London Borough of Y v A Mother & Ors

These proceedings have been listed for a four day final hearing to determine the applicant’s application for care and placement orders in respect of two girls: T, who is 4 years and 1 month; and her sister, Z who is 1 year and 1 month. The respondents to the application are the girls’ mother, the girls’ father and the girls themselves represented by their Guardian.

Regrettably it has not been possible to justly determine the care and placement order applications at this hearing, notwithstanding the careful and detailed case management orders and directions which have led up to this hearing. For reasons which I will endeavour to explain the hearing has been used to determine the contested threshold and to make findings of fact which are relevant to the future welfare decisions which will fall to be made in respect of T and Z and further case management to provide for further necessary evidence. The urgent welfare decisions for the girls will be made at an adjourned three day final hearing before me on 7 November 2023.

The mother is a young woman who is vulnerable by reason of additional learning needs and likely attention deficit disorder. She has three children, two of which are subject to these proceedings, plus an older child with a previous partner. Her eldest child was subject to care proceedings in 2018, which concluded with a special guardianship order to a paternal relative. The parents’ relationship commenced at some point in mid-2018 and ended in or around December 2021/January 2022. The family came to the attention of the local authority in October 2018 when a referral was received from a midwife at [redacted] Hospital advising that the mother was pregnant. Unborn T was made subject to a child protection plan given the concerns in the previous proceedings. T was born in May 2019. Some months later, the family began to come to the attention of professionals worried about a number of police callouts to the property. None of these, however, resulted in any further action. Moving forward, it appeared that the Child Protection Planning was having the desired effect, and on 17 February 2020, T was stepped down to a Child In Need plan.

The second period of local authority intervention began in June 2021, following concerns that the mother was subject to domestic abuse and controlling behaviour on the part of the father. The family was put back on a Child Protection Plan on 21 September 2021. The family did not engage with the Local Authority and in October 2021, the Local Authority progressed the matter to the Public Law Outline pre-proceedings. Again, the family did not engage. Matters came to a head in December 2021 when the mother left the family home on Christmas Eve, and the Father placed T in the care of his sister. The mother returned to the home on/around 27 December and, believing T to have been kept from her care without her consent, called the police. In the course of her conversations with the police about this incident, she made allegations of domestic abuse against the father. The father was arrested, but no charges were brought, save that he was subsequently charged and convicted of assaulting an emergency worker in his attempts to resist arrest. It is around this date that the relationship between the mother and father ended.

The applicant issued proceedings in respect of T on 20 January 2022. It sought relief by way of an interim care order and a care order. The proposed interim plan was for the mother and T to be accommodated in a ‘mother and child placement’. T was born in May 2019 so she was at this stage around 2 ½ years old. The applicant noted the mother was 24 years old (she was born in December 1997) and was diagnosed with learning difficulties and likely Attention Deficit Disorder. Litigation capacity issues were raised. The father was then 37 years old (born in September 1984).

The early directions made noted the 26 week time limit would expire on 21 July 2022.

A hearing to determine the application for an interim care order came before Recorder De Silva on 24 January 2022. The applicant, mother and children were legally represented. The father attended in person and sought an adjournment. This was refused and an interim care order was made in respect of T.

The applicant made a Part 25 Family Procedure Rules application for permission to instruct experts to assess the parenting capacity of the mother and the father; for psychological assessment of the mother and the father; and for hair strand testing of the mother and father. The mother’s solicitor made an application for an assessment for an intermediary. These applications were determined before HHJ Karp at a case management hearing on 14 February 2022. The father was legally represented at this stage. On his behalf his counsel confirmed that he consented to a parenting assessment but refused to consent to a psychological assessment. It was also said on his behalf that as a Rastafarian he could not provide a hair strand test but was willing to provide a nail and blood sample for drug and alcohol testing. HHJ Karp ordered various drug and alcohol tests of the mother and father and approved the instruction of an independent social worker, Mr Eric Dooley. Cognitive and psychological expert evidence was directed in respect of the mother and a psychological assessment directed in respect of the father. Further directions were made to Communicourt in respect of an intermediary for the mother. The court noted she was vulnerable. A variety of other case management directions were made through to Issue Resolution Hearing.

Z was born in May 2022. When she was five days old, the applicant issued an application in respect of her seeking an interim care order and a care order. The application noted Z (and her mother) were living in voluntary section 20 Children Act 1989 (hereafter “the 1989 Act”) accommodation. It noted T’s father under “other” in the application, noting he did not have parental responsibility for Z. A hearing in respect of this application took place on 20 May 2022. The mother did not oppose the interim care order and the proceedings with T were consolidated. The applicant agreed to undertake DNA testing of the putative father. Mr Dooley’s instructions were extended to cover Z’s welfare. Directions were made in respect of viability assessments of all alternative carers. Other evidential directions were made.

A further hearing took place on 3 October 2022. By this stage, the Local Authority care plan was for the mother and children to be placed with their maternal aunt under a 12 month supervision order, with a recommendation for a child arrangements order to the aunt.. The recitals noted the applicant and the mother agreed an attached threshold. I understand Z’s putative father had not consented to DNA testing and the order noted in a recital that the mother consented to DNA testing between T and Z to establish paternity. I understand the mother had issued an application for a non-molestation order against the father and this was listed to be determined at a hearing on 10 November 2022 alongside an issue resolution hearing. The father is not mentioned as a party in the recitals to this order and it appears he did not attend. Paragraph 6 of the order states:

I note that paternity testing established the father is the biological father of Z. He does not, however, have parental responsibility. He is named on the birth certificate of T and has parental responsibility. I also note whilst the father engaged with Mr Dooley in his parenting assessment he has not engaged, to date, with a psychological assessment.

A further hearing took place on 10 November 2022. The recital recorded the fact the father did not attend and was not represented. The maternal aunt was invited to attend but did not do so. A recital noted she had not taken up the offer of funded legal advice. The recitals noted she wished to be assessed as a Special Guardian for the girls, but because of holidays such assessment could not be concluded before the end of March 2023. A recital noted the court accepted the threshold as set out in a document agreed between the mother and Local Authority dated 3 November 2022. It was noted the girls may be made subject of a care order and placed with the maternal aunt under a special guardianship order and as a foster carer. Further directions were made in respect of evidence.

The applicant has been represented by Mr Bunce, counsel; the mother by Ms LeCointe, counsel; the father by Ms Prolingheuer, counsel; and the girls, through their guardian, by Ms Lonnen, solicitor. I am very grateful to the advocates for their helpful position statements filed and served the working day before the hearing and for their professional advocacy at this hearing.

Detailed and sensitive participation directions were made by HHJ Karp for the mother in advance of the hearing. She has had the assistance of an intermediary who has sat beside her and assisted her throughout. Regular breaks have taken place. At the outset of the hearing I inquired of the parties what further measures were required having regard to Practice Direction 3AA and arranged for a screen to be provided.

After some reading time, the hearing commenced at 12pm on the first day. Mr Bunce’s position was that: the father’s application to oppose threshold was opposed as was his application for further assessment. As for viability assessments the applicant’s position was:

I was invited to proceed to make care and placement orders.

Ms LeCointe’s position on behalf of the mother was that:

The mother supported the Guardian’s position that T required an assessment. She also urged the court to permit written evidence to be filed to explain the K Placement option where she hoped she could reside with the girls. I noted the applicant appeared to refuse to fund this, albeit without evidence of what was to be offered.

Ms Prolingheuer’s position for the father was that:

The father failed to attend the first and second days of the hearing. He was present on the third and fourth days, albeit he arrived late on each day.

Ms Lonnen, on behalf of the girls’ Guardian, submitted:

In addition, Mr Bunce informed me that the foster carer with whom the mother and children were placed for some considerable time, had very recently (validly) served notice and the placement would be terminated on 5 July 2023. I was told this was because of the foster carer’s significant concerns in respect of T’s emerging additional needs and behaviours. A witness statement by a social worker was produced on the afternoon of the first day. It was suggested this be sent to Mr Dooley, who was overseas, and that he consider this before giving his evidence remotely on the first day (he was not apparently available for the rest of the hearing).

Taking stock it appeared there were some significant issues in respect of what may be described as evidential gaps as follows:

As I considered whether to: (i) proceed and determine the applicant’s application within this hearing; (ii) adjourn from the outset, obtain the further evidence and re-list; or (iii) hear some evidence and make as much progress as possible and consider the need for further evidence after having heard the evidence with the possibility of an adjournment to a further short hearing, I found myself increasingly troubled by the threshold agreed between the applicant and the mother.

The threshold agreed between the applicant and mother in 2022 is as follows:

Both [M] and [F] have had social services involvement with their older children [C4] :

I canvassed with the advocates my concern that the threshold did not seek to fully determine whether the father was violent to the mother and whether she was, more widely, the subject of his domestic abuse. Very properly Mr Bunce accepted that and he raised with me his concerns as to whether the threshold was compliant with the dicta of Sir James Munby P in Re A (A Child) [2015] EWFC 11 and in particular what was said at paragraph 10:

It seemed to me that the threshold, whilst it had been agreed between mother and the applicant, crucially did not fully grapple with whether domestic violence and domestic abuse had taken place. It is understandable that because of the father’s lack of engagement the threshold may have been drafted in this way. When I checked Ms Prolingheuer’s understanding of the applicant’s case she also agreed that the threshold was mainly focused on report or allegations. On that basis much of the threshold would not be contested by the father as he did not dispute the mother, and some members of her family, had alleged or reported domestic abuse. Whether it did take place or not is, in my judgement, an important issue to resolve to permit the court to properly consider what welfare orders that should be made, should the threshold be crossed.

I was also concerned that the threshold document did not fully set out the mother’s learning difficulties and again this seemed to me to be an important part of the background facts which were directly relevant to T and Z’s welfare.

Initially the advocates were rather resistant to this idea. Noting it would involve delay; would require a vulnerable mother to give evidence; and the hearing had not been set up as a contested fact finding to consider allegations. In addition, it was rightly noted that the father had not attended on the first day. He told his legal team that he had taken his other children to school and was then attending a medical appointment in respect of one of the children.

I was sympathetic to the arguments about further delay occasioned to the resolution of these crucial issues for T and Z. These proceedings have involved too much delay, given the need to account for Z’s birth and the late decision of the maternal aunt to withdraw from being a potential special guardian. However, the significant nature of the applicant’s application for placement orders has weighed heavily in the balance on the need to: (i) obtain all the relevant evidence; (ii) ensure a proper understanding of what has happened between the mother and the father and how this impacts on the future welfare of the girls.

My primary reason for acknowledging an adjournment was needed was driven by the desire to have a Re A compliant threshold document before the court. I also had regard to  Re W [2008] EWHC 1188 (Fam) in which McFarlane J (as he then was) held at paragraph 72:

I also considered McFarlane J’s (as he then was) decision in the A County Council v DP, RS, BS (By their Children's Guardian) [2005] EWHC 1593 (Fam) 2005; 2 FLR 1031 at paragraph 24. Following a review of case-law relevant to the issues he stated that:

I also considered the father’s application for permission to challenge threshold. It is right to observe he has caused damage to T and Z’s welfare by delaying these proceedings by not directly engaging in the proceedings from around March 2022 to May 2023. However, he instructed solicitors in May 2023 and filed and served written evidence which addressed threshold. A C2 was issued dated 20 June 2022 seeking permission to contest threshold and included a consent order with a direction he file and serve final evidence.. His counsel told me she had prepared questions which had been largely approved by the intermediary to put to the mother to challenge aspects of her evidence.

I was not referred to any case law encapsulating the test for the ‘grant of permission to challenge threshold’. However, I note the following:

Having reflected and considered the language of section 31 of the 1989 Act, I am not persuaded the court, applying the Family Procedure Rules, can apply a permission requirement to somehow modify the clear language of section 31 of the 1989 Act. The terms of the statute do not provide for any such gateway test. If Parliament had considered such a test could be applied it would have said so. As I understand the previous order made, it provides for, in effect, a case management decision which restricts the father filing and serving a pleading and/or evidence to permit him to contest the threshold document without the court’s permission. I proceed on that basis. The touchstone for determining setting aside such a direction is justice, having regard to issues such as delay, cost and proportionality. In proceedings such as these, which seek a placement order, I must also consider the potential need to engage, in due course, sections 1 (4) (e), section 21 and section 52 (1) (b) of the Adoption and Children Act 2022 and in particular the circumstances which lead to the court considering whether the welfare of the child/children requires the court to dispense with the consent of the parents to adoption.

Notwithstanding the delay, in my judgement, it would be unjust not to permit the father to file and serve evidence to permit him to challenge threshold given the belated steps taken place to permit him and his legal team to do so. Satisfaction of the section 31 (2) 1989 Act test is of fundamental significance to 1989 Act public law proceedings. Further, in circumstances where a placement order is sought, the obligation on the court to ensure fairness at all stages is heightened (albeit fairness applies to all courts at all stages). I also had regard to the dicta of McFarlane J (as he then was) above to assist me, by analogy, in determining whether permission should be given. I also had regard, in proceedings of this nature, to the profoundly personal and emotional response of parents to state interference in the lives of their children. Some hesitation is required before applying an overly rigid approach to procedural requirements.

I was very concerned on the first day of the hearing that the father had not attended and considered whether to grant him permission to proceed, conditional on the basis he attend the rest of the hearing. I determined that the principled way to proceed was to determine his application and then consider what weight to attach to his evidence dependent upon my assessment of his written and oral evidence and whether he was present to be cross-examined. As will be explained below, he finally attended the hearing on day three at 11.45 approximately and promptly entered the witness box and was questioned until around 15.30.

In permitting the father permission, I also took into account my concern about the rather weak nature of original threshold findings. Mr Bunce indicated he would apply orally to seek permission to file and serve an amended schedule before 12pm on the second day of the hearing, should the father be granted permission. No party submitted such a course of action would cause them unfairness.

I granted permission to the father to challenge threshold and granted permission to the applicant to amend its schedule and directed it to file and serve the amended threshold document by 12 pm on the second day of the hearing. It was filed and served around 10.30 on day two. I am grateful to Mr Bunce and his team for their industry. The amended schedule was set out in the following terms:

Upon receipt of the revised schedule, I was fortified in my decision to grant permission to the father to challenge threshold and to the applicant to amend the former threshold. The allegations contained in the amended threshold appeared to me to be a more comprehensive series of allegations, which could properly be tried and in respect of which the outcome would likely influence the evidence of the expert witnesses and more particularly the court, when/if it comes to make welfare decisions, including the profoundly important placement application decision. The father was also given a full opportunity to give oral evidence to challenge these allegations.

No party sought to argue the amended schedule was unfair. All parties were given time to consider it. The amended schedule was properly based in the evidence which had already been filed and served.

At the end of this judgment, I summarise the further case management directions which I considered were essential to justly resolve these proceedings. The result of them is that, whilst progress could have been made at this hearing, it is unlikely the applicant’s placement order application could have been determined within these four days. It is obvious that knowledge of that is something I considered when determining the father’s application for permission to challenge threshold because I considered it unlikely all matters could be resolved and therefore any delay occasioned by considering contested threshold would be ameliorated by the necessity of further evidence and a further short hearing.

These directions will provide the court with further factual and expert evidence to finally resolve the future welfare issues for T and Z. That evidence will have the benefit of being grounded in the findings of fact and the threshold as set out below. It will plug factual gaps in the evidence; it will fully grapple with the applicant’s duties to a learning disabled mother (see Re H (Parents with Learning Difficulties: Risk of Harm) [2023] EWCA Civ 59) and the further expert evidence is necessary (having regard to the terms of s.13 of the Children and Families Act 2014) in particular expert psychological assessment of T and Z, particularly in circumstances where the foster placement has recently broken down.

I note the very recent learning of Lord Justice Baker (with the agreement of Singh and Arnold LJJ) who gave judgment in E (A Child) (Care and Placement Orders) [2023] EWCA Civ 721. His Lordship emphasised the overall need for considerable care when placement order applications are before the court. I note in particular paragraphs 28 to 35 and in particular what was said at paragraph 30 (my emphasis added):

Determining the “unfitness” or otherwise of the mother and the father in these proceedings to care for T and Z and considering the safety and security of their environment emphasised to me the need to determine the amended threshold. Further, fairness and justice required permitting the father to challenge the threshold given the threshold is the gateway to the placement order which may lead to “interference” in family life.

I add that whilst some of the advocates were initially (although not latterly) concerned with evolving this hearing into one to contest threshold, it should have been clear to all parties and their legal teams that, given the terms of paragraph 6 of the order of 3 October 2022 and the father’s written application to seek permission, it was a possibility there would be a contest and that preparations were required for such an outcome.

I have been acutely conscious throughout the hearing of the challenges for the mother given her vulnerabilities. I appreciate the hearing did not evolve as she might have anticipated. I appreciate it was stressful for her, but with the assistance of her intermediary and the sensitive ground rules, I am entirely satisfied the hearing was fair. I also commend the advocates for their adroitness in proceeding with the contested threshold hearing.

The court heard from: (i) the social worker; (ii) the father and (iii) the mother.

I had anticipated hearing from the social worker first, then the mother and then the father. This seemed the fairest way to proceed. However, the father failed to attend on both the first and second days of the hearing. He arrived late on the third day. His counsel informed me that he had provided fuller instructions on the allegations of domestic abuse made by the mother beyond that which was set out in his witness statement (see below). I was asked to provide time for a solicitor to meet with him and to provide a fuller witness statement. I was concerned about the fairness to the vulnerable mother of late evidence being provided and her being taken by surprise. The father has been the author of his own misfortune by not attending the full hearing. I determined the fairest way to proceed was for the father to give evidence first and gave permission for his counsel to elicit some further evidence in chief and that the mother would give evidence the following day. That way delay was avoided and the mother was not unfairly taken by surprise by the father’s late additional evidence.

The social worker filed five statements between 18 January 2022 and 25 May 2023. Much of her written evidence is not relevant to the issues I have to determine to inform this judgment. The important background is set out in her first statement and I quote the following background paragraphs which evidence the concerns which led the applicant to issue proceedings in respect of T (with redactions):

The evidence goes on to explain the social worker’s interaction with F by telephone and email. It details some of his emails. It notes the mother was hospitalised in November 2021 with COVID when pregnant with Z. The social worker notes this was the first time she had been able to speak to the mother about the concerns. Her evidence is that the mother engaged and expressed a willingness to work with social services but that the father “would not support the idea”. The mother expressed her fear that if she separated from the father she understood she would lose T because she had been told previously her learning difficulties meant she was not capable of parenting alone. The background of the loss of E haunted her.

In the witness box the social worker was calm and composed. She was thoughtful and reflected before giving her answers to questions. She told me she found the father’s emails intimidating and frightening. She said: “I was scared to have further communication with” the father. She said his emails came across as very aggressive and that he spoke to her like that too. She explained the mother had disclosed to her the allegations of domestic abuse. This was largely at a meeting in late December 2021. She explained that around the time the mother and father separated the mother explained to her that she wanted to engage with social services. The social worker gave evidence that she believed the mother was afraid and was being controlled by the father. She told me that since the couple have separated she has “no difficulty working with [the mother]”. When cross examined by father’s counsel she accepted she had not witnessed the allegations of domestic violence that the mother alleges but she did say: “my own experience of the father is that he has the potential of being aggressive. I am very frightened of him”.

I accept the social worker was a reliable and credible witness.

The father has produced one witness statement undated and unsigned but approved by him by email shortly before this hearing. The material parts state:

The father’s oral evidence was at times challenging to follow. He often answered a question with a question. He was fixated on the fact T was removed from the child protection register in 2020 and could not understand why there were any concerns. He denied the allegations of abuse but I understood his evidence to be that he agreed he had not attended many meetings. He evaded answering many of the questions with long rambling and often irrelevant accounts. He spent much time discussing his other children. Importantly he refused to provide his own address and gave only his mother’s. When questioned by me directly on that, he refused to provide his address telling me he could not trust social services and was afraid of them. However, it is important to note when asked to re-focus and to answer questions directly he did try and apologised for his rambling accounts. He appeared under pressure, drinking a lot of water. He cared about what he was saying and whilst much of his evidence was not relevant, he wanted to be heard and he wanted me to listen to his evidence. He demonstrated care for his 4 older children and interest in the welfare of T and Z. I also take into account some cultural and linguistic differences with how he presented.

Given the father’s fixation on T’s removal from the child protection register and inability to engage in the allegations before him, I was not able to conclude he was reliable. His view of the applicant is sufficiently soured that his evidence was unreliable and tainted by his overwhelmingly negative views of social services. His refusal to provide his address evidences this. I also considered his evidence was often not credible. When I pointed out to him there had been, on any evidential basis (including his own), multiple engagements between the police, him and his former partners, he refused to accept any responsibility for this. This is not credible. It was also pointed out to him by Mr Bunce that paragraph 10 of his witness statement was incorrect but he refused to accept he had given untruthful evidence. He obfuscated. His poisoned attitude led him, in my judgement, to provide self-serving evidence that defended himself rather than truthfully and accurately engage with the allegations made.

The mother has produced witness statements dated 22 November 2022 and 8 June 2023 in these proceedings. They do not address directly her allegations against the father. She did however provide a witness statement in her application for a non-molestation injunction dated 28 February 2022:

There is a further more detailed witness statement of October 2022 produced for the injunction application. It was not in the bundle but was circulated to the parties and their representatives during the hearing. Given its late emergence in these proceedings I approach it with a little caution but ultimately no party objected to its admission.

The mother was assessed by Dr Heller a chartered clinical psychologist. She assessed the mother in March 2022. Her executive summary states:

There is also a detailed Communicourt report about the mother, dated 1 April 2022 authored by Laura Tsuma. It recommended the mother be assisted by an intermediary and led to a number of recommendations. HHJ Karp made a detailed series of sensitive and comprehensive participation directions which directed how the mother should give evidence which were followed at this hearing. These were followed. Ms Prolingheuer provided questions which were agreed with the intermediary. The mother gave evidence from behind a screen and sat beside the intermediary. She was given breaks. Questions were short, clear and introduced by topics. The intermediary at times re-phrased the questions. Father’s counsel sensitively but forensically conducted her client’s case.

The mother’s additional difficulties, described above, led me to form the view that she was largely reliable but not always so. Understandably, recalling the details of her domestic life over 4 years or so was challenging for her. She appeared mostly credible. She accepted (as she did with Mr Dooley) that she sometimes “threw the first punch”. She also accepted there were periods of happiness with the father. She had previously told Mr Dooley an allegation she had made that the father held a knife to her belly and threatened to abduct her to [redacted] was untruthful. She told me in evidence this in itself was not truthful because she found this allegation sensitive and difficult because the father had told her, her family would not come and find her, and she was sensitive to discussing with a professional the fact her family might not support her. Observing her, I am not persuaded she was telling the truth and on balance consider what she told Mr Dooley was more likely to be the truth and that she did make a false allegation. Her vulnerability may explain this. I give myself a R v Lucas [1981] QB 720, direction in respect of this aspect of her evidence.

There is also written contemporaneous material from the police disclosure, but I note it is not complete.

The advocates helpfully agreed a note of the law during the hearing. That has assisted me and I set it out below with some minor amendments and additions.

The burden lies on the Local Authority to prove the allegations it makes on the civil standard of the balance of probabilities, Re B [2008] UKHL 35.

Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts.

The Court must decide if the facts in issue have happened or not. There is no room for finding that it might have happened. The law operates a binary system in which the only values are 0 and 1, per Lord Hoffman in Re B . This applies to the conclusion as to the fact in issue (e.g. did it happen; yes or no?) not the value of individual pieces of evidence (which fall to be assessed in combination with each other).

In S & H-S (Children) [2018] EWCA Civ 1282, McFarlane LJ (as he then was) gave the following guidance in relation to the form and content of judgments where the threshold criteria are in issue:

In Re A (A Child) [2015] EWFC 11, Sir James Mumby P, gave detailed guidance in relation to the establishment of the threshold criteria and the need to specify in the case of each allegation how and why it would, if true, give rise to a risk of significant harm to the child. A rigorous approach to the threshold criteria is particularly vital where the care plan is adoption. This guidance was later approved by the Court of Appeal in Re J (A Child) [2015] EWCA Civ 222, were it was said that the requirements could be summarised as follows: i) it is for the local authority to prove, on the balance of probabilities the facts of which it relies, ii) if the local authority’s case on a factual basis is challenged, the authority must adduce proper evidence to establish the facts it wishes to prove iii) hearsay evidence may have strict limitations, iv) the formulations of the threshold and proposed finding must be done with the utmost care and precision and the distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised v) it is for the local authority to prove the link between the facts and the threshold, and vi) it is vital that local authorities, and even more importantly Judges, bear in mind that nearly all parents will be imperfect in some way or other.

Findings of fact must be based on evidence and not speculation. As Mumby LJ (as he then was) observed in Re A (A Child) (Fact Finding: Speculation) [2011] 1 FLR 1817, “it is an elementary position that findings of fact must be based on evidence and not suspicion or speculation”.

And later as President in Re X (Children) [2015] EWHC 3651 (Fam) (at §22 onwards) he said :

The court must consider all of the circumstances of the case as confirmed by Baroness Hale in Re B (Children) (care proceedings; Standard of Proof) [2008] UKHL 35. The Court must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. The court must survey a wide canvas.

The evidence of the parents and of any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them (see Re W and another (Non-accidental injury) [2003] FCR 346).

In R v B County Council ex parte P [1991] 2 All ER 65 (at 72J), [1991] 1 FLR 470 at 478, Butler-Sloss LJ observed that, ' A court presented with hearsay evidence has to look at it anxiously and consider carefully the extent to which it can properly be relied upon .' When assessing the weight to be placed on hearsay evidence the Court may have regard to the matters set out in section 4 of the Civil Evidence Act 1995 even in cases where the Act does not strictly apply. I remind myself of the terms of section 4.

Credibility is an important aspect when considering the reliability of the evidence of each witness. If the court concluded that a witness had lied in their evidence it should remind itself of the direction in R v Lucas [1981] QB 720, that a witness may lie for many reasons including for example, shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure and the fact that a witness has lied about some matters does not mean that he or she has lied about everything.

I have also considered Re A, B and C (Children) [2021] EWCA Civ 451 and what Macur LJ says at paragraphs 57 and 58:

In Re B-M (Children: Findings of Fact) [2021] EWCA Civ 1371 the court held at paragraph 25:

I have read and considered Mr Justice Hayden’s judgment in F v M [2021] EWFC 4 and sought to absorb what he says about coercive and controlling behaviour.

I remind myself of Peter Jackson LJ's comments in  Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121 (§61), cited with approval in Re H-N at §32 that: 

Lastly, I also remind myself of the need to be careful when approaching a schedule of allegations in a threshold document and the need to ensure fairness to the parties when considering making findings, see the recent judgment of Baker and Snowden LJJ in Z v A Local Authority [2022] EWCA Civ 1659 where they quote the succinctly helpful line from Peter Jackson LJ in Re A (No 2) [2019] EWCA Civ 1947:

All advocates helpfully addressed me on whether threshold is met by way of submissions on fact finding and harm with reference to the oral and written evidence. The applicant asked me to find threshold met on the basis of the amended document. When I inquired, Mr Bunce accepted whilst the relevant date for T is 20 January 2022, the document needs further amendment to reflect that the date for Z is 26 May 2022. He also accepted that allegation 11 was not in an ‘alterative’ finding and that I could make this finding alongside the more specific allegations of domestic abuse. Ms LeCointe did not contest threshold or the point I raised about paragraph 11. Ms Lonnen observed the Guardian did not advance submissions on the detail of threshold.

Ms Prolingheuer advanced articulate submissions on behalf of the father. She reminded the court of the purpose of threshold and the need to link factual matters to the language of harm or risk of harm as required by the language of section 31 of the 1989 Act. She acknowledged the father should not obtain an advantage from his limited engagement in proceedings and the resultant fact that not all evidence that could have been obtained to support the applicant’s threshold, was before the court. She noted there was not complete police, medical or social services documentation. She sought to persuade the court many factual findings could not be made, as advanced and that even if they were, they did not evidence harm or the risk of harm to T or Z.

The oral evidence was completed on the morning of day four (29 June 2023). Submissions were made that afternoon and then time was spent on the case management order. As a result of other commitments, I determined I would send an embargoed written judgment to the advocates on the following morning at 10 am, would require the usual typographical corrections and submissions on ancillary matters and would formally hand down judgment, using the remote protocol on Monday 3 July 2023. For that reason, whilst I have considered matters carefully over the last four days, my reasons are necessarily succinct.

In terms of the ‘older’ children’s services involvement, I find as a fact:

I also find as a fact:

At the different relevant dates for both T and Z were likely to suffer significant harm brought about by the combination of non-engagement and neglect because both the mother and the father are challenged in meeting their older children’s needs and those challenges create the risk of significant harm to T and Z. The mother’s learning difficulties and her non-engagement in essential safeguarding meetings (whether her fault or not) mean that T and Z are at risk of significant harm by being neglected. T appears to have additional needs. She needs able and engaged parents or parents who can work with and engage professionals to meet the full range of her needs. Z’s age makes her vulnerable and her relationship with T, who I am told is already creating sibling relationship challenges, add to her vulnerabilities. Therefore she needs protection. Whilst the mother, rightly, does not contest threshold, it is no answer to state that after her separation from the father she was engaged with social services. The risk of harm arises out of her vulnerabilities caused by her additional needs and her susceptibility to permitting a partner to dominate her and occlude her engagement with professionals, which is necessary to protect her children.

The father asserts that his older children are subject to social services input arising from their mother’s care and therefore these findings have no link to the risk of harm in respect of T and Z. However, that overlooks the facts that he should be acting to protect his children from neglect as he is their father and, as his own evidence demonstrated, he plays a meaningful role in their lives. If their mother has deficiencies, then he should be capable of stepping in to protect his children from neglect. His limited engagement with the applicant’s professionals and non-engagement with professionals combined with deficiencies in capability of protecting his older children from neglect without social services involvement lead me to conclude on the relevant dates T and Z were likely to suffer significant harm, namely neglect, in circumstances when both are vulnerable and in need of protection.

I also find as a fact that:

There is no factual dispute that the father disputed his paternity of Z and has never met her. As a result she is at risk of significant harm because she is denied paternal involvement in her life and consequent emotional harm by being denied that involvement. The father and T lived together until early 2022. She has not had contact with her father since. He said he would have contact with her, but only on his terms with her older half-siblings. He has failed to focus on her needs and prioritise her needs to emotional attachment and stimulation. That arises because of his rigid thinking and his own conflict with the applicant’s social services team. T deserves more and has been denied her family love and support. At the relevant dates T was at a risk of suffering significant harm, mainly emotional harm as a result.

I find as a fact:

First, I am satisfied that the paragraph 11 allegation is not one in the alternative and is not a finding that can only be found on the basis that I do not find the other specific allegations proven. I understood that all parties accepted this through their advocates at the hearing. The written and oral evidence makes clear there has been repeated involvement of the police in the life of this family. The mother’s evidence was that whilst the relationship was at times loving, she did at time “throw the first punch”. She also gave evidence that she involved the police in inappropriate situations such as seeking better housing or because the father cut his finger, was bleeding and she panicked. These are not neutral acts, particularly when T was present. The involvement of uniformed police may well be bewildering or frightening. Such situations are mostly unplanned. They give rise to a risk of emotional harm. Furthermore, I am satisfied on all the evidence, particularly the evidence of the social worker, that their involvement was because of conflict between the parents. I pay particular regard to the example of the text message provided in the social worker’s statement, set out above. Such communication is bound to be conflictive, upsetting and disharmonious. It places obvious risks of significant emotional harm to T and Z when in the presence of such conflictive parents or directly witnessing the fallout of this volatility. I also survey the wider canvass of the social worker’s evidence set out in her first witness statement and quoted above. This was a family unit which existed in a state of some conflict and chaos, hence social services involvement. That background paints the wider canvass of the risks of significant emotional harm to T and Z at the relevant dates.

Surveying all the evidence also assists me to resolve the more specific allegations. Having heard both the mother and father’s oral account of the ‘saucepan lid’ assault I accept the applicant has proven this is more likely than not to have taken place, even although there is no corroborating medical evidence. The mother was clear it happened, was questioned about it and gave evidence that as a result she had a bump on the back of her head and has a result, when in the safety of a hotel, she had difficulty sleeping. I do not discern any material discrepancy from reading the police disclosure. The absence of medical evidence does not detract from the cogency of the other evidence, to find the applicant has proved its case on the balance of probabilities. The father’s evidence that he is a strong man and as such it is inherently improbable he assaulted the mother with a saucepan lid because the injury would have been worse is not persuasive. I decline to find the lid was broken on impact with the mother’s head. It hit the back of her head and may or may not have broken when it impacted the floor.

I also prefer the mother’s evidence over the father’s that she was kicked in the genital area. Her description was clear. The text message set out in the social worker’s evidence and the mother’s oral evidence about sexual jealousies reinforces the evidence that tensions arose between this couple. The father’s blanket denial as seen against the totality of the written and oral evidence was not persuasive. I am satisfied this finding can properly be made without contemporaneous records after having heard the mother’s evidence.

There is no dispute the parents attended a police station in February 2021 and T was present. This presentation with T present was typical of the type of engagement the family had with professionals. It paints of a picture of some chaos. I consider it more likely than not the father was belittling the mother. He came close to doing so in the witness box when he spoke about her (e.g. “the state” she was in after Christmas 2021 and at times by the deployment of the term ‘learning disability’) and he also has done so before, as is evident from the written evidence of the social worker (see the text message) and the reference to shaving her hair (albeit I note this was not canvassed in oral evidence).

There was not much dispute at the hearing that Christmas 2021 was difficult as the relationship was deteriorating and fast coming to an end. There is a lack of clarity in the evidence, on balance I find the mother left the family home, leaving T with her father to spend Christmas with her family. She did not return until around 27 December 2021. The father sent T to his sister and she remained in the care of his sister for some days. The father could and should have assisted the mother and T to be reunited much sooner than in fact took place. This was obviously harmful for a small child, no doubt like all children looking forward to Christmas and family time. I acknowledge the father’s sister was known to T, but the parents once again prioritised their own needs over T’s and she was not provided with the emotional reinforcement she would need and was deprived of her mother, which on balance I find to have been significantly harmful. At the relevant date risks of this nature remained.

I also make the finding more generally that the father was at times controlling and coercive. The finding above is a particular example of this. He would not let the mother take T to her family over Christmas and then sent her to her aunt’s. It is also entirely clear that the mother could not engage with social services when in a relationship with him. She did not attend the meetings, but from January 2022, once the relationship had ended, was able to do so and has engaged since. It follows therefore that I make the finding that the mother did not engage with social services until after the relationship. I find, surveying the written evidence and from the parents’ oral evidence and the social worker’s informed professional view, this arose out of the father’s coercive and controlling behaviour . Observing both parents over the last few days and reflecting in particular on how they gave evidence it is clear a significant power imbalance exists between them and the father was dominant and has used his dominance. T’s needs were not prioritised and she was at risk of emotional and wider developmental harm due to her parent’s dysfunctional relationship. Those risks remained to her but also to Z at the relevant dates.

All that being said I do not make the finding that “In the course of their 3-year relationship, the Mother was punched in the face, spat on, pushed and kicked by the Father”. This is not a particularised allegation but leaving that aside it is not borne out in the written and oral evidence. It was not the evidence of the social worker. It was in the mother’s written evidence for her injunction application, but I have already concluded she is not always credible or reliable. Overall, I am satisfied this was not a relationship characterised by the father being continually regularly violent to the mother. There have been, as I have found, occasional moments of violence, possibly occasioned by arguments over romantic or other jealousies, but there has not been constant or regular violence. For much of the relationship it was a loving one and I understood both parents to accept that in their oral evidence. I also accept father’s counsel’s submission that the contemporaneous records do not support such a finding and in particular this assessment of the family recorded in the social worker’s evidence:

I find as a fact that:

It is not necessary to debate, as I was invited to do, whether this finding is related to the section 31 harm/risk of harm threshold. It is factually correct and is part and parcel of the wider findings above about the relationship which was at time characterised by domestic abuse, as I have found.

I find as facts that:

The second two findings are not factually disputed. I accept the social worker’s written and oral evidence to find the first and prefer that over the father’s unreliable evidence. There can be no doubt whatsoever that the father has shown aggression to professionals. He cannot understand why when his relationship deteriorated, social service became involved in T’s life again, despite the optimistic assessment I have just set out above. That inability to understand has caused much of his aggression and I have firmly in mind the oral evidence of the social worker that she is frightened of the father. That unquestionably, at the relevant dates, gave rise to the risk of significant harm to T and Z in circumstances where they need protection and support, their mother is learning disabled and had been in a controlling relationship and the father has carried out acts of domestic violence. The inability of professionals to supervise and support because of the fear of father plainly gives rise to the risk of significant harm to these vulnerable girls, at the relevant dates.

I accept the submissions that the third hand hearsay evidence makes a finding about the October 2021 purportedly aggressive call to staff by the F is insecure and do not make that finding.

That concludes the fact finding for now (noting the two unresolved findings will be considered in November 2023) and I have no hesitation when surveying the findings found above, that the section 31 1989 Act threshold is crossed for T and Z at the relevant dates, looking at the findings individually and collectively. In the light of these findings it is entirely clear that at their respective relevant dates both T and Z were at risk of significant harm for the reasons explained above.

With the assistance of counsel I have made detailed directions. Those directions deal with the missing evidence from London Borough of XY, the need for a conclusion on the search for alternative family carers, the essential psychological assessment of T in particular but also Z, a psychological assessment of the father (which he tells me he will engage in) and, crucially, evidence from the mother and the applicant in respect of the mother’s needs, what support she needs, whether this support can be offered/funded and whether such support is compatible with the children’s welfare. I refuse the father’s application for a new parenting assessment. This is unnecessary and would be wholly disproportionate for the brief reasons I gave at the hearing.

I end this judgment by acknowledging my disappointment this hearing could not resolve the urgent welfare decisions for T and Z. I am acutely conscious that adoption remains the applicant’s preferred professional view for both, and that if T and Z are to be adopted (which is currently unclear) each passing month is likely to create greater challenges for them to make attachments with new adoptive parents. That has weighed heavily on me this week. But for the reasons set out above, acknowledging the need for fairness to all parties, and the need for robust but proportionate evidence in respect of the welfare options for T and Z, properly rooted in the findings above, an adjournment has been necessary.