L (Parents with disabilities) (Threshold), Re

This judgment concerns L, a very young girl. Her parents are M and F, they are married and although under stress, they are both committed to remaining together. They hope to improve their present difficulties with the assistance of mediation once these proceedings have concluded and stresses are reduced. L is a much loved child, by her parents and also her grandparents. She is healthy, happy and settled in placement with her paternal grandparents and spends regular time with her parents. She smiles easily, is generally quite placid in nature and likes the company of others. She is starting to explore her world and her communication is developing.

This is a very long judgment. I make no apologies for that. This is a very complex and difficult case. This bundle has in excess of 1500 pages and until a short time before the final hearing the matter remained fully contested with a 10 day hearing listed. It was mistakenly believed that the parents had physically separated (the father had vacated the home prior to the Ground Rules Hearing/Pre-Trial Review, apparently intended to be temporary) but certainly their positions in these proceedings diverged shortly before the pre-hearing review and this has had considerable impact upon subsequent events. Following what I expect was a great deal of challenging work by advocates and professionals alike, the mother’s position also changed to be one where she initially no longer sought to challenge most of the evidence or threshold and then finally to a position not to challenge either. It is clear that the mother has only agreed to the plans with considerable reluctance and indeed seemingly on the basis that they are to be short term only. There still remains limited evidenced acceptance of the concerns of any of the professionals as to risks to L and the realistic options for her care on the part of the mother. I express the hope that mother now fully supports the placement of L with the paternal grandparents and positively acts to support this, as she has indicated a wish to do in her final evidence. It is important that the mother accepts, in very simple terms, that solving the housing issue and successful mediation are, alone, not reasons for unravelling the plans which have been made; they are only small parts of a very complex future picture.

The parties have now agreed threshold in a form which reflects the gravity of this case and I accept that this is sufficient to establish threshold under s31(2)CA 1989. They are also agreed that L is to remain in the care of the paternal grandparents, albeit that the potential duration of that placement is not set in stone. Many of the incidental matters relating to the care plan were not fully agreed until the first day of the hearing but are now set out in an agreed placement plan. The mother still seeks rehabilitation at the earliest opportunity and I sadly anticipate that there may well be further litigation in this matter in the future. It is important and I consider that it is vital that I set out fully and in detail my reasons for approving the outcome of these proceedings.

I am invited to approve the plans as drafted. The welfare of the child requires the Court to be satisfied that those plans are in the child’s best interests and I intend to express my reasons, relying upon the evidence filed in the case which is now unchallenged, for approving those arrangements. I intend to survey that evidence to provide clarity as to my reasons for accepting that placement with mother is not a realistic option at this time and that the long term placement plan for the child of placement in foster care with the paternal grandparents is in the child’s best interests for the foreseeable future. I have read and taken into account all of the evidence even if not specifically mentioned.

This judgment is structured as follows:

The proceedings before the court are the Local Authority’s application for a care order.

Proceedings were commenced shortly after L’s unexpectedly early birth (a planned c-section had been arranged) and prior to her discharge from hospital. Prior to L’s birth it was intended for there to have been a period of pre-proceedings to assess whether and how parents could care for L. The reasons stated by the Local Authority for seeking an urgent hearing at the time were:

The matter was listed before me and I made an Interim Care Order with placement of L with her parents supported by family members pursuant to s38(6) Children Act 1989 by agreement. There were additional initial directions and a case management hearing was listed.

The Local Authority then made an urgent application for which was heard in my absence by HHJ Pates on the same day. The basis of the application was that the arrangement had broken down due to the paternal grandparents no longer feeling able to support the placement and raising concerns about the maternal grandmother’s behaviour within the household which led the Local Authority to be of the view that L’s safety demanded immediate removal into the care of paternal grandparents at their property. With the benefit of legal advice, an agreed position was reached whereby L would stay with her paternal grandparents until the next hearing on a few days later when the court could properly consider the issues. The paternal grandparents would bring L for contact with her parents at their family home each day until the hearing on the strict understanding that maternal grandmother was not present in the home.

At the next hearing it was agreed that until the court considered matters at the CMH in a few weeks when an assessment plan would have been formulated, L would remain living with her paternal grandparents who had been positively assessed pursuant to Regulation 24. The paternal grandparents would bring L for contact with her parents at their family home each day for a minimum of 3 hours on the strict understanding that maternal grandparents were not present in the home.

Prior to the CMH a consent order was submitted following an advocates meeting. This order timetabled the matter through to a Further CMH on in 3 months when the court and parties would have the benefit of reports from an occupational therapist, various kinship assessments and an ISW parenting assessment.

The FCMH did not proceed due to various issues arising including the Local Authority seeking to raise extensive questions of the ISW, the mother’s updated Care Act Assessment being delayed and being needed by the ISW, and the maternal grandfather seeking to file evidence. Consequently by consent order a further hearing was listed for the following month.

Prior to that hearing the Local Authority submitted a consent order for re-timetabling and the mother sought an urgent hearing. Consequently the Local Authority sought further re-timetabling due to delays in concluding the mother’s updated Care Act Assessment, which was considered to be pivotal to further planning for L with all further directions flowing from that assessment; a consent order was made vacating the next hearing, relisting this on about a month later. Further directions were given including extending time for the maternal grandfather to file his evidence, responses from the ISW and position statements by all parties.

The matter was timetabled through to an IRH. An amended Threshold was supplied. At that hearing it was clear that there would be no agreement, accordingly this final hearing was listed for 10 days, flexibly as a hybrid or attended hearing due to potential participation issues. The court was concerned to avoid any further delay given the matter was only to be listed in late January and sought confirmation that if any party sought further assessment they should do so that day, and not at the final hearing. The order from the IRH records that “The court sought and received confirmation from each of the parties today that on the basis of the professional conclusions before the court (and subject to any change in recommendation which may arise at final hearing), no further assessments need take place to enable the court to make a final decision about L’s welfare.”

I am grateful to all of the advocates and professionals for the careful, sensible and sensitive way in which this hearing and the proceedings as a whole have been conducted.

The parents live in a privately rented, adapted bungalow. Mother has a service dog who helps her around the house and provides her with emotional support. The parents were married and the following year they moved into the bungalow. Mother's package of support is funded by direct payments. The maternal grandmother manages the direct payments and receives a carers direct payment for 4 hours a week to enable her to do this. She manages a team of PAs and has appointed a Senior PA to manage the rota. In the past there has been some difficulty in the relationships between staff and the care provided because not only were they providing support for mother but also for father. There have also been staff vacancies.

Father has Cerebral Palsy and a hearing impairment and he was assessed in 2022 when he met the criteria of the Care Act but he stated that he did not feel he had any care and support needs that required input from social services. At the time of the mother’s updated assessment in [date] 2023 it was evident that he continues to receive some support with cleaning/shopping and cooking tasks. He has learning difficulties associated with cerebral palsy. He finds processing of information and sequencing of tasks very difficult. He has restricted vision in one eye. He has had some left sided paralysis, weakness to his body (mainly left foot and ankle).

Father is supported by mother in many areas including finances, health appointments, friendships and relationships, emotions, understanding information, reading, making appointments and attending, cooking processes and nutrition, shopping, communications and administration, protecting father from cold callers. The mother’s PAs support him with maintaining the home (cleaning and tidying) and laundry etc as despite being shown repeatedly how to do this, he does not do so to an acceptable standard. He is very easily distracted. He has refused assistance and initially declined to have an advocate.

Father’s typical day/week is described in his CAA of 2022 thus:

Full details of the mother’s medical history are set out in the mother’s various Care Act Assessments (CAA) and social work based assessment/risk assessments in section G of the bundle which confirm that she has multiple severe physical disabilities and receives a 24 hour package of care via Direct Payments, funded by the Transition Team. From age 25 she has been allocated to the Adults Community Team. She has the following conditions: Athetoid Cerebral Palsy affecting all 4 limbs, Dystonia (uncontrolled and sometimes painful muscle movements, spasms) (NHS 2023), extreme tiredness and exhaustion and in the past she has been hospitalised with severe Status dystonicus, and diagnosed with Ehlers Danlos Syndrome (inaccurately). She has quadriplegia, gross and fine motor skill difficulties, is a wheelchair user, suffers from fibromyalgia, diverticulitis and anxiety.

Mother is able to communicate her views and wishes verbally and is confident in expressing her needs. There are no concerns about her capacity to make decisions about her care and support although there are times that she experiences tiredness and pain and her ability to communicate at these times can reduce. Her disabilities make verbal communication difficult for her. Mother has an Advocate called LK. Her diagnosis of Generalised Anxiety Disorder can lead her to misunderstand information.

She is described as a thriving ambitious young woman, she had previously been working 10 hours a week, learning how to drive and striving for a career as a basketball coach. She had achieved a GCSE in English and in the same year achieved a Distinction in Sport Performance at college.

Mother receives 105 PA hours for daytime support and 63 PA hours for night time support each week. She needs 1:1 PA care and support in almost every area of her life and has 9/10 PAs working with her.

A referral for a pre-birth assessment was made by the Safeguarding Team at the [named] Hospital to Children’s Services in light of mother’s severe disabilities and her pregnancy.

In mother’s 2022 CAA her typical day/week was described thus:

Mother has also been subject to several Occupational Therapy Assessments including one in preparation for the birth of L, specifically to explore ways of supporting her to parent L when born and to inform any Pre-Birth Assessment. The others were for herself and housing needs.

A pre-birth assessment was completed shortly following L’s birth; a Family Group Meeting had taken place earlier to discuss potential support. The assessment confirmed that mother had been working with her Occupational Therapist to look at suitable equipment and she was well organised. Father was less organised. Initially the 6 month plan was for maternal grandfather to fund a caravan on the driveway for the PA and to use other existing staff. (The property has only 3 bedrooms). Father would then care for 2 days and 2 nights when he was not working and a maternity nurse would stay in the house for 6 days in every 8 day cycle. Ideally the parents wished for a second PA at busy times such as shower time, bed time or meal times. 24/7 care would be required for L. The Local Authority encountered difficulties working with the maternal grandmother.

The information held by the Local Authority gave rise to significant concerns in relation to mother’s ability to meet L's basic physical care needs. This was not disputed by mother, she showed understanding of her limitations. Father had deep seated anxieties relating to his own family background, his experiences of education, and his own day to day difficulties as well as “regarding his ability to complete tasks such as food shopping, reading recipes, prioritising calls etc. This raises concerns regarding his ability to meet his daughter's needs without support. In addition, hospital staff also raised concern regarding his ability to afford basic care towards his daughter and raised concern him being sole carer within the hospital. Furthermore, Maternal Grandmother also stated she had concerns surrounding F and stated he would be okay to look after L for 1 hour.” Ultimately, the plan became for L to be discharged home into the care of her parents with a 24 hour, 7 day a week care package that would assist in the care of L, supporting parents to parent safely. Prior to birth the family had engaged a company 'Nanny Plus' to provide nanny services to assist with L's care.

L was born early.

Plans were made by the extended family to support L at home with her parents with the assistance of a team of 4 maternity nurses providing 24/7 support. Until such time as that plan could be activated, it was proposed that the grandparents would take the role of the nurses and stay in the home. The hope was that the parents would provide the majority of the care with the wider support offering prompts and guidance. The Local Authority were concerned as to whether this would meet L’s needs. The Guardian visited shortly after L returned home and the plan was then working, with mother taking the lead. The Guardian had concerns about the potential for attachment issues for L given the number of people caring for her but was reassured that mother was clear on meeting L’s needs and the bond had started to develop. She considered, however, that it was essential that the father should also be present at home rather than working away. There were already tensions between the family and the Local Authority, particularly in relation to placing L’s needs first. It was clear that the family was emotionally invested in the parents looking after L and questions about her safety were difficult for all to deal with.

A working agreement was prepared which addressed the care arrangements on an interim basis and thereafter a care rota planned until the end of November.

The Local Authority had held concerns in respect of the maternal grandmother and her ability to engage meaningfully with them prior to care proceedings being initiated. This included concerns that she was attempting to control the plan and was failing to allow social care staff to engage with the parents. Following L’s birth these continued, including concerns that she had been dishonest and misleading, such as staging a video of L being fed by her mother to give the impression that mother could feed independently whereas the reality was that she had fed L only for around 10 seconds alone before L was removed. Further, she shared that it was her firm opinion that mother can, with support, meet all of L’s basic care needs whereas although mother tries to engage in things such as nappy changes or feeds for L, she would often stop and allow father to take over due to her movements not enabling her to do this securely. This raised concerns in respect of the maternal grandmother recognising her daughter’s limitations whilst also further raising concerns in respect of her ability to work open and honestly with the Local Authority for the best interests of L. Her behaviour also led to significant tensions with the paternal grandparents. In short, the Local Authority and paternal grandparents considered that she was taking over. Father also indicated that she took over and controlled matters and was hostile and abusive to his parents. His parents in turn were concerned that he saw mother and her care as his priority rather than L.

Sadly the support plan failed as the paternal grandparents indicated that they could no longer support the arrangements and the Local Authority sought removal. All of the family accepted that the situation was not sustainable. The parents wished for L to remain at home with independent support for them but there was no agreed package of support that could provide that service.

Active steps were taken to ensure that the parents could participate fully in these proceedings. After significant last minute changes, this final hearing was eventually reduced to be a fully attended hearing over 4 days but with evidence only on 1 day. The other days were for discussion/negotiations and submissions. Ultimately no evidence was challenged and the matter was agreed on the first day.

Both parents had the assistance of their advocates.

A Ground Rules hearing took place when detailed ground rules were set out and agreed for both parents. The father’s requirements were established following the psychological assessment by Dr O’Rourke and set out again in a position statement. The finalised ground rules as recorded in the order were:

The mother’s requirements as agreed and ordered were:

The Local Authority seek a final care order for L and for her to remain living with her paternal grandparents. She should have contact with her parents for a minimum of 5 hours each week, supported by family members although this will be subject to change as she grows up.

The mother did not agree that the threshold was crossed for the making of any order until a few days prior to the final hearing. She considered that it was unnecessary for the Local Authority to become involved in the first place. She maintained that she and the father could meet L’s needs with the help of her team of PAs and a full-time nanny service. She relied on the maternal grandfather’s offer to accommodate the parents and to adapt his rental property for the purpose of so doing. In the alternative, she took issue with the level of contact on offer to the parents as part of the Local Authority’s final care plan.

This changed to being a position whereby mother agreed to the making of a care order and for L to live with her paternal grandparents. However, it is clear from the mother’s final position statement that she still seeks rehabilitation at the earliest opportunity and sees the arrangement as only an interim measure, possibly short term, to be reconsidered as soon as housing issues have been resolved. There were also numerous issues still in dispute including contact arrangements and mother sought for a detailed plan outlining everyone’s roles and responsibilities even down to day to day decisions. I will address this later.

The father’s final evidence confirmed that he accepts that due to the family’s housing issues and the deficits in his own parenting skills (for which he would require further training), L should remain living with the paternal grandparents with L returning to the family home for weekends, supported by a nanny. He stated that he does not wish to live with the maternal grandfather and wishes not to lose their independence.

At the Ground Rules Hearing/Pre Hearing Review, father filed a position statement which confirmed that his position had changed and he no longer sought to challenge any of the evidence, did not wish to give evidence himself and considered that the only realistic option was for L to live with his parents with a care order and for there to be contact once or twice each week. He was deeply concerned about the impact of the proceedings on the whole family. He had moved out of the family home to his parents’ house the day before for a break.

Later he filed another final position statement which indicated that he was now considering the grandfather’s property as an option. It is difficult to truly know the father’s position as he has frequently changed his position and the evidence (including his own) suggests that he has been placed under pressure by the mother to align with her. In his final position statement he says “I accept it has sometimes been difficult for me to be honest with M as I don’t want to upset her”. Sadly, as a result of these issues, the father’s true wishes and feelings are not known and I have to approach his ever changing position with some scepticism.

The Guardian supports the position of the Local Authority. She has given much thought to the question of contact and hopes that contact can be extended to full days rather than limited to 5 hours, particularly when undertaking activity based contact and when L is more mobile.

At the start of the final hearing I was provided with a written opening from the local authority. This set out all areas of agreement and disagreement and the parties then commenced negotiations and discussions which ultimately led to agreement.

The Local Authority assert that the S.31 Children Act Threshold is met as a result of the following

This amended threshold was eventually agreed at the final hearing having been fully contested prior thereto.

The issue of the family dynamics is of particular relevance in this matter. Sadly there are chasms between them, with neither set of grandparents having any working relationship with the other and the parents caught in the middle. There are also issues between the parents themselves which have ultimately led to acknowledged difficulties at the time of the final hearing. They also have their own loyalties to their families added to the mix. Further there are then issues with the ability of the parents, particularly the mother, and the maternal grandmother to accept advice and work openly and honestly with the Local Authority. I have already addressed some of the issues which have arisen in the background section of this judgment. In the bundle is a detailed document entitled “Chronology of Tensions” which sets out considerable details about the issues and problems between the families and the Local Authority between over the 9 month period since proceedings commenced. The document was not challenged by the parents, nor was the updated information of continued tensions set out in the social workers statements. They make for troubling reading and it is clear that the paternal grandparents as carers for L are often under attack, mainly by the mother and her own mother but also by the father. They, to their credit, have seemingly not fought back and have clearly put L’s needs first. They have effectively placed their own lives on hold to care for L, particularly in complying with the extensive contact arrangements, which I am aware has been stressful for them.

There is also considerable evidence of disagreement and even hostility between the mother, her mother, and indeed the mother’s PAs and the social workers with advice not always easily or willingly received. Even one or more of the mother’s PAs (not identified which; she has up to 10) has been drawn into the disputes and on occasions challenged and attempted to over-rule the social worker’s guidance, with examples being over the use of Gaviscon and over feeding after a swimming session (chronology of tensions). It appears that there have been frequent comments made by parents and maternal grandmother in the presence of or to the social workers which criticise advice and the care given to L.

There is also evidence of disputes and an alleged power imbalance between the mother and the father. Father accepts this. The social worker considers that father does not stand up to mother if she disagrees with his views and he will “go quiet”. The father has consistently shared with Children’s Services, Adult’s Services, and his parents that he does not wish to care for L on a full-time basis and his preferred option is for L to live with his parents “during the week and come home with me at the weekend with support of a nanny”. This is a strikingly different proposal to that originally of the mother and has undoubtedly caused stress and strain in their relationship.

There is even disagreement between the parents as to the issue of planning for L’s birth. Whilst mother planned for a child and wanted to care for L on a full-time basis with the support of family and her PAs, father states that he adores L but he did not wish to be a father, he was not aware mother was planning a pregnancy and did not believe she could get pregnant owing to the medication she was taking. His main priority is to ensure he can continue to work full-time, this is imperative to him as he states it supports his mental health and he has worked hard to obtain his HGV licence which provides him with feelings of independence and freedom. He has expressed a hope to work across Europe in the future. That of course would mean much longer periods away from home.

These issues between the parents (and between mother and paternal grandparents) have sadly continued with the mother making a referral to Adult Social Care safeguarding alleging father was being exploited financially by his parents. This also revealed that the parents had a disagreement about how father spends his money rather than saving as mother wishes.

The issues between the two families are long standing and not purely as a result of L’s birth, care and these proceedings. Both sets of grandparents have had to contend with children with disabilities and they have supported them throughout their childhoods. It is clear that the parents have been given significant support for their whole lives and the commitment and encouragement by the grandparents to their respective children has been excellent, allowing them to achieve considerable success and independence in their lives. They are to be commended for this. However the strength of their commitment to their children may inadvertently have made it more difficult for them to accept the position of the Local Authority and the Court, that it is L’s interests which come first in this matter, not those of the parents themselves.

When the parents commenced their relationship and father moved to live with mother, concerns were raised by paternal grandparents that their son was a victim of financial abuse and that he was being exploited. It is documented this was investigated at the time and the allegations were dismissed with F viewed as having financial capacity, however it is noted that he has been exploited previously by others in the past. They were also concerned that their son was to become a carer for the mother; something that the mother has been clear that she does not want.

The Local Authority have always had significant concerns about the maternal grandmother’s behaviour and her role, and they consider her to be controlling and coercive at times. In the early planning stages she prevented Children’s Social Care from discussing matters with the parents and later gaining their views to establish a safety plan. It is set out in the first social work statement that “Maternal Grandmother (MGM) has stated she is ‘exhausted from keeping Childrens Services away from her daughter’. MGM requested that any discussion with parents is fully considered to ensure that it takes a positive approach and excludes words such as vulnerable, safeguarding, legal reps and legal meetings. MGM has also expressed her preference as to which social worker speaks to her daughter and when, and has requested on several occasions information via email correspondence and telephone that the LA go directly through her rather than the social worker contacting parents directly. During telephone conversation with the Team Manager, MGM was quoted to have said to prevent children’s social care from speaking with mother, she would contact mother and request her to block Children’s Services’ number.”

The parenting assessment of the maternal grandmother was ultimately negative, although complex and finely balanced. It has not been challenged. Amongst the reasons for its negativity were the competing priorities of her role in mother’s life as a carer and the potential for conflict if caring for L too. The maternal grandmother had always been and remains a significant support to the mother. The report highlights “Whilst there have been previous attempts by the MGM to step back from her involvement in the provision of M's care, this has not been sustained due to staffing issues. I accept that this is the position that the MGM hopes to get back to in the future, but at present, the MGM's role in relation to M's care remains a significant one. This leads to worries as to how the MGM would manage in future, should there again be gaps in staff availability to support M, or, if M's needs were to increase as they have done previously at times where her health has deteriorated.”. The assessment concluded that the MGM remained “focussed on M's needs, and this is perhaps understandable given the context of her involvement and support to M over the years. However, this leaves risks in respect of the MGM's ability to make decisions which are appropriate and in L's best interests, even if this were, in her view, to the detriment of her daughter.”

There is a detailed “family dynamics” section in the assessment where concerns are expressed as to her ability to deal with managing and improving family relationships and promoting L’s identity with regard to the extended family. The assessment also opines that there are difficulties for the Local Authority in working with her due to her own firm ideas and her view that the plans and court are wrong and the parents should be afforded the chance to care for L.

It is clear from the assessment of the maternal grandmother that not only is mother fully aware of the difficulties between the families but also her sister is aware of the problems, so well established are they.

Whilst the assessment was for foster care, these concerns remain relevant for the MGM as a support or back up for her daughter if mother was to care for L.

The quality of the relationship between the father and his parents has been compromised since he was around X years old when he met the mother and he later moved out of the family home to live with the mother and the maternal grandmother. The paternal grandparents found this difficult and had parental concerns that their son was being groomed or manipulated to be a full-time carer for the mother. Social care were contacted for advice and had no such concerns, father was happy.

Their assessment reveals that they too have significant concerns about the family dynamics with the maternal side of the family but also at times with the parents “some days are better than others, when family time goes well it’s okay but then it is really upsetting when the parents and maternal family are really disrespectful". Having tried to work with the MGM, they had come to the conclusion they could no longer do so without Local Authority support. Since the placement at home with the parents broke down, they have cared for L singlehandedly and taken her to contact with her parents five days each week for over a year. Their commitment has been in my judgment exceptional and has come at great personal sacrifice to them. They have remained committed to this scheme despite any conflict with others.

Their assessment noted that “the child's social worker is aware of the increased risk of allegations and lack of support from L's mum and wider maternal family and support of how this could be managed will be discussed in the care planning by the Local Authority, further to this paternal grandparents would be supported in supervision and through on-going risk assessments. There are tensions evident within the wider family and support necessary to improve such relationships for L’s benefit”.

Concerns about family friction are also set out in the evidence of the ISW Sophie King, which I will address later.

The family have all agreed to attend for mediation in an attempt to improve relations, but it was not considered appropriate by the Local Authority until the matter of these proceedings and L’s placement had been determined. I accept that was a correct decision, as mediation would have proved very difficult with bitterly contested care plans and there was a risk that it could entrench positions further if used as a battleground concerning placement. At the pre-hearing review I recommended that the Local Authority should now take steps to commence the process so that it could be in place and commence immediately following the final hearing. It would be vital for the mediation to take place as family support forms part of the Local Authority’s own care plan but would equally be relevant if L was to be cared for by the parents with support.

Given the long history of familial discord and the contested background to and within the proceedings, I fear that to achieve improvement will be a long, stressful and complex road to travel. It will require a very experienced and competent mediator. Indeed there are no guarantees of success and the personal and emotional impact upon the families during the process will be great. They will have to put aside their own thoughts, feelings and opinions and leave the past behind them. I suspect this will be very hard for the mother to deal with if she is not L’s main carer, her potential resentment towards the father for not supporting her and the parental family for “taking L away” may fester and create ongoing problems throughout L’s life if mature and child focussed positions are not assumed. This would be even more so in the event of permanent breakdown in her relationship with the father. Mother offers an olive branch in her final position statement and I commend her for this.

In my judgment, these problems with the family dynamics need very careful and planned support to improve and the timescales are not within L’s present timescales. Ms King, the ISW also confirms that she believes that the tensions and conflicts are not resolvable within L’s timescales. I do not criticise the Local Authority for delaying the start to mediation. It was not appropriate to commence this whilst the issue of L’s residence remained contested and undetermined, no proper mediation could be made or attempted without this being resolved. Accordingly, there has been, in my judgment, no failure by the Local Authority in this regard in not pursuing this earlier. I am satisfied that the plans for future mediation are suitable and will help to safeguard L as well as alleviate the family tensions.

These are within the bundle and summarised in the statements of the Team Manager for Community Adult Social Care Teams. His second statement confirms that between those dates, Adult Social Care had completed three Social Care assessments of the mother. One Adult Social Work Assessment (completed in line with the expectations and eligibility criteria contained in the Care Act 2014) and two Occupational Therapy assessments. The second of the two Occupational Therapy assessments includes an analysis of parenting needs. There are a number of annexes to the statement in section G of the bundle.

There have been six multidisciplinary team meetings. Three of those meetings were joint meetings involving representatives from Children’s and Adult Social Care. Additionally there were professional visits completed by M’s Adult’s Social Worker and by Occupational Therapists twice including an observation of M’s interactions with L.

The conclusions are usefully summarised in the case summary for the pre-hearing review and they are:

This assessment was prepared specifically for the purposes of these proceedings as an independent OT assessment of the mother, to determine her capability to care for L and to determine any intervention recommendations which she may require in order to adequately care for L. The report confirms that mother will require 24 hour support to enable her to participate in any daily care for L as well as the 24 hour support she needs for her own care. Her physical limitations impact upon her ability to care for L independently.

It is clear from the report that the parents’ home is not suitable. “The current home does not meet the needs of the family as M is unable to fully participate in caring for and supervising the care of her daughter, or herself. M relies on PAs to provide all meals, drinks and snacks. Required adaptations would be extensive and would take up the rear garden, leaving no area for her daughter to play. The property is privately rented. Any adaptations would require landlords permission and there is no assurance that the family can remain at the property if adaptations are completed. M has advised us that the landlord wishes to sell the property in the future.

The parents accept that their property is not suitable. Mother has filed a statement from her father which sets out an alternative, whereby she and the father could move to live with the maternal grandfather. I will address this issue later, it is not straightforward.

The assessment confirms that whilst equipment would assist in practicalities, no timescale could be provided for mother to learn techniques to care for L - “M’s physical abilities can vary from day to day. Her movements are unpredictable and uncontrolled. She has difficulties with both grading and force of her movements. M has long term needs which impact on her abilities to attend to her own daily needs, therefore it would not be possible to put a timescale on the Mother to learn to adopt safe techniques for caring for her daughter. As M needs full assistance for all her own needs, it is my professional opinion that she would require full support to care for her daughter and the ability to adopt safe techniques for caring for her daughter is extremely limited due to her physical abilities”

Father has been subject to two Care Act Assessments which confirm the following disabilities:

Again information is summarised in the statement of Team Manager for Community Adult Social Care Teams. Father’s assessment demonstrated that he has Care Act eligible needs in the domains of accessing and engaging in work, training, education or volunteering and managing and maintaining nutrition. Additionally, he appears to have eligibility in regards to carrying out any caring responsibilities for a child, though it is less clear as to whether this arises from his disabilities or from confidence in his abilities to parent L and the limited time he has spent with her.

Dr O’Rourke concluded that father’s tested IQ put him close to the cut-off for meeting criteria for Learning Disabilities. His educational history would support the view that he has some difficulties learning in a formal setting and requires support to take in and understand new or complex information. However, his adaptive functioning suggests formal testing may be an underestimate of his overall functioning. He lives independently and reports no difficulties on a day-to-day basis. He therefore did not meet the criteria for Learning Disability.

Considering his cognitive limitations, he would benefit from being ‘shown’ rather than ‘told’ and writing simple bullet points as an aide memoire for key information is helpful. He understands the relevant information, can retain this in order to make a decision and is able to weigh up information. He can communicate his views.

This was a long report, very detailed in some areas but nevertheless lacking proper evaluation in others, matters which were addressed in more detail in the response to questions. Ms King had also already undertaken a risk assessment earlier and she built upon that report whilst undertaking this assessment. I do not intend to summarise the report here save for the conclusions and recommendations at paragraphs 277 through to 279 when she recommended a reduction in supervision and a staged shared care plan for L followed by an addendum assessment.

The detailed recommendations were as follows:

“277

It is my view that parents should have the opportunity to be able to undertake as much of parenting of L as possible as long as this is safe and in line with her best interests. I do not believe that at this point in proceedings all avenues have been exhausted with regards to allowing parents and L that opportunity. I therefore make the following recommendations:

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In respect of teaching for F, I would recommend the following is undertaken:

•

General teaching with regards to childhood illnesses including symptoms and actions. This to include scenario based work.

•

Sessions to take place specifically with respect to the emotional impact on L of the potential for wider family conflict, a change in her circumstances and how it would affect her if she had too many carers meeting her basic care needs. Information in respect of attachment and the importance of this would also be helpful for F.

•

Prior to any extension of contact or reduction in supervision, F to have made clear of what is expected of him in terms of supervision, supporting M in caring for L and safe care.

Detailed questions were put to Ms King upon receipt of her report.

Prior to answering, Ms King revisited the parents and made additional enquiries with the family as well as further consideration of up to date documents including mother’s Care Act Assessment as detailed in her response. Again it is a detailed, but now a more robust, document with conclusions better supported by evidence and evaluation. Her recommendations changed as a result of her responses to the questions and her own further enquiries. She was satisfied that there had been significant change since her report was prepared and filed.

Concerns had increased within family time with regards to father’s ability to meet L’s practical care needs and to protect her. Concerns highlighted his lack of commitment to gaining the skills required. He was said to continue to lose concentration and spend time on his phone despite this being discussed with him. He was said to lack the ability to pick up on L’s cues, could not offer suitable care without constant prompting. Certainly he would not be able to look after her alone, all night. Sadly he had not developed his parenting skills as she had hoped. His parents were also of the opinion that he could not look after L alone. He lacked motivation to change his work arrangements and adjust his life to enable a shared care arrangement. She was concerned about father’s ability to supervise the mother and step in if he thought L was at risk of physical harm; he lacked the confidence to do so.

She was also concerned about the nature of the relationship between mother and father, with mother not listening to father’s point of view and he being conflicted and choosing not to have his say at all in order to avoid the consequences of fallout. This could lead to failure to protect L.

As a result of these increased concerns, she no longer recommended that contact should move to unsupervised.

Further, her suggestion of a shared care arrangement could no longer proceed due to a number of concerns including father’s position and the paternal grandparents withdrawing from the suggested arrangement due to concerns about the mother’s attitude to them, the parents lack of flexibility and friction. They did not consider that a shared care arrangement would be sustainable and it could break down. Concerns were also expressed about the family conflicts and hostility which had directly led to the paternal grandparents withdrawal. A shared care arrangement would likely create a situation whereby there would be constant conflict and differences of opinion with regards to L’s care and it would fail. Shared care was no longer a viable option and any overnight assessment was not appropriate. The involvement of the paternal grandparents had been integral to success.

Concerns were also expressed about the maternal family and its assessment of the mother’s capabilities, she considered that they were not always realistic. There were constant suggestions that mother’s PAs could help with L in the night which would not be appropriate since mother needs 24/7 support herself for her own care needs and she would need also 100% supervision when she was handling L. It was clear that mother was unable to carry out any physical care for L without support. The maternal grandmother was not a realistic option for support or supervision on a regular basis but the maternal family may be able to assist in facilitating some family time subject to further assessment.

Ultimately Ms King was not called to give live evidence and her evidence, conclusions and opinions were not challenged. I accept her evidence.

The assessment related to the home of the maternal grandfather with a view to the parents and L living with him and his partner. It provides detailed recommendations for changes to the property but it is far from straightforward. The summary reads: “The property visited is wheelchair accessible on the ground floor and as is, would not fully meet the needs of M and her family. Adaptations, as discussed above, could provide accessible bedrooms for the family and personal assistant/carer, and could enable wheelchair access to a kitchen, bathroom with level access shower and bath, and to a secure garden. If adapted, the space could enable M to participate in activities which she currently is unable to complete, due to physical limitations of the family’s current rental property, including parental care tasks such as bathing and food preparation”.

“The house is rented from the [name] Estate. Permission for any adaptations would need to be granted by the landlord. The property is not listed. An application can be made for a Disabled Facilities Grant to fund adaptations if there is an intent to live at the property and remain there for at least five years. M has passporting benefits and would not be means tested. The Grant will fund approved works up to £30,000. Other members of the household would be required to use the hallway and staircase to access the upstairs rooms and therefore privacy is not guaranteed.”

Throughout this matter, until his final position statement, the father has repeatedly made it clear that this is not an option which he is prepared to consider. He has addressed the issue in his final statement and in his first final position statement. He states that following any grant, “… the family would then have to remain at the maternal grandfather’s property for a period of up to 5 years. Unfortunately the father does not agree to this. The father is worried even if there was no condition of having to stay at the maternal grandfather’s property for 5 years he would be worried about the family losing their independence.”

Ms B filed 9 statements in total throughout these proceedings. It has been fortunate that there has been continuity since proceedings commenced, which sadly is less usual these days. I do not intend to address all of her evidence but as with all other evidence it has been considered and taken into account.

Ms B sets out at para 1 of her final evidence statement from July that she considers that “… all proposed plans have been fully explored… The Local Authority has made immense efforts to complete in depth assessments, this has included interviewing all M’s personal assistants, making enquiries with a nanny service, working closely with Adult’s Services in respect of parents’ Care Act assessments and exploring all available family support. The Local Authority prepared a support plan for the Court in order to explore what level of intervention and staffing would need to be in place to enable L to be cared for at home with her parents, and to ensure there was no stone unturned in considering all possible plans. The Local Authority concluded that whilst this support plan was not an impossible option, it was not one considered to be in the child’s best interests”.

She considers that placement of L with the paternal grandparents is the only realistic option and in her best interests for stability and safety. L is thriving in placement with her paternal grandparents and is settled, observations are positive. L would suffer significant harm if she were to be placed in the care of her parents, as the complexity of their own needs and understanding of risks and their ability to implement a child focussed plan is impaired. The Local Authority would need to share parental responsibility due to the ongoing complex family relationships and thus a care order would be appropriate. Additionally, a Care Order would ensure that the care plan for L’s living arrangements remained under continual review, including her family time arrangements and any future reassessments of parents.

She is balanced in her assessment and expands on the risk and protective factors and confirms that whilst she believes that the parents would never deliberately harm L in any way, there is potential for various types of harm due to many reasons. These include family tensions, tensions with professionals, lack of openness by parents, accidental physical harm, home conditions and delay if changes were to be made, multiple and changeable carers, lack of real understanding of concerns by parents, maternal family and by mother’s professionals, the parents relationship, mother’s staffing issues and changes (up to 10 carers for the mother alone), father’s employment and shift patterns and mother’s health and tiredness. These issues are expanded in the statement.

She accepts that the parents adore L, have welcomed assessments and been committed to L and family time whenever possible and have engaged throughout.

There is a consensus amongst all professionals that parents would require 24/7 support to enable them to care for L; such support would be in addition to the PAs already in place to assist the mother. As a result of this, and to ensure that all options could be considered, she drafted a support plan which is contained within the bundle at C407-410. This plan was not supported as a viable option by the Local Authority. The plan was prepared with input from the mother’s PAs who work, collectively, 24/7 to support the mother. A nanny would be required for L so that mother’s own care is not compromised. There were concerns regarding the PAs’ availability and high staff turnover which has historically meant that father has had to care for mother alone and how this would impact upon L. Discussions were held with Nanny Plus who recommended that a minimum of 5 nannies would be required with two handovers per day to support staff sustainability. This did not take into account holidays, emergencies and sickness. Ms B expressed concern that this would negatively impact upon even minor aspects of L’s routine which should not be undervalued, e.g. a different nanny attending to her during the night and L not knowing who she will be waking up to each day, thus adding to the instability.

The statement clearly shows that she has given considerable thought to the possible options for L’s care. These are fully addressed with detailed factors for and against. The running theme is that any scheme which is not placement with the paternal grandparents is likely to harm L emotionally. The effect of her being cared for by the parents (with support) would mean involvement with multiple professionals, a chaotic environment, her needs not being consistently met, ongoing parental conflict and the level of professional supervision and support would amount to “substituted parenting” for a long period of time, potentially her whole childhood until she is more self sustainable. It would not be in her best interests.

The same issues were relevant with the suggestion of L living with the paternal grandparents during the week and parents at weekends (albeit for a lesser time period) but with additional areas of concern such as competing different parenting styles, periods of stability followed by chaotic care, disrupted attachments and increase in family tensions. In any event the parents do not yet have suitable accommodation but of more relevance is that the paternal grandparents do not agree to this.

Ms B filed 2 further statements to deal with the developments and changes in the parents positions as well as updates since her last statement. It is clear from the statements that family tensions, between the parents themselves as well as the extended families and social workers, had not improved over time, indeed little had changed in that regard. Concerns as to the parents ability to care for L also remained evidenced including failure to accept advice and guidance. The paternal grandparents were still constantly subjected to criticism, mother’s position on caring for L was inflexible and sometimes inappropriate (examples being insisting on nappy changes on her lap despite L becoming more mobile leading to risk and refusing to allow contact at the paternal grandparents home when L was unsettled and distressed following immunisations), parents were reluctant to agree to holidays, father still used his phone when caring, lack of transparency with the mother and other issues. On one occasion the maternal grandmother sought to place L on mother’s lap in order to help to settle the mother even though not safe for L and father intervened. This is in my judgment clear evidence of the conflicted loyalties of the maternal grandmother and failure to put L first.

Sadly, the chronology provides evidence that realistically there has been little positive change on the part of the parents and maternal grandmother during the proceedings and indeed due to L becoming more mobile, concerns and risks have actually increased over time.

The final statement sets out a detailed parenting plan following the mother’s (reluctant) acceptance that L should remain with the paternal grandparents. This sets out in considerable detail what is expected of all the parties and in my judgment is comprehensive and appropriate. It is not for the court to micro-manage the care plan and indeed it will not be for the parents to do this once matters are finalised. The plan confirms that the IRO will keep L’s plan under review at a minimum of twice per year and also there will be care planning meetings every 8-12 weeks. Reassessment will be considered at each review on the basis of what is best for L as she grows.

Mother has filed 4 statements or position statements and a response to threshold. Until her final position statement she has contested the threshold and plans for L as well as much of the evidence and has sought immediate or swift rehabilitation. That changed with her final statement.

The contents of her statements are not always reflected in her behaviour, for example regarding the paternal grandparents. There is clear evidence from many sources that she is rude and critical of them and their care of L yet in her final statement she thanks them for helping and mentions nothing of her poor behaviour towards them or indeed apologises, as she does to the father. It is thankful that they have seemingly thick skins and a significant amount of patience.

In her position statement of [date] she states that she “fully accepts that she will require support in order to care for L but maintains that this can be accessed and easily implemented”. Sadly this over simplification of the realities and nature of support needed has been one of the issues causing considerable disagreement in this matter. It has proven to be anything but “easy”. Mother proposed initially that her PAs with 1 nanny, father at home sometimes and familial support would be sufficient. Her package, she says “would allow L to be cared for by her parents with minimum number of adults involved in her day to day care when father is at home it would be the parents only with the additional support from PA’s to assist the mother in personal care and housework and when the father is at work there would be the same nanny attending each day”. Sadly there is no evidence to support this, even if the families could work better together. The professional assessments point to much more significant support being required and of course the PAs are already occupied caring for the mother. The mother proposed that when the father is home, they would be the carers together, when he was not at home a nanny would assist, together with input from PAs. The father has simply not shown sufficient ability or inclination to care for L himself and the mother is physically unable to do most tasks for L. The PAs are employed on the basis of mother’s own assessed care needs and not to care for an additional completely dependent child. I accept that the mother truly believes that she can care for L with little assistance, but the reality is that she simply cannot according to the now unchallenged evidence, her position until recently was unrealistic.

Mother’s final evidence confirms that she accepts that “at the moment” L should be cared for by the paternal grandparents and that she intends to move to her father’s house when converted, settle in and then seek rehabilitation of L on a phased basis. She seeks a “proposed plan or timetable” for re-assessment. She also seeks extended family time leading to overnight stays. She also “desperately wants to work towards a situation where we can work together for L‘s best interest. I do not want L to have a “broken” family and grow up in the middle of conflict between the two sides of her family.” That is a commendable aim, but it is she in the main who will need to change and adapt her behaviour and show acceptance and respect for their role without ongoing and sometimes constant criticism.

The mother’s father has filed a statement which sets out that he is prepared to apply to have his property adapted for the parents and L to live with him and his partner, and he sets out the support he can offer. He relies on the Assessment of OT for the adaptations. He would also act as guarantor for any other rented accommodation.

The PA fully supported the mother’s previous position for caring for L at home. I am not sure if she is the same PA who has previously been involved in contentious issues with the social workers as referred to earlier but she has worked with the mother for some time so it is possible. She sets out the support she offers mother, emotionally as well as physically. They have a very close relationship and she is obviously and clearly very loyal to the mother but in my judgment, may lack independence and perspective and is more focussed on the mother’s needs than L’s. She is critical of the paternal grandparents suggesting for example “Some issues are very subtle, such as sending L to family time dressed in T shirts with comments on such as “daddy’s little girl” but never with anything relating to mum. Other issues are not so subtle, such as the invite to F to stay overnight on Christmas eve so that he could see L on Christmas morning but making it clear that invitation was not extended to her.” Such criticism is unfortunate and unbalanced, for example reading so much into a T shirt and in criticising them for seeing their son at Christmas when clearly the mother could not attend due to the familial conflict. She too needs to help support the mother in moving forwards in their discussions and refrain from any unnecessary criticism or involvement.

The father has not been clear regarding his intentions and future wishes within these proceedings. Initially he sought for L to return to the care of himself and the mother as soon as possible (first statement) and this remained the case in his second statement. In his then final statement he was wavering and contradictory, not mentioning any timescales and talking of weekends at home and then of weekends not being enough to develop his parenting skills. Although he conceded that L would have to remain living with his parents “for now”, there was considerable challenge to both the evidence and the threshold and criticism of the Local Authority’s historic actions. He was still very much putting himself forward with the mother as joint carers in the near future when housing and other issues were resolved. His position was, however, that he did not want to live with the maternal grandfather. He informed the Guardian also that he wanted L to come home when they have moved home. He also discussed the mother with the Guardian and blamed her for the issues with his parents, her criticising them “everything they do is wrong”. He admitted being under pressure from the mother. The Guardian stated that “There was a noticeable anger in his voice and it was very obvious that the tensions are having a big impact upon him”. There is no doubt that he loves both L and the mother despite these issues.

He has clearly suffered emotionally himself during the proceedings, being caught in the middle and this ultimately led to him and the mother briefly separating shortly prior to the hearing on 9 January, in order to have a break. Whilst at the home of his parents he filed a position statement confirming that he did not seek to challenge any of the evidence and should there be any narrow issues around threshold or contact these should be dealt with on submissions. He did not wish to give evidence. He remains working away from Monday to Thursday each week.

This was a dramatic change from his previous final statement where he was more challenging of the plans of the Local Authority and supported the mother. Given the concerns by professionals about the power imbalance between mother and father, the brief separation may have allowed him to speak openly about what he genuinely considers to be right for L. As he admitted being under pressure from the mother, this may have impacted upon his previous support for the mother’s position, concern for the relationship if he did not agree. Ultimately he moved out, albeit briefly.

Father’s position statement and the separation was no doubt a shock to the mother and indeed her legal team and they conceded that it had a dramatic impact of their presentation of the mother’s case.

Father filed a further final statement, having returned home to the mother. This addressed in detail the pressures which he is placed under by the mother. He reveals several specific occasions of such pressure and that he has not always been honest with her. He also reveals that he believes that an incident when mother took L to hospital was possibly an attempt by the mother to stop his parents going on holiday with L. Also in this latest statement is yet more evidence of vacillation by father. Despite stating specifically on several occasions throughout the proceedings that he did not want to live with the paternal grandfather, now he indicated that this was something which he would like to pursue. I query whether pressure is again playing a part in that decision. His statement clearly reveals the stress he has been under during these proceedings with conflicted loyalties between the mother and both sets of grandparents. He hopes that mediation will assist.

The father has found himself in an almost impossible position in these proceedings and I have genuine sympathy for him. He loves L, but taken at one end of the spectrum, the unchallenged evidence gleaned from his discussions with various professionals and his own final statements is that L was not planned, he did not believe that the mother could get pregnant, he did not want to be a father (at least at the time) and he does not wish to care for L full time, only for contact once or twice each week when he is not working. She should remain living with his parents. At the other end, he has tried to support the mother, willingly or otherwise. It is difficult, as I have stated, to know what he genuinely wants, for the reasons stated throughout this judgment. Only time will tell.

The Guardian has filed 2 reports and additionally 3 position statements. In her report for the IRH she clearly supports the application and plans of the Local Authority. It is a detailed and very clear report and in my judgment it balances the competing positions fairly. It is clear that Ms J, an experienced Guardian, has not simply accepted the evidence at face value but she has clearly formed her own opinions on the best plans for L.

She considered that the conclusions of the initial report of Ms King ISW were not supported by the assessment itself, by not fully addressing or (in my words) glossing over some of the problems which were more significant than Ms King had realised including family conflict and potential plan breakdown, particularly with the suggestion of shared care, and the father’s own views being not fully shared as well as his starting to withdraw even at that early stage. These are sadly recurrent themes in this matter. Additionally the plan was not truly for shared care but for L to sleep at the paternal grandparents and be with her parents when awake.

The Guardian considers that, “there is a careful balance to navigate in terms of supporting the parents to develop their skills and ensuring that L remains safe and that she has consistency and stability. It is likely that this balance is going to change significantly over the coming years. However, one factor that is consistently present throughout the evidence is that of tension and conflict. This is significant because M will need support to meet L’s needs and at this stage there is evidence that she struggles to accept advice and that this causes tension. There are examples of this through the chronology prepared by the Local Authority and through the contact log.”

In discussions with the mother, the mother revealed that she considered that it was third parties who caused tension, not herself. She also denied her relationship with the father was under strain. We now know that this was incorrect. In the Guardian’s opinion, mother struggled to see things from L’s point of view or consider how L might experience things because she has an unwavering belief that her plan is the right plan and that it will meet L’s needs.

Following the changes in position of the mother and the father the Guardian filed a final position statement. In my judgment this is an impressive, thoughtful and fair statement and considers the matter with L’s welfare at the centre. I accord with all that Ms J says.

She sets out that as L is growing, and “becoming more mobile, the demands upon the family time supervisors has increased. In my opinion, the evidence establishes that the gap between L’s needs and her parents’ ability to meet those needs, has widened.” Ms J notes the plan by mother for a possible move to the maternal grandfather’s home but confirms that the lack of suitable accommodation is not the main reason for her support for the Local Authority plans.

Her primary reason for not supporting rehabilitation to the parents’ care at this time is “due to the vulnerabilities associated with the package of support required. Those vulnerabilities include the risk of tension between professionals and M and the risk of staff turnover, the risks of physical injury and most prominent in my mind is the risk in terms of L’s attachment and the likely impact of this across her childhood.”

So far as longer term rehabilitation is concerned, “I do consider that rehabilitation could be a realistic option for L in the future but stress that this would be dependent on the assessment of her needs at the time.” She is clear that she does not consider rehabilitation to be a realistic option in the short-medium term and whilst she cannot set a time frame, she is clear that this cannot be before L is able to communicate and meet her own needs.

The Guardian also shares my concerns regarding the mother’s requirements for exercise of parental responsibility. In short, the mother sought to be consulted on most decisions regarding L’s care and exercise of parental responsibility. The Guardian confirms that there must be a balance and flexibility and it must be realistic. Day to day issues should be decided by the paternal grandparents. Ultimately these matters were agreed at the start of the final hearing with a Placement Plan.

In relation to contact, the Guardian’s position remains the same as her report in the main, namely for a minimum of 5 hours once each week but possibly aspiring for longer if activity based. She confirms that placement stability is important, L needs routines and the impact on the carers also must be considered; a balance must be made with flexibility where necessary. Again mediation may assist. The proposed plan was in line with L’s needs and was not detrimental to any issues of rehabilitation as these were neither realistic nor imminent at present. They could be reviewed if that became relevant.

Firstly, I have been very conscious preparing this judgment that the requirements explained by the Court of Appeal for a fully reasoned judgment mean that this court must be frank and clear in its analysis. That involves saying things which this mother and father will undoubtedly find difficult and distressing. It is however unavoidable that I have to set out in full my reasons for making this decision today.

If a Care Order is to be made the court first has to make finding[s] that the threshold set by s.31(2) Children Act 1989 is satisfied in respect of the children ie

S.1(3)(e) of the Children Act requires the court to take into account any harm which the child is at risk of suffering, not is possibly at risk of suffering.

In addition Section 1(1) provides that when the court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration.

It is important to underscore the particular importance in every case of the requirement to have regard to the general principle, set out in s.1(2), that any delay in concluding these proceedings is likely to prejudice the welfare of the child.

Section 1(5) provides that when a court is considering whether or not to make an order under the Act with respect to a child, it shall not make the order unless it considers that doing so would be better for the child than making no order at all. In public law cases this means that the level of state intervention should be no greater than is necessary in order to secure the child’s welfare.

The Court must also have regard to the Article 8 rights of each of the parents and of the child and must endeavour to arrive at an outcome that is both proportionate and in the child's best interests. In public law cases this means that the level of State intervention should be no greater than is necessary in order to secure the child's welfare.

I have given considerable thought as to whether this matter can be managed without any order, without state intervention and indeed whether the threshold can be considered to be crossed for the purposes of making any order. I have considered the relevant case law concerning the these issues including Re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, Re G (children) (care order; evidence of threshold condition) [2001] 2 FLR 1111, Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, Re J (Children) [2013] UKSC 9, Re B (Childcare proceedings: threshold criteria) [2013] UKSC 33, LCC v AB & Ors [2018] EWHC 1960 (Fam) and Re M (a minor) (Care order; threshold conditions) [1994] 3 ALL ER 298.

I am fully aware that the senior courts have emphasised that there should be a high bar for state intervention. That caution dates back to the decision of Thorpe J in Birmingham City Council v D and M [1994] 2 FLR 502.

Even if threshold is crossed for the purposes of making orders, this does not mean that the Local Authority or indeed the court should intervene, even in circumstances when the threshold is conceded. There are situations where a parent may be disabled and unable to provide day to day care for a child, but is able to exercise parental responsibility and make decisions, and in those cases, threshold will often not be crossed, such as in LCC v AB. The factual matters of this case are different in various ways, not least that there was agreement in LCC v AB that the children should be looked after by the Local Authority whether an order was made or not. Here of course, L’s future living arrangements remain contested. The Local Authority have had to exercise their parental responsibility in relation to L, to remove her to her paternal grandparents care, and to facilitate and arrange contact; in LCC v AB actual exercise of PR was never needed. Further the mother’s condition in LCC v AB was terminal, there were no other potential carers and the children were ultimately made wards of court.

There are cases where family members are able to step in amicably, and where it would be clearly inappropriate for the Local Authority to take public law proceedings. Sadly that is not the case here, this matter has been far from amicable and the family relations remain exceedingly strained, having been so for many years prior to L’s birth.

In a situation where the parents cannot provide safe care for a child and where no amicable and supportive family arrangement is feasible, it is wholly proper for section 31 of the Children Act to be brought into play. Indeed that is precisely the purpose of S.31, to protect children who are at risk of significant harm due to the inability of a parent – whether due to their fault, or due to no fault of their own.

Of additional relevance in this matter are the issues of the parents’ personal difficulties and disabilities and the law and guidance in relation thereto. Special measures were employed throughout and the use of Advocates has assisted parents and everyone involved including the court. I am grateful for their assistance.

The Human Rights Act is relevant and I have considered the relevant parts and taken them into account in coming to my decision and conclusions. The Local Authority, and indeed the court, are required to take account of the parents rights under the European Convention on Human Rights including working with families and children in ways which are consistent with the right to respect for their family life and making sure that decision-making processes are fair and involve children and parents.

Since the parents have disabilities, they are protected from discrimination by public bodies and other organisations providing services to the public. This protection is provided under the Equality Act 2010 which I have considered within this judgment. This means children’s services and adult services cannot discriminate against a parent or carer because they have a disability.

Public bodies must make “reasonable adjustments” when providing services to disabled people, this is to ensure they are not put at “substantial disadvantage”. “Reasonable Adjustments” are case specific, dependent upon the individuals’ needs. The assessments by the experts have specifically considered these reasonable adjustments.

I am satisfied that the Local Authority has conducted this matter fully in accordance with the Convention and that their processes have been fair. In my judgment, they have not discriminated against the parents together or individually) due to their disabilities.

I have considered the Good Practice Guidance on Working with Parents with a Learning Disability 2021 and the guidance from the Advocates Gateway.

I have considered the case of A Local Authority v G (Parent with Learning Disability) [2017] EWFC B94, which although only a decision of a Circuit Judge and not therefore binding, highlighted the importance that all families in which one or more of the parents has a learning disability are given the support that they require to be able to care for their children. It provides some useful commentary.

I have considered in particular Re H (Parents With Learning Difficulties: Risk of Harm) [2023] EWCA Civ 59. I accept that here the mother does not have learning difficulties in the more common sense, but the father does have learning difficulties and I agree with the Guardian that they are analogous to the difficulties these parents have with their physical health disabilities. In Re H the court of Appeal confirms that the correct approach is firstly to identify and describe the level of support needed by the family, secondly to ascertain what can and should be being done under the Local Authority's obligations, and thirdly to determine whether, with that in place, the child's welfare needs will be met. This involves a careful assessment of what the package would look like, how practical it is and how intrusive it would be for the child.

This case differs from Re H in various ways, even taking into account the different facts. For example, in this case, the evidence shows that there is no amount of education or teaching work which would enable the parents to care for L fully without 24/7 assistance. It is not an issue of failing or not having tried to support the parents, the evidence from all of the professionals is clear that it would not work and it cannot be and is not therefore appropriate and necessary and in the best interests of L for it to be tried and fail. Sadly the parents’ ability to meet L’s needs is not likely to change for a considerable period of time, even if issues such as suitable housing and practical equipment etc had been resolved immediately. It is not a case of looking at individual issues but the whole picture must be considered. Further, I am satisfied that the process of assessing any package, its practicalities and the effect upon L has been carried out by the Local Authority and considered by professionals and the Guardian and I accept their evidence.

Risk of harm must of course be established not on the basis of possibilities but on proven fact. The initial threshold at issue is based upon the likelihood of future harm (physical and emotional) to L as a result of both parents’ disabilities, neither being able to independently offer safe and consistent care to a newborn baby. At the time that proceedings were commenced, much less information was available than now in relation to the concerns held by the Local Authority about the parents ability to care. The final threshold is much longer and more detailed. The Local Authority rely on Re G (Care Proceedings: Threshold Conditions) [2001] 2 FLR 1111 to rely on events occurring since 26 October 2022 which are capable of proving the state of affairs at that date. At the time of issue, the evidence showed that the concerns were instantly the parents ability to care for a new born baby, the issues with the families, particularly the maternal grandmother as barriers. In my judgment the threshold has not changed in nature but has merely become more detailed and expanded due to the evidence and is entirely compliant with Re G. I am satisfied that the risks in the present final threshold all existed at the time of the initial threshold.

The Local Authority has also referred me specifically to the following guidance :

I have had regard to all additional relevant authorities in which guidance has been given by the Senior Courts.

I will briefly assess the most pertinent issues here although L’s welfare has been my paramount consideration throughout this judgment and I have addressed many of the welfare considerations earlier in this judgment and later in my additional analysis.

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) her physical, emotional and educational needs;

(c) the likely effect on him of any change in her circumstances;

(d) her age, sex, background and any characteristics of her which the court considers relevant;

(e) any harm which she has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting her needs;

(g) the range of powers available to the court under this Act in the proceedings in question.

I have performed an analysis throughout this judgment but I will expand upon some issues here.

Unfortunately, due to the complexity of the circumstances, the necessity for further assessments as L grows and ongoing changes for the parents outlined within the Adult’s Services care plan, it is not possible to suggest L does not require significant ongoing input from Children’s Services, and so sadly, at this time, she cannot be afforded a private family life without the interference from the Local Authority.

As I stated earlier, threshold is crossed in this case and agreed as such. The simple fact is that if there was no intervention and an order was not made, L would not have the care from a parent which it would be reasonable to expect a parent to give. The reason for that is that the mother and father, through no fault of their own, just cannot provide it without support which is of such a level that the impact upon L would be extremely harmful to her emotional welfare. Equally it is highly likely that as a result of the parents lack of capacity to provide the care which it would be reasonable to expect a parent to give, L would be likely to suffer significant harm in the future if an order were not made.

I agree with the Local Authority and the Guardian that the conclusions of the initial report of Ms King ISW were not supported by the assessment itself and of course the recommendations changed when questions were asked and updated information provided. Sadly these initial conclusions and recommendations have led to considerable confusion and no doubt raised the hopes of and upset the parents who sought to rely on them. The questions raised by the Local Authority and others which changed Ms King’s recommendations have led, I consider, the mother to feel a real sense of grievance and sadly to place the blame for the changes at the door of the Local Authority. She does not accept why contact was not extended as the original recommendation suggested and feels a sense of injustice. This may well have damaged her view of the Local Authority and made an already fraught working relationship worse. From what I have read about the mother she appears to be a very strong willed young woman with clear opinions and she does not take advice lightly if it goes against what she believes.

I accept that the decision which mother has now taken not to challenge the threshold and main plan is a very brave, significant and child focussed decision and I give her considerable credit for doing this. It will have been a very difficult decision to make, but it was the correct one, the outcome of a contested hearing looked to be inevitable, and she has saved herself considerable heartache by agreeing to the plans instead of listening to all of the evidence in court. I express the hope that she now becomes fully supportive of the carers’ efforts to look after L and gives them the respect to which they are most certainly entitled. Mediation will assist but there needs to be a significant shift in the mother’s position towards the carers for it to be successful. It is not simply a matter of different parenting styles but of allowing them to look after L without constant scrutiny and being accepting of their knowledge of L’s day to day routines and what may be best for her at the time. I fully accept that this will be difficult for the mother who is strong willed, holds strong beliefs and is not hesitant in expressing these. Sometimes it may help not to do so, however hard that may be. It is also vital for the mother to listen to the father’s voice and opinions and give him respect for these.

The mother’s case changed dramatically following the ground rules hearing, her brief separation from the father and the father’s change in position. Prior to that she had firmly sought rehabilitation and challenged much of the evidence. In my judgment, her change of position is not as a result of accepting the evidence and concerns of the professionals but as a result of the father’s position and acceptance that housing needs were not met in a manner suitable for L. I remain of the belief, due to the nature of her final position statement, that she does not truly accept that she cannot care for L and she intends to seek rehabilitation as soon as she has moved house and settled, suggesting this may be a few months. Sadly such a position is wholly unrealistic and it is important that I set out why I and others consider it so within this judgment, I have attempted to do precisely this although I have not addressed all of the pertinent evidence in detail. Any such attempt to change the plan at an early time would likely fail and cause distress to everyone involved in the case and may even destabilise the placement with the grandparents leading to a less positive option, namely stranger foster care. The mother needs to be realistic and accept the decisions which I and others have made as being in the best interests of L for at least the short-medium term until L is older, more independent and more resilient.

Mother’s suggestion that the housing issue could be resolved within a few months is unlikely to be realistic in any event, even if this was the only issue. It is merely hypothetical at this time. The grandfather has not yet even contacted his landlord to enquire about changes to the property. There will be a need for consent and then if granted for detailed plans to be drawn. Following that it may be necessary for planning permission to be granted and the intricacies of that process can take a significant amount of time to be resolved with potential challenges, changes or even refusal by the panel and a need for appeal. It is then likely to be many months before any work is completed. In any event, I will be very clear for the benefit of the mother and father. Housing is only one issue in this matter. Solving that issue alone is not in my judgment a suitable trigger for reassessment for rehabilitation. There is also, of course, a real question as to whether the father would actually agree and move into the property in any event given his vacillation.

The issue of L’s attachments and linked harm is not something which, in my judgment, has been truly accepted or considered by either of the parents. In the father’s final statement he goes some way to accepting that there may be an impact but even then he seeks to minimise the impact and is unrealistic: “I would like to say that there would need to be multiple nannies involved in supporting M caring for L but presumably this would be a different nanny each day and there wouldn’t be multiple nannies there on the same day.” The evidence from Nanny Plus within the social worker’s statement is that there would need to be 2 handovers each day so a minimum of 3 nannies each day with 5 nannies in total, not taking into account holidays and absences etc. Although presently the mother does not challenge the plan, I do not accept that she has truly accepted the concerns of the Guardian and others and she does still seek an early rehabilitation. I have considered her position in her final evidence, which is relevant as this would likely be the basis for her plans for her challenge at that time. Mother accepts that with L at home, there would be up to 10 individual PAs involved at the home, an unspecified number of nannies (say the 5 suggested by Nanny Plus) but I have not seen anywhere in her evidence an acceptance that this could affect L emotionally or destabilise any attachments. From her statements, mother seems to consider that by being there she would be the primary attachment figure but this is not always possible when the physical care and immediate response has to be undertaken by others. Unless I have missed any specific reference to this issue of attachment it is simply glossed over. The effect of damaged attachments is clear, supported by evidence and is life-long. It is widely accepted that attachment is fundamental in enabling a child to reach their full potential. Children require a primary attachment in infancy to enable them to feel safe and comforted and it is a practical process as well as emotional.

L is growing up and able to move around now, this will develop further soon when she tries to walk and she will require very close supervision and indeed support to develop these skills. Sadly the mother would not be in a position to offer anything other than very limited assistance or verbal guidance. There are other physical risks which mean that she, as any small child, needs an adult to be completely available physically to supervise and respond to prevent harm and support development and learning, such as choking hazards etc. This is required to ensure that L continues to meet her developmental milestones as she is presently and for her to remain physically safe, but also to ensure that she continues to develop secure attachments in the ongoing stages of her early development. The involvement of 5 changing nannies and up to 10 changing PAs undertaking most of the physical training and care will certainly have an adverse effect upon this.

I am satisfied that the Local Authority have carefully evaluated all potential options for L being placed with parents at this time and have taken into account all relevant matters. In my judgment they have investigated all potential services which could support the parents and provide safety to L, both physical and emotional, if she was to return home to her parents. The evidence supported the Local Authority’s position even prior to the fractures in the parents’ positions and relationship issues but without the father being fully committed it is now even less balanced. There remain real questions about the father’s full commitment to caring for L.

The Local Authority’s contact or family time plan must be a robust and fair plan firstly for the care planning of L and her parents but also in fairness to the carers and their own family and life commitments to ensure permanency is achievable for L in an emotionally balanced way that the carers can meet all of her best interests and needs. Ongoing commitment for a high level of contact indefinitely could increase tensions, cause exhaustion for carers and impact on relationships. The paternal grandparents have expressed they would welcome support from wider family members and would be grateful of other family helping them with family time. I am satisfied that the plan now advanced by the Local Authority is appropriate and its signing by all relevant parties should encourage compliance.

Contact is proposed for a minimum of 5 hours or possibly longer if activity based. the minimum time is set to support stability and consistency in respect of family time, however, further time can be agreed depending on the activity planned. This is supported by paternal grandparents. The Local Authority does not recommend increasing the minimum time set out due to the significant tiredness mother experiences, which is set out in her Care Act assessment, which suggests she can become easily exhausted with basic tasks such as dusting or putting on a jumper. I agree with the Local Authority and the Guardian this this meets L’s needs.

A detailed and prescriptive plan for the exercise of parental responsibility which gave the parents, particularly the mother, as much say as she wanted was in my judgment potentially a recipe for disaster. This is particularly pertinent with the extremely tense relations between the families meaning agreement and communication is difficult to achieve. I am satisfied that the finalised Placement Plan will safeguard L’s welfare and allow each relevant party to know their role and indeed its limitations with support from the Local Authority where needed. This will continue for some time to come particularly if the mother retains her unrealistic aspirations for early rehabilitation. Responsibility for most day to day matters should be rightfully delegated to the paternal grandparents as primary carers and being able to respond quickly with the fullest knowledge of L’s needs. They should not have to consult the mother or the Local Authority constantly, this would undermine their role and create significant pressure on them. Where possible, the parents should be involved in significant or meaningful decisions and events in addition to doctors’ appointments and meetings. It must be borne in mind that the paternal grandparents are the only presently approved carers and if they were unavailable or not prepared to care, foster care could be the only alternative option. I accept that this will all be very difficult for the mother to accept and express the hope that mediation will assist.

I am satisfied that the plans to review L’s placement are appropriate, thus: the social worker and IRO will carefully consider L’s age, development and understanding in future assessments and will continue to be creative in L’s care planning, both in relation to contact and ultimately where she is to live. The Local Authority does not consider it sensible to place set milestones, particularly for the latter, as L is young and her development is still being monitored by health professionals. They submit that it is not appropriate to suggest 18-24 months at this juncture, there are many issues which could arise within this timeframe including parents own circumstances. The Guardian agrees.

I wholly agree that setting a timetable for any rehabilitation or indeed increasing family time is not appropriate. Changes must be child led and focussed, not parent led, and I am satisfied that this will be addressed appropriately in line with the plans which have now been agreed.

I praise both parents for the child focussed decisions they have taken today in relation to L. I know that the decisions have been extremely difficult for both of them and that mother in particular has concerns that she will be marginalised in the life of her daughter. I am satisfied that there is no evidence to support this concern and indeed the paternal grandparents’ commitment to supporting contact even despite the criticism which they have received provides evidence that they have L’s best interests at heart. That includes a relationship with her parents. It is highly likely that father will spend more time with L as he will also be spending time with his parents and at present the mother is unable to attend their home. This may change following mediation but it maybe that the mother has to learn to accept this as a reality for the future and not bear any resentment towards the paternal grandparents or the father as a result.

I do not wish mother and father to conclude these proceedings with unrealistic or false expectations.

Mother’s final statement states: “My father intends on making the alterations to his property. I accept that this will take some time and in the interim I agree that L should remain in the care of her paternal grandparents.” With respect to the mother, that is not the basis upon which I give this judgment. At this moment in time, on the evidence before me, mother and father are not a realistic placement option and mother’s limited acceptance of this is reflective of the problems confronting her as a parent.

The parents need to accept that for the foreseeable future L’s home is with the paternal grandparents and it is not simply a stop gap or holding position until a house move and a swift rehabilitation. Any return must be when it is appropriate for L and in her best interests. Any bickering or constantly seeking to change the status quo will likely destabilise her placement and this would cause irreparable harm to L in the event that the only option then was foster care.

I wish to pass on my thanks to the paternal grandparents for their deep commitment to caring for L both during and after these proceedings.

As I stated, this is a very long and detailed judgment. It is important that the parents should fully understand how I have come to my conclusions. It is also very important that as L grows up and has questions, they can be answered and if she ever reads this judgment she can know that there was never any suggestion of her parents seeking to deliberately harm her, that her removal from their care was not due to any actions on the part of her parents who love her unreservedly.

I make a final care order and I approve the plans of the Local Authority for L to live with her paternal grandparents. I also approve the Placement Plan.