Wiltshire Council v Mother & Ors

C has remained in M’s care since birth, there were previous care proceedings (2021–2022) which ended with a 12-month supervision order due to concerns about domestic abuse, substance misuse and M’s mental health. After the order expired, concerns re-emerged, leading to child protection planning in early 2024 and these proceedings in September 2024. C has autism and developmental delay, requiring “better than good enough” parenting.

Threshold is agreed and found to have been met.

I find there has been repeated cocaine use by M between Jan–July 2025 based on multiple hair strand tests from three labs; it was more than minimal. Cannabis use is not proved.

M dishonestly denied drug use which, with actual use, creates significant safeguarding concerns because despite parenting improvements risk of relapse and unknown patterns of use undermines safety planning and makes the risk unmanageable. The potential harm to C outweighs harm of removal.

I make a care order and approve the local authority’s revised care plan.

To M I say:

I am concerned with C, a boy aged 4 who is the son of the Mother (M) and Father (F). I will refer to them as such in this judgment for anonymity and I mean no disrespect to either. Both parents have parental responsibility.

C was the subject of previous care proceedings, which concluded on 26th August 2022 with him placed under the supervision of Wiltshire Council for a period of 12 months.

The parenting assessor sets out a helpful history of those proceedings:

In these proceedings C was made subject to an Interim Supervision Order on 16 September 2024. He has remained in M’s care throughout his life. The proceedings have been extended for the purpose of M undergoing Dialectical Behavioural Therapy (DBT).

The Local Authority’s position is that I should make a Care Order with a care plan of long term foster care. A friend (I shall call her AB) has been approved to care for C in the event the order is made and the plan would be to transition to her care over 5-7 days and remain with her for a 12-18 month period whilst the Local Authority continues to fund DBT therapy for M and to support her to engage in a substance misuse programme which it is hoped will lead to reunification in 12-18 months. In the event of a Care Order being made the Local Authority commit in principle to funding DBT for 12 months from July but in 12 week blocks subject to review at the end of each block. I was assured that obtaining agreement for the same would take a matter of days only.

In the event reunification was not possible the plan would be to consider a Special Guardianship Order to AB.

Contact with M will reduce over 4 weeks to weekly supervised with a review at the end to consider whether the contact can be unsupervised but supported or facilitated by AB. The plan is for supervised contact with F.

If a Supervision Order is made the same offer in respect of DBT would be open to M.

M accepts threshold is met. She opposes the local authority care plan and seeks for C to remain in her care. She would agree a Supervision Order. Her secondary position is placement with AB.

F accepts threshold is met. He supports C remaining with M. He did not attend the final hearing.

The Guardian does not support the Local Authority plan. He recommends C remaining in the care of M under a Supervision Order with AB as part of the support plan and random drug testing.

I have considered the bundle, in particular:

I heard oral evidence from the parenting assessor, social worker, M and the Guardian.

I remind myself that the burden of proving the need for a public law order rests with the Local Authority on the balance of probabilities.

I must consider if the Local Authority has proved that the threshold test set out in section 31(2) Children Act 1989 is met. It provides:

I remind myself of the fact-finding self-directions that I must give myself adapted from the helpful summary of Munby P in Re X (Children) (No 3) [2015] EWHC 3651:

Munby P continued:

Ms Peach reminds me:

I remind myself of the comment of Munby P in Re A (Application for Care and Placement Order: Local Authority Failings) [2015] EWFC 11:

So far as the law on welfare issues is concerned my paramount concern is the child’s welfare. In assessing whether to make an order I must take account of the matters set out in section 1(3) Children Act 1989 (welfare checklist). I must then have regard to the realistic options put forward taking a holistic and balanced as opposed to linear approach to them consistent with the guidance given in Re B-S (Children) [2013] EWCA Civ 1146.

In reaching a final decision I must start from the position that the least interventionist alternative is to be preferred applying section 1(5) of the Children Act; I must not make an order unless I consider that doing so would be better for the child than making no order.

I remind myself I must also have regard to Article 6 and 8 ECHR rights. Pursuant to Re B (Care: Interference with Family Life) [2003] 2 FLR 813 I must not make a public law order unless I am satisfied it is both necessary and proportionate and no other less radical form of order would achieve the need to promote the welfare of the child.

Although said in the context of threshold I also consider Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050at para 49

“…society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

The court should not be looking for perfection and proportionality is key.

If I make a Care Order I must consider the permanence provisions of the care plan pursuant to section 31(3A) Children Act 1989 and the contact provisions pursuant to section 34(11) Children Act 1989.

When assessing risk of harm I must ask (by reference to the summary in Re T (Children: Risk Assessment) [2025] EWCA Civ 93 at paragraph 33):

Threshold is agreed or deemed met (save for paragraph 4 and 5 which were deleted by agreement) but there is a dispute about drug misuse by M.

In her position statement for the Mother Ms Peach says:

When she gave evidence M did so calmly (although she was obviously anxious) and thoughtfully; I noted her carefully seeking the ‘right’ words to explain her answers which I found particularly impressive in terms of the insight it showed. I bear both points in mind when considering her evidence about drug misuse.

M’s evidence is that she would not have disposable income to purchase drugs [A40], she has not used cocaine since she was 17 and does not use cannabis. She cannot explain the positive results [C104]. It is common ground that other than the HSTs there is no clear evidence of use or the effect of use; there are suggestions of dysregulated behaviour but that might be the result of M’s ADHD, there is a report of what might have been a drugs deal, the latter is not supported by primary evidence and I made it clear at the outset I would place no weight on it. The Guardian was asked to comment on whether it would be possible to be taking cocaine without the consequences being spotted by professionals. His view was that it would be but the level of visiting was “standard” and his experience was that you would “expect to see avoidance and evasiveness and that is not a factor, M has engaged well.” I approach this evidence cautiously, he is not a drugs misuse expert although undoubtedly has much experience as a children’s social worker.

When the social worker gave evidence she was asked about the frequency of visits at which drug use may have been detected. She said it was once to twice a week over the course of proceedings for between 10 and 45 minutes at time. Her view was that these visits were snapshots but in cross-examination she agreed it was “a high level of visiting”. There was evidence from Ms Bull that M may have received assistance from a charity with topping up an electric account but I attach no weight to that. It is accepted there were additional visits from the health visitor monthly, that AB would see M daily (on the shared road and in the home) and that C was in nursery from September 2024 to July 2025 for 9 hours per week. No-one reported concerns about possible drug use. Ms Reed considered from social work visits it would be “very hard” to identify drug use. There is no evidence of financial distress on the part of M which might otherwise have been indicative of funding drug misuse.

The reported results are:

Cansford and DNA legal held an experts’ meeting and concluded:

There is a helpful summary of the rationale for positive results in the Abbot report:

The burden is on the Local Authority to prove the allegation of cocaine use. Whilst I acknowledge the state of expert knowledge may change over time and there is no corroborating evidence in the form of lack of money or concerns raised about M’s presentation, it is really very difficult to understand how the metabolites of cocaine might be detected but for ingestion of cocaine. I can, on the balance of probabilities, rule out false positives through errors in testing or sampling given there are 5 sets of tests from 4 samples at 3 laboratories.

On balance I find the allegation of cocaine use as set out in the table above proved. Whilst there is likely variance in definition of levels the use appears to have been higher than minimal and I make that finding. It also follows from this that I find M has not told the truth about her cocaine use and I will consider that further below.

As with cocaine M denies use in the period covered by the testing.

The reported results are:

I observe that the 15 August report did not detect material levels of THC-COOH (see below) so consistent with the other reports it would in fact seem that smoke exposure could not be ruled out. Further, the quantity detected on the segmental analysis differs between the DNA Legal reports notwithstanding an overlap in the tested period (see [E208] compared with [E193]).

The joint answer to questions reports:

However, they also concluded:

I am not satisfied that is the case on the balance of probabilities. The metabolite (THC-COOH) was reported as being detected but at below the LQ (which I understand to be the “Limit of Quantification” level) or cut off level in June and July 2025 [E193]. This provides an uncertain basis for a positive finding of fact in the absence of other corroborative evidence and particularly noting THC-COOH was not detected in the overlapping June period in DNA Legal’s 2 September report [E208].

I do not make a finding that M used cannabis in the relevant periods. The results are equally consistent with exposure and use is not proved on the balance of probabilities.

I now turn to the considerations under section 1(3) Children Act 1989.

C has been in M’s care since birth and it is to be presumed he would want to remain in her care if that was safe. He is too young (and lacking the verbal skills) to express a view but I understand goes to M for comfort.

C presents with “challenging and complex needs” and has been diagnosed with Autistic Spectrum Disorder and developmental delay, particularly in speech and language Whilst he has started to string very short sentences together his is described as “largely non-verbal”. The social worker’s view is that “C will require better than ‘good enough’ parenting” [C72].

The Guardian has expressed extreme concern for C’s ability to cope with separation from M saying he will experience “great distress and his limited language, comprehension and neurodivergent needs will result in C being unable to appreciate or draw on the support and explanations that will be provided to him as easily as a child without his level of need” (paragraph 6 of his position statement). He elaborated on the consequences for the future:

Ms Reed agreed that “C’s additional needs will make any separation from M really, really difficult”. She agreed that would be “significantly greater than a child without his additional needs”. M’s evidence was that it would be “quite hard” for someone other than her to comfort C but there is some evidence of emerging adaptability, M said that C now has a one to one LSA at school and “he’s really well with her” even though at the time of giving evidence he had only met her on three occasions.

Of course, the plan in the event of a Care Order being made is to place C with AB and whilst it is not for me to direct placement with any particular individual, I am entitled to consider to what extent that may mitigate the future risks quite rightly identified by the Guardian. Ms Reed considered that the harm would be less than in the case of placement with an unknown foster carer. I have set out evidence in relation to AB below under the heading “Capability of others” but in short, she is a familiar figure to C, albeit on M’s evidence not a particularly regular carer for him and not overnight. The Guardian acknowledges that in saying it would “be far less disruptive, anxiety provoking and thus in the best interests of C”, (paragraph 10) this being very much his secondary position. I also note that the revised plan in relation to spending time with M (now weekly) would assist in mitigation although perhaps not in the short term.

A further concern for the Guardian is that if M makes positive change when separated and C is returned to her care “this will cause great confusion, anxiety and disruption for C ultimately to return to the situation he has now”. I also take account of the fact it would be a further placement move having hopefully formed an attachment to AB.

The social worker was asked about how the proximity to M would be managed in the event of a move to AB and said there “would need to be a clear contract of expectations and initially a high level of monitoring”.

If C remained in M’s care under a Supervision Order there would be no material change for C.

The agreed threshold records M to have an ADHD diagnosis and to be engaging with DBT. Mr Marshall records evidence of “some degree of personality dysfunction” [E67]. It is not in dispute that M engaged in 12 initial sessions of DBT and seven of the remaining 12. They are weekly; there are five left.

It also records C having been exposed to adult conflict between M and F in 2024 and M breaching safety planning in allowing C to be cared for by unauthorised carers on two occasions.

In November 2024 Mr Marshall recorded that “there remains a significant risk of M experiencing difficulties in regulating herself emotionally, including in the presence of C” [E67]. However, more recently the social worker recorded an improvement in parenting by M, benefitting C’s overall behaviour and development [C72] and a change in her presentation from one of struggling to remain calm during social work visits to one where she is more able to communicate more clearly and calmly [C75]. There are no recorded significant, immediate concerns in relation to M meeting C’s basic care needs and that M has “endeavoured to make significant changes and has been observed to some level to make and sustain such changes” [C77].

Mr Marhsall’s update is that there has been positive engagement with DBT [E223] but a “sustained period of application of skills learned therapeutically” is required to “provide evidence of retention” [E224]. On the issue of drug use he considered that seeking support from Turning Point was unlikely to be of benefit if M continues to deny substance misuse [E225]. If she is not being honest “then in my view the risks remain as significant as set out in the initial report that M prioritises her own needs without consideration of the impact on C, which risks some degree of emotional harm or indeed exposure to risks that may be posed by others” [E226].

That chimes with Ms Bull’s oral evidence; it was put to her that the only thing that caused her to change her mind when reaching what would otherwise have been positive conclusions was the Hair Strand Test. She agreed, saying “it put a different lens over lots of the other conversations we had had, I thought the deflection could be proactively managed with ongoing therapy but at its core it would be dependent on trust and the Hair Strand Tests removed that factor of trust”. She was referred to the Prochaska and DiClemente “Cycle of Change” and said that if M was not able to be accountable for drug use it is “difficult to move forwards”, she is at the pre-contemplation stage. That echoed the social worker’s evidence at [C71]. She spoke to the risks of dishonesty in the event of a finding on the drug allegations saying “it is impossible to understand using patterns or to fully assess risk in relation to C” [F192]. I referred to this as a known unknown in the course of submissions and that is difficult to mitigate. The risk is of contact with harmful adults and of unintentional neglect [F192]. The fact that M “seems to find any suggestion of residual vulnerabilities or ongoing challenges unbearable” or “job done” [F196] is highly relevant to mitigation of risk.

As to other matters Ms Bull’s evidence was that M “now seems more able to take responsibility for these concerns [impact of relationships and difficulties with emotional regulation] and ownership of decisions which impact parenting moving forward” [F176], she is more able to successfully emotionally regulate [F177]. However, she did have a concern that M was now regulating through “dismissing and deflecting the basis of any concern” [F179]. She gave evidence of her jumping to the conclusion (wrongly at the time) that the parenting assessment would be negative, and I noted the same deflection when she was giving evidence about Mr Marshall’s report of emotional dysregulation (at [E224]) and observed the same to her. The concern Ms Bull had was “she may simply have shifted to an alternative emotionally protective strategy, deflection, which is less outwardly concerning” [F179]. What of the consequences of that? Ms Bull said that “without further work on trust and interpersonal relationships, M might inadvertently sabotage relationships (including engagement with services) due to the perception of being negatively judged to protect herself” and this would become a self-fulfilling prophecy [F180].

Positively, there was an observation of “strong insight into C’s need” [F180] and a “sense of how deeply M recognises the change in her parenting as working for C” although there was a risk of her focusing on “job done” in the past tense [F181]. Direct observation showed “the quality of the relationship between M and C” which gave confidence that “over recent months” C had been provided with good enough care [F183].

On balance Ms Bull considered that “although there is no evidence that things have deteriorated completely, it does feel that we are at precarious point at the top of a slippery slope” [F197] and that it is “not possible to work with her effectively in order to develop a safety plan” in relation to drug misuse [F198].

The Guardian’s evidence, with which the social worker agreed was:

Where the Guardian departs from the Local Authority assessment is on the effect of drug use on C. He said:

F does not put himself forwards to care for C. He has been negatively assessed based on his housing situation and substance misuse. A risk assessment has indicated supervised contact is appropriate.

I remined myself to ask these questions:

As to the past the social worker says:

My next focus is on what type of harm might arise. It is clear that the finding on drug use is pivotal. But for that it seems unlikely removal from M’s care would be countenanced as proportionate or necessary. The risks can be general or specific. As to the specifics the Mother and Guardian point to the attuned care from M notwithstanding drug misuse (in the event of that finding which I have made) but I do note that M’s own evidence was of using cannabis to self-medicate for insomnia. There is a risk of using cocaine to self-medicate for other adverse events or feelings.

In general terms there is a described risk of “leaving or placing C in unsafe situations…it increases [M’s] vulnerability to unsafe people or situations” although the social worker acknowledges “there hasn’t been a significant impact on C from her use” [C89]. As the Guardian acknowledged in cross-examination C is with M for most of the time and we don’t know how often he is being brought into contact with risky people. He agreed the risk is “not adequately understood because of the denials”.

The social worker said:

Ms Bull said:

I consider it is naïve to say that improvements have been noted and there has been no obvious impact from drug misuse by M. First, that is not easy to judge given the dishonesty notwithstanding regular social work visits or C’s increasing time in school. Secondly, the consequences may take time to develop and thirdly, in their lowest form, there may be a slower improvement in C’s presentation than there would otherwise be as a result of drug misuse even if C is showing improvement in his presentation.

The Guardian accepted that “any drug use and any use is antithetical to caring for him” whilst agreeing his observation of care provided was that it was safe and good.

The social worker’s oral evidence when it was put to her that there was no evidence of an impact on C from drug misuse was that “it would be hard to tell, C can’t tell us and its is hard to differentiate between ASD and environmental factors”. I can see the force in this. She went on to agree it is possible for parents to “hold it together” but over time being able to sustain emotionally attuned parenting is likely to be difficult. I accept that evidence and without knowing the frequency, timing and circumstances of use it is impossible to assess the risk of negative consequences for C with any certainty.

The Guardian considered AB could form part of a support and safety plan (paragraph 19) but the team manager said:

I agree, even with AB seeing M daily she has not detected the drug misuse I have found and that is with what M described as her being “quite stern with me”, seeing her every day, in her home nearly every day doing a “spot check” and turning up unannounced. Even with a more formalised role under a written agreement and Supervision Order support plan it is difficult to see how the observation may be more effective (and I mean no criticism of AB in saying this).

The Guardian refers to C having started school so an increasing observation of his presentation and suggests random drug testing and scheduled hair strand testing within the currency of a Supervision Order. The latter is a mitigation, but the former is not. The Local Authority do not have the resources for such testing and Turning Point (on the evidence of the Mother) will only test at most weekly and the form of the testing (urine and perhaps blood) may not pick up non-recent use.

Of most significance in my judgment though is the difficulty of mitigating risk against a background of dishonesty by M (i.e. a denial of drug use). I acknowledge that in light of my findings M may admit use and provide more details, or may, in the course of a therapeutic type of relationship with her cessation keyworker admit use such that the work with Turning Point is effective (the Guardian suggested and I accept the relationship will be quite different from that with C’s social worker) but both are hypotheticals.

AB has been approved as a Regulation 24 foster carer and matched with C. In the event of a Care Order being made the Local Authority will commence a Special Guardianship assessment over approximately 12 weeks. AB has confirmed she puts herself forwards for the same.

The Team Manager’s evidence was:

She is said to show good knowledge of children with additional needs and has experience of supporting people with ASD [C109/8].

In terms of support for AB if C is placed with her the social worker’s evidence was that she would have her own social worker and the placement team have family key workers who she could call on for assistance.

The Guardian’s oral evidence was that he had no concern about the care that AB could offer C.

Whilst the Guardian notes the distress that will be caused to C from removal, he agrees placement with AB is preferable to placement with a stranger (paragraph 11). In the event of removal to AB he raised the risk of proximity to M provoking confusion for C but concluded that:

I have considered contact arrangements under this heading as it is relevant to the mitigation of harm on removal from M’s care. The Guardian and Local Authority recommend a swift reduction in time with M, the point of difference is whether it should continue at twice or once a week. The argument for the former is that it will allow the relationship to be “kept fresh and current” in the event of a reunification. The argument for the latter is that it will allow M time to undertake the therapy and abstinence work and C will, in January, be increasing to full time at school. I am not sure this last point is valid. Many children cope with twice weekly contact with a parent notwithstanding they are at school and there is no rigorous assessment of why it might be different for C; I accept that it is very much a dynamic assessment though and it may not be meaningfully possible until the effect of any removal on C known.

I come now to consider the balancing exercise that is required by B-S.

Realistic Option 1: Remain with M under Supervision Order

Realistic Option 2: Care Order with plan for placement with AB and possible return to M

Whilst there are many positives to the care M has provided C and there would appear to be an improving trajectory the denial of cocaine use that I have in fact found is deeply troubling. Its use risks undermining all the achievements thus far both in terms of better care and engagement with professionals. My very great concern is that absent acceptance of the use the risk is very hard to manage; given the duration of use as I have set out above it is plain that announced and unannounced visits and the support of AB are simply not going to be sufficient to keep a check on use unless it becomes much greater. To an extent it is fair to say it is not having an adverse effect on C (although that ignores the fact C may have progressed further and faster without it) but that does not address the future risk, it relies on M “keeping it together” when M may simply not be able to as life presents adversity as it will. That may come in the form of a block in therapy, C starting school and M having more time on her hands, her sense that it is “job done” and she is out of proceedings or any number of other potential life events. Without knowing the pattern and extent of use that cannot be risk assessed. The consequence for C would be profound. He requires greater care because of his vulnerabilities and is at a crucial developmental point as he starts school full time. The risk arising outweighs the risks of removal. Those are predictable to some extent and can be mitigated to some extent in a way that the risks of remaining in M’s care are not known (save in a very general sense) and cannot be mitigated effectively as the evidence to date has shown.

On balance therefore I consider the risks of removal are outweighed by the risks to C of remaining with M.

In relation to contact, having reached the conclusion I have, I reflect on whether once or twice weekly contact is in C’s welfare interest. Frankly it is an impossible decision to make. The professionals disagree and C’s response to removal is unknown. I am not invited to make a defined order and as the Local Authority hold the plan I do not intend to interfere with their assessment. However, I observe that very serious consideration must be given to increasing from weekly contact at an early stage and I adopt the Guardian’s assessment that there is merit in saying there could be additional shorter periods of interaction (collection from school with AB for instance) in addition to more formal contact arrangements. That needs to be led by C’s needs as his response becomes known. It might also form part of any safety plan addressing what happens when C sees M in the street, such inevitable incidents can be used positively.

In light of the above analysis I make a final Care Order pursuant to section 31 Children Act 1989 and approve the care plan, including in respect of contact arrangements.

I want to express my thanks to the Guardian for the very fair and thoughtful way he has presented his analysis notwithstanding I disagree and the social work team for a care plan that recognises what is best for C is not a standard care order with foster care. They are to be credited for committing to ongoing DBT with a plan for return to M and potential application to discharge the care order.

Finally, to M I say you have achieved an enormous amount to this point, you are resilient and focused on working on the problems you face. Nothing I say in this judgment undermines that. You are the most important person in C’s life at the moment. It will be achingly hard for C to move to your friend. You must use this to redouble your efforts to address the issues that stop you being the best mum to C. You have so much to give him, don’t waste this opportunity. I wish you well for the coming months and sincerely hope that it will be possible for C to return to your care. Keep that as your motivation to respond positively to this judgment.