about the suing of the authorities and the conspiracy of the police and social services."

She writes:

"Mr. W needs to come to terms with the fact that, long term, his current preoccupation with seeking compensation for the wrongdoings of those who cause misery and damage to his children, and the conspiracies that he believes exist, may begin to impact upon the children's social and emotional development; that, unless he does so, he may not be able to identify and respond appropriately to any emotional manifestation of any insecurity or vulnerability the children may develop as a result of this."

18 She writes that the parents' parenting ability is not impacted by the low levels of cannabis and alcohol used.

19 Insofar as the parents' ability to engage with social services and other professionals, she comments:

"Mr. W did to object to the assessment of him and his wife and disagreed with the initial social worker's views of him as un-co‑operative, uncommitted or aggressive, but that he accepts that he has strong views about everything, that he is perhaps quick to judge and can be very confident and forceful in making his views heard. He reluctantly acknowledged that he may be perceived as being arrogant, but neither he nor his wife believes his is arrogant. He says he welcomes rational debate and is willing to listen to alternative viewpoints. He may get agitated when he feels misunderstood, as he thought I did on one occasion, but, once he decides he is getting a fair hearing, he will accept differences of opinion. He sees himself as a good man who puts his family first."

20 She comments: "I have no concerns about Mrs. W's ability to work with professionals," and she writes that the records indicate that the parents have always made themselves available for social work meetings, school meetings and appointments and that, based on her own experiences of assessing the couple, they kept all appointments and demonstrate a willingness to take on board advice, which is suggestive of their capacity to work with professionals in the best interests of their children's welfare. She comments extensively on the parents' insight and ability to work, in that report. When she is asked whether the parents are able to sustain parenting techniques, she comments favourably.

21 She comments on the main area of concern which was Mr. W's limited awareness of the effect on the children of his own preoccupations and his minimisation of these, and she feels that Mrs. W is a sufficient protective factor for the children.

22 She assesses the parents' commitment to meeting all the children's long-term needs and says, while she has concerns about Mr. W's capacity, she believes that the strengths and insights of Mrs. W would prevail and have prevailed and that she would be the parent offering that support to the children.

23 Her overall conclusion is that, whilst there have been varying degrees of success with engagement with teachers, social workers and the police, set out in the papers, over the time when a London Borough had been involved, the parents stated that they had experienced responses from professionals as helpful at times, particularly where the professionals took time to listen. She says she has no reason to doubt Mr. W's acceptance of the local authority's involvement but he is a man with strong views, unlikely to act on advice unless he is convinced it is of value and helpful.

24 As a result of that assessment, the children's guardian in those proceedings, Shirley Graham, filed a report dated 10^th June 2013. She carries out her own assessment and agrees with the local authority assessment that the children are not at risk of significant harm. The parents are likely to require support to ensure that T's educational needs are met and to ensure that the parents are supported to manage T's behaviour. She confirmed that the parents were not willing to enter into a written agreement, as they questioned the value of ongoing social work intervention; that they were particularly concerned about T, suggesting that ongoing involvement with the local authority had resulted in parental alienation. By this, Mrs. W believes that T now believes that he can do as he wishes and that, as parents, they cannot tell him what to do. Mr. and Mrs. W wish to consider other alternatives of managing T's behaviour, which may include Mr. W travelling with T to the Caribbean so that he can experience an alternative way of life. They do not want T to be engulfed in gang culture and wish to do what they can in order to avert it.

25 She recommends, having considered the relevant legal principles, that no order is required to safeguard the children's welfare, but that the children and T may benefit from future support as children in need.

26 On 13^th June 2013, the Family Proceedings Court accepted the local authority's invitation and made no order in those proceedings, giving as their reasons, that there are insufficient grounds to justify the making of any public law orders. The local authority chronology notes that, on 17^th June, the social worker telephoned to arrange a home visit, but Mrs. W said that the family would not engage, and a decision was then made to close the case.

27 In January 2014, the family were re-referred to the local authority because L was pregnant and T was the father. There was a joint police and social services investigation.

28 On 31^st January 2014, T, J and M were placed on child protection plans. The police investigation has not yet concluded.

29 On 4^th February 2014, the local authority started care proceedings, seeking to remove T, J and M and place them in foster care, subject to interim care orders. Mr. and Mrs. W agreed to the accommodation of T, but not of J and M.

30 On 13^th February, the local authority chronology notes that the deputy head teacher, Ms F, of J's and M's primary school disagreed with the local authority's decision to remove J and M and describes the local authority's claim of non-engagement on the part of the parents as "false".

31 At a hearing on 28^th March 2014, I made an unopposed interim care order on T on the basis that he is beyond parental control and that he has had a sexual relationship with his half-sister, resulting in the birth of a child. He has since been placed in a residential setting at a unit called a residential setting in the local area. I declined to make orders on J and M, and the applications were adjourned until 23^rd April 2014.

32 A London Borough then issued care proceedings in respect of baby H, who had by then been born, which were listed at the Principal Registry of the Family Division on 14^th April and then transferred to be heard, together with the W children's case on 23^rd April. L had agreed for H to be accommodated pursuant to s.20 of the Children Act, and she and H were placed together at the specialist residential assessment resource Symbols, which has considerable experience in dealing with parents with learning disabilities. I gave directions on 23^rd April for a comprehensive psychiatric assessment of the entire family and all issues in both sets of proceedings, by Dr. Mike Shaw and Dr. Susan

Helps of the Tavistock Clinic. That assessment is about to begin. I gave directions in both sets of proceedings, leading to a final hearing in September 2014.

33 Symbols had prepared a preliminary report indicating that L was not able to meet H's most basic physical care needs without 24-hour supervision. I therefore listed this contested interim hearing on the issue of whether H should be separated from his mother. I have considered the five volumes of documents, including the papers from the 2012 proceedings, as well as the helpful position statements provided. In addition, I have heard oral evidence from the allocated social worker, from Mrs. W and from H's guardian. H's welfare is my paramount concern and, as this is an interim hearing, on limited evidence, I make no findings of fact.

34 I have considered the final report from Symbols, dated 1^st May 2014, following their six-week multi-disciplinary parenting assessment. Whilst they are full of praise for L for her commitment to H and the process and her efforts during the assessment - and they are in no doubt that she was trying her very best - sadly, they conclude that the task of parenting is too demanding and complex for Ms. Mitchell as a result of her own limited cognitive functioning, and their view is that Ms. Mitchell is not able to meet H's basic physical care and safety needs. They conclude:

"It is our view that there is no amount of support that would enable L to parent H to an appropriate standard outside of a 24‑hour structured environment."

35 The allocated social worker has carried out an assessment of T, dated 20^th May. T puts himself forward as a carer for H, but only if neither L nor Mrs. W is deemed suitable. In her report, she outlines both the strengths and risks of the placement. Insofar as the risks are concerned, she deals extensively with T's own difficulties with ADHD and with his own schooling, with his own difficult and challenging childhood, due to his own childhood history. She questions a lack of sexual boundaries within the home, which led to him having an incestuous sexual relationship with his half‑sister; that he, himself, is subject to an interim care order, due to concerns that he is beyond parental control; that he does not have appropriate accommodation to care for a baby and that he is not able to offer H a safe and stable home; that he has no experience of caring for a young child and would require a very high level of support and supervision; that he is not able to demonstrate that he is able to adhere to boundaries and guidance in respect of caring for himself; and that he has not taken up contact with his son since he has been born.

36 She concludes that it is the local authority's view that he does not have the capacity to parent H to a good enough standard, either on a practical level or on an emotional level.

37 The allocated social worker, together with her team, carried out what is described as a "viability assessment" of Mr. and Mrs. W as carers for H, which is dated 25^th April 2014. It is not clear from that document whether they were considering them as short-term carers pending the final hearing, or only as long‑term carers. It is clear, from the contents of that assessment, that the assessors had not read the assessments of Dr. Ratnam or Anna McKenzie at the time they prepared the assessment and were treating the case as if it were an initial assessment of previously unknown potential carers.

38 The social work recommendations are set out in full at pp.156 to 159 of the court bundle. They deal in that with the limitations of the prospective placement in some detail but, so far as the strengths of the placement, they say only that Mr. and Mrs. W have brought up five children together, from a previous relationship. Mr. W reported that he has older children, but was unwilling to provide their details and that a placement with Mr. and Mrs. W would enable H to remain within the care of his birth family. But, when dealing with the limitations of any such placement, they deal extensively with Mr. W's criminal convictions, with concerns about their ability to protect children from harm. They say Mr. and Mrs. W have not put in place appropriate safeguarding strategies within their home, despite the fact that L and T have had a sexual relationship. Mr. and Mrs. W were not able to independently identify that it would be more appropriate for J and M to have separate bedrooms, despite having a spare room available. Mrs. W stated that neither J nor M are of an age where they are interested in the opposite sex or each other and stated that M and J do not look at each other "that way". Furthermore, Mrs. W stated, during the viability assessment, that she was of the view that T had manipulated L into having sex. Mrs. W stated that she felt T could not be trusted and would no longer allow him into the family home, as she would worry about the risk to M and J. However, on 5^th May, Mrs. W informed Shirley Apostalou, social worker for T, that T had been to the family home on more than one occasion.

39 It is the view of the assessing social workers that Mr. and Mrs. W have not demonstrated that they have the ability to put in place appropriate safeguarding strategies in order to protect the children who currently reside in the home and there are further concerns relating to Mr. and Mrs. W's ability to work openly and honestly with the local authority. Mrs. W appears able to tell the local authority what she thinks they want to hear, but her actions demonstrate that she is not fully co‑operating with the local authority.

40 They then deal with Mr. W's mental health, saying that he was willing to engage in the viability assessment. However, it is the view of the assessing social workers that Mr. W's presentation was of concern and that he appeared detached from reality and was observed to have delusional ideas. They go on to discuss this condition without reference to the previous reports.

41 They then comment on his drug use and smoking, again without reference to the previous report, and on their parenting. Whilst commenting on the history of social care involvement, they do not look at the assessments in the previous proceedings. Quite properly, they refer to the concerns which were raised in those proceedings and that, in April 2012, T was arrested for, allegedly, trying to set fire to a petrol pump at a petrol station on the Edgware Road. And they report on Mr. and Mrs. W's refusal to engage in further assessment by the local authority at that stage.

42 Their professional opinion is that the household environment was a high concern. The home was observed to be dirty, cluttered and there was a strong and unpleasant smell in the house, and they assess that Mr. and Mrs. W are not viable carers for H.

43 In her oral evidence and cross-examination, the social worker was challenged to identify the safety risks to H, pending the final hearing in September, of a placement with the maternal grandmother, with or without the mother living in the home. The viability assessment was looking at the Ws in the long term as carers and not at safety issues in the short term, relevant to this interim hearing. Quite properly, she conceded that this was not contained in her written analysis, and her evidence was that the concerns about the home environment were not an immediate safety concern. She stated that her main concerns were Mr. and Mrs. W's capacity to work with professionals and, in particular, that Mrs. W's acceptance that T posed a risk to the family and yet, later, allowed him into the home, although she conceded in oral evidence that this was only on one occasion. She accepted that, after that occasion, a working agreement was entered into and that there was no evidence that the agreement had been breached. She emphasise that T was absconding frequently from his placement and that she felt that this presented an unmanageable risk and that she felt that, if T or L were in the home, there was a sexual risk to H and the other children and that this was, as yet, an unassessed risk. She also identified that the risk to H, if left in his mother's care unsupervised, was a serious risk.

44 She was cross-examined as to whether this risk could be managed by a written agreement with Mr. and Mrs. W not to allow either H or T into the home; that L would not be able to care for H unsupervised; that any concerns could be reported to the local authority; and that neither T nor L would be allowed into the home; and that there could be regular social work visits, announced and unannounced, as well as a health visitor. The social worker's evidence was that, although this would lessen the risk, the risk still remained and that she did not have enough confidence that Mr. and Mrs. W would keep to the agreement.

45 The findings of the independent social worker on parental co-operation, drug use and risks posed by Mr. and Mrs. W's mental health were put to her, and that the serious risks they presented had been fully assessed in the previous proceedings. But her view remained that the risk was too high.

46 I heard evidence from Mrs. W. She explained the incident when T came home. She made it clear that she would be the main carer for H; that she was an experienced parent; and that she would allow social work visits and monitoring. She accepted the findings of Symbols, that L could not care for H. She explained how her mother, her sister or her older daughter and friends would always be available for short periods of time if she were not around. She denied that she had failed to co-operate with the local authority, whilst explaining her reasons for a lack of confidence in the social worker. She accepted that T was a significantly troubled child who, over the last few months, had become increasingly out of control, and accepted his absconding and criminal behaviour. She explained that the local authority had demonised the family, in her view, and put everything in a negative light.

47 Her evidence was that the inconsistency between the police report, that she had said that T was at her home all day, whereas she told the court it was half‑an hour, maximum, was an error on the police's part and she denied telling the police that he had been at her home all day.

48 She was asked whether she felt T presented a sexual risk to H. She did not think that he was a risk to H, but thought he might be a risk to the older children and that this was a risk which needed to be investigated.

49 So far as the sexual encounter between L and T was concerned, she denied that she could, or should, have been aware of it. She said she did not think her parenting contributed to them having sex and she had not noticed any change in L's behaviour or in their relationship.

50 I asked her whether she thought it would be better for H if the court allowed her to care for him, if L lived in or outside the home, a very difficult question for a mother to answer. I was impressed with her answer, that L would not want to hear her say it but she thought it would be better without L, as it would be too confusing for H if his mother were there but could not care for him; but she felt there was no reason why his mother could not be involved outside of the home.

51 The local authority have made available supported accommodation for L at an organisation called Shared Lives.

52 I heard the guardian's evidence and considered his reports. He conceded that he had not seen Dr. Ratnam or the ISW's report before he wrote his two reports. His evidence was that it did not change his view. He was cross-examined on the basis that he had only looked at negatives in his report and had made no attempts to balance the positives of a placement with Mr. and Mrs. W, or the disadvantages of a foster placement.

53 He concentrated, in his oral evidence, on the fact that H was the product of a brother-sister incest and that that was an intensely troubling fact. He questioned whether the Ws had the capacity to deal with this enormously complex and sensitive issue, and he felt that a long-term placement with Mr. and Mrs. W was unlikely. His evidence was that, in that event, if he were placed with the Ws now, it would involve an extra placement move: four moves rather than three. He did not, although he was invited to do so, consider the possibility that the Tavistock assessment and the local authority case might recommend a placement with Mr. and Mrs. W, which would then mean no further moves for H if he were placed with them now.

54 He was asked whether he thought that Mrs. W was a safe carer. He acknowledged that basic care needs were not the issue, but protection from risks presented by T's out-of-control, criminal behaviour, potentially a sexual risk from both parents and a physical risk from being left in the mother's sole care and he felt these risks were too great.

55 His evidence was that he did not believe that Mrs. W would adhere to any written agreement. He was cross-examined on this, and, whilst he acknowledged that there was only one incident of T being in the home, which had been evidenced, and that, since the agreement had been signed, Mr. and Mrs. W had co-operated, he remained of the view, as stated in his conclusion to his report, that, in the short term, Mrs. W would not adhere to any written agreement put in place by the court or the local authority to maintain H's safety, should he be placed with her.

56 As regards the long term, he did not believe that Mrs. W possesses the necessary emotional and intellectual capacity to ensure that H would be effectively supported with regard to his intensely troubling genealogical origins. He supported the local authority's plan for removal into foster care.

57 I have considered the written position statements of all of the parties and heard helpful submissions from counsel. The interim threshold is clearly met in this case. There are reasonable grounds to believe that H is likely to suffer significant harm in the care of his parents, due to the concerns in respect of the mother's learning disabilities affecting her ability to provide for even the most basic physical needs of her baby; the unassessed risks around the lack of sexual boundaries in the home, leading H being conceived as a result of an incestuous sexual liaison between half-siblings; and the risks from his father's criminal and out-of-control and unpredictable behaviour.

58 So far as the law is concerned, the correct test for interim removal is set out by counsel for the local authority in their position statement. The test is set out in Re L-A (Care: Chronic Neglect) 2010 1 FLR in the judgment of Thorpe LJ. What is it then which the three authorities in this court seem to establish? In the first, the case of Re H, the crucial paragraphs are 38 and 39, from which can be extracted two propositions: the first, that the decision taken by the court on an interim care order application must necessarily be limited to issues which cannot await the fixture and must not extend to issues which are being prepared for determination at that fixture. The second proposition which appears from the final sentence of para.39 is that separation is only to be ordered if the child's safety demands immediate separation.

59 In the subsequent case, of Re N, in para.27:

"I described that a local authority in seeking to justify the continuing removal of a child from home necessarily must meet a very high standard."

60 In the final authority, K and H, the key paragraph is para.16:

"... in which I describe the court's approach thus: at an interim stage, the removal of children from their parents is not to be sanctioned unless the child's safety requires interim protection."

61 Counsel for Mr. and Mrs. W also refer me to a further paragraph from the same judgment of Thorpe LJ:

"The decision taken by the court on an interim care application must necessarily be limited to issues that cannot await the fixture and must not extend to issues that are being prepared for determination at that fixture"

62 Safety is not confined to a child's physical safety and includes all aspects of emotional and psychological safety.

63 In addition, in Re B (Interim Care Order) 2010 2 FLR 283, Wall LJ reviewed the jurisprudence and held that the continued removal of a child must be proportionate to the risk of harm to which he would be exposed if he were allowed to return to the parents' care. The test is summarised in Re G by the President as:

"... whether the child's safety, using that term to include both psychological and physical elements, requires removal and whether removal is proportionate in the light of the risks posed by leaving the children where they are."

64 Counsel for maternal grandmother seeks to argue, and I agree, that, as the above principles are derived from a proper understanding of Articles 6 and 8, the welfare principle, the no-order principle and principles of natural justice, very similar considerations will apply in respect of decisions to place a newborn baby in foster care, rather than in the care of other family members. Particularly in a situation such as this where the family lived as a family together prior to the commencement of the proceedings, the court should apply the least interventionist approach which is consistent with H's welfare.

65 L has a significant learning difficulty and has always lived at home with her mother caring for her until she temporarily moved to Symbols for the six‑week assessment. H's close family includes his mother, father, grandparents and aunts and uncles, all of whom live together as a family unit. In these proceedings, H's welfare is paramount and any interference with his right to live within his family at this interim stage in the proceedings must be proportionate.

66 So far as L is concerned, the weight and thoroughness of the Symbols report, which she has not yet had the opportunity to challenge, but the contents of which are accepted by her mother, are such that I find that it would be unsafe for H to remain in her care. The 24-hour supervision which Symbols say she would require, even to meet H's immediate physical need, go beyond anything which the local authority could or should provide her with, or that her mother could provide, and I do find that his immediate safety requires his removal from his mother.

67 The parenting assessment of T, to which I have referred, fully explores the extensive issues which this young 16-year-old father faces. His current absconding behaviour from his placement, his alleged involvement in criminality, including a recent allegation of fire-starting and possession of knives and potential drug abuse, as well as his failure to take up any contact with his son to date, lead me to assess him as unsafe to care for him. He puts himself forward, effectively, as a third option if neither his mother nor his sister is regarded as suitable. I am satisfied that there are reasonable grounds to believe that he is not in a position to manage H's basic care needs. Whilst I do not believe he would do anything deliberately to harm H, he continues to place himself in unsafe situations an put himself at risk of physical harm and would be unable to protect H.

68 So far as a placement with Mr. and Mrs. W is concerned, there are two possibilities: either a placement with L in the household or without her presence, with her in supported living accommodation. L would very much want to be part of the household with H but, if the court does not regard that as safe, she is willing to move to the supported living accommodation to enable H to remain in the family whilst the Tavistock assessment continues.

69 On a proper analysis of the welfare checklist, in the circumstances of this case, the crucial issue is the nature and severity of the harm H would be at risk of suffering and how capable Mr. and Mrs. W are of meeting those needs. There is no question that Mrs. W can meet his immediate physical needs: she has brought up five children herself and has been fully assessed as recently as May 2013. The categories of risk which the local authority and the guardian are concerned about are helpfully summarised in the local authority's position statement as: Mr. W's stated intention co-care for H; limited safeguarding strategies in the home; Mr. W's mental health; Mr. W's drug use; home environment dirty; access to the family home by T; possible access to the family home by L; continued non‑acceptance by both Mr. and Mrs. W that the local authority's concerns are valid and serious; minimising of Mr. W's mental health and drug use, by Mrs. W; intermittent co-operation underpinned by the view that the local authority is acting punitively, despite the fact of a child born out of incest; and that a placement with Mrs. W prior to the assessment recommendations of the Tavistock would be one where the risks are unassessed.

70 The aspects of risk in relation to Mr. W's drug-taking and mental health and Mr. and Mrs. W's co-operation are matters which were the subject of a very detailed analysis by the independent social worker and to which I have referred extensively in this judgment, as recently as May 2013; that assessment was not taken into account by the social worker or the guardian in their written reports and I find that it was not given due weight in their oral evidence.

71 The complex and difficult question of what implications there may be for H being born to parents who are half-siblings is a serious, longer-term welfare consideration, but not an immediate safety risk.

72 The relatively trivial concerns about dirt and clutter in the family home were acknowledged by the social worker to be not of a degree or nature which would amount to a safety risk.

73 It is acknowledged by Mrs. W that T may pose a significant physical safety risk to H or to his other siblings, and possibly a sexual risk. The level of this risk has not yet been fully assessed but I find that this risk has been considerably reduced by T moving out of the home, to a residential placement. I have considered carefully the risk of T being allowed back into the home by Mr. and Mrs. W, notwithstanding his agreement not to go there. Although I find there is a high risk that he will try to come back to the home at some point, I am satisfied that Mr. and Mrs. W will keep to the terms of the agreement not to admit him to the home.

74 I do not agree with the social worker and the guardian in this respect. Even without H being in the home and T having only recently been removed, they have managed to keep him away, save on one occasion, and they have now entered into a written agreement and kept to the terms of that agreement. They are well aware that, if they breach its terms, H will be removed.

75 I have considered the risks in relation to Ms. Mitchell being allowed back into the home, in breach of the agreement. If Mr. and Mrs. W did allow her back in, she might try to care for H, unsupervised, and he could come to physical harm, but I find that this risk, too, can be ameliorated by Mr. and Mrs. W's agreement not to allow Ms. Mitchell into the home and to allow a high level of social work visits and with the local authority supervising L's contact outside of the home.

76 I have considered the risk which Mr. W's behaviour and mental health might pose to H. There is no evidence that there has been any change in the dynamic of this risk since the full assessment of Dr. Ratnam and the independent social worker, to which I have referred above.

77 Putting all the risk factors together and looking carefully at the constellation of the various risks and the strategies and proposed written agreement to manage those risks, together with evidence on parental co-operation, I am not satisfied that the risks to H's safety are high enough to justify his separation from Mr. and Mrs. W at this interim stage.

78 I find that the social worker and guardian have failed to analyse sufficiently the positives of a placement with Mr. and Mrs. W in the light of the earlier evidence and to weigh those in the balance with the risks.

79 Having indicated my view to the parties at the conclusion of the evidence on 22^nd May, I made an interim care order and adjourned the hearing until today to enable the local authority to file an amended care plan, draft a written agreement to include detailed contact provision outside of the home, supervised by the local authority, for L and for T.

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	English and Welsh Courts - Miscellaneous
You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> A London Borough v M & Ors [2014] Ew Misc B54 (CC) (29 May 2014) URL: http://www.bailii.org/ew/cases/Misc/2014/B54.html Cite as: [2014] Ew Misc B54 (CC)

English and Welsh Courts - Miscellaneous