A Local Authority v The Mother & Ors

QR is a three year old girl. She was born in a country in South East Asia, following her mother removing her from the UK to avoid social care becoming involved with QR once she was born. QR was made a ward of court and, following their return to the UK, she was subject to prolonged care proceedings which concluded in January 2023, with a full care order and the plan that she lives with her mother.

She has remained in her mother’s care throughout her life and, in 2023, she was placed with her mother in a new placement. Her mother absconded with herself and her baby brother from the new placement and was found six days later, in the care of the maternal great aunt. There was a nationwide police search and a high level of concern for the family. QR has remained with her baby brother, who is subject to public law proceedings initiated by another local authority. It is both local authorities’ plan that the children remain together in the long-term. QR is currently in her second foster placement and, pursuant to earlier orders of this court, she has twice monthly, indirect, pre-recorded video contact with each parent.

By way of background, I make it clear that I was not the judge in the last set of proceedings but I was provided with the full bundle and I have read it in preparation, not only for this hearing but previous hearings involving both children.

Of greatest relevance are the following matters. The judge who heard the majority of the previous care proceedings, on 27 January 2022, made a non-molestation order against the father, not to contact or attempt to contact the mother. That was made to last a year, until 27 January 2023.

Having reviewed the previous proceedings, I can see that at one stage there was an urgent application made to the court, stating that the mother was a flight risk. The local authority made an application for urgent directions on 21 February 2022, asking for a hearing with abridged notice, due to the flight risk on the mother’s part. The mother responded to this in her position statement and said “the local authority contend the mother is a flight risk; however, the mother contends this cannot be possible when her solicitor holds hers and QR’s passports in their offices. She is aware this is her last chance and contends she would not do anything to jeopardise this and QR’s placement in her care”.

The matter - that urgent application - came before another judge on 25 February 2022, when the local authority sought the immediate removal of the child from her mother’s care, which the judge did not endorse, but such was the level of concern, the guardian recommended daily visits at that stage.

The proceedings continued and concluded on 6 January 2023 when a different judge made a care order. It is a provision of that final order that the applicant local authority in relation to QR amends their care plan to provide that the local authority will hold the child’s passport and consider, with the mother, any requests she makes to take the child out of jurisdiction for a holiday. It was therefore very clear to the mother that QR had a passport and she needed to ask the local authority for this if she wanted to go on holiday.

The first social worker statement in these proceedings states that on 24 February 2023, the social worker was alerted from His Majesty’s Passport Office that they had received an application for a passport for QR. It is only because the passport office were cautious and followed good practice that the passport was not issued to the mother and that instead, the local authority were notified.

Of course, by this time the mother would have been pregnant with QR’s younger brother. The mother accepts that, during that pregnancy, she provided a urine sample from a friend, which is set out at paragraph 12 of her first statement in these proceedings. The social worker’s statement refers to police records, in which the mother said she used urine from her niece, who is a child for these drug tests. The social worker for QR’s younger brother had a discussion with the mother on 23 August 2023, in which the mother said she could flee the country if she knew her child would be taken away from her and the only thing preventing her is she does not have QR’s passport.

Her younger brother was born on [redacted]. Of course, the conception of this baby was in breach of the non-molestation order and the mother accepts that she met the father in late [redacted] and had sex with him. The child, the younger brother, was made subject to court proceedings brought by a London Borough. As part of their plan, this London Borough arranged for the mother, the younger brother and QR to enter a placement together. The applicant local authority for QR agreed that QR could join them, so they moved to this placement on [redacted]. On [redacted] the mother absconded with both children. The police were informed and sought to trace them. They were found on [redacted] with a family member and removed by the police.

The mother seems to accept that the police evidence shows she had some assistance from friends. It is a moot point as to the extent to which her family members knew or were involved in the most recent abduction. Two of them have since been charged. The police investigation is ongoing. What is clear from the police disclosure and the evidence in this case is that we do not yet, in my view, have a clear narrative of who did what or any individuals taking responsibility for their role in it. It is hard to manage risks when it is not clear who exactly was involved and to what extent. Mr Lamb notes that on one analysis, the evidence suggests there is a greater level of family involvement than the mother suggests in her position statement. Those are not factual matters I need to resolve today.

As far as the courts’ involvement was concerned, a recovery order was made on [redacted], together with a port alert. There was an application made on a form C2 to refuse contact with QR dated ten days after the children had been found. On 12 October 2023, the judge who had heard most of the original care proceedings for QR authorised the local authority to refuse contact between the child and the mother and the child and the father, save for letterbox contact. The matter came before a Recorder on 23 October 2023 and the court indicated - and the local authority agreed - that pending the next hearing, there should be pre-recorded video contact.

The matter was transferred to me and on 28 November 2023 I made an order that the local authority is authorised to refuse contact, except for those pre-recorded videos and letterbox contact. Directions for hair strand testing were made within these proceedings and were repeated due to initial non-compliance, and a hair strand test dated 17 January 2024 was ultimately received. This shows that the mother tested positive for cannabis, cocaine, diazepam, fluoxetine, ketamine and MDMA. Some of the cocaine use may be in the form of crack cocaine. The mother declared using crack two days before the sample was taken. The testing covers the period from June 2023 to December 2023 and shows usage through this time and at a high level.

I have the social worker’s evidence that updates me as to how that pre-recorded video contact has been going. The social worker says that the mother has not yet shared any pre-recorded videos with the social worker in January 2024. Requests were made by the social worker during the visit on 3 January 2024, an unanswered call made on 5 January, a text sent on 16 January and an unanswered call and text on 28 January 2024. The social worker tried to call the mother on 26 January 2024 and sent a text on the mother reporting of engaging with support services, to see if it was possible for the social worker to speak to those support services and explore the support they were giving to the mother. No response was received from that communication.

During the last recording, the social worker reports, QR said her carer’s name and the video had to be edited to ensure that information was kept confidential. QR’s pre-recording takes several takes to get a version that can be shared with her mother. When QR is out of the house, that is when videos with her brother are recorded or live video sessions between him and his mother take place.

I am very grateful for the assistance of all the advocates in this matter; Ms Croft representing the local authority, Ms Watts the mother and Mr Lamb the child, through her guardian. I will summarise their submissions.

The local authority submits that the only way to keep the child safe is these pre-recorded videos and the pre-recorded response back from QR and traditional letterbox or email contact. The guardian agrees with this analysis. The mother disagrees and would like face to face or live video contact. The father represents himself in these proceedings and attended the hearing earlier this week, at which submissions were made on 6 February 2023. He said he “100 per cent agreed with the local authority representative”; he suggested that the children were at an age where it might be best to cut all contact and let them live their lives. However, he did appreciate that if he sent messages and videos, the children, when they grew up, would be able to see that he had never forgotten them. He described the social worker’s statement as “outstanding” when he read it.

I remind myself of the law: section 34 of the Children Act 1989 contains the following provisions relevant to this application. Where, as here, a child is in the local authority’s care, the authority shall allow the child reasonable contact with their parents. On an application made by the local authority or the child, the court may make an order authorising the authority to refuse to allow contact between the child and their parents. Before making or discharging or varying such an order, the court must consider the arrangements which the authority have made or propose to make, and invite the parties to comment on those arrangements.

Contact is not defined, as far as I can see, by the Children Act 1989, or by the 2010 regulations. And of course, those were drafted before we had more sophisticated means of communication, like WhatsApp or other forms of video calls. The detailed guidance on the Children Act, cited helpfully by Mr Lamb, suggests that contact includes all form of contact, letters and face to face, and he says there is no clear authority on whether reasonable contact can be limited to indirect only under section 34 without the leave of the courts. It is fair to say that in this case we have explored all possible ways of allowing contact, including using that up to date technology.

I remind myself of the case of Re B [1993] 1FCR 363 in which Lady Justice Butler-Sloss observed, “The presumption of contact, which has to be for the benefit of the child, has always to be balanced against the long-term welfare of the child, particularly where he will live in the future. Contact must not be allowed to destabilise or endanger the arrangements for the child and, in many cases, the plans for the child will be decisive of the contact application.” I make it clear that this is the only application currently before the courts, but no doubt behind the scenes, thought is being given to the children’s longer-term arrangements.

I remind myself of both the children and the parents’ right to family life and that any interference with that right must be necessary for the rights and freedoms of others and proportionate to the risks identified.

I have read the previous bundle of QR’s proceedings and the bundle provided for this hearing and, at the request and agreement of the parties, I have dealt with the matter on submissions. Social workers could have been called and cross-examined and I could have been asked to hear evidence. However, that is not the basis on which I have been invited to proceed.

Nevertheless, I think there has been a fully argued hearing in which the parties’ article 6 and article 8 rights have been respected. The mother did not come for the submissions and we have sent her a link for today’s hearing, should she wish to join remotely. At the time of speaking, she has yet to join. I have made it clear that I am very willing to make special arrangements for her under Family Procedure Rules 3A and PD3AA because she is clearly vulnerable due to a number of factors in this case.

I remind myself that QR’s welfare is my paramount consideration; that any delay in determining issues for her is likely to be prejudicial to her welfare, and I remind myself that I should not make an order for her unless it is better than making no order at all.

This is an application to which part 4 of the Children Act 1989 applies, so I look at all the circumstances of the case and, in particular, her wishes and feelings, in the light of her age and understanding. She did not seem upset, the guardian reports, to be at her foster carers’ and quickly called them ‘Mum’ and ‘Dad’. No doubt she would want to see her parents and have safe and secure, reliable contact with them if that were possible.

I look at her physical, emotional and educational needs. Of course, at her age she is reliant on carers to meet her needs. If taken out of the local authority’s care and on the run, she would not, of course, be accessing education, healthcare, or any other third party professional support. Her younger brother was nine days old when abducted in [redacted] and his toxicology test shows that he had six different drugs present in his body, including crack cocaine. His physical needs, of course, were not being met when the mother removed him from local authority care and he and his sister need consistent care and stability. If her younger brother had been in distress during that time, QR would have witnessed any deterioration in his physical wellbeing.

The guardian reports that on entering foster care, QR presented as having tantrums and hurting herself. Her speech was behind the expected level for her age and she was not able to express what she was experiencing; for example, when falling over or hurting herself, she was unable to locate where she was hurt. This suggests a degree of emotional upset for QR, but also demonstrates that she is in need of consistent, reliable care and needs to have her emotions contained and support in managing them.

The local authority proposed in the past, once a month, pre-recorded video contact, but I took the view at the time that there should be twice a month, because this provided parity with QR’s younger brother. However, the updating evidence that I have already referred to shows that the parents have not taken up that offer and that the mother has provided two out of five possible videos and nothing for two months. The father sent two videos and nothing for the past month. But whatever form of contact is offered or ordered, there needs to be consistency to meet the children’s emotional needs, both now and in the future. And in the future, as the father acknowledged, they will be able to look back at what their parents sent and they will be able to spot gaps or any lack of commitment in keeping in touch, if that should come to light.

I look at the likely effect on QR of any change of circumstance and the removal from the local authority’s care has been very detrimental to her and, should that happen again, it would be clearly very serious and significant when it comes to her wellbeing. She has had a lot of change in her life and she has had two sets of foster carers so far. It is not in her best interests if the current placement broke down due to a disclosure of its location or the names of her carers or other identifying information being shared inadvertently.

I look at her age, sex and background. She was born on [redacted] and is [redacted] years old, turning [age redacted] in a couple of months’ time. She is, of course, verbal and able to communicate clearly the name of her foster carer or other details about her daily life. Her younger brother, by comparison, is non-verbal and, of course, not able to walk yet, so the risks for him are different. I have already explained that when he has his live video calls, his older sister is not in the house. He is incapable of moving around or verbally communicating anything about where he is.

Given that the live communication takes place for her brother when QR is out, she will not be aware that her brother is potentially seeing more of her mother than she is, but she would benefit from different forms of communication; for example, cards and letters, which he is unable to really understand. She is able to hold them and have them read to her. Their ages and stages of development make their needs and ways of communicating different.

I look at any harm which QR has suffered or is at risk of suffering and I have reminded myself of the terms of the threshold findings which led to the making of her care order. The following matters were accepted by the mother in the response to the local authority threshold in that case. “ On 17 March 2020 the mother lied to the social worker, saying she was advised by a midwife to self-isolate for two weeks due to the Coronavirus pandemic. However, she went missing and it was later discovered she had fled the country at 38 weeks pregnant to travel to South East Asia, so she could give birth abroad to avoid the local authority/court involvement”.

This behaviour placed both the mother and the unborn baby at risk of significant harm, given the Government’s guidelines not to travel and the mother’s attempt to evade professional involvement which would have supported her in caring for the child. Counsel is right to point out that long-haul travel at 38 weeks raises risks in and of itself and that airlines have particular policies about travel late in pregnancy for these reasons. That was a factor, together with the Coronavirus, that heightened the risk of harm for QR.

The threshold goes on. “The father failed to tell professionals where the mother was when she fled the country and did so later himself; joined her and QR in [redacted country]. During their time in [redacted country] the parents did not disclose their whereabouts, attempted to deter any local authority involvements; they were unable to work openly and honestly with professionals at this time, in the best interests of QR”.

This is part of the court-found threshold which establishes the harm that has been suffered in the past. It was also harmful to take the children away from their placement and away from the local authority, who have a full care order for QR. It goes without saying that in doing so, the mother made sure that the local authority could not exercise their parental responsibility and this left the children in a vulnerable position, as no-one in a position of authority knew where they were, who was looking after them and whether they were being well cared for.

When I look at the eyewitness accounts of the removal from the placement, it is noted in the police disclosure that the car was driven off with the doors open and the mother still trying to get in the vehicle. The vehicle sped off. That gives the impression of a degree of danger and risk to the children. Eyewitnesses report that no car seats were seen in the car and the mother was seen holding QR’s younger brother in her arms.

The mother’s own statement says as follows. “When I was leaving [redacted] I had a friend collect us. I was taking the children to my friend’s car and one of the carers [redacted] was grabbing QR under her arms. QR was crying and screaming, saying, “Mummy, ouch!” I was concerned for her safety and did not want anyone hurting my child. I recall pulling her away from the carer and there being kerfuffle. I do not recall exactly what happened, as it all happened very quickly. I was not thinking about anything other than how scared I would be that I would lose the children and I needed to get away. I believe that through all of this commotion I dropped my mobile phone; I have not seen it since then.”

Even on the mother’s case, the departure from the placement was deeply upsetting for the children. She goes on: “I went to various people’s homes over the next few days with the children. [redacted] I realised that it was no use, what I was doing. I realised I needed to hand myself in, as the children and I could not live this way. I therefore had a friend collect the children and take them to my aunt’s house. I then contacted my sister to come and collect me. I was on the side of [redacted] at this point.”

The mother’s statement does not tell me in detail where they were during that time, who they were with or how the children responded to these events. The statement does not appear to look at things through the child’s eyes and show and appreciation of how scary and disruptive that decision to remove her may have seemed to her. There is a degree of minimisation in the narrative given.

Of course, I acknowledge that not seeing her mother is also harmful for QR and she has always been in her mother’s care since birth, so not seeing her face to face is a big change of circumstances. The social worker accepts that QR loves her mother and that they have a bond. The guardian notes that when first placed in foster care, QR was asleep. On waking up in her foster placement, she did not show any signs of being distressed due to the separation of her family or wondering where she was. She referred to her carers as ‘Mum’ and ‘Dad’ right away and this was repeated within her second, current, placement. This is concerning, as it indicates QR is used to seeking her needs to be met from any adult around her, with a clear lack of any primary carer with whom she has a secure relationship.

Now, of course, I caution myself that none of us are psychologists, we are not experts in attachment, and it is difficult to assess the strength of a relationship between a child and their parents. Although it is hard to quantify the nature of that relationship, I accept fully that it is emotionally harmful to have this relationship destabilised, because QR has only ever been in her mother’s care and QR is too young to have a complex understanding of what is happening.

I look at how capable her parents are of meeting her needs. And one aspect of meeting her needs is the need to work with others to do so. There is the need to work with the social work team. And it is fair to say that the mother has not been open and honest on a number of occasions. For example, she has kept dying her hair, despite it being clear from the final care order that this has an impact on the drug test results. I have already referred to her accepting that she has provided urine from a third party for drug testing. She has not been consistent in supplying those pre-recorded videos. She actually took the children away from the placement when she was due in court the next day, which may have triggered her decision to remove them. That may suggest she has little respect for the court or legal rules.

When I look at her ability to care for the children at the moment, her hair strand test covers June 2023 to the end of December 2023 and it shows she used dye in September 2023. The testers set out the lengths they have gone to to get in touch with the mother: seven attempts to get in touch with her for an appointment between August 2023 and January 2024. She is not able to best meet the children’s needs when she is under the influence of drugs and she must have been in regular contact with drug dealers to produce those hair strand test results.

She is in poor mental health, which suggests that she is not able to meet the children’s needs effectively at this time. In fact, she has not come to court, from memory, on any of the occasions when I have had the matter before me, in person, and only once come on the link. The children’s needs for stability, security and predictability were not met in her decision to abduct them and she herself was on blood-thinning medication at the time, according to the police, so her own health and ability to meet their needs was jeopardised.

I am going to balance, now, when I look at all the options before the court, the pros and cons of the various types of contact that the court could approve for QR and her mum.

I look at face to face contact. There are obviously real advantages to that; it is more natural interaction, it will help them rebuild their relationship; it gives QR a sense of family and identity. Of course, she can have hugs, it is physical; there can be a more enjoyable and relaxed experience for her. I have taken into account Ms Watts’ submission that the mother is on bail, so if she attempted a further abduction, that would have very serious consequences for her.

However, I balance that with the consideration that the mother does not seem to take into account the long-term consequences of her actions to date, which suggests that she acts impulsively. It is submitted that she is unlikely to try to abduct them a third time and find people to help her do so. However, I do have to weigh against that there is a pattern of determined removal, which has now happened twice.

The risk of face to face contact is as follows. The mother has not been well enough to come to any of the court hearings in person before me. If her mental health is fragile and so fragile she cannot come to court, that calls into question how she might manage face to face contact in a manner that does not distress her daughter. I have already referred to her absconding with the children twice. QR needs safety, security and protection from carers to meet her needs and that is put at great risk if she is removed from local authority care.

The most recent removal of the children was from a placement with one to one support, 24 hours a day CCTV monitoring, cameras at various locations, a locking gate, and still the mother managed to evade the experienced staff at the centre. This is a centre well set up to manage risk with their physical building and their staff and procedures there to mitigate against risk, and still the mother managed to escape with the children.

Although we could arrange things so the mother goes to a contact centre first and the child comes later and leaves first, this staggering of attendance does not remove the risk of somebody following the foster carer out of the contact centre and locating the children. The mother could be asked to leave her mobile phone at home and so the contact centre location cannot be shared and we could devise a way of transporting her there without making it clear exactly where she is geographically and by giving her short notice of the contact. However, those steps do not reduce the risk of her or associates deducing the general area where the contact centre is in broad terms, by looking at the surrounding areas en route or the travel time to get there. It does not prevent the use of some kind of GPS tracking device slipped into the pocket of a child, for example, covertly, to obtain a location. And contact centre staff are not security staff. They do not have search powers or police powers and there is a limit to how invasive their security checks can be.

The mother has applied for a passport, despite the court providing that she should not. She has been dishonest on a number of occasions; the urine samples, for example, and the measures that we can take to keep contact safe rely on a degree of willingness to work openly and honestly. Both times she has removed the children from local authority oversight has taken a degree of planning. Most recently, it involved others. The mother has connections, which the local authority is concerned amount to a sophisticated network of people who have helped her get away and then hid her for a number of days.

The police disclosure suggests that the mother might have planned her escape, as it were. They noticed on [redacted] a £500 cash withdrawal from [location redacted] Tesco and then financial checks during the period of their disappearance show no activity on the account since [redacted], suggesting that there was a degree of planning and trying to go undetected.

The mother has been charged with ABH in relation to the removal from the placement, suggesting a degree of violence in the removal of the children. This cannot be ignored and it heightens the risk of face to face contact significantly.

The range of substances that show up in the hair strand test and the high level of usage suggests that the mother is not able to voluntarily stop using substances and the number of substances and the high level heighten the risk. Although, of course, you could turn the mother away if she turned up under the influence for contact, it is very hard to quantify and monitor, given her high level of usage. The use of substances, in and of itself, leads to a risk of impulsivity or risk-taking behaviour or lowered inhibitions.

The local authority points out that the father has, in the past, travelled on a forged document. I do not need to make a finding about that, but clearly it is a possible way forward, for people to obtain forged documents, and the mother is not someone who shows herself respectful of authority or the proper way of doing things.

I look at live video calls. This is less intrusive when it comes to family life; it is a real-time interaction, it is easier to build a rapport and, potentially, more rewarding for both QR and her mother. The risk of this is that QR is [age redacted] who cannot keep secrets and neither would it be fair to ask her to do so. And she may say things spontaneously in a call, like the foster carers’ names or details that give away their location, and this has to be considered very carefully. A background of some type would be viewed in the background of the video call and although a video call could be stopped the minute the parents or QR say something inappropriate or that gives information away, there is always a risk a live call cannot be stopped quickly enough.

Although a working together agreement about the parameters of the call could be agreed, this is not, as I have observed, a mother who respects authority or has a history of working openly and honestly. The risk of jigsaw identification from an innocuous remark or the angle of a camera can be combined with another piece of information on the next occasion and it is hard to stop QR wandering about with a phone or a tablet during the video call.

If the mother was under the influence of substances, this is harder to determine remotely and the risk of distress to QR if live video calls take place is harder to manage. We know she has been through some difficult experiences in her mother’s care. We do not know what it was like for her when she was on the run and there is a risk of distressing memories being triggered for her, making her feel unsafe. The guardian reports that QR seems to respond, in any event, to the videos she sent as if they are live, and as if she is interacting with the parent who sends them, so on one level, she herself has not been deprived of an interaction with her family, which she thinks is happening.

I look at pre-recorded messages. Of course, these can be checked and any harmful content removed. This is what happened on the 8 November 2023 recording, when the social worker took the view, of course, that the mother was emotional at the start of the video, so that needed to be edited and she asked QR to blow kisses back to her, which the social work team thought was inappropriate. There is that degree of making it child-focused that is possible if it is pre-recorded.

QR’s videos back can be checked to make sure she does not say anything that gives away her location. The video of her mother can be stopped if she becomes upset and re-watched as many times as she likes, and that is what happened on 9 November 2023. Both pre-recorded videos and cards and letters can be viewed and read as many times as she likes, at a time that is best for her, and kept for her for later life as well.

But clearly, pre-recorded messages are not the same as face to face or live contact. There is no physical contact, like a hug, possible, and QR’s attention span may be limited, and it is an artificial exercise in some respects, to go through, asking QR to be recorded playing and then the social worker has said that sometimes you have to get her to do it again. There is a degree of intrusion and somewhat unnatural performing for the camera when she sends a message back.

Putting QR’s welfare as my paramount consideration, I am afraid I am driven to the inescapable conclusion that it is both necessary and proportionate to the risks involved for QR to have letters and cards and pre-recorded messages from her mother. Having looked at the pros and cons and the advantages of different ways of communicating and balancing against the disadvantages, I sadly reach that conclusion. This is truly, on the facts, an exceptional case, in which these arrangements best meet QR’s welfare needs.

I, in closing this judgment, want to say that the applicant local authority for QR did the right thing, of course, to make an application to the court in good time about contact. And the father is right; the social worker statements are of a very high standard. What you can see, as you read them, is the social work team clearly grappling with all the risks and exploring every possible alternative. This is not them taking the easy option, but rather attempting to think creatively about the way forward and balance all the risks in this case.

To their credit, they have taken on board my comments about co-working with the other local authority. They have set up regular meetings, they have come to court in person for discussion before hearings, which is vital in cases of this complexity, and I acknowledge that they have travelled a distance in order to do so. This is a local authority who are well aware of their legal duties and seeking to address the welfare needs of a child in their care, in a clear and transparent way in their evidence before the court.

I am very grateful to the guardian for preparing her final analysis under real time pressure. She asked for longer initially, but was able to accommodate the court’s time when I could hear this matter and filed her report sooner than she would have otherwise been able to do. It is a child-focused report; it is very careful, balanced, independently of the local authority, analysis of the risks in this case.

I want to thank counsel for the constructive and clear way that they have dealt with this matter. The mother, although she is not here and did not hear Ms Watts’ submissions, should know that Ms Watts said everything possible, everything that she could have conceivably said, to persuade me away from the judgment that I felt compelled to make. And she should know that she has had a voice in these proceedings and she has been well represented. Likewise, my thanks go to Ms Croft and Mr Lamb for their assistance and their very careful preparation of this difficult matter.

Finally, I wish to thank the foster carers, who are facilitating the receipt of any pre-recorded contact information and videos and also recording the videos that are sent back. I am very grateful for their assistance in doing so.