A Local Authority v Mother & Ors

The court is concerned with the welfare of two children, B and D. They are four years old. They live together with their mother and grandmother.

Their mother is J, who is 31 years old, and their grandmother is S, who is 60 years old.

The father is A.

Within these proceedings, the children are represented by Ms Patricia Pratt, taking her instructions from their guardian.

The local authority who bring these proceedings are, represented by their counsel, Ms Kerry Holt.

The allocated social worker is L, who has been allocated since May 2024.

The mother is represented by leading counsel, Ms Frances Heaton, leading Ms Susan Edwards, and they take their instructions from the official solicitor, a finding of incapacity having been previously made by the court.

The mother attended the IRH hearing today during the course of the morning but was excused attendance in the afternoon. She had the benefit of an intermediary, , who was able to reassure her, provide relevant information, and indicate to the court when breaks were required and two breaks were taken during the course of the morning session.

The father, A, is represented by Mr Mark Steward of counsel.

This morning S, who was a party to the proceedings, (again the official solicitor accepted invitation to act on her behalf) was represented by Mr Callum Brook. An application was made seeking to discharge her as a party and I acceded to that application. Consequently, she has not played any meaningful part within the hearing today.

The parties made progress following the filing of the case summary. Firstly, they have agreed the detail of a statement of facts in support of threshold and, accordingly, the court is clothed with the power to make a care order or a supervision order where the welfare of each of the children requires it to do so. The local authority, during the course of the pre-hearing discussions, outlined and agreed with the parties what was described as a “loose” contact progression plan. It is fair to say that contact was not dealt with in detail by the social worker and the court expresses some concern that these matters were outlined at court in circumstances where the mother would have had a limited opportunity to reflect to find out how S would react before confirming any broad agreement.

Nonetheless, as a plan it seems, in the written form of the plan, a reasonable approach to take towards progressing contact in a sensitive way which will build on progress already made. That progress has involved on one occasion the mother actually referring to A as dad. I found out only today that at the last contact session the children, or at least one of them, gave their father a hug. These are important and welcome developments but they are small steps on a continuum of progress which will undoubtedly take time and care in order to manage the dynamics.

A critical feature of this case is that, on the face of it, for some time mum appeared to be doing well with her care of the children and she continues through to today to demonstrate lots of excellent parenting abilities which the court acknowledges and accepts, but underlying that there is a core of significant dysfunction which remains largely unaddressed, that finds its source in the relationship between the mother and her mother, the influence that the maternal grandmother brings to the mother, and the degree to which the maternal grandmother acts as a sponge, taking the resources of the mother in terms of managing her particular medical needs; alongside the mother’s own medical needs and the priorities she must give to looking after the children.

All of that is a significant emotional and practical burden. But there are more complex elements in terms of the conception of the children, whether that conception was the result of abusive conduct and how such history will be conveyed to the children when they ask the question, “What were the circumstances of our birth? Why don’t we live with the father? Why are you worried about the father?” questions which may crop up in different forms, given the current nature of their exposure to the views of the mother, and particularly the maternal grandmother, who has been consistently resistant and negative about the prospect of the father having any role, let alone a meaningful role, in the lives of the children.

Navigating that will be a sensitive task, at the very least, and one which will need clear support and potentially direction at a number of key stages. There is also the issue of the nature of the sexual conduct and the relationship dynamic illustrated by involving the three adults. I do not propose within this judgment to embarrass or in any way to make the situation any more discomforting than it needs to be, but the scenario at play here is unprecedented in my experience, with a combination of deeply disturbing relationship dynamics allied to significant levels of health need and a cognitive limitation.

The issue which this ex tempore judgment is designed to address is this. The local authority, supported ably by the expert analysis of L, seeks a 12-month supervision order on the basis of a supervision support plan as against the mother through the official solicitor, the children through the guardian, and the father who submit that a care order is necessary and proportionate.

The law is not controversial. This is merely an illustration of the application of the existing law to a particular set of facts. The relevant authority by which I direct myself is Re JW (Child at Home under Care Order) [2023] EWCA Civ 944 and in particular the judgment of the President of the Family Division, Sir Andrew McFarlane at paragraphs 64, 65 and 66.

For the purposes of this judgment, I will simply draw attention to the concise summary of that guidance which was an endorsement specifically of the recommendations of the Public Law Working Group dealing with supervision orders back in March of 2021 in these terms:

“a)

a care order should not be used solely as a vehicle to achieve the provision of support and services after the conclusion of proceedings;

b)

a care order on the basis that the child will be living at home should only be made when there are exceptional reasons for doing so. It should be rare in the extreme that the risks of significant harm to a child are judged to be sufficient to merit the making of a care order but, nevertheless, as risks that can be managed with the child remaining in the care of parents;

c)

unless, in an exceptional case, a care order is necessary for the protection of the child, some other means of providing support and services must be used;

d)

where a child is to be placed at home, the making of a supervision order to support reunification may be proportionate;

e)

where a supervision order is being considered, the best practice guidance in the PLWG April 2023 report must be applied. In particular the court should require the local authority to have a Supervision Support Plan in place.”

I have taken on board the relevant paragraphs of the PLWG guidance to which the President refers. Accordingly, it will be a rare or exceptional case where placement is approved at home that a care order is necessary and proportionate. In my judgment, such a decision will require an holistic assessment of the risk justifying the statutory panoply and the sharing of parental responsibility situated within a care order.

There must, in my judgment, be a combination of acute vulnerability of:

A differential in the provision of resource cannot be or be permitted to be a good reason to make a care order, which suggests that factors such as the local authority requiring to share parental responsibility must be the critical question. The factor of effecting prompt removal would not be a good reason either, so the question would ultimately be the need to remain involved in a directive way where, for example, the cumulative impact of a vulnerability eclipses the role of a local authority under a supervision order supported by a supervision support plan to advise, assist and befriend. The likely length of that intervention, given that a supervision order cannot extend beyond the third anniversary of the making of the care order, may be relevant (any intervention after that time would be by way of child in need or child protection measures which are essentially voluntary and may lack the degree of focus of a supervision support plan).

However, generally, in any case in which there is a sufficient degree of honest engagement supported by a detailed supervision support plan in which the risks are well understood and manageable, whereby the placement plan is approved, it is hard to conceive of circumstances in which the making of a care order could be justified in accordance with the law.

I turn now to the key factors which bear upon the application of that law to the circumstances of B and D.

The primary point is that neither the allocated social worker nor the guardian, suggested that the circumstances of these children were not exceptional. In fairness to L, she described the decision as finely balanced and she could understand why there may be arguments in favour of making a care order. It was simply her professional assessment that, overall, sufficient progress had been made in the one area in which she was concerned that direction was needed, namely contact, but it was not necessary to achieve effective change whilst subjecting the children and the parents to the statutory panoply of involvement, which could, in her view, become disproportionate at times; and that there was no relevant difference in resource provision between a care order, a supervision order, with a supervision support plan, and a child in need plan, the intervention essentially coming from the same source, namely either in-house provision by the intervention hub or external resource which the local authority would seek to reduce; where either they could not provide it themselves or a referral to, for example, the NHS would involve a disproportionate delay, given the gravity of any particular risk. The local authority would, in those circumstances, give consideration to whether to achieve the relevant resource themselves.

In my judgment, L was right to indicate that because, in my judgment, this case is clearly exceptional. This case is not destined to a care order because of the cognitive difficulties of the mother, nor is it destined to have a care order because of her ability to deal with a day-to-day care of the children.

Whilst I am critical of the lack of joined up work between children’s services and adult social care in terms of looking at her needs and how best to equip them, and the failure to have identified who, from the intervention hub, would be equipped with the experience and the wherewithal to provide specialist family support work, as recommended in this case by the independent social worker, that is not in and of itself a reason to make a care order.

The reason this case is complex is that there are significant static risk factors which will involve the local authority, by their own case, being involved at some level, and that level will vary for the remainder of the children’s lives. The static risk factors, the local authority accept, are set out in their own position statement, which is helpfully constructed by Ms Holt, to identify them.

They are the risk of intergenerational, intrafamilial sexual relations; high conflict between parent and the parents being unable to manage paternal family time; vulnerabilities due to static adult learning disabilities; risk deriving from a complex mother-daughter relationship; fluctuating adult mental health vulnerabilities; maternal grandmother’s physical health vulnerabilities; risk of unintentional neglect. I emphasise the word unintentional neglect.

Nor do I place any reliance on the fact that a set of circumstances could emerge which would require the local authority to act. This case is, in my judgment, no different to any other parent or any other case involving situations where the local authority might have to react. This is not a relevant feature of my analysis.

This case features, as has been described, a series of static but also slow burn issues which are likely to arise to different degrees over time. For example, managing the children’s development, their ability to safely explore their environment, to be able to spend time with father, with paternal family members and to access the internet. They are all going to be areas which will involve the need for particular care and work.

The issue of contact is one about which, as I noted earlier, there is considerable complexity. Specific therapy is recommended for the mother, for the father, and one might obviously note, undoubtedly, maternal grandmother, but the latter is very unlikely to engage in any form of work were it to be made available.

There is no plan outlined by the local authority for that therapy. The response of L is that, at this stage, mum has been unwilling with her even to broach the topic but I might say, rhetorically, that does not mean the risk issue disappears because she does not talk about it. It means the risk issue remains. The impact of it is more difficult to discern and the consequences harder to predict. Furthermore, just as the mother, with what seems to me expert social work from L, was moved forward from a position supported by the maternal grandmother of essentially wanting no progress in terms of contact, to a point where she positively offered communication via the social worker to “dad”, suggests that if she had the time, the opportunity, the space to develop a relationship with a therapist, then rather than therapy as a topic which she is embarrassed to discuss, she might feel able to see it in the context of a relationship, just as she has formed an effective relationship with L.

That shows she can form trusting relationships. She can work with professionals, which L says is true. Yet that is not yet the subject of any clear plan or any plan within the evidence.

Within the final analysis of the guardian, I would point out paragraphs 45 to 48, which I do not intend to quote as such, but they encapsulate what I regard as compelling reasons why, within the body of a detailed and analytical analysis, the price to be paid by the children of statutory involvement is the price which it is necessary for them to pay in order to ensure that their welfare needs are properly promoted.

There is, in my judgment, validity in her criticism that the issues identified within the reports by the independent social worker and the psychologist have not been addressed fully and properly within the supervision support plan. In my judgment, there has been a lack of rigour with regard to the risks attendant upon the nature of the tripartite relationship in this case.

As against that analysis, L’s analysis was candid, clear, and she properly accepted on behalf of the local authority, and I do not, for these purposes, hold her personally responsible at all for this, but she accepted on behalf of the local authority that there are significant gaps in the plan.

Ms Pratt took her to a number of them within the evidence. They include the issues of therapy. They include the issues of a specific parenting programme, notwithstanding the need to deal with parenting work throughout the children’s minority-relevant stages, and includes the provision of a specialist learning disability-trained support worker. Without seeking to repeat myself, I do not regard it as necessary for the local authority to provide a service precisely as described by a particular expert. Ultimately, the local authority should supply the service that will deliver the ultimate end, and they have a discretion to choose how to deliver that service and who to deliver that service.

The boundary of that is that it must be sufficient. It must be sufficient to address the need and the work that is required and that is the criticism I make of the lack of joined up work and the fact there is not specific regard to the particular needs of the mother. That may be contrasted as against a referral to the intervention hub, but it is not clear to me that it is designed or are equipped or work hand-in-glove with adult social care to ensure that expertise is developed in-house.

In other words, the context for this decision is clear, cogent and compelling criticisms made by the guardian about the need for precision in identifying services, as against a supervision support plan in which there are clear and avoidable gaps, and a lack of clarity about the way in which this local authority will work as a whole to deliver support which is designed to support the care being given by the mother going forward. I use care in the broader sense, not just the daily care which is high quality, but the emotional care and the emotional support, which is equally important in the context of their lives going forward.

The next matter, which I think is relevant is that against those gaps, I have the comparison between a care order which will mean statutory visits as a requirement, an IRO to act as a critical friend in asking questions about why the work has not been done, what work is to be done, how contact is to be progressed, why has it not been progressed, all of which are important in order to ensure the children’s welfare is outlined.

The local authority are keen to make sure that an order more draconian than necessary or disproportionate is not applied because of resource and no part of my decision in this case is to do with a fear that they will not supply the right resource. However, under their plan the role of the IRO will only be for as long as the IRO wants to be involved or feels the need to be involved. Under a care order, the IRO must be involved. There is no discretion. There are procedural protections in terms of the parents being engaged with and being able to participate and I am entitled to expect an IRO in this case will carry out their functions properly and critically in order to ensure that there is a critical friend asking those questions at every review.

The further point I make is that to a degree, and I mean this with every respect to L, I am not persuaded that the future is as rosy as I think she suggests. She does not foresee difficulty and having considered the evidence in the round, I am not so sanguine about that. I can see it will be very easy for this case to deteriorate with the wrong set of messages or anxiety increasing or the intervention of maternal grandmother in the case and I focus upon contact, not because that is the only way it could develop but because it is an easy illustration of the point.

It is very easy to see, whatever mum said today, that as this program develops and moves from being contact for 45 minutes in the school day to being contact after school, in the school holidays, at the weekend, that will cause friction. The degree of it is hard to know but there may well be a need for the local authority to be able to manage that and support the move at key points by indicating what should happen. They cannot do that under a supervision order. If they did that they run the risk of in fact exploiting their power by in fact pressurising the mother to do something, which in my view is much worse than being honest with her and saying “we think this is a good idea. We are going to do it for these reasons.” That is honest. If there were a breakdown and mum were to say “no” and the maternal grandmother was particularly hostile, the local authority could do nothing. The father would be required to make an application for a defined contact order. There would be weeks until a first hearing with a Cafcass officer, no opportunity at that stage to make any real orders because the court will be looking at a range of other measures to ensure the parties are able to participate, potentially a guardian, further weeks and months, all of which might be avoided by the local authority being able to manage their duty to promote contact and to support mum by giving direction where necessary particularly in the face of maternal grandmother’s negative views which may make it difficult for mum.

That is merely an example of a snapshot of the complex relationship dynamics which will have an impact upon a range of issues of which contact is one, where the local authority sharing parental responsibility may be critical for these children having their relationships managed carefully.

On the other hand, these children will have to put up with social work visits as will the mother. They will have to put up with PEP meetings. They will have to put up with being different, but that is the balance. In short, whilst I would commend L for navigating a hugely complex case, building a relationship with mother, making significant strides forward in contact, I prefer the evidence of the guardian on the question of whether the circumstance of this case, even though they are exceptional on account of both views, require a care order to provide the local authority with parental responsibility and the need to be directive. They will need to be focused upon spotting and planning for the difficulties before they become significantly difficult given the longevity of the need for intervention, which is spelled out in the most compelling terms by the independent social worker and the psychologist.

I am accordingly satisfied that these are circumstances where regretfully I must impose upon the local authority a more draconian order than they would wish, but I do so on the basis that I regard it as being in the children’s best interests for a care order to be made.