G (A Child: Care Order) (Complex Developmental Needs) (No 2), Re

This case is about G. He is 11 years old. Nottinghamshire County Council ("the local authority") applies for a care order. The first respondent is BE. She is G's mother ("the mother"). The second respondent is LE. He is G's Father ("the father"). In my first judgment concerning these parties the father’s name was incorrectly reversed. That was an error all the advocates also fell into up until the middle of the first day of this hearing. I apologise to the father for that. I did not mean any discourtesy to him by relying on the witness statements and documents prepared by his solicitor which reversed his name incorrectly. I will refer to the mother and father collectively as “the parents”. The third respondent is G himself. His interests are represented by the children's guardian ("the children's guardian").

These proceedings are before the Court in week 151 of their existence. This hearing follows a five-day hearing in May 2023. Judgment was delivered and published following that hearing G (A Child: Care Order) (Complex Developmental Needs) (No.1) [2023] EWFC 168 (“the No.1 judgment”).

The advocates who appeared in May appear again. The local authority is represented by Ms Howell of counsel. The mother is represented by Ms Hodges of counsel. The father is represented by Ms Thind of counsel. G is represented by Mr Lea, his solicitor.

The No.1 judgment forms an essential part of the Court’s analysis of the proceedings. The Court made several findings and adjourned the proceedings for the reasons contained therein.

On 12 May 2023 I ordered at order 30:

I was emailed by Ms Howell at 9:35pm on Monday 28 August (“Ms Howell’s email”). Amongst other things, I was told that Dr Rukhsana Farooqi, the most recently instructed independent social worker, would give oral evidence. There were no written questions or answers to written questions in the bundle, which I had fully read by that date. I replied to the advocates to say such a request would not be considered in the absence of an application for relief from sanctions under rule 4.6 of the Family Procedure Rules 2010 ("the Rules") and Dr Farooqi would not give oral evidence in the absence of relief being granted.

On Tuesday 29 August, the child's solicitor filed an application for relief from sanctions. In her witness statement Ms Davis apologised for a genuine oversight and said the challenge to Dr Farooqi was at the heart of the child's interests. The application was supported whole-heartedly by the local authority. The parents did not oppose relief being granted, although they rely on the report’s contents and do not challenge it. I was satisfied it was in the interests of justice to grant relief as cross-examination of the report strikes at the heart of the issues in the case and that it would be unfair to hold the parties strictly to my orders. The Court was informed by the parties that Dr Farooqi would give evidence remotely.

By my order of 12 May 2023, directions were made for the management of this hearing. That included prohibiting examination-in-chief, given how close to this hearing the parties' witness statements were prepared, and confining all examination and submissions to two, four hour days. In Ms Howell's email, I received a witness template proposing 15 hours 25 minutes of court time for examination of witnesses and that did not include any time for submissions, judicial consideration of the case and time for delivering judgment. Ms Hodges told me the times allocated to her name were not prepared by her.

Not only was the suggestion of 15 hours and 25 minutes for examination of witnesses not compliant with the Court’s trial directions, which were not appealed, the suggestion the case required over fifteen hours of time for examination of witnesses was wholly disproportionate to the issues. I invited representations from the parties on the allocation of their times prior to exercising the Court's powers under rule 1 and rule 22 of the Rules to control the evidence. The Court received only the briefest of representations. I therefore exercised these powers by limiting cross-examination. In doing so, at the heart of my exercise of these powers was the need to ensure the fairness of the proceedings and promote the overriding objective in rule 1 of the Rules.

Having allocated times, I informed the advocates that I was content for them to reallocate their times as between the witnesses if they preferred to spend more time on one witness than another. Only Ms Howell did so. In the event, the hearing of evidence in this case exceeded the allocated time that was forecast.

I have managed time strictly to ensure fairness and the efficient management of my lists. Where possible, the Court day has started each day at 9:30am to accommodate at least 1 hour of “shorts” or urgent applications in each morning of my list. I express my gratitude to the advocates for the good grace with which they have received and accepted my management of the hearing.

The order of 12 May stated:

In Ms Howell's email, I was told the mother and father wished to cross-examine the manager of G's residential home, PK. He had not prepared written evidence. That request was formally opposed by the children's guardian. Given what is at stake in the case and the positions put forward by the parents, I judged on balance it was fair to permit examination of PK, despite the impact this would have on the management of the hearing. To accommodate PK's evidence, the first day of the hearing concluded at 5.15 pm.

The issues are as follows:

If there are realistic welfare options for the Court to assess, then the Court must go on to consider:

The local authority applies for a care order with a plan that G be accommodated in Spring Home residential home. It opposes placement with his parents for assessment under section 38(6) of the Children Act 1989.

The mother and father seek further assessment of themselves with placement of G in their care under an interim care order. Under such an assessment, the father is proposed to be G's primary care giver. They rely upon a detailed list of support that I have heard evidence about and which I will detail later.

The parents expressly concede: (1) the Court cannot make any final order that would see G remaining in their care; (2) thus, the making of a care order, supervision order or no order with G at home is not a realistic welfare option.

The parents further contend that there are deficits in analysis by the professionals.

The children's guardian supports the making of a final care order and opposes an adjournment of these proceedings at all or for further assessment.

I refer to the background in the No.1 judgment.

I re-read the core bundle of evidence presented for the May hearing. For this hearing the Court was provided with the supplementary bundle consisting of 246 pages. I additionally read the children's guardian's final analysis of 22 pages, the mother’s witness statement for this hearing of 4 pages and the records of contact (including on 28 June 2023, 5 July 2023 and 17 July 2023). I viewed a video recording of a professionals meeting on 26 June 2023. There was no resistance to me admitting any of this evidence out of time where that was required.

I read all the written evidence carefully. I similarly listened carefully to the oral evidence over the last two days. This judgment is not intended to be a repetition of everything the Court considered and my failure to recite a particular part of the evidence or the submissions does not reflect a failure on my part to consider them. What follows is only intended to be a summary.

Dr Rukhsana Farooqi was jointly instructed as an independent social worker by order of 12 May 2023 to assess the parents in light of the support that was identified might be provided to them. Dr Farooqi's report is dated 4 August 2023 following instructions of 8 June 2023. In that report Dr Farooqi states that she qualified as a social worker in 1992. Dr Farooqi holds inter alia a LLB (Hons), MA in Social Work and a Professional Doctorate in Social Work from the Tavistock Clinic/University of East London. Dr Farooqi states that she has been a children’s guardian for NYAS since 1996, has worked as a Family Court Adviser, Children’s Guardian and an Interim Manager of public law work at Cafcass.

Dr Farooqi attended the professionals meeting the Court requested be facilitated to discuss intervention that could be put in place to support G's placement in his parents' care. Further, Dr Farooqi saw the parents on five occasions, twice in their own home and three times during contact.

Dr Farooqi reported [225]:

Further, the Dr Farooqi recommended [231]:

This is certainly very far from an exhaustive summary of what Dr Farooqi put in her report. As Ms Howell submitted, Dr Farooqi’s report overwhelmingly consists of a record of what was said to her by the mother and father.

The Court also heard Dr Farooqi in oral evidence. She said, amongst other things, that she has seen the mother step back and the father step up in a caring role, that the father is taking more of a lead and that is a good indicator an assessment can progress. Family time is positive. The closeness of the relationship between G and his parents remains. The mother's understanding of the need to step back has been a process in shifting her thinking that she is going through. The parents are respectful and polite in their interactions with staff. They have a very good relationship with G's keyworker, DS. She thinks the parents do recognise the deficits in parenting and the importance of working with professionals. The Court was told by Dr Farooqi that it would be “extremely unfair” for G for decisions to be made without a short further period of assessment of him in the parents’ home.

Dr Farooqi told the Court that aspects of the children's guardian's analysis are “harsh” and that she (Dr Farooqi) did challenge the parents on some aspects of their narrative. Dr Farooqi believes it necessary for there to be further assessment so that it is fair. I will explain in due course why the Court firmly rejects Dr Farooqi’s evidence.

Dr Farooqi gave evidence by CVP. Early in the Dr Farooqi’s evidence, the Court directed her to answer the questions asked of her, rather than give what appeared at times to be quite tangential commentary on the case and, at other times, evidence that did not engage directly with straightforward questions. This was unhelpful generally, but particularly noting the time pressures of the hearing.

I became aware that by the Court’s interventions the Court risked descending into the arena and impacting the witness as well as creating an unfair perception for the parents. At that point I paused Dr Farooqi’s evidence and spoke to counsel in Dr Farooqi’s absence. I did so (1) to act as a breaker on my perceptions of the witness, (2) to maintain the fairness of the hearing by ensuring the Court did not come close to the circumstances described in Serafin v Malkiewicz [2020] UKSC 23, and (3) to seek counsel's guidance on what to do to ensure the fair and efficient management of the hearing whilst allowing Dr Farooqi to provide relevant evidence.

Ms Hodges submitted that it was perhaps unfair for the Court to intervene in the way it was during Dr Farooqi’s evidence, in the context in which Dr Farooqi was unaware (because of the absence of written questions) of the focus of the hearing and that she was participating remotely. That was not a submission made before I paused Dr Farooqi’s evidence, but in pausing Dr Farooqi’s evidence I was plainly alive to that risk. It is somewhat difficult to accept that Dr Farooqi might be naïve to the focus of the hearing given it was the recommendation in her report that had caused the hearing to take the course it had. Further, experts, like all witnesses, frequently have matters put to them in cross-examination of which they do not have notice – that is an inherent part of their evidence being tested – and, it need only be stated to be accepted, that there is not unfairness in a witness (particularly an expert witness) being expected to give evidence that is relevant and in fact answers the questions posed to ensure the fair and efficient conduct of the hearing.

Ms Thind invited the Court to afford Dr Farooqi greater latitude and suggested that Dr Farooqi was trying to answer the questions. I accepted that invitation, judging it to be the best way to promote a fair hearing. Dr Farooqi’s evidence resumed.

I do not consider the Court has trespassed on the fairness of the hearing. The very experienced advocates before me, whom the Court is sure would have had no hesitation to intervene if they thought the proceedings were unfair, did not rise before the Court paused Dr Farooqi’s evidence. Further, at the close of the case, it has not been submitted that the Court's interaction with Dr Farooqi in those early parts of examination of her were unfair, and no-one has submitted that this hearing has been unfair.

Giving evidence by CVP is never easy. Much can be lost in the process, including glitching, it being difficult to hear questions and answers, as well as being able to clearly see the participants. Unfortunately, there were times when both the Court and the advocates were required to stop Dr Farooqi or ask to repeat her evidence because it could not be heard clearly. The technology was sub-optimal. In addition, Dr Farooqi was not always helped by questions that invited more wide-ranging answers when they may have been more focused. Considering all the above, I ensured I exclude from my evaluation of Dr Farooqi’s evidence the form and manner in which it was given and instead studied the underlying quality of the evidence and the analysis presented to the Court.

The local authority and children’s guardian are highly critical of Dr Farooqi’s involvement as an expert witness in this case. Given Dr Farooqi’s stated qualifications and experience, I sincerely regret to conclude that their criticism of Dr Farooqi’s analysis and quality of her evidence has considerable merit. It has been difficult to discern cogent analysis of the issues in this case by Dr Farooqi and certainly none that has withstood proper cross-examination. I judge there are real defects with the analysis which include the following.

Dr Farooqi told the Court [57]:

She further told the Court [141]:

The parents’ beliefs that they can read and understand G’s needs are plainly in conflict with the Court’s findings of 12 May 2023 in the No.1 judgment. It behoved Dr Farooqi to challenge these accounts by the parents and forensically scrutinise the implications for G’s care. If this was challenged, and the Court is left doubting that it was, there is no explanation how the parents’ responded. The absence from the report of the parents’ response to any challenge, when so much other narrative offered by the parents is recorded in the report, is surprising. More critically yet, there is no analysis in the report of how this parental view affects their ability to provide safe care to G. I do not accept an assessment in the home is required for Dr Farooqi to provide an opinion of how this parental attitude, which sits in conflict with the Court’s findings, impacts parenting capacity. The failure to provide such an analysis, or the belief that one could not be proffered, is a fundamental defect.

Further, Dr Farooqi reported [92]:

The Mother's view that she was unable to meet G’s needs because of being overwhelmed with “tasks” is plainly inconsistent with the Court’s findings of 12 May 2023 in the No.1 judgment. The Court found deficits in the mother’s understanding of G’s needs and her capacity to meet them. It again behoved Dr Farooqi to forensically examine the mother’s account in light of the Court’s findings. If Dr Farooqi did challenge the mother, there is no record or explanation in the report what the mother’s response was. Again, more critically yet, there is no analysis of how the mother's perception of her deficits affects her ability to provide safe care to G. I do not accept an assessment in the home is required for Dr Farooqi to provide an opinion of how the mother's mindset, in conflict as it is with the Court’s findings, would impact her parenting capacity. The failure to provide such an analysis, or the belief that one could not be proffered, is a fundamental defect.

Dr Farooqi, repeating what the mother said to her, told the Court [99]:

This was evidence the parents repeated in their oral evidence to the Court. It was quite extraordinary to read and hear. It was not a point of view the Court had previously heard before reading Dr Farooqi’s report. If the parents’ beliefs were challenged, there is no explanation in the report of what they said to Dr Farooqi. Again, more critically, there is no analysis of what their belief (that professionals are deliberately causing harm to G) says of: (1) their lack understanding of G’s needs and what actually distresses him; or (2) their parenting capacity generally. I do not accept an assessment in the home is required for Dr Farooqi to provide an opinion how this perception and attitude impacts parenting capacity. The failure to provide such an analysis, or the belief that one could not be proffered, is a fundamental defect.

These are fundamental issues. Indeed, they are elementary aspects of parenting capacity, that the Court is entitled to expect an expert will engage with on the face of their report. I do not accept that it is a breach of the rule of Browne v Dunn (1893) 6 R 67, HL, for a party not to have put each of these matters individually. Addressing these issues was plainly a necessary response to the letter of instruction.

Dr Farooqi recommends further assessment at home. Whether such an assessment is in fact necessary for the Court to deal with the case justly, requires an overall assessment which includes the impact on G's welfare. Dr Farooqi did not engage at all, let alone in any meaningful way, in her report with the competing considerations (including the impact on G's welfare) which may have steered her against her conclusion that further assessment is necessary. The failure to evaluate the impact on G's welfare at all, or in a meaningful way at the very least, is all the more troubling given: (1) how profound G’s needs are; and (2) that it was an exercise the Court traversed in detail in the No.1 judgment.

Taken together, so significant are these defects that, although the Dr Farooqi told the Court she read the No.1 judgment, I do not have confidence that she genuinely engaged with the Court’s findings at all. Several times in her evidence Dr Farooqi volunteered that she was “not an advocate for the parents”. I regret, as I was sat in the hearing considering the defects in Dr Farooqi’s analysis (both oral and written), each time I heard her tell the Court she was not an advocate for the parents, the less convinced I became of that evidence.

When a Court-appointed independent social worker meets with a family over five times, engages with them in their first language and writes a report supported by an expert's declaration, the Court will be cautious before doing anything other than giving it appropriate weight, much less limit the weight to be given to the analysis. However, I regret I conclude the Court should exercise a high level of caution in my treatment of Dr Farooqi’s opinion evidence, which I find has the most limited evidential value.

Dr Farooqi has failed to answer a clear letter of instruction in an adequate way. Noting the qualifications she particularised, Dr Farooqi has, by some considerable measure, fallen short of her duties as an expert witness to “help the Court on matters within [her] expertise” (rule 25.3(1) of the Rules).

Needless to say, the submission on behalf of the parents that Dr Farooqi’s assessment was not undermined by cross-examination is not one with which I can agree. I do not come to these conclusions lightly and have done so only after the most careful consideration of Dr Farooqi’s evidence.

The children's guardian criticises Dr Farooqi for pre-judging the issues when she attended the professionals meeting. I am not persuaded that is made out. In any event, the Court is far more concerned with the substance of the analysis offered to the Court than some early view expressed offhand in an unguarded moment.

MD (“the social worker”) remains the allocated social worker. She prepared a support and rehabilitation plan and further final evidence. The Court was told the local authority view is that there is sufficient evidence to conclude that the parents do not have the capacity to meet G's needs and the local authority does not consider the parents have demonstrated an ability to change and improve their parenting to meet G's complex needs, even with the support that could be offered. The social worker does not consider it would be in G's best interests for him to experience the stress involved in being assessed within the family home and considers there is sufficient evidence to conclude that the parents would not be able to meet G's needs if he was returned to their care, even considering the proposed support plan.

The social worker is criticised for having not weighed different welfare options. I deliberately omit the word "realistic". That, in my judgment, is not a criticism that can be sustained on the evidence. From PDF629 through to PDF632, there is such a weighing of competing advantages and disadvantages of different welfare options. It is submitted by Ms Hodges that the Court should be cautious in how it treats the social worker's evidence given the Court’s findings of her approach in the No.1 judgment. There is force in this submission and I accept the Court’s findings provide important context to the social worker's evidence that requires the Court to exercise real care in evaluating her evidence.

PK again gave evidence. He was not present at contact on 28 June or 17 July, which were said to be distressing experiences. He told the Court that staff phoned him for extended periods and he heard G distressed in the background. He said he has been told by staff that advice of staff and direction from them in G's management is at times not followed by the parents, but that his advice and guidance is listened to by the parents. He thinks there could definitely be more interaction by the father in G's care and that the mother has pulled back a bit and has not been as engaging.

PK said that were there to be an assessment in the home, there could be steps taken to support G in that process, such as adjusting by increasing the number and duration of car journeys, showing pictures, but he said that G will not travel down the road to a sensory house and so he thought the idea of G going to the parents' home is quite unrealistic.

He thought a realistic time to hold G’s bed during any assessment in the community would be six to eight weeks. I agree with Ms Thind that when PK said that being with the parents in their home for an assessment would make no difference at all, he spoke too stridently and was wrong. The Court accepts there are differences and there would be advantages that would make that somewhat more possible than simply going down the road to the sensory house.

The Court heard PK’s evidence twice in three months. Overall, he impressed as an honest witness who is genuinely motivated by G's best interests.

The evidence of the parents is of critical importance to the Court’s evaluation of the issues. I listened to each of them with care. The mother is an educated and sophisticated woman. She gave impassioned and heart-felt evidence. I sensed ongoing and deep pain at her son's continued enforced separation from her care. That she loves G with all her heart remains as true as it ever has been. She told the Court, "Without G we do not have life." It is difficult not to be moved by that evidence. She told the Court she would do anything to achieve G's return.

The mother told the Court that she thinks the family had good routines in the home with G and that she currently fully understands G's cues, notwithstanding the Court’s findings. She said the father would not struggle to meet G's needs and it would not take long for G to settle at home. She wants support for four hours each weekend day and in the holidays, but if it is not provided it would be okay because the parents would be there 24 hours a day. The mother told the Court that the father needs to take over care because G will become stronger and she will find it difficult to manage him. In her heart of hearts, she thinks she knows G better than the father. She accepted there are differences in opinion between the parents and carers at Spring Home about how to meet G's needs.

The mother believes there have been times when staff have deliberately caused G to dysregulate to make their contact poor. She has seen the father step up and she has tried to step back. She has seen the father feed G, seen the father wash him and do other activities. She gave a particularly notable example of G and his father being sat on the sofa and the mother being elsewhere, of G looking around for his mother, of G seeing his mother and being comfortable to remain with his father. She has seen G greet the father happily on all occasions.

The mother has completed an autism workshop alongside work she has done previously and she told me she learned a lot from it.

G is the father's life. He has maintained an exceptional level of commitment to G. Just as the mother's care of G with limited or no support in the years preceding his removal was driven by deep love, so, too, is the father driven by deep love for his son. The father wants G to return. He has proposed carers he has researched himself who may help him. He has undertaken the Understanding Autism course. He engaged well. He wants help with obtaining benefits and would be prepared to give up work completely to care for G full-time if that was what was required.

He says support is needed for days when G is not at school, although he said to the Court that Mondays to Fridays he will be meeting all G's needs on his own. He expressed understanding that epilepsy will need monitoring were G to be in the parents' home and that is why he wants waking day support. He does not think the mother would find it hard to refrain from being involved in personal care. He, too, believes there were good routines in the home. Quite worryingly, he believes the mother was able to meet all of G's needs before removal. He told the Court that G had outgrown his mother. He believes that "of course" Spring Home workers at times have deliberately made G distressed to create evidence to use against him in Court.

Even being sympathetic to the Father's view that Spring Home staff should not have brought G to community contact one hour early on one occasion, his leap to conclude that it was part of a design to create evidence to use against him in Court is extreme. He believes "100 per cent" that he knows how to manage G better than staff or, if not 100 per cent, then “at least 80 per cent”.

It is important the Court weighs into consideration the evidence of others who have dealt with the parents and their positive experiences, which will be detailed later. I also bear in mind that there have been times when professionals have expressed criticism of the parents and they have not engaged with the parents using interpreters. This can risk understanding being lost. So where there is to be criticism of the parents, I have given far more weight to the evidence given to me in the witness box through interpreters than criticism of professionals who have not always used interpreters.

I judge there are areas, which I will detail and analyse later where, as the Dr Farooqi observes, the parents have indeed made progress in improving their parenting capacity. There are other areas where I judge they have regressed, even since May 2023.

The children's guardian prepared a 22 page report. In her role, overall assessing the evidence, the children's guardian is critical of Dr Farooqi’s evidence. She tells the Court Dr Farooqi’s report gives no independent analysis why she believes the mother lacks the capacity to undertake care. The children's guardian says she fundamentally disagrees with Dr Farooqi’s rationale because, the children’s guardian says, it essentially places G in a position of "extreme jeopardy to test" the father's parenting capacity and the veracity of the mother's position that she will step back and purely focus on running the home.

The Court is told by the children's guardian that Dr Farooqi’s assessment falls short of an appropriate analysis of the parenting that Dr Farooqi witnessed during periods of family time. She does not consider Dr Farooqi satisfactorily engaged with the letter of instruction and believes Dr Farooqi’s report falls short of providing "even a preliminary and independent view of the parents’ capacity to embrace the proposed support and to accept and implement professional advice about G's needs and how to meet them".

For the reasons I have already set out, the Court accepts the children's guardian's criticism. The children's guardian is unable to support an adjournment for further assessment because G is highly likely to experience a trial period at the parents’ home as bewildering and the impact upon him would, in her view, be catastrophic. She recommends the Court finalise the proceedings by making a care order. She says:

I accept this evidence.

It was unhelpful that the children's guardian did not always answer straightforward questions in a straightforward manner. Her evidence at times was guarded and unnecessarily evasive when faced with questions that required her to answer in a way that might be adverse to her recommendation. As with Dr Farooqi, I have focused my assessment of this witness with the quality of the work, rather than the manner in which the evidence was given.

It was conceded by the children's guardian that she did not have written questions put to Dr Farooqi, nor request notes or call for an experts’ meeting. She has not observed contact herself in the recent past. It was submitted that the children's guardian's approach and conclusions since May 2023, must be seen in the context of the Court’s adverse findings in the No.1 judgment. It is submitted that the children's guardian's failure to observe contact, for example, is a manifestation of an approach that is still unfair. I accept the Court must assess the children's guardian in view of its earlier adverse findings and approach her evidence to the Court in this hearing with real caution in light of that fact and also the fact that she herself has not observed contact.

With great respect to the persuasive advocacy of the parents' counsel, the heart of the children's guardian's analysis on both the lack of necessity of further assessment, the significant harm further assessment would cause to G and the conclusions on the appropriate welfare outcome for G were not undermined.

The Court was provided with additional written evidence on the support required for the parents to care at home. I have reflected on the intensive support that Dr XB describes.

The Court set out the applicable legal principles in the No.1 judgment. The parties agree they are a correct summary of the applicable legal principles and do not omit any relevant matters. I direct myself accordingly.

To them I add, which has been at the front of my mind throughout, the contents of rule 1 of the Rules. In addition, given the submissions made to me, I remind myself of what the Court of Appeal said in Re B-S [2013] EWCA Civ 1146 at [34]:

Sir James Munby held in Re R (A child) [2014] EWCA Civ 1625 at [59]:

It follows that the Court’s task is not to survey all the possible permeations for G's welfare. The Court’s focus and indeed the focus of the evidence must be on those that are realistic.

I refer to Court’s findings in the No.1 judgment, which remain true.

I refer to the Court’s findings in the No.1 judgment, which remain true.

I refer to the Court’s findings in the No.1 judgment, which remain true.

I refer to the Court’s findings in the No.1 judgment, which remain true, and add what follows.

The Court said in May 2023 at [111],

Their parenting remains nuanced.

I accept and find there are strengths, what Ms Thind described as "positive indicators of capacity". As well as those matters the Court noted in the No.1 judgment, I further identify the following:

When I overall evaluate these parents' capabilities, I conclude they have progressed in these areas and I sincerely commend them for that.

There are, I regret to find, significant deficits in capacity.

I regret to find that in so much as there has been progression in the parents' capacity, so far as these deficits are concerned, the parents are entrenched, if not in fact regressing.

The parents' insight into the need for the mother to step back and for the father to be primary carer, is a relevant area of parenting capacity. The Court must evaluate this having regard to all the evidence of which Dr Farooqi’s opinion that, "I am convinced [the mother] understands she must step back and I hope she can do so," is a relevant part (as is the firmness with which Dr Farooqi formed that impression). I pause to note that Dr Farooqi failed to provide an analysis of the mother's capacity to step back beyond expressing a mere hope.

Whilst the mother can communicate that she understands for her son to be in her care the father must be the primary carer and she must take a back seat, and indeed has been observed to do so at times, I reach the firm concluded judgment that her understanding as to why the Court finds this is necessary is quite close to non-existent. I do not accept her evidence that she understands why professionals think this is needed for G. It is noteworthy that, despite the No.1 judgment and despite all the meetings the mother had with Dr Farooqi and other professionals, Dr Farooqi tells the Court that it was not until the "last meeting [the mother] accepted she needed to do this". At its very best, the mother's resolve to step back is recently formed.

Ms Hodges argued that this deficit in insight, which I judge is considerable, must be evaluated in the context of the parents' behaviour and the view that they are acting protectively, notwithstanding they do not engage with the established necessity for that protective behaviour. I accept this is a relevant consideration. However, so great are G's needs that I judge safe parenting of G requires sustained meaningful insight into those needs as well as sustained meaningful insight into the complexities of parenting and genuine insight into the need for professional intervention.

As the Court has previously identified, identifying these deficits is not sufficient. I weighed this picture of capability in light of the resources and high level of intervention that can be provided. I considered this in the context of the support identified by the local authority and Dr XB. I have taken it at its very highest, including an assumption that section 17 payments would be made available to ensure the father could care for G and that waking night provision would be available.

In my judgment, the identified deficits are fundamental barriers to safe parenting that are not ameliorated when weighed against the many positives. The Court will analyse under Any harm which they have suffered or at risk of suffering, the consequence for G of this parenting capacity if placed with his parents.

Nothing turns on the Mother asking whether she needed to do the autism workshop and I make no adverse findings of her in that regard. As is obvious from these reasons, the Court’s conclusion of the parents' capacity does not rely upon assertions made by the local authority about what happened at particular disputed contact sessions between G and his parents.

It is not suggested that G will be placed under section 38(6) without steps to ameliorate difficulties for him. Those steps include:

What is proposed would be significantly disruptive to G's routines. I accept that from G's perspective it is likely to take a significant period for him to adjust and prepare. Weeks may well not be sufficient. Even with amelioration, I foresee considerable challenges for G. Despite best efforts, I judge that frequent dysregulation is likely to occur and could probably not be effectively ameliorated.

It remains the case that G is very unlikely to understand and be impacted by the making of a final decision. He has the most limited sense of permanence and time.

Were G to be placed in his parents' care with the support that has been identified, either on a full-time basis or during suggested visits during an assessment, in very short order:

I judge the likelihood of these risks materialising to be high and the magnitude of harm that would flow from the risk materialising would be significant. The risk of significant harm the Court has identified is not capable of being proportionately ameliorated because the central complexity is the parents' beliefs and attitudes about their capacity to care and the ability of others to care for him.

I turn to evaluate the application that the Court place G with his parents under section 38(6) of the Children Act 1989.

Placement with parents at this time, even with all the ameliorations submitted to me and even if only for visits as Ms Thind describes, risks G suffering significant harm because:

The disruption of the assessment would be highly deleterious to G. I judge that delay will have more than a neutral impact on G. I find there is a real risk of unacceptable pressure and tension on the people around G who must meet his needs, which will lead to G's needs not being met consistently. I make the finding of this risk by inference from the following evidence:

I make this finding of a risk of increasing pressure or tension on the placement during a period of delay, mindful that PK told me there is no tension presently and the parents have no complaints about Spring Home. I judge the continuation of the proceedings is likely to further raise the stakes in the parents' minds and conflict in the opinions of how G's needs are met will likely occur.

Ms Thind submits the assessment would assist the court by providing evidence that is not available in circumstances where:

Ms Thind's submissions are not without force. However, I do not consider such an assessment would assist because there are issues in the parenting capacity that are fundamental and entrenched. They do not require an assessment in the home to be understood. They are manifest in who the parents are and their belief system about their own parenting abilities and the abilities of professional staff.

The parents consider it would assess whether they can care in their home. The local authority does not consider the assessment would assist the Court to answer any questions.

I agree with the children's guardian that what is proposed by Dr Farooqi has the quality of being experimental rather than addressing the core deficits in parenting capacity that the parents must address.

I acknowledge Dr Farooqi said she could not complete her assessment. However, the Court also has the evidence of the local authority, the children's guardian and others throughout these proceedings. The Court also heard from the parents and is able to draw inferences and make findings based on that evidence.

The timetable would be delayed but, in a sense, these proceedings are significantly past that point of being anchored to their statutory timetable. They are at week 151. I accept fairness must come ahead of the strict application of statutory timetables.

No costs have been particularised.

Fairness must be at the heart of the Court’s decision. Ms Thind emphasises that fairness requires such an assessment because:

I turn to evaluate G's welfare interests on the application for further assessment.

The Court could place G with his parents for visits and a gradually increasing assessment in the home on an interim basis. To his advantage he would be with those who love him, have a sense of connection and belonging with them. He would gain peace from being with his family, hearing a familiar language and experience familiar sensory experiences which I am sure he loves. We would, as a matter of fact, see how the parents conduct themselves in the family home.

There are disadvantages of a placement as proposed on an interim basis. I do not judge the parents could meet G's needs, even with the identified amelioration and support. It is very likely G would suffer a high level of harm. There would likely be a high level of disruption to usual weekend routines. I judge it would take G a substantial time to build up to what is proposed.

The ongoing separation of parent and child is of itself a serious harm and were the Court to permit an assessment it would enable there to be greater time between G and his parents. If he remains where he is now then he will be with carers who meet his needs. He will have his established routines and maintain ongoing relationships with his parents during family time. It is not lost on me that G remaining where he is of itself carries with it serious harm. He experiences high disruption in his placement, including changeovers of carers, different carers and the impact of the other child in the placement with him.

I further refer to the Court’s analysis in the No.1 judgment.

Having weighed all these considerations and focusing as the Court must on fairness, the Court must refuse to place G with his parents under section 38(6) because:

I am is affirmed in this conclusion by the prospects of this proposed exercise yielding fruit. Ms Thind submits that there are "too many positive indicators" of good prospects. I respectfully disagree. Not even Dr Farooqi, when asked, could confirm that there are realistic prospects. She was asked by Ms Thind how optimistic she is that this will be a successful assessment and Dr Farooqi answered,

The question was put a second time by Ms Thind because Dr Farooqi did not appear to answer Ms Thind’s question. It was still not answered in the affirmative.

"We will see", provides no evidential support for this proposed exercise having realistic prospects of success. This reinforced that Dr Farooqi’s recommendation was extremely poorly considered. Whilst Dr Farooqi tells the Court it is necessary for fairness, there is no professional (not even Dr Farooqi) who has told the Court this exercise has a realistic prospect of success. To embark on this exercise when the overall prospects are as poor as I judge them to be is disproportionate in that the harm that G will very likely suffer cannot be justified by the process being evidentially valuable.

The parents expressly concede through their counsel that there is no final order the Court can make that would be a realistic option to place G in their permanent care. The only realistic option before the court is a care order with placement in Spring Home.

That notwithstanding, given what is at stake and the draconian nature of such a result, I will nonetheless evaluate afresh the welfare option of G being placed in his parents' care under a care order as if that were a realistic option.

If the Court makes a care order placing G in the local authority's care and approve its care plan of him staying at Spring Home, G will have a care team who can meet his complex needs. He will be safe from the risks presented by the parents' inability to meet his needs. He will be engaged in an appropriate education. He has developed significantly on his own terms since he has been in care and he will be supported to develop into the future.

There will be serious negatives and disadvantages to G's welfare. The permanent separation of a child from his family under a care order is a profoundly serious, ongoing harm in and of itself. That is why Hedley J reminds the Court that nature cannot be improved upon (Re L (Care: threshold criteria) [2007] 1 FLR 2050 at [49]). The provision for G at Spring Home will be no replacement for his cultural and identity needs. Indeed, I would go so far as to accept that corporate parenting cannot meet them in any meaningful way and that the substitutions proposed in the form of attending mosques, the parents bringing food and music being played, do not come close to replicating the experience he would have in his parents' care.

G would be at the hands of institutional and corporate parenting which experience informs the Court can be bureaucratic and slow moving. Whilst G's carers do care for G, I accept deeply, that care represents no substitute whatsoever for the love of his parents. Such an order would deny G any opportunity to be raised once again in his family unit.

There may be a stigma to G of being raised as a child in care, although I consider it unlikely he presently perceives that given the complexity of his needs. He may later in his childhood and in his adult life be faced with that stigma. Spring Home is a place where G is subject to significant challenges to his needs and where he is triggered and experiences high levels of dysregulation which is harmful. The person he lives with appears to have diametrically opposite needs to G's. When CW puts the lights on, G wants them off. When CW wants to play noisy devices, G struggles with this noise. The other resident screams, described as being like hearing a child killed. Thus, it cannot be said he is in an environment that is anywhere near being perfect for him and I accept he will likely suffer regular dysregulation in Spring Home.

There are inherent risks of the placement breaking down in light of the complexities of G's care needs and the risk of growing tensions in relationships. The harm to G of losing his placement would be profound, as if taking him to “another planet”. It would cause the inversion of his world, significant disruption and, as I sit here, I do not know where he would go. That is a risk to G which I do not take lightly.

G has experienced and will experience many carers over his time there. That inconsistency will be disruptive, unsettling, and cause him harm in the form of dysregulation.

If the Court permits G to live at home under a care order, he would be with his family unit and be surrounded by their deep love. He would have the smells, sounds and experiences of his family home that bring him peace, comfort, pleasure and help him avoid dysregulation. His cultural and religious needs would be met and alongside him being with his parents, he would have a care team that would support him whilst he is with them.

The local authority would hold parental responsibility and be in a position to determine G's care needs, what support is required for him and manage him carefully. This would be such a case that would meet the test of exceptionality described by the Court of Appeal in JW (Child at Home under Care Order) [2023] EWA Civ 944 to justify a care order with placement at home.

There are, however, significant disadvantages that would flow from making a care order on the basis that G lives in his parents' home. I judge the parents would quite quickly drift from implementing the advice of professionals in preference for their own views. I judge the mother would likely resume a significant role in caring for G because the mother's view as to the necessity of her stepping back is not one which she accepts or understands. G would likely suffer all the disadvantages described in the Court’s evaluation of the application for him to be assessed at home under section 38(6).

The disadvantages of a final care order on the local authority's plan are profound and enduring. It is not the Court’s task to look at the local authority's proposal and measure it against whether it would be better than the parents' care or whether G would develop better in Spring Home, because a final care order on such a plan must be necessary and the Court must be willing to tolerate harm and imperfections resulting from parental care for the reasons outlined by Hedley J in Re L (Care: threshold criteria).

In my judgment, a care order and approval of the local authority's plan is necessary. It is a proportionate response to the risk of significant harm that G faces if he is in his parents' care, which I judge cannot otherwise be ameliorated. The harm that G will suffer by remaining in local authority care under its plan is outweighed by the greater risk of harm he faces if the Court does not make that order. There is no other order that can achieve that end. It is in G's best interests.

For the reasons given, the Court refuses to adjourn these proceedings or exercise its case management power to direct further assessment of the parents. The Court approves the local authority’s care plan.

That is the judgment of the Court.

The Practice Guidance: Anonymisation and Avoidance of the Identification of Children and the Treatment of Explicit Descriptions of Sexual Abuse of Children in Judgments intended for the Public Area (December 2018) issued by the President of the Family Division (“the guidance”) advises the Court to “consider” and guides as “recommended practice” the naming of (Court appointed) expert witnesses, including where there is criticism of their work.

The guidance states with respect to expert witnesses:

An embargoed draft of this judgment, which was prepared with the aid of transcript, was circulated to the advocates. The Court requested the child’s solicitor, Ms Davis, provide a copy to Dr Farooqi, alerting Dr Farooqi that the Court was considering publishing the judgment without anonymising her name and inviting her comments.

Four emails were received from Dr Farooqi via Ms Davis. Dr Farooqi first remarked on the Court’s observations that were addressed to two publications on social media made after the conclusion of the hearing, which were addressed to me. Those observations are omitted from this approved judgment.

In addition, Dr Farooqi wished known her complaints: (1) that she was not provided with written questions by the parties; (2) that she was asked [by the parties, not the Court] to give evidence remotely which is not her practice or preference; (3) that the positioning of the technology in the court room was not adequate and meant she could not see who was speaking and when, and the sound of interpreters could be heard; and (4) about the Court’s conduct of the hearing during her evidence. Dr Farooqi concluded, “I would be grateful if this could be forwarded to the Judge. If this judgment is published I will be making an official complaint as I do not think I was treated fairly.”

Dr Farooqi advised she had only a matter of days or a day to respond to the Court’s invitation for her to comment. The Court therefore waited a further 4 weeks for any additional comments before publishing the judgment in the event Dr Farooqi wished to comment further. No further comments have been received.

The Court has considered Dr Farooqi’s comments and complaints carefully and they are summarised here so that they can be read alongside the Court’s conclusions. It is to be noted that no comments were addressed to the Court’s criticism of Dr Farooqi’s analysis and the work undertaken. The Court concludes it is in the interests of justice for the judgment to be published in this form.