St Helens Council v NM & Ors

On 26 January 2015 St Helens Council issued care proceedings in respect of three children, K, born on 19 April 2005 and now aged 10, A , born on 4 October 2006 and now aged 8 and S , born on 25 September 2009 and now aged 5.

As the case has evolved so has the nature of the orders which the court is asked to make. As at the commencement of this final hearing I am invited by the local authority, with the support of the father and of the Children’s Guardian to make special guardianship orders in respect of each child in favour of the maternal grandparents. I am in addition asked to make supervision orders in respect of each child in favour of St Helens Council for a period of 12 months. Finally, I am invited to make orders conferring on the father parental responsibility in respect of A and S.

As already recited, the applicant in this case is St Helens Council. The first respondent, N M, is the Mother of the children. The children’s father is P A. The maternal grandparents, B M and P M are also party to these proceedings. The children’s interests in this case are represented by their Children’s Guardian, Mr Paul Sambrooks.

The mother has not attended this hearing, although she has been represented by counsel throughout. At the commencement of the hearing I heard submissions on the issue of whether or not I should proceed with the final hearing in the Mother’s absence. This issue was of some moment as, whilst the mother in large part concedes the facts on which the local authority relies to establish the threshold in this case, on her most recent instructions the mother disputes an allegation that she inflicted bruises and a bite mark on A which allegation the local authority seeks to prove and seeks the return of the children to her full time care.

I decided to proceed with the final hearing in the mother’s absence and gave a short judgment summarising my reasons for doing so. It is appropriate for me to reiterate and further elucidate my reasons at this stage.

The mother last attended court on 31 March 2015. She last attended contact with the children, for approximately 20 minutes, on 20 April 2015. By common consensus between the legal representatives, the mother left court on 31 March 2015 before it was known that this final hearing would be commencing on 8 June 2015. Since 31 March 2015 the social worker has only managed to speak to the mother once and the mother has not kept appointments with her solicitors.

Whilst correspondence detailing the dates of the final hearing had been sent by the mother’s solicitor to the maternal grandparents’ home, the mother had not attended there. Indeed, the mother is not welcome at her parents’ home and the maternal grandfather had requested that the mother’s solicitors cease sending correspondence to that address. There was therefore a significant question mark over whether the mother had received reasonable notice of the final hearing.

When this matter was raised by the court the maternal grandmother informed the court through her counsel that she had met the mother in town a little over two weeks ago and had handed to the mother the letters detailed above. I directed that the maternal grandmother be sworn and she gave evidence to the effect that she had met her daughter, handed over the letters to her and explained that they related to these proceedings. The maternal grandmother does not recall specifically telling the mother that the final hearing would be commencing on 8 June. The maternal grandmother further related that another family member had encountered the mother on a separate occasion in a public house and that when this hearing became the topic of conversation the mother had stated to that family member that she would not be attending this hearing.

The letter given by the maternal grandmother to the mother dated 2 April 2015 made clear (in bold type) that the Issues Resolution Hearing in this matter was listed on 27 May 2015 at the Liverpool Family Court. The letter further made clear that the final hearing in this case was listed to commence on 8 June 2015, again in the Liverpool Family Court. Finally, the letter made clear that the court had directed the mother to provide the name and contact details of a witness relevant to the issue of whether the mother had caused injury to A. The letter to the mother dated 23 April 2015, which the maternal grandmother also gave to the mother, reiterated the matters outlined above and confirmed that the mother’s instructions to her counsel at the hearing on 31 March 2015 had been that she did not cause the injuries to A.

The mother did not attend the IRH on 27 May 2015. The order made on that date contains a warning that failure to attend the final hearing may not result in an adjournment and that the court intended to make final orders, which may include adverse findings. The court directed that the mother’s solicitors instruct an enquiry agent to locate her and personally serve her with the order of 27 May 2015 and made an order was made that the DWP disclose the last known address of the mother. The enquiry agents were unable to locate the mother. The DWP were only able to provide a post code and a flat number, which information did not allow a specific property within that post code to be identified.

Having regard to the matters outlined above, and in particular the evidence I heard on oath from the maternal grandmother, I am satisfied that the mother has received reasonable notice of the final hearing. I am also satisfied that the mother has had reasonable notice of the fact that the court intended to determine at this final hearing whether she is responsible for the injuries sustained by A.

The provisions governing the circumstances in which a court may proceed in the absence of a party are contained in FPR 2010 r 27.4 which, insofar as is relevant, provides as follows:

Thus I have discretion to proceed in the mother’s absence subject to it being proved to my satisfaction that the mother has received reasonable notice of the date of the hearing. Even were I not satisfied, as I am, that the mother has received reasonable service, I retain discretion to proceed in her absence if satisfied that the circumstances of the case justify proceeding in that way.

Having been satisfied that the mother has had reasonable notice of this final hearing, I am equally satisfied that I should proceed to determine the allegations against the mother and to determine the substantive applications in her absence. My reasons are as follows.

I am of course mindful of the need to ensure that the mother, as a party to these proceedings, has a fair hearing. In particular, in relation to the allegations made against the mother regarding the injuries to A, it is an important aspect of her right to a fair trial that she be on notice of those allegations made against her and that she have the opportunity to answer them. Whilst I am satisfied that the mother is on notice of the allegations made against her, proceeding with this hearing in her absence deprives her of the opportunity to give her oral evidence in respect of the same and to instruct her counsel in light of the oral evidence of others. I am likewise mindful of the importance, when determining allegations concerning inflicted injury, of the importance of listening to the evidence of the parents.

Against this, and in circumstances where I am satisfied that the mother has had reasonable notice of this hearing, the mother has chosen not to attend and has chosen not to avail herself of the opportunity of further explaining her case to the court. In such circumstances, it would sit somewhat ill in the mouth of the mother to complain of unfairness caused by her absence. In addition to this, there are a number of factors which mitigate the impact on the mother of proceeding in her absence to determine the issues before the court.

First, the mother has been represented by counsel throughout this hearing. Whilst Ms Wilson has not, for the reasons I will come to, been able to put a case beyond making clear that the mother denies the allegations made by the local authority regarding the injuries sustained by A, Ms Wilson has of course been astute to ensure that the mother’s interests are jealously protected during the final hearing.

Second, whilst the medical evidence in this case is that the injuries sustained by A can be considered consistent with inflicted injury, the primary evidence as to the mechanism by which the injuries occurred in this case comes from accounts of the children. In circumstances where no application was made at the case management stage for the children to give evidence and be cross-examined, the mother has not been denied by the court proceeding in her absence the opportunity to see the primary witnesses against her give evidence and give instructions as to cross examination of such oral evidence.

Third, whilst she was engaging in these proceedings the mother filed a statement setting out in clear terms her case in respect of the children and in respect of the injuries sustained by A. Save for K’s conversation with the Children’s Guardian on 1 June 2015, this statement was prepared at a time when the mother was fully on notice of the accounts given by the children on which the local authority rely to make good its allegations in respect of A. The mother’s case in respect of the injuries sustained by A as set out in her statement amounts to a bare denial of the allegations without further explanation. She does not appear to dispute that the conversations relied on by the local authority took place or the accuracy of the accounts of the same. Indeed, she could not do so as she was not present during those conversations. In the circumstances any oral evidence from the mother on the issue of the causation of the injuries would necessarily have been limited to a denial that that which the children have said is the truth together with any explanation for why this is the case (although none is contained in her statement). The mother does not appear to dispute the medical evidence in this case.

In addition to these factors, in deciding whether to exercise my discretion to proceed in the mother’s absence I have had to take account of the impact on the other parties of adjourning this hearing. In this case the impact on the children of not proceeding would be particularly acute. Whilst the children have been admirably cared for by the father and his partner during the currency of these proceedings, by reason of their particular situation this cannot continue beyond the end of this week. The impact on the children of adjourning this hearing to provide the mother with a further opportunity to attend would accordingly have extended beyond the impact of further delay, to which delay I must pay careful regard, to the need to secure a further temporary placement in the interim. Plainly, this would have been antithetic to the children’s best interests. Within this context I have also had regard to the importance of A knowing, if possible, who inflicted injury upon him.

Having regard to all of the matters set out above, I decided that the balance in this case fell in favour of proceeding in the absence of the mother to determine the allegations regarding the injuries to A and the substantive applications before the Court.

The mother in her statement concedes much of the background to this matter as it is contended for by the local authority.

The local authority have been involved with the family since 2008 due to issues of volatile adult relationships, the mother’s aggressive behaviour, the mother’s use of alcohol and drugs and the neglect of the care of the children. In early 2014 the issues which had attracted the attention of the local authority escalated with the children becoming the subject of child protection plans on 7 May 2014 and having to stay with their maternal grandparents on two occasions in February 2014 and August 2014.

Within this context, in her statement the mother candidly concedes the following matters of fact:

In the context of the allegations levelled by the local authority against the mother in respect of the injuries sustained by A, it is of course important to note the mother’s concession that she has in the past bitten Mr B during an incident of domestic violence and that she has in the past used physical chastisement against the children, including A, by hitting them on the legs.

Matters reached a head in October 2014. On 6 October 2014 A was seen to have a bruised ear. At the behest of the social worker Katie Arden, A was examined at Alder Hey hospital by Dr Chahal.

Dr Chahal noted several different injuries to A’s body. He had a significant pattern of bruising to his left ear, which Dr Chahal considered was consistent with a grabbing injury. A had a line of three bruises on his left thigh and a bruise to his right thigh. He had two bruises on his right forearm. One of the bruise marks on A’s right forearm was considered by Dr Chahal to be consistent with a bite mark. Dr Chahal noted a number of further bruises on other areas of A’s body, including his spine, his shins and several scratches. Dr Chahal observed that A was unkempt, with dirty clothing, a dirty neck and dirty toenails and feet. Dr Chahal concluded that three of the areas of injury, namely the bite mark, the bruising to the ear and the bruising to the thigh were consistent with non-accidental injuries. As noted, the mother has not sought by her statement to dispute this evidence.

Dr Martin, a forensic odontologist, has prepared an expert report considering the nature and provenance of the bruising that Dr Chahal considered to be a bite mark. In a report dated 8 December 2014 Dr Martin accepts that the photos from which he was asked to work were far from ideal. Nonetheless, Dr Martin concludes that the marks on A’s arm fall into the category of ‘definite human bite’ in the classification adopted by forensic odontologists. Dr Martin further concludes that the bite mark was caused by an ‘adult’. For these purposes an ‘adult’ is a person over the age of 12 years, that being the age at which a child’s adult anterior teeth are normally fully erupted and in occlusion. Again, the mother has not sought by her statement to dispute this expert evidence.

It would of course not be appropriate for the court to rely on medical evidence in isolation to reach a decision on the findings sought by the local authority and the courts do not do so. Indeed, as Dr Martin is careful to point out, in this case the dental evidence considered on its own should be treated with some caution. The court has to look at the broad canvass of the evidence in order to determine whether it is able to make the findings sought on the balance of probabilities.

The maternal grandmother and the maternal grandfather gave evidence in respect of days leading up to the medical examination of A by Dr Chahal on 6 October 2014. The maternal grandmother related that the children went to stay with their grandparents on 4 October and remained in their care until the early evening of 5 October. Of particular significance is the fact that on 4 October the maternal grandmother bathed A and on 5 October she changed his top before he returned to the care of his mother.

The maternal grandmother did see a lot of bruises on A in places where they would be expected from what she described as ‘rough and tumble’ play, A being a very active boy. The maternal grandmother had also previously noted and continued to observe over the course of the time A was with her, that A had a bruised ear. A told the maternal grandmother that this had been caused by him fighting with a boy called MK. This was later corroborated by K who stated that she had witnessed that fight.

The maternal grandmother was however adamant that neither when she was bathing A on 4 October 2014 nor when she changed his top on 5 October 2014 did she see anything like a bruise or a bite mark on A’s arm or any bruising to his thighs. Within this context I note that, when giving a history to Dr Chahal, whilst the mother was clear that she had pointed out the bruise to A’s ear to the maternal grandmother she made no mention to Dr Chahal of telling the maternal grandmother of bruising to A’s arm, whether in the form of a bite mark or otherwise or of bruising to his thighs.

Thus the maternal grandmother’s evidence was that at the time A left her care on the early evening of 5 October he did not have bite mark on his arm, nor would it appear he had any bruising to his thighs. I found the maternal grandmother to be a straightforward and honest witness who clearly had the children’s interests close to her heart. She was visibly upset at the prospect of A being deliberately harmed and plainly cares deeply for him. I have no hesitation in accepting her evidence regarding the absence of a bite mark and bruising to the thighs when A left the care of her and her husband on 5 October.

Some time between A leaving the care of the maternal grandmother on 5 October 2015 and A being seen by Dr Chahal on 6 October A was bitten by a person over the age of 12 years and sustained bruising on his left and right thighs consistent with inflicted injury. In this context I pause to note that the children had returned to their mother’s care on 5 October 2015, that the mother makes clear in her statement that whilst the children have been in her care she has not left them alone with any other adult and that the mother makes no allegation in her statement that anyone else is responsible for the injuries to A.

As I have already alluded to, the primary evidence as to the mechanism by which A sustained injury are comprised accounts given by the children. These accounts were given by K and A on 8 December 2014, 21 December 2014, 22 December 2014, 23 December 2014, 27 May 2014 and 1 June 2014. The accounts given on 8 December 2014 and 23 December 2014 were recorded contemporaneously or near contemporaneously by the social worker to whom they were given.

Having said nothing to Dr Chahal about the cause of the bite mark or bruising, on 8 December 2014 A told the social worker that it was S who bit him and that the bruise to his ear was caused during a fight with a boy named MK. K told the social worker that the mother smacked A when he was naughty and smacked her and S when they were really naughty. On 21 December 2014 K told the father’s partner, J, from whom I heard evidence, that it was her mother who had bitten A. When J asked A whether that was true he nodded. On 22 December 2014, and in response to a direct question, A told his father that it was the mother who had bitten him. The social worker saw the children again on 23 December. During this visit K told the social worker that the mother used to bite her (K) on the nose, that she had had her hair pulled by her mother when she tried to intervene to stop the mother hurting A and that the mother had caused bruising to A’s legs by hitting him. A told the social worker, in response to a question posed by K, that his mother had bitten him on the nose.

On 27 May 2015 K wrote a letter to the court in which she wrote “Mum bit A on his arm. Mum told us to say it was S because she did not want to get told off. We were in the bedroom at Mum’s house. Mum, me A and S. Mum used to bite me on my noes (sic) and it really hurt”. K’s letter goes on to detail how her mother left her at home, slapped her for no reason, pulled her by her hair and gave A a ‘dead leg’ by punching him, causing him to cry. On 1 June 2015 K saw the Children’s Guardian and produced a document entitled “The most important things I want people to know”. The first and most important thing K wanted people to know was “It wasn’t S who bit A on the arm. It was my Mum. I saw Mum bite A on the arm.” It is of note that in this document K reiterates that the bruise to A’s ear was caused during the fight with MK.

The local authority has filed a schedule of findings in which it seeks findings that the mother injured A by inflicting three bruises to his left thigh, bruising to his right thigh and by inflicting a bite mark to his right arm. In light of the consistent accounts of A and K regarding the cause of the bruising to A’s ear, the local authority, wisely, no longer pursues a finding in respect of that injury. In light of the evidence regarding A’s penchant for ‘rough and tumble’ play, the local authority no longer pursues a finding in respect of bruising on A’s right shin. Again, this is a sensible concession by the local authority.

In determining the factual issues before me the burden of proof lies on the local authority as it seeks the findings. The standard of proof I must apply is the balance of probabilities. Any findings I make must be based on the evidence, including any inferences I can draw properly from that evidence, and not on speculation. I must take into account all of the evidence before me and consider each piece of evidence in the context of all of the other evidence. I must bear in mind that a witness may lie and may lie for many reasons. Just because a witness has lied about some matters does not mean that he or she has lied about everything. Finally, I must have particular regard to the fact that I have not had the benefit of hearing oral evidence from the mother in this case.

Applying these principles and having regard to all of the evidence before me I am satisfied that the local authority has proved each of the findings it seeks in respect of the injuries sustained by A on the balance of probabilities. The factors that lead me to this conclusion are as follows:

I have of course given the accounts of the children anxious scrutiny and have taken account of the fact that A initially stated that it was S who bit him, only later stating it was his mother. However, I also note that there is an obvious and logical progression in the accounts given by A from saying nothing to Dr Chahal, then claiming it was S and finally, after a period in the care of his father and Ms J, stating it was his mother. This pattern of a child gradually coming to the point of feeling confident enough to give an accurate account of abuse is a pattern well known in the family courts. I also bear in mind in this context the consistent and detailed accounts that have been given by K regarding the treatment of A by his mother.

In the circumstances, and having regard to the broad canvass of the evidence that I have heard I am satisfied that it is proper for me to make the findings sought by the local authority, which findings will be appended as a Schedule to this judgment.

It follows from these findings, and on the evidence I am satisfied in any event, that the maternal grandmother and the maternal grandfather did not inflict the injuries sustained by A and I so find.

In light of the concessions made by the mother in her statement and the findings I have made during the course of this judgment I am satisfied that the threshold criteria pursuant to the Children Act 1989 s 31(2) are made out in this case and that, accordingly, I have jurisdiction to make orders pursuant to s 31 should I consider that it is in the children’s best interests to do so.

All parties who appear before the Court are agreed that I should make special guardianship orders in respect of the children in favour of the maternal grandparents and supervision orders in favour of the local authority for a period of 12 months. The relevant local authority decision making body has approved the placement of the children with their maternal grandparents following the belated receipt of the necessary DBS checks. I am likewise satisfied that these orders are in the children’s best interests and represent a proportionate outcome in this case.

In circumstances however where the absent mother seeks the return of the children to her care and where the placement with the maternal grandparents is not completely devoid of risk it is appropriate that I explain in a little more detail my reasons for reaching this conclusion.

In determining whether to make orders in respect of the children and, if so, which orders, each child’s best interests are my paramount consideration. In determining whether to make an order and, if so, which order to make I must have regard to the ‘welfare checklist’ in the Children Act 1989 s 1(3) and should not make an order unless to do so is better than making no order at all.

In accordance with the well known line of recent authorities setting out the analytical milestones the court must adopt when considering whether to make orders in public law Children Act proceedings, I am required at this stage to identify each child’s welfare needs and thereafter identify, from the realistic options available to me, the most proportionate means of meeting each child’s needs having regard to each child’s best interests as my paramount consideration and the need to approach each child’s welfare from a global, holistic and multifaceted perspective.

K has a strong attachment to her maternal grandparents and has expressed clearly her wish to live with them on a long term basis. K struggles emotionally with her feelings towards her mother, who she has not seen since April of this year, and is very protective of, and has a strong bond with, A and S. These issues will need to be carefully addressed by those caring for K on a permanent basis. K is in good health but struggles emotionally in the manner described. It is plain that K has suffered significant harm whilst in the care of her mother and has endured physical abuse, emotional abuse and neglect.

A has expressed a strong wish to live with his maternal grandparents. His relationship with his mother is strained and he has not had any contact with her for nearly two months. A is an extremely lively and energetic little boy. He has a diagnosis of ADHD and requires daily medication. He is supported in addressing his behavioural issues within school and will need support from those who are caring for him on a permanent basis. As I have found, in addition to being exposed, like the other children, to an environment in which alcohol and drug abuse and domestic violence were perennial features, A sustained injury at the hands of his mother.

S evidently has a close attachment to her maternal grandparents and her siblings. By reason of her age she has a limited understanding of her current situation. It is apparent from the evidence before the court that S may well have suffered some physical abuse at the hands of her mother and, in any event, lived within an environment in which such abuse was perpetrated on her siblings.

It is plain that each of the children now needs the safety, stability and security of a permanent home which will protect them from any further inadequate parenting on the part of their mother and which will help them to fulfil each of their potentials. In particular, the Court needs to take care to ensure for each of the children a permanent home in which not only are their physical, emotional and educational needs properly met but in which the risk factors which characterised their life with their mother are absent or, if not entirely absent, at a level that is not prejudicial to the children’s welfare. A further change of placement for the children as the result of further abuse would be little short of disastrous for them.

I am satisfied that the mother does not represent a realistic option in this regard. In addition to having completely disengaged from these proceedings, the mother has disengaged from her children, not having attended contact since 20 April 2015. There is no evidence that the mother has even begun to address the issues which led to her increasingly inadequate care of the children during the course of 2014 and to the injuries inflicted by her on A in October of that year. In the circumstances I have outlined I am satisfied that I can discount the mother as a realistic option for meeting the children’s identified needs.

In my judgment, the realistic options for meeting the children’s needs in this case comprise either placement with the maternal grandparents or placement in long term foster care.

Placement with the maternal grandparents has self evident positives. The children ardently wish to live with their maternal grandparents and each has an extremely positive bond with those adults. A placement with the maternal grandparents would allow the children to grow up in their extended family and to have easy and regular contact with their father and his partner Ms J and their children. Securing such a placement with the making of special guardianship orders would allow the court to confer the kind of security of placement that is plainly conducive to children’s best interests. The children would have the advantage of having family carers whom I am satisfied love them deeply and would strive to safeguard and promote their welfare.

A placement with the maternal grandparents is however not entirely devoid of risk. As identified in the evidence before me and set out in the report of the Children’s Guardian there are a series of risk factors present. These risk factors comprise the maternal grandfather’s recent excessive alcohol consumption and concerns over the maternal grandparents transparency in relation to this issue, the maternal grandfather’s extensive criminal record, the maternal grandparents ability to work openly with professionals and, finally, an incident of domestic violence between them in July 2014. As I have noted, it would be highly detrimental to place the children in an environment in which there was an unacceptable risk of the unfortunate elements of their upbringing to date being repeated.

Having heard the evidence of the Children’s Guardian and having heard the evidence of the maternal grandparents themselves I am however satisfied that the risk factors identified above do not militate against a placement of the children with the maternal grandparents.

The maternal grandfather has acknowledged that he has been drinking too much and has now taken proactive steps to address this issue. The common consensus of each of the professionals is that this episode of increased alcohol intake has not prejudiced his ability to care for the children. The maternal grandfather has never been seen intoxicated whilst with the children, including contact. The maternal grandmother reported the recent incident of domestic violence to the police and the maternal grandfather has acknowledged his responsibility and accepted the need to access support for anger management. The maternal grandfather has been able to demonstrate that he can engage with the court process and I am confident he will engage with the support he has sourced. The maternal grandparents agree that a 12 month supervision order should be made in favour of the local authority to support and monitor the progress of the children and to further progress the amelioration of the risk factors I have set out.

The other realistic option for placement in this case is long term foster care. Such a placement would have the advantage of insulating the children from the risk factors I have identified in respect of a placement with the maternal grandparents. However, a placement in long term foster care would also have manifest disadvantages to these children including, but not limited to, their growing up outside their natural family, the real possibility of the closely bonded siblings being separated, the insecure nature of foster care and the continued intervention of the local authority pursuant to the statutory looked after process and the disruption associated with that.

Setting the realistic options in this case beside each other I am in no doubt that the option that will best safeguard and promote each child’s welfare is placement with the maternal grandparents under the auspices of special guardianship Orders supported by supervision orders. It would in my judgment be entirely disproportionate to reject such a placement based on the risk factors identified, particularly in circumstances where those risk factors can be addressed in the manner I have described. The Children’s Guardian is strongly of the view that the maternal grandparents are “hugely committed” to the children and have a strong sense of the importance of family. Having heard the maternal grandparents in the witness box I share this view. I accordingly grant special guardianship orders in favour of the maternal grandparents, together with 12 month supervision orders in favour of the local authority in respect of each child.

I am also satisfied that the criteria for granting the father parental responsibility for A and S are plainly made out in this case and I make such an order.

That is my judgment.

A physical examination of A was undertaken on 6 October 2014 at Alder Hey Children’s Hospital.

At examination a number of injuries were noted on A.

Included in those injuries were the following:

Each of the injuries set out in Paragraph 3 of this Schedule were inflicted injuries:

Each of the injuries set out in Paragraph 3 of this Schedule were caused by the mother.

Neither the maternal grandmother nor the maternal grandfather inflicted any of the said injuries.

Neither the maternal grandmother nor the maternal grandfather acted in any way which could be described as failing to protect A from physical harm.