Lucy (Care Proceedings) (Rev 1)

This is the third judgment relating to the care proceedings involving Lucy (L). I conducted a three-day welfare hearing after issuing my fact-finding judgment on 26 February 2020. The outcome of the fact finding was that I found on the balance of probabilities that William (W), L’s older brother, did not commit suicide but rather died at the hands of either his father, mother or older brother Charles. I placed all three in the pool of perpetrators. The family members who were in the house that day, in my judgement, all lied to me about what happened on the day of W’s death and they have not accepted the findings that I have made. It is therefore not possible to know what actually happened to W and the precise circumstances of his death.

The Local Authority were represented before me by Mr Archer, the Mother by Mr Poole, the Father by Ms MacLynn, Belinda by Mr Day and the Guardian by Ms Rayat. I am very grateful to all of them for their assistance.

This judgment is concerned with what now happens to L. L is 12 years old and has been in foster care for two years. The case has been very significantly delayed, initially because the police took a long time to investigate W’s death and make a decision about prosecution, but then because the fact-finding hearing had to be adjourned part heard because the police failed to disclose relevant material (see order of 21 October 2019). As I will set out in more detail below, in the two years that L has been in foster care she has refused to develop any relationship with the foster carer and has effectively lived a double life. She has told nobody at her school that she is in foster care and she has remained totally committed to her family and to returning home.

The Local Authority (the LA) have put forward a care plan that places L in long term foster care with very limited contact with her family. Ms Howes, a LA social worker, carried out a Special Guardianship Order (SGO) assessment of L’s older sister, Belinda, and this was negative. L’s parents and Belinda’s primary position is that L should return home to her parents’ care. However, their secondary position is that L should be placed with Belinda in separate accommodation from the family home and Belinda should be her primary carer. That L should live with Belinda is supported by the independent psychologist who was instructed, Dr van Rooyen (Dr v R). The Guardian (Ms Lain) also supports this position so long as a careful package of support is put in place, albeit there are some complexities about how this can be achieved. Very shortly before the hearing the Independent Review Officer indicated in an email that she now supported the Guardian’s position.

This welfare decision is a difficult one because on the one hand I have L’s very strong wish to return home and the obvious psychological and emotional harm of forcing her to remain in foster care for a number of years and, on the other hand, I have a palpable but very difficult to quantify risk of physical and emotional harm if she goes to live with family members.

I conducted the hearing in a hybrid format with all the family members, Ms Taylor and the Guardian giving live evidence in court and Dr v R and Ms Howes giving evidence remotely. I undertook this format because I wanted to see the family members, and particularly Belinda, in person. There were some technical issues with the remote evidence, but this did not prevent the conduct of a fair and effective hearing.

In deciding what order to make I have to apply s.31 of the Children Act 1989 and the welfare check list in section 1. I have had close regard to the judgment of McFarlane LJ in Re G (A child) [2013] EWCA Civ 965 and the need to undertake a global, holistic evaluation of the various options available for L’s future upbringing. I also take into account Article 8 ECHR and the need to make a proportionate decision in respect of the undoubted interference in L and her parents’ right to family life. On the facts of this case Article 8 adds nothing to the holistic evaluation I need to undertake under s.31.

I start with the evidence of Dr van Rooyen (Dr v R), the independent psychologist instructed. Dr v R is highly experienced and was an excellent witness who had given very careful consideration to the complexities of L’s case. She met L on a number of occasions and also spoke to the family. She was highly concerned about the position L was in and her emotional response to foster care. She said that she had never seen a child who had managed to maintain such complete detachment from her foster care placement and compartmentalise her life for such a prolonged period. Although she said that most children who are in foster care want to go home, she felt that L was an extreme and particularly worrying case. She gave evidence of L’s lack of emotional development over the last two years and the likelihood of L becoming “emotionally retarded, delayed and unhealthy in life” if she remained in foster care. It was her view that the relationship with the foster carer had got worse over time, particularly because L had apparently thought she would be going home after the fact-finding hearing. I note at this point that there was no criticism by anyone of the foster carer; the evidence strongly suggests that she has done her utmost to help L, support her and integrate her into the family, but L has resisted all these efforts.

Dr v R said she thought it was highly unlikely that L would engage with a new foster carer and that if it did happen it would take a long time and involve her having significantly less contact with her family. She emphasised the crucial stage that L was at for her emotional development. She said that at present all L’s emotional needs were being met by her family rather than the foster carer. Dr v R said that the Father had been trying to get L to engage with the foster carer. This is important because the LA argue that a significant part of the reason for L’s refusal to engage with the foster carer is because the family have actively sought to undermine her role.

Dr v R accepted that a placement with Belinda would be challenging and also accepted the significant concerns in the SGO assessment carried out by Ms Howes. She said that there were serious issues about the family dynamics and minimising risks within the family. However, she said that there were positives. Belinda and L have a very strong bond and a support package could be put in place to help Belinda in looking after L. She described how Belinda would need to be given the primary carer role and the family would have to step back from parenting L. She thought that this would be very difficult for the Mother in particular. The family would have to have a clear understanding of, and commitment to, the rules and the LA would need to monitor this. Belinda would need to develop both physical and psychological independence from the family.

In answer to questions from Mr Archer, Dr v R entirely accepted the risks around the fact that the family, including Belinda, had not just refused to accept the findings of the

However, Dr v R felt that Belinda had a greater facility to see things outside the family narrative and to act to protect L. She described Belinda as having the commitment and bond to L in order to prioritise her interests and that Belinda was capable of putting to one side her view of her parents. She also said that Belinda and the rest of the family had a strong motivation to make a placement with Belinda work because they know that otherwise she will be returned to foster care which would be very harmful to her.

Dr v R did accept that if L returned to living with family members, she would have to accept an alternative version of reality, namely that W killed himself. This in itself could cause harm. However, Dr v R said that this would be the case wherever L lived as she is not, certainly in the foreseeable future, going to process what has happened to W and the findings in the fact-finding judgment.

Ultimately Dr v R was clear that it was in L’s best interests to be placed with Belinda. Her report states that remaining in foster placement is of no benefit to L and would be detrimental to her.

On behalf of the LA I heard evidence from Ms Taylor the social worker, and Ms Howes who had carried about the negative SGO assessment of Belinda.

Ms Taylor has only been L’s social worker since May, but she has plainly struck up a good relationship with L. Although a relatively junior social worker I was impressed both by Ms Taylor’s commitment to L and her calm and thoughtful evidence. I have no doubt she wants to do what she thinks is best for L and wants to help her. She said that this was a “very very finely balanced case”.

She said that she recognised that long term foster care may have a negative effect on L but felt that living with Belinda was not an option given the negative SGO assessment. She argued that contact should be reduced to once per month because greater contact with her family would prevent L from bonding with her new foster carer. She did accept my suggestion that L would be very upset if the contact was reduced in this way. She said that it was very worrying the degree to which L had totally rejected the foster carer, including not having unpacked for two years and refusing to accept any support or help from her.

The current foster carer would not remain L’s foster carer if she was placed in long term foster care and Ms Taylor explained a national search would be undertaken to find an appropriate foster carer. She accepted that this could mean L would have to move schools and potentially no longer be able to see her therapist, Ms Bormann, who she had been seeing for more than two years and who she has a very close and supportive relationship with. She accepted that the loss of school and therapist would have a detrimental impact on L. Ms Taylor hoped that L might develop a positive relationship with a new foster carer.

Ms Taylor accepted that Belinda was a protective factor for L. However, she felt that there was a risk of greater detriment to L if she was moved to live with Belinda, but it then did not work, and she had to be moved again. She agreed that there was no ideal solution for L and that this was a finely balanced decision but felt that on the basis of the fact-finding judgment there was a high risk to L if she returned to the care of family members.

Ms Howes, a senior social worker, had carried out the SGO assessment with Belinda. This is a detailed and careful piece of work and she had held six interviews with Belinda and contact sessions with the family and Belinda. I have no doubt that Ms Howes undertook it with complete professionalism and its conclusions are perfectly understandable. This was not the moment for a detailed forensic examination of the

Ms Howes did not discuss in much detail with Belinda the type of practical support that she might receive in terms of assistance with housing or the details of how her university course might be adjusted to allow her more time to be with L.

Ms Howes was clearly very concerned that Belinda should at her age be focusing on her own needs, including her education. She said it would be a huge sacrifice for Belinda to move out of the family home to look after L and it was not clear Belinda had given a realistic evaluation of a number of aspects of the proposal. She was also concerned that Belinda would find it very difficult to stand up to her parents, particularly her father, if there were issues concerning L. She felt that Belinda had not thought through the problems that might arise with L, particularly given L’s life experience, and what strategies Belinda might adopt.

The Mother and Father both gave evidence, the Mother through an interpreter. She said that she wanted L to come home to live with the family but if that was not possible, she would want L to live with Belinda. She accepted that it would be difficult, but she would do what was needed for L’s best interests. She said that she would obey the rules set by the Local Authority and that she had stuck by the contact rules for 27 months and would continue to obey the rules.

The Mother had said to Dr v R that she did not know why she was being assessed and that she did not know what danger she posed to her daughter. The Mother’s evidence indicated a failure either to understand the fact-finding judgment, or at least to absorb its implications. However, she did say that she respected the judgment whilst at the same time saying that she would never have harmed her son.

The Mother’s evidence was calmer and more reasonable than that in the fact-finding hearing. However, she does not appear to be a particularly reflective or perhaps insightful person. I do not think that she is capable of thinking in advance about how she would cope with Belinda being L’s primary carer. However, I do think that she will be led by her husband, and if he genuinely understands that he must cooperate with the LA then the Mother will go along with that.

The Father appeared at this hearing to be both more reflective and more insightful than his wife. He said that he would step back from caring for L if that is what was required and would help the Mother to do so as well. He seemed to understand that if he failed to do so then that would lead L to going back into foster care and that was not in L’s interests. He said that he would explain to the Mother that they were standing on the edge of a cliff in respect of L and it was going to be vital that they both obeyed the rules or they would lose her.

However, when the Father was asked about Charles, he lapsed back into being vague and, in my view, obstructive. He would not give any specifics about when he last saw or spoke to Charles and claimed not to know when the Mother last gave him money to buy food. He said he did not know why Charles had not cooperated with Dr v R but couldn’t recall when he spoke to him. He was in my view deliberately confusing about whether he spoke to Charles in May or July, seeking to confuse the court by referring to the two different Eid Festivals.

It was in my view clear that all members of the family were trying to obstruct the court in understanding what was going on with Charles. Given that Charles was deeply troubled in the last Winter/Spring, was seeing a psychiatrist and was said to be at times suicidal, I find it inconceivable that the family do not discuss him between themselves and do not have a clear recollection of when they saw and spoke to him.

Belinda is 20 years old. She is a law student who has completed two years, but this year was intended as a work placement so, as I understand it, the scope of the course this year is not clear. As I said in the fact-finding judgment, she is plainly an intelligent woman and is very engaging, save when being pressed on subjects she is not comfortable with. She is recorded by all the professionals as having a close relationship with L and already exercising some protective role in respect of her. This may be particularly because the Mother speaks limited English and is much less integrated into British society than are her daughters. Belinda has both intelligence and insight when it comes to the situation L is in but becomes highly defensive and hostile when challenged about either the facts of what happened to W or the role of the Local Authority. She was hostile to Mr Archer in cross examination, but it should never be forgotten that cross examination is a very uncomfortable experience for most witnesses, and in Belinda’s narrative this is a family which has been very badly treated by local authority, police and ultimately the court.

She was adamant that she wanted to and would be able to look after L and to place a line between her and her parents. She set out her plans in terms of how she would organise time and make arrangements for L for example to go to the doctor or with the school and have time out to see friends. She had organised a meeting at the University to discuss what her options would be for next year.

Belinda told Mr Archer that she had not read the judgment in full but that she “respected” the judgment. She said she had not had any discussions with her parents about the judgment. She then engaged in a form of jousting with Mr Archer that involved not saying she accepted the findings of the judgment and saying she was entitled to her opinion. She would not accept that her parents posed any risk to L. She said that she did not know where Charles was living and like her father was very confusing about when she last spoke to Charles. As with the Father, I find it very difficult to believe that Belinda does not have a perfectly clear recollection of her contacts with Charles since the judgment. She accepted that “potentially” Charles posed a threat to L.

Mr Archer asked her about friends who she said would support her if she was caring for L. She was somewhat cagey about these friends although she gave me more details than she was prepared to do when asked by Mr Archer. It is difficult to know how much weight to give to this support network.

The Guardian, Ms Lain, has been L’s guardian for over two years. It was plain that she is a woman of exceptional empathy and compassion and had developed a close relationship with L. She agreed with the LA that given the findings that have been made it would not be safe to return L to the parents’ care. However, she was absolutely clear that it would be harmful to L to keep her in foster care. She explained that L can be stubborn and single minded in her behaviour, thoughts and actions and even the most experienced and empathetic carer will not be able to change her view. She said L feels that the authorities have persecuted the family unjustly and that has impacted on her views of others and the world around her.

Ms Lain had spoken to Belinda on 18 September, after the negative SGO assessment. She “observed her to be a thoughtful and caring young woman who appears to understand the professionals’ concerns in a way her family could not”. She accepted that it would be a challenge for Belinda and L if they were to live together and that they would need a great deal of support. However, she strongly believes this is the only placement which will benefit L.

She set out in her report a proposed transition plan, in outline, which would allow L to move to live with Belinda. This involves the provision of practical support including with accommodation, a transition to greater contact with Belinda, and work with Belinda and the family to discuss concerns and working arrangements. The Guardian, through Ms Rayat, referred me to an email sent by the Independent Reviewing officer (IRO) the day before the hearing in which she supported the Guardian’s position. It should be noted that the IRO had previously agreed with the LA but a lot of information in this case came in very late in the day.

I spoke to L by video link on the Friday before the hearing and she sent me a letter setting out her wishes and feelings. L was somewhat reticent at first but quite easily came out of herself and started to talk more freely. She was totally clear that she just wanted to go home and was not prepared to contemplate any other outcome. I got some sense of the stubbornness Ms Lain described and a very fixed view. But that is hardly surprising given her life experiences and the fact she is only 12. L could not envisage problems arising with her family or how those might be dealt with.

At the end of the hearing the LA’s position remained that the final care plan with long term foster care should be approved and it would not be safe for L to be placed with Belinda by whatever legal route. The LA emphasise the findings that I have made in respect of the parents and the family’s lack of co-operation and hostility to the LA. Mr Archer relies on the detailed and comprehensive special guardianship assessment carried out by Ms Howes. He pointed out that the SGO assessment was carried out after a lengthy and detailed process whereas the Guardian reached her view after one telephone call with Belinda lasting 90 minutes. The Guardian did not meet with the Father, Charles or Ms Howes.

Mr Archer, quite rightly, says that large parts of Ms Howes’s conclusions were not challenged in cross examination. I have to say I have little sympathy for this point. It seems to me that the issues in this type of hearing are ones where a strict adversarial approach with lengthy cross examination is likely to be of little assistance to the court. The issues in the various reports on which I needed further elucidation were dealt with in court and I had a full understanding of the issues and the witnesses’ positions at the end of the hearing. I do not feel further cross examination would have been of assistance to my deliberations.

Mr Archer says that the LA did take into account the views of the IRO, but she had sent her email to the Guardian at 4.45pm on the working day before the hearing.

The Mother, Father and Belinda’s primary position was that L should return to her parents’ care, but as a secondary position that she should be placed with Belinda.

I start with L’s wishes and feelings which are overwhelmingly to go home and to be released from foster care. She could not express this more clearly and repeatedly. I do not consider that L is “Gillick” competent in terms of decisions about where she lives. She is only 12 years old and finds it impossible to contemplate anything that points to her family posing a risk to her. However, she is of an age and intellectual maturity to be able to express what she wants and also to make forcing her to stay in foster care and co-operate with that extremely hard. If I do not allow her to live with a family member, she will find that difficult to understand or accept.

L was only prepared to contemplate living with Belinda to a limited degree because she is so focused on going home. However, it was apparent talking to her and from her letter that she would much prefer to live with Belinda than to stay in foster care. I think there will be a problem with keeping L with Belinda and preventing her from gravitating back home to her parents. The LA will have to monitor this issue, and I do not underestimate the problems in doing this in an effective but proportionate manner. However, some form of oversight is going to have to be achieved.

It is difficult to overstate the degree in this case to which the court is faced with two options, both of which give rise to significant risks to L. There is no doubt that if she remains in long term foster care, presumably for at least four years until she is 16, that will make her very upset and unhappy. In my view that option is likely to give rise to real long term emotional and psychological harm and will probably create lasting damage to her educational prospects. L has had an exceptionally difficult life experience since W’s death and, in all probability, before that given the issues within

But on the other hand, if I set up a process by which she lives with Belinda, let alone with her parents, I am returning her to a family which on my findings were involved in the death of W, and since then have quite deliberately covered up the truth of what happened. The family have also deliberately minimised other recorded incidents of violence within the family and routinely alleged that problems are the fault of external bodies such as police, local authority or school when this is plainly not the case. The family are deeply hostile to public authorities (local authority, police and in many instances schools) and are unlikely to reveal any difficulties unless forced to do so.

In my view the Father, Mother and Belinda were not honest with the court at this hearing about the contact that they had had with Charles. Given the findings I made and the fact that Charles had serious mental health issues in 2019-20, as well as all the issues around Covid-19 and lockdown, I find it not believable that the family do not have a very clear recall of what contact they have had with Charles since February 2020. They are still seeking, for whatever reason, to tell the court as little as possible about Charles.

I do not consider it would be safe to return L to live with her parents. The quantification of risk is too uncertain and the lack of openness and cooperation by the family too palpable to persuade me that the LA could protect her from a very significant risk of harm. It hardly needs to be repeated that this is a household within which a 13-year-old died at the hands of family member(s) and where those family members have actively misled the authorities.

Although I am concerned about risks to L if she lives with Belinda, in my view the balance of her interests is firmly in favour of placing her with Belinda and setting up a package of support that maximises the prospect of that placement succeeding. I will set out the various factors below and cross reference them to the welfare checklist in section 1.

L is adamant that she wants to go home (s.1(3)(a)). She is wholly resistant to being in foster care and has maintained this resistance to an astonishing degree over the last two years. Both Dr v R and the Guardian said that they had never seen a child who had managed to maintain such an emotional detachment from foster care for such a prolonged period. She has rejected any support from the foster carer and refuses to have any kind of relationship with her. L has close friends at school but none of them know she is in foster care. Both Dr v R and the Guardian believe, and I agree, that this compartmentalisation is very damaging for L.

There seems to be no realistic prospect of her bonding with or accepting a new foster carer. The only possible way of achieving this would be to cut her off from her family by limiting contact further. In my view this would be nothing short of cruel. I can see nothing but emotional devastation for L if the care plan goes down that line. For the avoidance of doubt, I accept that some of L’s resistance to the foster carer may have been encouraged by her family but ultimately that does not matter, it is now an emotional reality.

Further, if she goes to long term foster care there is a real chance that she would have to move schools and stop seeing the therapist she has a very close relationship with.

In these circumstances I cannot see that it is in her best interests to place her in long term foster care. These factors go to s.1(3) (b), (c) and (d).

On the other side of the balance is the risk that is posed if she lives with Belinda or the family, s.1(3)(e). This risk is difficult to quantify, not least because neither I nor any of the professionals know what happened to W and the circumstances in which he died other than that he did not commit suicide, it was not an accident and three family members are in the pool of perpetrators. This is a closed family which shares nothing with outsiders. It is also a family where there is strong evidence of seriously aggressive behaviour by all the male members of the family. I cannot discount the prospect of future aggression and violence by at least the Father and Charles.

There are two aspects of the risk which particularly concern me. Firstly, L is entering adolescence and has had a deeply troubling few years. Although at the moment she is very contained and self-controlled, it must be possible that she will become disturbed and angry when she starts to push boundaries more and perhaps when she reflects on whatever has really been going on in this family. She has been an entirely innocent victim of events and it would be quite understandable for that to make her angry. That may well lead to conflict within the family, to which the response is unpredictable.

There is also a very high level of uncertainty around Charles and the degree to which he poses a risk. There is no reason to believe he would be violent to L, but he does appear to be a cause of great tension within the family. It is possible that L could get caught in the middle of whatever is happening within this family.

The second feature is that this is a family which is wholly hostile to the Local Authority and the police and unlikely to either be honest in their response to any monitoring but also very slow to seek help when needed. A good example of this was the incident in 2018 when it seems Charles attacked Belinda and the Father did call the police. However, when the matter got to court Belinda refused to give evidence and the family all sought to downplay the incident when I conducted the fact-finding hearing. I am very concerned that if there is violence within the family the police will not be called, and L may not be protected.

However, I do think that Belinda is genuinely committed to L’s best interests. Although she may well have been reluctant to take responsibility for L when speaking to Ms Howes, when faced with the choice of L going into long term foster care, Belinda’s commitment to her little sister is in my view genuine. I also think Belinda may well have more insight into the risks the family pose than she is prepared to own up to in court. Belinda was not there when W was injured. She, and indeed the rest of the family, are in the position that if they publicly accept any risk or any part of the fact-finding judgment, they are effectively inviting a prosecution of a family member for a very serious crime. That is a very strong motive to refuse to publicly accept the findings and may not fully reflect her true position. However, I fully accept that this is speculation and there is a real risk which must not be discounted.

The parents did show some movement in being prepared to work with the Local

For all these reasons I have concluded that the LA care plan for long term foster care is not in L’s best interests and should be rejected. I also reject the parents’ case that L

There is urgency in this matter given how long L has been in care and her difficulties in foster care. A transition plan should be drawn up that sets out the assistance that will be given to Belinda; a process for engaging with the family and drawing up a working together agreement with them should be set out. This will necessarily involve boundaries over contact with the parents and Charles. There will also need to be a process for approving Belinda as a Regulation 24 carer. Unsupervised contact between L and Belinda should be facilitated as soon as possible. This will allow them to plan their new home together and I hope will give both of them a very positive incentive to accept and adopt the proposal.

The parties should seek to agree a timescale for all of this to happen with a date for the matter to come back before me. If this cannot be agreed, then there will have to be a further directions hearing. I would be grateful for the Guardian’s view as to whether I should write to L myself explaining why I consider she cannot return to her parents or whether the Guardian would rather undertake the explanation herself.

Finally, I want to express my thanks to all the parties for assisting me so much through this long and complex case.