A London Local Authority v Marten & Ors (Final Welfare Hearing)

This is my judgment at the conclusion of this final hearing in proceedings that relate to four children: A, born in 2017; B, born in 2019; C, born in 2020, and D, born in 2021. The children are full siblings. Their parents are Constance Marten and Mark Gordon.

These proceedings are brought by a London local authority, which seeks final care and placement orders. The children are represented through their guardian, Christina Whittaker. These proceedings were issued in January 2020 and have been significantly delayed. They are the second set of proceedings for A, who was made subject to a supervision order in Wales in July 2018.

On 23 February 2021, I gave judgment following a fact-finding hearing in these proceedings, which at that stage concerned only the three oldest children, D not yet having been born. The background to the proceedings is fully set out in that judgment and I do not intend to repeat it. Both judgments should be read together.

In my judgment I found that when the local authority issued proceedings the three older children were suffering, or likely to suffer, significant harm, for the following summarised reasons:

No one has suggested that the threshold criteria were not met for D as at the relevant date, which is the date when the local authority issued proceedings for them, and I make that formal determination now.

On 19 March 2021, at the case management hearing following the fact-finding, I listed the case for final hearing commencing on 22 July with a time estimate of seven days. Both parents had instructed solicitors following the fact-finding (when they had acted in person), and at the case management hearing and all subsequent hearings they have been represented by counsel. On 19 March 2021, I gave the parents permission to identify a new independent social worker and psychologist, the parents assuring me, through their representatives, that they intended to engage with expert assessments, despite not having done so prior to the fact-finding.

I also directed disclosure of my judgment to the maternal grandmother, Mrs De Selliers, who attended the hearing represented by her solicitor, Mr Skinner. She had been positively assessed to care for C but was seeking information about my findings before making a firm decision about putting herself forward. The disclosure order was opposed by the parents, and they made it clear that they intended to appeal. I imposed a short stay to give them time to approach the Court of Appeal for permission. An application for permission to appeal was lodged but subsequently withdrawn. The judgment was disclosed to Mrs De Selliers, after redactions, on 27 May 2021.

The parents also applied to the Court of Appeal for permission to appeal my findings of fact. That application was refused on 28 April 2021 and certified as totally without merit.

On 19 March, following the chaotic experience of the fact-finding hearing, which I detailed in my February judgment, and the difficulties caused by the parents’ remote attendance, I made a direction that all future hearings should be attended or hybrid hearings, with the parents and their representatives attending court on each occasion.

In May 2021, I received an email from the local authority’s solicitor informing me that the mother was expecting her fourth child. It transpired that during the fact finding hearing the mother had been pregnant, but had concealed this from the local authority and the court. She booked into a hospital in the area where the parents were then living, at nearly 39 weeks pregnant. The mother told a midwife at the hospital that she had not receiving any maternity care, as that was her own personal choice.

D was born nine days later in hospital. The day after her birth the mother discharged herself, leaving D in hospital, despite being encouraged by hospital staff to remain. The parents did not, however, give consent to D being accommodated in foster care under s.20 of the Children Act, and so shortly after the birth the local authority where D was born issued care proceedings. I made a very short-term interim care order on the same day, which was a Friday, and listed the case for a contested hearing the following Tuesday.

At the first hearing the mother was represented by counsel, but there had been little time to take instructions. Her counsel made the suggestion, I think without instructions, that there might be an application for a residential assessment, and I said in the judgment I gave that day that if a plan was put forward, including robust safeguarding measures, that would enable D to be placed with the mother I would be prepared to consider it. No such application was made, and when the application returned for a contested hearing, the mother’s counsel had no instructions to propose any alternative arrangements for D other than a placement in foster care. I made an interim care order on that date for the remainder of the proceedings. Attempts were made by both local authorities to see whether D could be placed with any of their siblings, but that was not possible and D was placed in a separate foster placement.

In the days following D’s birth the hospital notified the local authority that blood tests had indicated that the baby had been exposed to rubella during the mother’s pregnancy, and that further testing would be required. The issue was raised before me , and the parents sought further time to consider their position. The following day the mother emailed the social worker to say that she did not consent to testing and that any blood tests that had already been taken had been done without her consent and were therefore illegal. By the following week the parents had still not given consent to testing, and the local authority was preparing an application to the High Court for authorisation under the inherent jurisdiction to arrange testing. In the event, the parents did give their consent and that application was not required.

D’s birth meant that the mother at least would not be able to attend the appointments with experts that had been booked, and the final hearing listed in July could not be effective. On 14 June 2021, I vacated the July dates and re-listed the final hearing in the next available slot before me, which was, unfortunately, not until January 2022. At a hearing on 22 July 2021, I redesignated the interim care order for D to this local authority on the basis of the decision in Re S [2017] EWCA Civ 2695, and the proceedings for all four children were consolidated. I extended time for the filing of the psychological and independent social work assessments until 26 November and 20 December respectively, and I gave the parties permission to rely on an alternative psychologist, Dr Marshall, the original expert having said that he could not report in time for the hearing.

I also made directions that Mrs De Selliers should clarify her position and should say whether she wished to care for any of the children by no later than 9 August, she then having been in receipt of the fact-finding judgment for about two months, and I made provisional directions for the filing of an updating assessment if she decided she did wish to be considered as a carer.

At the same hearing on 22 July 2021, I was informed that the parents’ attendance at contact had become sporadic. The mother had ceased attending in March, which, with hindsight, would have been when her pregnancy was becoming advanced. The parents asked to reinstate contact in June but did not attend for contacts that were arranged then. On 5 July, following D’s birth, they saw the older children for the first time in three months, but did not attend the next five contact sessions. They attended most sessions that were arranged in August, but only six out of eleven contacts in September, and three out of twelve in October.

On 22 September 2021, the mother made an application for an urgent directions hearing to consider contact. The order that she was seeking was not entirely clear from the application, but she appeared to be asking that contact with all four children should be consolidated and should take place together. I listed the application on 21 October 2021, but due to a court error a notice of hearing was not sent out and that hearing did not take place.

After 25 October 2021, the parents ceased attending contact altogether. The social worker emailed them in early November in an attempt to encourage them to attend. She told them that A in particular had become very distressed and had been asking the foster carer’s daughter, who works in healthcare, whether their mother was in hospital. A had had a nightmare that monsters had taken their parents away, and asked if they had stopped seeing them because they (A) had been naughty. A began wetting and developed a stammer. A’s foster carer and nursery each drew a link between the changes in their behaviour and the sudden ceasing of contact. The local authority arranged a meeting with the parents to discuss contact, but the parents did not attend.

Neither parent attended appointments with the experts who had been instructed. Repeat appointments were offered in September and in November, but the parents either cancelled without explanation or failed to attend.

A pre-trial review took place on 13 December 2021. A few days before that hearing both parents made a request to attend remotely on the basis that the omicron variant of the COVID virus meant that they were unable to find counsel who were willing to attend an in-person hearing. The email from the father’s solicitor said that he had rejected three counsel that she had identified for him who had been willing to attend in person. Rather against my better judgment, I agreed, on the basis that the hearing in January would continue to be listed as a hybrid hearing and both parents must attend court.

During the course of the hearing on 13 December 2021 the mother informed the court through her counsel that she intended to separate from the father. It was apparent that this had come as news to the father’s counsel, who had no instructions on the proposal. I directed both parents to file evidence within seven days setting out their position. Neither parent complied.

At the local authority’s request, following the hearing, I also made a direction giving the maternal grandmother one further opportunity to say by 12 January 2022 whether she wished to be considered to care for any of the children. Mrs De Selliers had not responded by the deadline of 9 August imposed by my order of 22 July, but had emailed the local authority on 28 September asking for an update. It appears this email was overlooked, and the local authority’s agency decision maker therefore raised concerns that there remained some ambiguity in the maternal grandmother’s position.

The parents re-engaged with contact on 5 January 2022, and attended a handful of sessions in the couple of weeks leading up to this hearing.

The fact that the parents were represented at this hearing meant that it ran more smoothly than the fact-finding, and I was able to complete it within the original time estimate. That does not mean that the hearing took place as planned. I had directed, as I have said, that the parents should attend the hearing in person with their legal representatives. In the lead-up to the hearing I received a steady stream of requests on behalf of the mother to be permitted to attend remotely, all of which I declined. On the morning of the hearing I was presented with a photograph of a positive lateral flow COVID test, apparently taken by the mother that day. That was followed shortly afterwards by a photograph of another positive lateral flow COVID test purportedly taken by the father.

As I explained at the time, ordinarily the court would accept evidence of this nature without question. I have never before questioned a parent’s assertion that they have tested positive for COVID. In this case, given the length that the parents have gone to throughout these proceedings to avoid meeting with professionals in person and attending court, I necessarily approached this evidence with some scepticism. I refused an application made on behalf of the parents to adjourn the hearing entirely but reversed my decision as to in-person attendance and permitted them to participate remotely.

I do not know whether in fact the parents did have COVID. At the time of this hearing the isolation period for a person who has received a positive lateral flow test came to an end after five days, subject to the person testing negative. This hearing commenced on Thursday 20 January 2022 with a time estimate of seven days, so the parents could potentially have been available to attend from Wednesday 26 January onwards. On behalf of his client, Dr Morgan has assiduously attended court each day in case his client also attended, and the mother’s solicitor stood ready to do the same for her. Neither parent has attended, and I heard nothing further about either’s COVID status until the Monday of the second week, when Dr Morgan sent a photograph of three further positive lateral flow tests, apparently taken by his client over the weekend.

The parents’ non-attendance at court has not compromised this hearing in the way that the fact-finding hearing was compromised. They have attended remotely, and it has been possible to complete the hearing within the original, admittedly generous, time estimate. Nevertheless, I remain deeply concerned by a process which has seen these parents participate in this hearing from the home where they live together. Their remote attendance also at the pre-trial review means that neither, as far as I am aware, has had a private meeting with their legal advisors in a location away from their home since last summer. I am satisfied that it was the parents’ decision that brought about this situation, and that it has always been their goal to separate themselves as much as possible during this hearing from the court and from professionals, including their own legal advisors.

Developments over the first few days of the hearing led to some shifts in the parties’ positions. The hearing was due to commence on Thursday 20 January 2022. By that point neither parent had filed any evidence and there was no indication of their respective positions. The day before the hearing, on 19 January 2022, I received a witness statement from Mr Skinner on behalf of his client, the maternal grandmother. In that statement Mrs De Selliers apologised for the delay in responding to the court’s directions and said that she felt desperately sad for her daughter and the children. She said that having thought about her position, and reflected on the fact-finding judgment, she wished to put herself forward to care for A and B, but not for the younger two children. Her reason for that was that she did not feel able to care for all four given her age, and she felt that the younger children had a better chance of settling in an adoptive placement if that was the decision of the court. On receipt of that statement, I invited Mr Skinner and his client to attend the hearing the following day, and they did so.

On the first morning of the hearing it was confirmed by counsel for both parents that they were not putting themselves forward to care for the children, but would be supporting the maternal grandmother. Later that morning, Mr Matthews told me that in fact that was not his client’s position. He said that she was strongly supportive of her mother as a carer for the children but wished to put herself forward for the court to consider in the first instance, with her mother as a backup option. I took the view, in those circumstances, that it would be necessary for the maternal grandmother to play a more prominent role in this hearing. I granted her party status and adjourned over the weekend for her to consider the bundle.

On Monday morning I received an application from the mother for permission to file a witness statement out of time and for further assessment. In her witness statement she said that whilst she supported her mother’s position she felt that the children would be best placed in her own care, and she sought a fresh assessment. In her statement she described her relationship with the father as happy, and said that her decision to be with him was her own choice.

When the hearing resumed that morning, I was informed by Mr Skinner that having read the bundle, his client had taken the very difficult decision no longer to put herself forward to care for any of the children. He explained that the reason for that was that she saw the relationship between the parents as an enmeshed and abusive one, and was concerned that if any of the children were placed with her she would not be able safely to care for them. Mr Skinner made it clear on his client’s behalf that if the parents were to separate the maternal family would be available to support the mother practically, emotionally, and financially. With Mrs De Selliers’s agreement I discharged her as a party and released her from the hearing. I adjourned to the following day, as the local authority was waiting for some information about placement options for the children and wanted that to be made available before the social worker gave evidence.

On the Tuesday morning I was informed by Mr Matthews that his client intended to separate from the father as soon as possible and that she would be seeking to be assessed as a sole carer for the children. That information was communicated to Mr Skinner, who sent an email on Wednesday confirming his client’s position that she did not put herself forward to care for the children herself but would support the mother as a primary carer and would be available to participate in any assessment if required. Mr Skinner set out in bullet form in his email further detail of the support that the maternal family could provide, including funding and therapeutic intervention for the mother, should she wish to take that up, and the provision of a home for her and the children.

The positions of the parties, as they finally crystallised during the course of the hearing, were as follows. The local authority is seeking final care and placement orders for all children. Their plan is to seek separate adoptive placements [details redacted]. The local authority intends to search for adopters who are willing to facilitate sibling contact. Initially, the local authority proposes that contact should take place between three and six times a year, subject to the views of any prospective adopters, in the hope that it may develop naturally over time. The plan is that there should be letter box contact only between the children and their parents. The parents oppose that application.

The mother has issued an application for a further psychological and independent social work assessment. Her primary position is that the proceedings should be adjourned for a period of about three months to enable those assessments to be carried out. Her case is that she will separate from the father and wishes to be assessed as a sole carer. The mother’s second position is that the children should be placed in long-term foster placements so that they can maintain relationships with each other and their parents. It is not clear as to whether the mother would be prepared to accept the maternal grandmother’s offer of support. She told me in her oral evidence that it was a difficult situation, and she did not know if that relationship was salvageable.

The father’s position, as I understand it, is to fall in behind the mother. I am not clear what his view would be as to his own role in the children’s lives if they were to be placed in their mother’s care in the future. If I were to decide that the mother’s application for further assessment should succeed, it would be necessary to explore this issue in some depth.

The guardian supports the local authority’s application. She is of the firm view that an adjournment would serve no useful purpose. She is sceptical about the mother’s assertion that she intends to separate from the father and that she will engage in assessments when she has not done so before. In any case, the guardian’s view, impressed on me strongly on her behalf by Ms Woolfenden during submissions, is that the children’s welfare demands a conclusion now to these long drawn out proceedings, which in A and B’s case are now in their 106^th week.

I set out in my February judgment at paras.54-56 the proper approach to the issue of harm, particularly in the context of a case where the consequences of state intervention may be the child’s permanent separation from their birth family. I remind myself now of the observations of Baroness Hale in Re B, which I set out in full in that judgment. An order which has the effect of severing the ties between a child and a parent may only be made if justified by an overriding requirement pertaining to the child’s best interests. In other words, the test is one of necessity, and the court must be satisfied that “nothing else will do”.

The children and parents have rights under Article 8 of the European Convention on Human Rights to respect for their private and family life. To the extent that the orders I am asked to make interfere with these rights, I must satisfy myself that the interference is both necessary and a proportionate means of addressing the identified harm. I also set out in para.57 of my February judgment the need for the court to approach non-cooperation on the part of a parent from a perspective that is firmly grounded in the harm, or likelihood of harm, to the child. Those parts of the legal framework continue to apply to the welfare decisions that fall to be taken at this hearing, and I continue to have them in mind.

The children’s welfare throughout their lives is my paramount consideration. To aid me in evaluating their welfare I have in mind the factors in both applicable welfare checklists, both that set out in s.1(3) of the Children Act 1989 and the adoption-specific checklist in s.1(4) of the Adoption and Children Act 2002. I cannot make a placement order unless I dispense with the consent of the parents, both of whom have parental responsibility for the children. The only ground on which it is open to me to dispense with the consent in this case is that in s.52(1)(b) of the Adoption and Children Act, that is that the welfare of the children requires me to do so.

Before making a placement order I am required by s.27(4) of the 2002 act to consider the arrangements which are in place for the children to have contact with any members of their family. I have a power to make orders for contact, depending on the orders that I make as to placement.

The approach I apply to the options available to me is set out in Re B-S [2013] EWCA Civ 1146, where the Court of Appeal re-affirmed what had been said earlier by MacFarlane LJ, as he then was, in Re G [2013] EWCA Civ 965:

“In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that at the end of the line the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option. The linear approach is not apt where the judicial task is to undertake a global holistic evaluation of each of the options available for the child’s future upbringing before deciding which of these options best meets the duty to afford paramount consideration to the child’s welfare.”

Ordinarily, the identification of realistic options is an exercise which is carried out by the court well before the final hearing (see Re R [2014] EWCA Civ 1625). In this case, when the final hearing commenced there was no evidence from either parent and the court had no idea of the position that was likely to be taken. The court had to deal also with the late application by the maternal grandmother to be considered as a potential carer, and the positions of the parties then shifted during the first few days of the hearing. As a result, it has not been possible in this case for the court to identify realistic options prior to the hearing, and so when I come to my welfare analysis it will be necessary to make some preliminary determinations as to what is realistic and what is not.

The evidence available to me to draw on in making welfare decisions for the children is limited. In many ways, the court’s understanding of the factors relevant to the children’s welfare has not moved on since the fact-finding hearing concluded in February of last year. However, of course, the very fact that the court still knows so little about the parents’ functioning and their capacity to protect the children from harm is itself a feature that dominates the case, and a piece of evidence in its own right.

Throughout this judgment I will at times refer to the actions or inactions of the parents. In doing so I am very conscious that I still know very little about their relationship and the dynamics between them. It is possible that this is a relationship in which the choices of one party are dictated by the other, and that to characterise their actions as joint is wrong and unfair. However, at this hearing, as at the fact-finding hearing, it has been impossible to distinguish between the parents’ positions, and indeed Dr Morgan has made it clear on behalf of the father, who has produced no written or oral evidence at all, that he has no instructions to do anything other than to adopt the position and the submissions made on behalf of the mother. When I refer to the parents, therefore, I intend to hold in mind the possibility that there is a coercive element to the parents’ relationship, and that it is possible that one may be constrained to accept the decisions of the other.

The previous social worker, Mr E, is no longer with the local authority and the case was reallocated to a new social worker, Ms H, in September 2021. She prepared the local authority’s final evidence and care plans and gave oral evidence before me.

Ms H met the parents on one occasion shortly before this hearing when she went to observe a session of contact. She had a short conversation with the mother after that hearing. Otherwise the parents have consistently declined her offers to speak with them and have not attended the LAC reviews, where she could have attempted to engage them. That means that Ms H has had a very limited opportunity to form her own assessment of the parents’ relationship, parenting capacity, or functioning, and is reliant, to a large extent, on the other evidence.

Ms H includes in her witness statement evidence as to the children’s current presentation and needs. That evidence was largely unchallenged. There have been challenges to various aspects of the local authority’s care plan, which I will deal with later in my judgment. In her witness statement and in her oral evidence the mother alleged again, as she did at the fact-finding hearing, that the local authority has altered the evidence before the court and taken advantage of her former status as a litigant in person. No such allegation was put to Ms H but, for the avoidance of doubt, I have no concerns as to the factual accuracy of her evidence, and I accept it.

There is no dispute that when the parents do attend contact they are capable of interacting with the children in a loving and attentive manner, and that the quality of contact on the whole is excellent. The contact records are summarised in the witness statement of Ms H, and I have no issues with her summary. But, in my judgement, it is necessary to look at the notes in a little more detail in this judgment in order to give a full flavour of the connections that the parents have been able to establish with the children when they have been attending contact consistently.

There is abundant evidence in the contact records that demonstrates both parents’ ability to create a warm and comfortable environment for their children. At the first contact that the parents attended with D after a long break, on 4 January of this year, the mother is recorded as “gasping in delight” at D’s changed appearance. The family settled into the room and the father played music, including Somewhere Over the Rainbow, which the mother said the parents had used at bedtime with their older children. They passed the baby seamlessly between them and took turns holding and playing with them. At one point they put D on their stomach and encouraged them to crawl. The parents were delighted at that, clapping and giving praise.

At the last contact which was attended by the parents in October 2021 with the older three children, before the parents ceased attending, they were recorded as interacting well with all three children. The mother played a tea party with C and B while the father played with A in the garden. The father had an apple with him, which he hid and then helped A to find. At one point B said they had belly ache, and the mother kissed their tummy. During play B got cross because they wanted to play with the bubbles, and the mother told them to “use your words” to ask for a turn, which B did.

The contact notes are full of examples of the parents comforting the children when they are upset, singing and dancing with them, helping them to plant seeds in the garden, and engaging in painting, craft and creative play. I note that when the parents have attended contact there was often evidence that they had put thought and care into planning their time with their children. They often arrived with presents that would usually lead to a game, or would bring music to play.

It is also the case that there are some signs, even in these very positive contact records, that the children have been affected by the parents’ inconsistent attendance and are confused. In one contact in September 2022, C is recorded as hardly smiling, and on another one in October the contact supervisor noted that for the most part the children were not reciprocating when being held or hugged by their parents, and were holding their arms down by their sides. I noted also that after the gaps in contact the parents would often ask the children if they have missed them, but gave no explanation to the children for the gaps

As Dr Morgan observed in submissions, there are occasions in the contact sessions when the mother has spoken sharply or sarcastically to contact supervisors during contact, and the father has intervened to defuse the situation. These are small incidents that give a glimpse into the parental relationship, although, of course, the conclusions I can draw from them are very limited. The quality of contact, when it takes place, is very difficult to reconcile with what is now a long history of inconsistent attendance by the parents, and a huge number of contact sessions that have been missed without explanation.

Since these proceedings commenced, in January 2020, the court has made directions on at least six occasions for expert evidence in the form of a psychological assessment of both parents and an independent social work report. The identity of the experts has been changed at the parents’ request, and multiple opportunities have been given to them to attend appointments. Despite that, the parents have not taken up any of the opportunities offered to them to engage in any form of assessment, and as a result the expert evidence before the court is very limited.

This is a case where, as I observed at the conclusion of my judgment in the fact-finding hearing, a thorough expert assessment of the parents would be essential if the court was to form safe and robust conclusions as to their parenting capacity and the risk of harm to the children. As I have said, at hearings between March and July last year I was assured by both parents, the mother through counsel and the father in a witness statement, that they did now wish to engage. The reason they gave at that stage for seeking a further opportunity, when they had not engaged in assessments before, was very much the same as the reason that the mother gave during her oral evidence at this hearing. Both parents said that although they did not accept the findings of the court, they recognised that realistically the only way forward was for them to engage with the proceedings and that they were prepared to do so in order to prevent the children’s permanent removal from their care. Very sadly, those assurances came to nothing.

I referred in my fact-finding judgment to a psychological assessment of both parents carried out by Dr Redding in 2018 in the proceedings concerning A in Wales, and I gave an outline of her conclusions. That is the only expert assessment, or assessment of any nature, with which the parents have engaged. I have returned to Dr Redding’s reports during the course of this hearing to see whether they might offer some relevant evidence about the parents’ functioning.

Dr Redding concluded that the mother was of at least average intelligence and that there was no evidence of cognitive difficulties, no history of serious mental illness, or any traits consistent with a diagnosis of personality disorder. She observed that the mother could behave in an impulsive and irresponsible way on occasions, and that when she assessed her in May 2018 there were some low-level depressive symptoms and issues around self-esteem. She thought that the mother was, however, confident enough to recognise the risks and make informed choices, and noted that she had a tendency to rebel against feeling controlled, and that this in some ways protected her from an abusive relationship. She thought that the mother was quite isolated, and that it would be important that she reconnect with friends or family members to access support from others apart from the father.

Dr Redding’s assessment of the father was compromised by the lack of information about his history, and in particular his criminal offending, which he refused to discuss at all. It was also compromised by the father’s presentation during the assessment, which Dr Redding described as extremely guarded. She made it clear that in order for a thorough assessment to be considered, much more information would be required about the father’s previous sexual offending, his relationship and employment history, and his medical records. She observed in particular that if there was evidence of violence in relationships, that would change the outcome of her assessment.

Dr Redding attempted a psychometric evaluation, but the father answered in what she described as an unnecessarily secretive manner, which meant that the whole profile was invalidated. On the basis of her interview, she considered him to present as someone with average intelligence, and without symptoms of major mental illness. She thought it was possible that he was experiencing feelings of shame, inadequacy, and inferiority, making him extremely sensitive to negative evaluation by others. She suggested that the violence he had shown at the hospital in Wales might indicate a propensity to react violently in stressful situations.

I make it clear that these reports, which pre-date the births of three of the children, the events of late 2019, and my findings, are no substitute for the full reports which I directed following the fact-finding hearing. The extent to which I can rely on Dr Redding’s evidence is limited. The risk that she considered the father to present has to be considered, obviously, in the light of subsequent events, and particularly my findings as to significant domestic abuse in the parents’ relationship, which Dr Redding expressly said, if present, would affect her conclusions.

Within these proceedings, prior to the fact-finding, Dr Elizabeth Elliott was instructed to carry out a psychological assessment of both parents. After they refused to engage, she prepared a paper assessment. I have read this but, unsurprisingly, it does not provide any information on which I could safely form any conclusions about the parents’ functioning or their relationship. Dr Elliott made it clear in particular that she was unable to carry out a risk assessment of the father with regards to any risk of sexual or relationship violence, due to his lack of engagement.

The independent social worker who was originally instructed to carry out the parenting assessment was Lucy Mwape. Again, despite many opportunities being offered to the parents, they did not attend appointments. They did attend contact on two occasions when Ms Mwape was also present to observe. She recorded that the parents were child focused and engaged positively as a family unit. She prepared an initial report in October 2020 setting out her conclusions on the basis of the information she had been able to ascertain, and an addendum in December 2021, which was based solely on a review of the updating papers, including my fact-finding judgment.

In her second report, Ms Mwape makes some observations about the possibility of coercive and controlling behaviours in the parents’ relationship, and suggests that the mother may be living under the father’s control. I can give little weight to these observations, which I think Ms Mwape would accept are little more than speculation. This is no criticism, of course, of Ms Mwape, who did what she could within the constraints imposed on her.

The best analysis of the expert evidence in this case is that it offers some possible explanations for the parents’ unusual functioning. It does not begin to provide me with the sort of robust analysis of risk that was required after the findings I made in February 2021. In particular, there was a critical need in these proceedings for a report into both parents’ psychological functioning and the dynamics of their relationship. That might have shed some light on the reasons why the parents have been so resistant to engaging with agencies or support, despite this having put the children at risk of harm. The absence of that evidence means that there is still much that remains unknown.

On 14 June 2021, when listing this hearing, I directed the parents to file their final evidence by 14 January 2022, after the local authority’s final evidence on 31 December. When I was informed at the pre-trial review that the mother intended to separate from the father, I directed both parents to file evidence of their position within seven days, and in the light of the local authority’s concerns as to possible explanations for the missed contact, to confirm whether or not the mother was pregnant. The parents did not comply with that direction.

The father has filed no written evidence for this hearing, despite being directed to do so. The only evidence he has filed since the fact-finding is a very short statement, which I was sent on 25 May 2021, but which does not seem to have made its way into the bundle. The focus of that statement is the circumstances of D’s birth, and it is primarily remarkable for what it does not say, although I note that the father does say there that he will engage with assessments, and that he does not want his children to be adopted.

At the outset of the hearing Dr Morgan told me that he understood his client did wish to give evidence, and I made it clear that I would remain open to receiving a witness statement and to hearing oral evidence until such point beyond which this would jeopardise the fairness of the process. That point arrived on the morning of the fifth day of the hearing when the evidence was complete, save for that of the guardian. Dr Morgan told me at that point that he had no witness statement from his client and that he would not be giving oral evidence.

There is some hearsay evidence in the social worker’s statement from the father’s probation officer, to the effect that the father still has not engaged with the Active Risk Management System, an assessment which is required as a condition of his sex offender registration, and that he remains classified as high risk as a result. I explained this requirement at para.80 of my February judgment. There was no challenge to this evidence.

The father’s failure to put forward any evidence in these proceedings presents a fundamental difficulty for the court. Dr Morgan was not even able to obtain any real instructions from his client on the key issue of the parents’ intended separation, save that he accepted the mother’s position on this. It is not helpful for me to speculate on the father’s reasons for declining to participate in any meaningful way in these proceedings. Dr Redding’s suggestion was that the father experiences strong feelings of shame which may obstruct his engagement. If that is right, then the father has missed a real opportunity within these proceedings, because shame is a powerful emotion that can act as a driver for change.

As I have set out already, the mother’s evidence was filed on 24 January 2022, the third day of the hearing, and she did give oral evidence. In her witness statement she was silent on the issue of pregnancy, which was an issue that I had directed her to address, and she was not asked in examination-in-chief about it, so I asked the question at the end of her examination-in-chief. The mother denied that she was pregnant now, or that she had been since D was born.

The mother’s oral evidence was less combative than the evidence she gave previously, probably because she was represented at this hearing. However, there was no fundamental change in her underlying attitudes or beliefs. I consider that she was honest with me, up to a point. She made it clear that she did not accept any of the findings that I had made in February, or that there was any risk to the children in the care of either of their parents. The mother is intelligent enough to be able to acknowledge that she could see objectively why the local authority would have concerns about risk, but she was absolutely clear that she thought these concerns to be without foundation.

The mother’s primary case at this hearing is that she seeks an adjournment to allow for further assessment. She was explicit in her evidence about the reason for that. She said twice that she was prepared (in her words) to “jump through any loophole”, because she fundamentally disagreed with the proposal that the children should be adopted. There was no suggestion at any point in her evidence that she thought an assessment would produce any relevant information that is not already before the court.

There were two aspects of the mother’s case, asserted for the first time in the witness box, that I did not accept. The first was an assertion that the reason she had not engaged with professionals in this case, or the experts instructed, was that she had been sucked into internet advice groups run by other parents, in which it was suggested that the best way to succeed in proceedings of this nature is to withdraw cooperation and challenge every step taken by the local authority or the court. I reject that explanation as wholly implausible. I am fully aware that such groups exist, and that there are some unsophisticated and naïve parents, sadly, who will follow such advice. These are not such parents. They are intelligent, well resourced, well educated, in the mother’s case at least, and capable, as they have demonstrated, of formulating and pursuing sophisticated litigation strategies (see for example my findings at paras.89-93 of the February judgment). They were involved in previous proceedings in Wales in which they cooperated with child protection processes, up to a point, and succeeded in keeping A in their care. I myself have spelled out to them at previous hearings, and in para.213 of my fact-finding judgment, why it is necessary for them to engage. The father acknowledged explicitly in his witness statement, filed on 25 May 2021, that adoption was a possibility if he did not do so. I find that the parents knew exactly what the consequences were likely to be if they failed to engage in assessments, and I do not think for a moment that this mother would have sought support online from other parents involved in care proceedings, or, if she had, that she would have followed their advice.

The second part of the mother’s account which I reject is her explanation for failing to attend contact between October 2021 and January 2022, and the inconsistent attendance before then. She gave an account in evidence which I had not heard before, but which the mother said she had previously communicated to the local authority by email. That was that she had been concerned that there was no CCTV at the contact centre and that her interactions with the children were being misreported in the contact notes. That explanation, in my view, was absurd. I have already referred to the contact notes, which were among the most positive that I have ever seen, and a powerful piece of evidence in support of the parents’ case. I observe, for completeness, that at the hearing on 22 July 2021, when contact was already becoming inconsistent, the explanation I was given for the parents’ non-attendance was that travel logistics were a problem. These are parents who prior to A's birth backpacked extensively through South America, and so I reject also any suggestion that they might have struggled to navigate the London transport network.

The autumn of 2021 is not the only occasion when the parents have declined an opportunity to care for and spend time with their children. There have been previous occasions when their attendance at contact has dropped, notably in the latter months of the mother’s pregnancy with D, when the older children did not see their father for three months and their mother for four. The mother rejected the option of a residential assessment after the birth of C, and did not make any such application, although I had said I would consider it seriously, after the birth of D. All of these decisions have had profound consequences for the children.

When contact stopped in the autumn, the social worker emailed the parents to tell them about A’s reaction, which I have outlined earlier in this judgment, and to encourage them to attend. That reaction was put to the mother in evidence, and described by Ms Woolfenden, accurately in my view, as heartbreaking. I was struck by the mother’s lack of apparent emotional reaction to this line of questioning. I am very conscious of the limitations of an assessment of demeanour in the witness box, but there are very few parents, in my experience, who would react with equanimity to evidence of this nature. When A’s reaction was put to her the mother said simply, and without emotion, that she had had to think about the bigger picture. I was entirely unclear as to what she thought the bigger picture was.

I have seen many parents who stop attending contact. That is usually because they are struggling with powerful factors, such as substance misuse, that affect their physical and mental health and plunge their lives into chaos. Sometimes I see parents who have given up on the possibility of caring for their children, and find that attendance at contact is too painful for them. I do not think that these parents fit into either of those categories.

I have to conclude that there is something in the parents’ lives that is powerful enough to prevent them from choosing to spend time with their children, and even perhaps to dampen the emotional impact of recognising the harm that the children have suffered as a result. I have no idea what that is. The local authority were concerned in the autumn that the mother might again be pregnant, but she attended contact in January so that seems less likely. I return to my tentative conclusion in the February judgment (para.200), which was that the parents presented as if engaged in battle with a non-existent enemy, and that this struggle absorbs the entirety of their attention. In the next paragraph I expressed the hope that they would engage with assessments so that the court could gather a clearer picture of their relationship and what could be done to address the risks it poses to the children. Sadly, that has not happened.

I need to evaluate the mother’s expressed intention to separate from the father. I remind myself that on the basis of my finding about the incident in November 2019, the mother has been a victim of an incident of serious physical abuse. I also remind myself of the difficulties in which I found myself at the fact-finding hearing (see para.193 to 201 of my February 2021 judgment) in evaluating the dynamics of the parental relationship, which are complex and unclear. I considered the evidence which suggested that the mother might be the victim of coercive control by the father, but also the evidence that suggested otherwise. In the end I concluded (para.200):

“I do not have sufficient evidence to make the findings sought by the local authority that the father has sought to control the mother. That does not mean, of course, that I do not have concerns about the parents' relationship. I have very serious concerns. At this stage, the only finding I make is that irrespective of the power balance between the parents, their relationship is such that both of them will put that relationship first before all other considerations.”

There is no further evidence before me at this hearing which would enable me to form a clearer picture of the parents’ relationship. It may well be that the mother is under the father’s control. Sadly, if that is the case, his influence over her is so powerful that it has overborne her will to the extent that she herself does not recognise it. Every attempt to engage her and to offer support has failed.

I am quite satisfied, whatever the nature of the parental relationship, that there is no genuine intention on the part of either of the parents to end it. The mother first said she would do so on 13 December 2021, said nothing about it in her witness statement on 24 January 2022, and then changed her position a day later. Throughout this hearing the parents have sat next to each other on the sofa in their home. They have been engaged in a shared conversation during the course of much of the evidence. The mother described the father in her evidence as a wonderful father, and told me explicitly that she would not have chosen to separate from him were it not that she felt she had no choice. The furthest that Dr Morgan was able to go on behalf of his client was to say that he had instructions that the mother’s position in relation to the separation was accepted. No concrete proposal has been put forward by either parent as to any timeframe for the father to move out of the home, or any plan for alternative accommodation.

I am satisfied that the parents’ relationship continues and remains a central and dominating feature in the lives of both of them. Even if they were to take steps to live separately, which I very much doubt is actually within either parent’s contemplation, I am satisfied that this arrangement would not endure. I remind myself that although the parents were required to live separately throughout the proceedings in Wales, following the father’s release from custody, there were a number of occasions when the mother left A in the placement in order to spend time with him. Since then her resistance to spending any time apart from him has only increased.

These children are too young for their wishes and feelings about their long-term future to be ascertained in any meaningful sense. It is clear from the evidence that A, and probably B, want at the very least to have consistent contact with their parents. They have an existing relationship with them, and there is evidence that they miss their parents and are distressed when contact does not take place.

None of the children have any identified physical or educational need. All are progressing at, or ahead of, their developmental milestones. I have noted a number of comments by A and B’s nursery, and by the carers of all four children, to the effect that they are bright children who show real promise in a number of areas of development. A is excelling academically, B and C are particularly advanced in their verbal communication, and D is an active and engaged baby.

The children’s emotional and psychological needs are complex and different. A and B have experience of being cared for by both parents, although A’s early months were spent in the sole care of the mother. It has been very difficult to form a clear picture of the children’s experiences in their parents’ care. It seems likely, on the basis of the contact notes, that they have experienced some good quality care. However, I have also found that there was a significant incident of violence in November 2019, and even if that was not directly witnessed by the children there is now substantial research evidence which demonstrates that even very young children are likely to be significantly affected by living in a home where domestic abuse has taken place. Since then, A and B have experienced a traumatic separation from their parents when they were removed in January 2020, and an extended period of uncertainty as a result of the length of these proceedings. They have also been distressed and significantly unsettled by their parents’ inconsistent attendance at contact. The impact on A has been obvious to all professionals, including those at the nursery, who observed them to be quiet and withdrawn after failed contact sessions, telling staff: “My mummy and daddy cancelled again”. When B was taken to the contact centre and the parents failed to attend, B is described as being inconsolable.

C and D are in a different position. They have each been cared for in foster care since birth and have formed a secure attachment with their carers. Neither has experienced the trauma of a separation. It may be that their parents’ inconsistent attendance at contact has caused distress and confusion, at least to C, but because of their young age any impact of this has not shown in their presentation.

The children have never lived together as a sibling group. A and B have always lived together, and it is likely, as Ms Whittaker observed, that their relationship is therefore of crucial significance to each of them as the one consistent feature in their lives. The children have begun to form relationships through sibling contact, although this was slow to start, and has only taken place on a few occasions. A certainly is aware that C and D, as well as B, are their siblings. In the longer term, sibling relationships will be very important for all four children and will form a crucial plank of their emotional scaffolding.

The effects of change. All four children are in short term foster placements. Whatever order I make, they will have to move home and experience a change of primary carer. For A and B, this will be the second significant move in their short lives. The social worker and guardian both told me that the children’s placements have been excellent and have afforded the children with a very high standard of care. That will protect them to an extent against the effects of a move, but I have no doubt, nevertheless, that the disruption will be significant.

The children’s age, sex, background and relevant characteristics. These are four siblings who share a genetic, cultural and social heritage. A’s age, and the disruption that they have experienced, mean that there is very little time left now for them to make a successful transition to a new family, if that is the decision of the court. I was deeply concerned for A when the mother’s pregnancy, and the birth of D, meant that the final hearing listed in July last year had to be vacated, and the state of the court lists at that time meant that I could not relist until the following January. B’s situation is less urgent, but for B also a permanent placement needs to be found very soon. C and D are of an age where they should be able to transition without significant long-term difficulties into a new placement, and to adjust.

The harm that the children have suffered or are at risk of suffering. In my February judgment I found that when the local authority issued proceedings, in January 2020 in A and B’s case, and in May 2020 for C, the children were suffering, or likely to suffer, significant harm attributable to the conduct of their parents not being what it would be reasonable to expect a parent to give. Paragraphs 202-212 of my judgment set out the reasons why I reached that conclusion. In this judgment I have made the same finding as at the relevant date for D.

It is necessary at this hearing to determine whether there has been any reduction in the risk posed to the children as a result of those threshold findings. I take into account the following updating evidence:

The evidence of the contact records demonstrates that both parents have the capacity to provide a very high standard of care to their children. That care goes well beyond meeting the children’s basic needs and extends to the provision, during contact periods, of a close and loving family environment in which it is possible to see how the children’s emotional and psychological needs could be well met. The parents have not been observed with all four children together, although opportunities have been given them. They have however shown that they can meet the needs of the older three children together without difficulty. As Ms Whittaker observed, caring for four children under five presents a challenge for any carer, but these parents appear to be better equipped than most to meet that challenge. It is a tragedy for the children that the parents’ capacity to meet their needs, which in a number of respects is excellent, is so deeply compromised by the conduct which causes them harm.

The range of powers available to the court. I remind myself that I am required to explore all options. This is a case where the local authority is seeking placement orders, and I must be satisfied before making such orders that nothing else will do. In this case, the search for alternatives to adoption must include consideration of a return for the children to their parents’ care, other family placements, and permanent options that do not involve the severance of legal and emotional ties with the birth family. My powers include powers in respect of determining the contact that the children should have with their parents, each other, and relatives. My ability to exercise those powers is shaped by case law and will depend on the orders made as to placement.

I turn to the adoption-specific factors that I am required to consider as part of the welfare checklist in s.1(4) of the 2002 act. A significant factor, and one that points away from adoption in many cases, is the likely effect on the child throughout his life of having ceased to be a member of the original family and become an adopted person. The effect on these children, I am satisfied, is likely to be profound and lifelong. Many adopted children have complex life stories to come to terms with. These children’s story is more complex than most. It includes their father’s criminal history, the findings made by the court, and the parents’ lack of acceptance of those findings. But it is also a story of loving and attentive parents who were warm, playful, and gentle with their children. Perhaps most hurtful, from the children’s point of view, is their parents’ baffling lack of commitment to them over the course of these lengthy proceedings and their inability, or unwillingness, to do what needed to be done in order to reclaim them. It is a picture that I, as a reasonably experienced Family Court judge, find it very difficult to comprehend. I have no doubt that in future years all four children will struggle to come to terms with their history and are likely to experience powerful feelings of anger, loss and hurt.

If all four children could be placed together that would mitigate, to a degree, the impact that their experiences are likely to have in future years. Placing them separately will result in a further fracturing of the family and dilute relationships which could otherwise be a significant source of strength and support. For that reason, this aspect of the local authority’s care plan requires particularly careful scrutiny.

The local authority’s plan is based partly on the children’s needs, and partly on the lower likelihood of finding carers with the capacity to adopt all four children. I do not want to rule out the possibility of a placement for all four siblings, and when the time comes, if I make the order, the local authority will have to take decisions about matching the children with prospective adopters on the basis of their welfare. But I am satisfied, having read the Together and Apart assessment, the social worker’s statement, and the guardian’s report, and having heard the oral evidence of the social worker, and in particular of Ms Whittaker, that it is likely that the children’s specific and individual needs may require them to be placed in more than one placement. Otherwise, I accept, there is a risk that their enhanced emotional needs will not be met and the placement will not be as secure as it needs to be.

Finally, I am required to consider the relationship which the child has with parents, relatives, and any other person in relation to whom the court considers the question to be relevant, including the likelihood of those relationships continuing and the value to the child of them doing so, the ability and willingness of any of these people to provide the child with a home that meets his or her needs, and the wishes and feelings of the child’s relatives and any other relevant person.

For reasons which will be obvious, the children’s relationship with their parents has value but also carries risks. Even the protective measure of supervised contact does not address the risks, because the parents’ inconsistent attendance at contact has itself caused harm, which in A’s case at least I consider to be significant. As I will explain, this has implications for the option of long-term foster care, which the mother asks me to consider.

The children’s relationships with each other are significant and valuable, and it will be necessary to consider how these may be preserved under each of the options available to the court. I consider also under this heading the children’s prospective relationships with members of their wider family. Such relationships have the potential to bring real benefit to children. The children’s maternal grandmother has shown an interest in them, and I have no doubt that the decision to withdraw as a prospective carer was very difficult for her, and that her offer to provide support to the mother in the future is genuinely meant. But the path to creating a meaningful relationship within any of the wider family is, unfortunately, fraught with difficulty. The mother has become estranged from them in circumstances which mean that the damage will take some time to repair. I can well understand Mrs De Selliers’ reluctance to provide support while the parents remain in a relationship. For the reasons I have given, I consider the prospects of a genuine separation within the foreseeable future to be remote.

Given the children’s ages, adoption must be a realistic option if they cannot be cared for in their birth family. I do not consider long-term foster care to be a realistic option. It would be an unusual order to make for any sibling group composed entirely of children under five, although such orders are not unknown, and there is sometimes very good reason for making them, for example, to preserve sibling relationships (see eg Re LC [2020] EWCA Civ 787).

In this case, however, there are powerful factors which mean that long-term foster care is likely to be not so much a less desirable option as a risky and harmful one. These are:

That being the case, I do not agree that the social worker’s failure to ask the current foster carers if they would be prepared to care for the children in the long-term has created any gap in the evidence. The only circumstances in which any of these placements could be converted to long-term placements would be if the current carers were prepared to adopt the children. I have no idea whether this is possible, but if it is it can be accommodated within the local authority’s current care plan.

The only other realistic option is that put forward by the mother, that is a short adjournment in order for the mother to engage in the two proposed assessments with a view to caring for the children alone. Despite the difficulties with this option, it is the only one which would give the children the chance to be cared for together as a sibling group by at least one of their parents, and for that reason it deserves serious consideration as one of the options before the court.

I return again to the legal framework within which I must evaluate the two options now before me. That is that I should only make placement orders if nothing else will do, and that I may only dispense with the parents’ consent to adoption if the children’s welfare requires it. I weigh up the advantages and disadvantages of both options within that framework. Only if, having done that exercise, adoption emerges as a clear preferred option by some distance should I make the orders that the local authority are seeking.

Throughout this hearing I have been alert to any indications that the way forward proposed by the mother might have some chance of success. I have been through the contact notes in some detail in order to form the best possible picture of the children’s relationship with their parents. That has left me with a number of vivid snapshots of what could, if this were the complete picture, be a loving and integrated family. One of these, which I record in this judgment primarily so that the children will have access to it in future, has A and the father planting five apple seeds in the garden of the contact centre, one for each member of the family.

I must also put into the balance, however, my conclusions as to the harm that the children would be likely to suffer if they return to their parents’ care. In my welfare analysis I related that harm back to the findings I made as to the threshold criteria and observed that the risks had not reduced. It is important to spell out exactly what that means. It is, in my view, far more than a real possibility. It is much more likely than not that in the foreseeable future the children will be exposed to serious physical violence between their parents. It is quite possible that they will be injured themselves, and virtually certain that they will suffer long-term psychological harm and impairment in all areas of their development. It is also much more likely than not that over the course of their childhoods each of these children will require some form of necessary medical care, which the parents will not provide. It is one thing for parents to decline to immunise their children if they are prepared then to access the best available medical care if the child does contract a serious illness. It is quite another for the parents to reject medical intervention altogether.

I set these welfare factors against the advantages and risks of adoption. The primary advantage is, of course, the removal of the risk that the parents pose to the children of serious physical and emotional harm. Adoption does not offer any guarantees, but it is very likely that in an adoptive home the children will be safe, and their needs, including their needs for medical care, will be met.

The disadvantages of adoption are profound. The children will lose their relationships with their parents. In the older children’s case, real psychological relationships exist. A at least will remember their parents, and for some time, until they are old enough to understand, they will wonder what has happened to them. D, at the other end of the sibling group, is in a different position. D is so young, and their contact with their parents has been so inconsistent, that it is difficult to see that a real relationship has been formed. Nevertheless, I fully accept that there is a real possibility in the longer term that all four will suffer a degree of emotional trauma, and that the chances of this happening in this case are greater because the story they will have to accept is not a straightforward one. A further disadvantage of adoption is that the siblings will lose their legal relationships with each other, and even if sibling contact is maintained they will be members of separate families and their ties with each other will be lessened.

The mother is not seeking the immediate placement of any of the children with her. She is seeking an adjournment for further assessment. The test I have to apply to that application is one of necessity, but I fully accept in the circumstances of this case the bar should be set as low as possible. If there were even a modest chance of providing a safe home for the children with either of their parents within a reasonable timeframe, that would, in my judgment, be a chance well worth taking. However, very sadly, there is not. The risks to the children in this case are multifaceted and extremely serious. The mother has told me she does not accept my findings, or that the children are at risk of harm. There is no reason to suppose that that is not the father’s position also. The fact that the mother is capable of understanding on an intellectual basis why the local authority and court consider there to be a risk gives me no reassurance in terms of her own ability to protect the children from that risk in the future. In those circumstances, there is no real prospect of change within anything approaching the children’s timescales, and nothing in reality that could be meaningfully assessed.

I conclude that this is indeed a case where the advantages of adoption are so significant that they far outweigh the benefits of any other course, and nothing else will do for these children. I dispense with the parents’ consent on that basis, and I make care and placement orders for all four children.

I am required to consider the arrangements for contact. I agree that there should be no plan for direct contact with any adult member of the birth family. The risks are too high, and the benefits too limited and uncertain.

I do want to express in this judgment a clear view as to sibling contact. The local authority’s agreement to search for prospective adopters who would facilitate sibling contact on six occasions a year was a welcome adjustment to the original care plan, and in my view that is the minimum level of contact, all else being equal, that the children’s welfare requires. I would like to express the hope, and I ask that it is recorded on the order that is made today and communicated to any prospective adopters, that in time sibling contact can develop so that the children grow up knowing the siblings with whom they are not placed, not as occasional visitors in their lives but as family members with whom they enjoy a rich and full relationship.

I will deal with the application for permission to appeal, in so far as I can, when I do not really know the grounds on which it is based. To grant permission to appeal the court would have to be satisfied that appeal would have a real prospect of success. Mr Matthews has not told me why that would be. He has not identified any error of law, or indicated that there is any point on which I have exercised my discretion outside the boundaries of what is afforded to a court in proceedings of this nature. Therefore, the only response I can give to that application is to refuse permission.