S and T (care - final hearing – s91(14)), Re

This is the final hearing of the local authority’s applications in respect of Sasha who is fourteen, and her younger sister Tara, who is nine.

In March 2023 I handed down a lengthy judgment following a fact-finding hearing. I found that throughout their childhoods, Sasha had suffered chronic emotional, verbal, physical abuse and neglect from her mother, and Tara had suffered emotional harm and neglect whilst in the care of her mother.

I found that the mother had isolated and marginalised the children’s father from the lives of the girls, perpetuated a relentlessly negative view of him to them, thereby undermining him as a parent and obstructing the girls’ relationship with and emotional connection to their father.

I found that the mother had made Sasha the focus of negative attributions, suggesting there were things wrong with her, she was odd, and needed various diagnoses requiring treatment including medication and additional support. The mother told various professionals that Sasha had diagnoses for PTSD, ADHD, sensory processing disorder, selective mutism, eating disorder, learning disabilities, lactose intolerance, food allergies, dyslexia/dyspraxia/dyscalculia, autism, OCD, allergies, and an undiagnosed syndrome. Sasha does not have any of these diagnoses.

I found that the parenting that Sasha received from her mother caused her to develop a low sense of self, and anxiety, resulting in significant distress and impairment in her general functioning. She now has extensive emotional and psychological needs, is self-harming, has poor body image and disordered eating.

When the mother did not receive the diagnoses, treatment or support she sought, or was challenged by professionals, she would often become combative. She was highly resistant to any attempts to help her reflect on, or make changes to, her parenting.

I found that Tara was treated differently from Sasha, but nonetheless suffered significant emotional harm and neglect in her mother’s care. I found that the mother has often regarded Tara, even at a very young age, as a confidante, and had shared information about Sasha with her that both invaded Sasha’s privacy and undermined her confidence, and perpetuated an understanding of Sasha being ‘the problem’ child. This caused emotional harm to Sasha, but also created a risk of emotional harm to Tara. She has experienced a pressure upon her to ‘perform’ as the child who does not present problems, to be self-reliant, and not demand anything from her mother.

I found that the mother had reported that Tara had ADHD, symptoms from autism of intolerance to noise, and PTSD. Tara does not meet any of these diagnoses.

I found that the mother had failed to ensure the girls had gone to school consistently. There had been a significant number of sudden and unplanned school moves over the years. When enrolled at school the girls had consistently low attendance. When home schooled, the mother had not provided consistent education, prioritising her own need to obtain the diagnoses, treatment and support she considered she needed to manage the girls’ needs.

I found that the mother had failed to protect Sasha from the risk of self-harming, because she knew that Sasha had a razor blade in her possession and colluded with her in concealing it from her father and professionals.

I found that the mother had physically and verbally abused Sasha, at times said things which were mean or cruel. I found that she had shaved Sasha’s head and that this had caused Sasha distress.

Since the fact-finding hearing, Sasha has continued to live in the care of the local authority at [placement P]. She continues to present with complex needs. There remains a risk of serious injury or death through self-harming, particularly overdoses of paracetamol. She is not going to school or taking part in tutoring sessions at this time. She is however beginning to build up trusting relationships with her carers. She is making progress in being able to express herself, reflect on her experiences in her mother’s care, and start to process them.

There have been ongoing concerns about the risks posed by the mother’s visits to the children. At the fact-finding hearing I found that the mother had made secret contact with the girls, providing them with UV pens so that they could write down a phone number for her. I found that she had been in touch with Tara through Roblox, an online gaming site. In supervised contact, there had been incidents when the mother had found a way to speak to one or other of the girls out of earshot of the supervisor. There have been concerns about the girls’ presentation following contact sessions with their mother.

Since June 2023 Sasha has chosen not to see her mother, who has respected her wishes not to be in contact at this time.

The contact records before then show some positive interactions, but also many times when Sasha was quiet and subdued in her mother’s presence. There are also some concerning reports of Sasha directly asking her mother for care and being ignored, for example a report that describes Sasha asking her mother to brush her hair, repeating the request another two times, but her mother not picking up on this opportunity to show care and tenderness to her daughter.

Tara was seeing her mother twice a week, but since the fact finding this was reduced to weekly. The reports of the contacts describe a positive experience for Tara and her mother. The notes describe loving and warm interactions, with the mother bringing fun and interesting activities for them to do together. However, there have been some occasions when the mother has made comments which have directly, or more subtly, undermined the girls’ father. Those subtle comments include gently questioning rules or boundaries that have been put in place around use of electronic devices. Another time she seemed to question whether something of Tara’s that the father had said was lost, really had been lost. The implication is that the father may have taken it away.

Tara is missing her mother and has consistently expressed a wish to return to her care. At the same time, she is living a full and happy life with her father. In her final report the guardian references the very positive parenting assessment of the father and his partner, and describes how the parenting that Tara is receiving has brought about a dramatic shift for her:

The guardian is equally positive about [the father]’s care of Sasha. She describes him as insightful and child-focused. She says in her final analysis:

The guardian’s opinion is based on her own interactions with the girls, [the father] and his partner, but also having reviewed a substantial body of further evidence obtained since the fact-finding hearing. The mother was the subject of a psychiatric assessment by Dr McClintock and a parenting assessment by an independent social worker Lisa Greaves. Dr Lucy Sawyer and Alice Rogers from Great Ormond Street Hospital who carried out a global family assessment and gave evidence at the fact-finding hearing, have updated their opinion in the light of the findings made in Court. Their views are noted in the transcript of a professionals’ meeting led by them.

I too have reviewed this updated evidence, together with the final evidence and care plans of the local authority, prepared by Ms B, who is the girls’ social worker and has long-standing involvement in the proceedings. I have read and considered witness statements from the mother and from the father, and the guardian’s final analysis. I have read the contact records.

As at the time of the fact-finding hearing, there is broad consensus among the local authority, expert witnesses and the guardian about the mother’s and father’s respective capacity to parent the children. In her statement, the mother acknowledges the findings that have been made, and has not sought to appeal my judgment. However, on a more fundamental level, she does not accept the facts as they have been found. Ms B told me in evidence that in conversations she has had with the mother, she has not seen any insight or capacity to accept the findings or to accept that [the father] is going to be the girls’ long-term carer. Ms B acknowledged that there have been fewer overtly problematic statements in contact, and that contact has largely been very positive for Tara, but she said that the mother has continued to be very negative of [the father] in conversations with her, and to direct blame towards him.

The mother has recently spoken to her general practitioner about having counselling for anxiety. She should be credited for this. Similarly, she should be commended for the careful thought and preparation she devotes to her contact, such as bringing a Japanese meal and coming up with fun games, dressing up or doing nails.

However, even though contact has been closely supervised and in a contact centre, concerns that the mother has continued to try to maintain secret contact outside the supervised contacts has continued. [the father] has reported that Tara tried to set up a secret email account. He has previously had to put in rules around Tara’s use of her tablet because she was in contact with her mother through Roblox.

The mother has not appeared to be able to show Tara any sign that she is the one who bears responsibility for her separation from Tara and Sasha. She has attributed blame to social services, repeating on various occasions to Tara that it is social services and the Court who are deciding about whether they can see each other in a contact centre, that social services decide the length of time they may spend together, and that it will be social workers who decide if or when it is safe for Tara to come home to her. On one level, it is right that the decision making has been out of the mother’s hands, but this narrative is one which casts Tara and her mother together as victims at the hands of an arbitrary system, and ignores the facts as found by the Court. Tara has been separated from her mother as a result of the abuse that she and her sister suffered in their mother’s care, and due to the risk of continued harm if they were to return to her care.

The mother has not overtly said things to Tara that cast Sasha as the problem or which directly blame her for social services’ intervention and the Court proceedings, as she was found to in the past. However, what she has said does seem to me to perpetuate a sense again that the mother is the victim of Sasha’s behaviours towards her, and that there is no good reason for it, it is just the way Sasha is. For example, at contact on 22 July 2023:

This does not help Tara because the mother is unable to acknowledge that Sasha’s decision not to have contact with her is a response to the way her mother parented her. Blame is directed towards Sasha. I have not seen any evidence that she has made any meaningful step towards acknowledgement and acceptance of responsibility for the circumstances which meant that both of her children remain out of her care.

There is evidence that Tara continues to feel responsible for her mother’s emotional well-being. Back in February 2022 the mother became upset in contact and was crying. Tara is recorded as saying, ‘put my picture in your room and whenever you get sad and miss me, you can look at it.’ In the same contact, her mother told her that she was doing everything she could to get her home, and again became upset and was crying. Until very recently, Tara continued to be under the impression that her mother was intending to ask the Court for orders that she could go home and live with her mother. She found out that her mother was not opposing the plan from the guardian.

The episodes of Tara seeming to be responsible for her mother’s emotional well-being and seeking to please her are repeated throughout the contact records. In a contact in July 2023 her mother complains her toastie is cold, Tara says hers is fine but jumps up to heat up her mother’s. Tara draws her mother’s attention to the fact that she is wearing a dress her mother bought her. Tara gives her mother a bracelet she has bought for her in the shops. Tara offers to play her mother’s favourite game with her as a birthday treat.

There is no doubt of the closeness between mother and daughter, but there is also an element of performance to it, in the sense that there is a lot of gift-giving and sharing of treats and declarations of love and closeness. It is incredibly difficult in the confines of a contact centre to find activities to do. Of course I understand that the time together is precious and would want to be marked out as special and to be treasured. I do not criticise the mother for telling her daughter she loves her and that she is proud of her in as many different ways as she can. I also understand that it is not easy for her to have a conversation that would explore the reasons they are separated in any depth. The mother has been told not to discuss the proceedings with Tara and would not want her to be distressed. Nonetheless, in the context of a relationship where Tara has been under pressure to perform I am concerned that being constantly told that she is perfect and amazing could increase that pressure. If it is constantly reinforced that she is the person who makes her mother feel better, she may well experience that as a pressure to continue to always be amazing and perfect for her mother, to bear the responsibility for cheering her up when she is down, to buy her gifts to make her feel better.

If at the same time, she is conscious that her mother is undergoing some kind of test in order to see if it is safe to return home, this may also create a pressure upon her to perform.

My concerns about this were reinforced when I read in one of the notes that the mother openly expressed frustration in contact that she was not sure that social workers were reading the contact notes to see how well she was doing.

The threshold for making public law orders in respect of both girls is crossed by virtue of the findings previously made. The summary of those findings is annexed to this judgment.

There is no dispute that Sasha should continue to live at [Placement P] pursuant to a care order.

She is having regular contact with her father and Tara which is going very well. The hope is that in time this will increase to regular staying contact, and in the longer-term for her to transition back to his full-time care. But for now, all parties are agreed that her welfare needs require that she continues to stay where she is, and where she can receive specialist therapeutic care.

Sasha’s mother has respected her wish not to have any form of contact with her at this time. This will be kept under regular review at Children We Care For meetings.

The mother has proposed that she writes letters for Sasha that could be kept safely for her and shared with her when she is ready. In my judgement this could backfire as she has expressly said she does not want any contact at this time. I would be concerned that if there comes a time when she does express a wish to receive a letter, and discovers a large collection of letters she may become overwhelmed. In my view it would be better to restrict indirect contact to birthdays and Christmas for now, with staff keeping letters safe for Sasha, and to keep this under review, in accordance with Sasha’s wishes and feelings about indirect contact. There should not be any other form of indirect contact between Sasha and her mother at this time.

The mother has conceded that the Court should make a child arrangements order for Tara providing that she lives with her father. Having regard to all the circumstances, and in particular the welfare checklist factors at section 1(3) of the Children Act 1989, I am satisfied that such an order meets Tara’s welfare needs and is in in her best interests. There is no need for any public law orders, which would be disproportionate. Her father, together with his partner [the father’s partner], are well able to meet all Tara’s physical, educational and emotional needs to a high level, to keep her safe, and to help her in time to understand, process and recover from the experiences that led to her being separated from her mother and her sister and placed with him. It is to his credit that he is able at the same time to support Tara’s relationship with her mother, albeit that he continues to work with professionals to put safe boundaries around the time they spend together so as to protect Tara from emotional harm.

Tara cannot safely return to her mother’s care. Her mother loves her, but continues to present a risk of physical and emotional harm to Tara. She has not yet reached a stage where she is able to take responsibility for that, or to start the work of making changes that would enable their relationship to continue in a freer and less boundaried way. The harmful parenting her children received from her persisted for many years and has left long-lasting consequences for them. Each of them now has particular and complex needs, which will require a high level of attuned and consistent care to respond to. It is not realistic to expect the mother to be able to make the changes required that would enable her to be in a position to meet Tara’s (or Sasha’s) needs as a full-time carer for the foreseeable future.

Tara’s placement with her father now is to be regarded as for the long term.

There is an issue about the frequency of contact between Tara and her mother, and whether it should take place in a contact centre or in the community. There is a further issue about whether or not I should make a section 91(14) order, restricting the mother’s ability to apply to the Court for an order to vary the child arrangements order. If I do make such an order, there is a dispute about the length of time it should be in place.

It is often said that contact is for the benefit of the child and not the parent. What does that mean for Tara?

Tara needs help to understand the reasons that she is not living with her mother and sister, to process her experiences and to recover from them.

She needs to know that she has not done anything wrong.

Tara needs to know that her mother loves her and will continue to love her even though they are not living together. She needs to know that she is not responsible for her mother’s emotional well-being, and that her mother’s well-being does not depend on Tara returning to live with her.

Tara needs help to understand that her placement with her father and [the father’s partner] is for the long-term, and to be allowed to settle in her home with them. She needs to develop a sense of stability and security in their care and to develop loving and trusting relationships with them. If she cannot do that, then her ability to develop trusting and safe relationships with other people in her life will be compromised.

Tara’s father is well-placed to support her in meeting all these needs.

Having regard to the evidence I have heard and read, I do not have confidence that Tara’s mother can support her.

There are continuing concerns that the contact Tara is having with her mother is acting against her ability to settle and find security in her father’s care. She has accepted that final orders will be made providing for Tara to live with her father, but she has not been able to communicate to Tara that she accepts this outcome is truly in Tara’s interests. The mother has been seen to say things and act in ways which undermine the father as a carer.

If the mother cannot take responsibility for the harm that she has caused to Tara, then there is a risk that Tara will look for an alternative explanation, and blame herself for remaining separated from her mother. When Tara received a letter from me explaining the findings from the fact-finding, her response was to say that it was all lies, and this was what her mother had told her. A contact record notes Tara’s mother telling her about her father’s ‘lies’.

I accept the evidence of the local authority, supported by the professional witnesses, and the guardian’s careful and balanced analysis. Ms B’s evidence was based on her own experiences and having taken into account the views of the expert witnesses. She has carefully weighed up the risks and benefits of contact and her conclusions are well reasoned and supported by the overwhelming weight of the evidence.

I have had regard to all the circumstances, and in particular the factors on the welfare checklist.

I consider that the appropriate order is for contact to take place once a month (twelve a year), with additional contacts to celebrate Tara’s birthday and Christmas. If and when contact with Sasha resumes, I consider there should be an additional contact for Sasha, Tara and the mother on Sasha’s birthday.

I take into account Tara’s wish to see her mother frequently, but also the need to ensure there must be time for Tara to visit Sasha, and for Tara to have free time to develop her own interests and friendships.

The parents are free to arrange additional or alternative contact as may be agreed.

Contact should continue to be supervised and take place in a contact centre. I appreciate that this limits the activities that Sasha and her mother can do. However, when contact was in the community there were incidents of secret conversations. Even when contact has been closely supervised there have continued to be concerns about secret communications between the mother and her children. The mother has not acknowledged the harm from this. There is no evidence of a change in thinking that reassures me the risk has lessened. In the professionals’ meeting, Alice Rogers described the risk as follows:

I accept that the contact is positive for Tara and that she has consistently said that she would like to see more of her mother, and she wants to live with her again. Tara is a bright and articulate girl who loves her mother and cherishes the time they have together. Of course I have regard to her wishes and feelings. However, against that must be balanced the risk of harm to her from spending too much time with her mother. Because of her mother’s actions, the time she spends with her mother risks undermining and de-stabilising her placement with her father, and her relationship with him. If that placement were to break down, it would not be safe for her to live with her mother. Tara risks further disruption and the possibility of further public law proceedings in that event.

Even though there are many loving interactions between Tara and her mother, these interactions in themselves do create risk of re-enacting some damaging elements of the parenting that Tara received when she was in her mother’s care. This creates a risk of Tara being under pressure to care for her mother’s needs before her own, to be ‘perfect’ and, in contrast to her sister, not perceived as a ‘problem’. It risks leading to her becoming over compliant and to suppress her own wants and needs.

In the months before care proceedings were initiated there were signs that Tara’s mother was informing professionals of diagnoses of mental health issues for Tara, which were not found to exist, in the same way that she had for Sasha. There remains a risk that she will project her anxieties onto Tara as she has done in the past, leading to a risk of harm.

I accept that Tara may well find a further reduction in the time she spends with her mother difficult to manage and she is likely to be saddened, confused and upset. She may well feel resentful that her wishes have not been heeded. However, on balance I have come to the conclusion that the risk of harm of reducing contact is less than the risk of harm to her in maintaining it at its current level. Further, I have confidence that her father will be able to support Tara emotionally with a further reduction, as he did previously when it was reduced from twice a week to once a week.

For all these reasons, I approve the local authority’s plan for Tara and will make a child arrangements order as proposed.

I note that the local authority has offered to continue to fund supervised contact for a period of six months. Thereafter, the cost of booking the contact centre, and supervisors will fall upon the mother. She is not contributing financially to the father at the moment for Tara’s maintenance. Her actions are the reason that supervision is required, in the circumstances she should bear the cost of supervision.

Tara is now living in the area of the [London Borough name redacted]. Ms B has been liaising with children’s services there, and they have agreed to put Tara on a child in need plan in order to ensure that she continues to receive support as required following these proceedings. They will however keep matters under review and they cannot be compelled to keep Tara on a child in need plan for any specific period of time. It will be a matter for them to review in due course. Ms B will effect a handover and ensure that those managing the child in need plan have the information they need.

Once the case has passed to the [London Borough name redacted] it is for them to keep matters under review. However, for the avoidance of doubt, I have made a decision that Tara should see her mother once a month, with two contacts happening in October to manage the transition from once a week to once a month. I do not consider that there needs to be a review to reconsider frequency of contact at the end of October. In the future (and after the [London Borough name redacted]’s involvement with the family ends), I envisage that the level of contact will remain as set out in the order, and the mother will pay the costs of a supervisor. However, the final order will provide that there may be ‘such additional or alternative contact as the parents may agree’, so of course if both parents agree to a change in the arrangements, that may happen.

Mr Tyler KC has helpfully set out an agreed summary of the law, taking into account the new section 91A of the Children Act 1989 inserted by section 67 of the Domestic Abuse Act 2021. Section 91A provides as follows:

I have been referred to the cases of Re A (a child) (supervised contact) [2022] 1 FLR 1019, and A Local Authority v F and others [2022] EWFC, in which Gwynneth Knowles J considered sections 91(14) and 91A, summarised the relevant parts of Black LJ’s leading judgment in Re A, and directed herself that section 91A(2) gives greater latitude to the Court to make section 91(14) orders than the previous guidance from Butler-Sloss LJ, in the case of Re P (Section 91(14)) (Guidelines) (Residence and ReligiousHeritage) sub nom: In Re P (A Minor) (Residence Order: Child’s Welfare) [2000] Fam 15; [1999] 2FLR 573:

Further, I have been referred to and have considered Practice Direction 12Q of the Family Procedure Rules 2010, inserted to accompany the addition of Section 91A Children Act 1989, and which sets out a number of ‘key principles’ to consider when deciding whether or not to make an order under section 91(14).

In his note, Mr Tyler has helpfully drawn together from all this source material the following formulation, setting out what he (with agreement of the other parties) contends should be the Court’s approach to an application for a section 91(14) order: