YY (Children: Conduct of the Local Authority)

In this matter I am concerned with three young people, Child A who is 17 years old, Child B, who is 13 years old, and Child D, who is 11 years old. They had a sister, Child C, who tragically died on 6^th June 2019 when she was 14 years of age.

The mother of the children is M, she is the First Respondent. The father of the children is F, he is the Second Respondent. He has, however, played no active role in these proceedings nor is he legally represented.

The children were placed with local authority foster carers on 24^th July 2012. They moved to live with alternate foster carers, Mr XX and Mrs XX, on 15^th September 2012, where they have remained to date.

All four children, including Child C, were made the subject of care orders on 27^th January 2014.

Early in their placement with Mr and Mrs XX, the children made serious allegations of sexual abuse against their mother, their father and others within, and associated with, their extended family. These allegations were the subject of a fact-finding hearing before HHJ Rundell, the then Designated Family Judge of Hereford and Worcester in 2013. In his judgment of 26^th July 2013 he did not find the children’s allegations established on the balance of probabilities, but he did find that the children had been exposed to sexual activity when they had been living with their parents.

Over many years the children persisted in their accounts of abuse perpetrated by their parents and other members of their wider family. They each held increasingly entrenched negative views of their mother, their father and the wider family. Mr and Mrs XX adopted the stance of believing the children. In consequence, the mother and the father have not seen the children since late 2012 and the maternal grandmother has seen them on just two occasions in 2017.

I have three substantive applications before me:

At a hearing on 7^th August 2020 I was invited to direct that Child A and Child B should be separately represented on the basis that:

In preparation for this final hearing the mother sought findings of fact in respect of the alleged actions and failings against:

On 8^th January 2020, HHJ Plunkett directed that Mr and Mrs XX be joined as interveners to these proceedings.

This hearing was listed as a composite fact-finding and welfare hearing. For reasons which emerged during the course of this hearing and to which I will refer later in this judgment it only proved possible to conclude the fact-finding element of this hearing. I gave directions to enable this matter to be listed for a final welfare hearing later this year.

The children originally became known to the local authority in 2010 in respect of mother’s concerns of their sexualised behaviour, which included strategy discussions on 21^st June 2010 and 2^nd July 2010 and an Initial Child Protection Conference on 29^th July 2010. During the period of 2010-2012, the children were at times accommodated by family members and, for a short period, with local authority foster carers as concerns in respect of the mother’s mental health and the father’s behaviour were investigated. On 24^th July 2012, they were accommodated pursuant to section 20 and placed with the foster carers, Mr and Mrs QQ. Thereafter, they moved to their current placement with the interveners on 15^th September 2012.

Care proceedings were issued by the local authority on 20^th December 2012. On 21^st December 2012 the children were made the subject of interim care orders. At this time, the children’s social worker was Lynnette Chan. The children continued to have positive supervised contact with their mother until December 2012, at which time the children alleged past sexual and physical abuse within the care of their birth family. Since then, there has been no direct contact at all and very limited indirect contact.

In its threshold schedule, the local authority alleged that the children had been sexually abused, that their parents were both within the pool of potential perpetrators and that their maternal grandmother was aware of the abuse. The local authority also alleged physical abuse by various individuals including the parents.

A fact-finding hearing took place in July 2013 over a period of eight days before HHJ Rundell. Within his judgment of 26^th July 2013, the judge found in summary:

HHJ Rundell was satisfied that the carers had:

“faithfully recorded what the children did and said. They are not to blame for the present situation; they have provided love and devotion in the care of these four children. They are to be commended for the work they have undertaken”.

The learned judge found that

“the children now urgently require professional support; probably in the form of therapy and/or counselling. It is important to understand why they have made these allegations, which I have not been able to accept… I invite the local authority, in conjunction with the parents and the Guardian, to act swiftly to arrange such professional intervention as is considered appropriate.”

Following the court’s judgment, Dr Asen was instructed to provide an assessment of each of the children and to advise how they could best be informed of the outcome of the fact-finding hearing. In his report, dated 11^th November 2013, he advised that:

On 6^th December 2013, Dr Asen and the guardian discussed the finding of fact outcome with the children by way of a script drafted by professionals.

On 19^th December 2013, the mother filed her final statement, recognising the excellent care that the XX had provided but emphasising her concern that the script provided by Dr Asen and the guardian omitted reference to the absence of proven sexual abuse by her, in the same way extended family members were confirmed not to have perpetuated abuse. Her hope was that this would be rectified.

On 19^th January 2014, the then children’s guardian, Mr Webb, filed his final analysis. He supported final care orders in relation to each child, on the basis that they were to remain in their current placement. On 22^nd January 2014, the local authority’s placement panel approved the interveners as the long-term carers for the children. On 27^th January 2014, HHJ Rundell made final care orders in relation to all four children. The care plans provided for life story work to be undertaken by the social worker. The children’s understanding of their life story would also be facilitated by the interveners’ use of information and photographs provided by the social worker and parents in the form of a life story book.

In April 2014, Rebekha Phillips became the allocated social worker. The following month, she approached the Head of Service, on the advice of the independent reviewing officer (‘IRO’), to discuss gathering views about whether the children could be known informally as XX. On 12^th November 2014, she requested legal advice in relation to changing their surname, for which the local authority had received written consent from the father.

The social worker, Ms Philips provided a social work report for the LAC review on 30^th October 2014. In the period between this LAC review and the next review on 6^th March 2015, the local authority (together with the carers) was to give consideration to securing the placement of the children via either a special guardianship order (‘SGO’) or adoption. Direct contact with the birth parents was not taking place. No professional-led life story work, in respect of the children’s experiences before being placed in care, or work around the fact-finding judgment had taken place since the making of the final care orders. Indirect contact was planned but the social worker agreed with the children she would not tell them that letters had arrived for them, given their opposition to reading them. Instead, the IRO would ask them twice a year if they would like to change their minds about receiving them. This change of care plan received managerial approval. These recommendations were also set out in the social work report for the LAC review on 6^th March 2015.

Although Lynnette Chan had referred the children to CAMHS on 18^th January 2014, there were significant delays in starting the work. Rebekha Phillips attended an initial consultation with the interveners on 1^st May 2014. Child D had his first session on 21^st October 2014, a decision having been taken by CAMHS and the social worker that the children would receive therapy consecutively. The interveners questioned that plan as opposed to a service for the sibling group. In her letter to the children’s GP dated 29^th April 2015, Wendy Healey (CAMHS psychologist) referred to “the profound and detrimental impact of sexual, emotional, physical abuse and neglect upon all the children” as well as “toileting problems…linked to anal abuse”. The local authority did not seek to correct that narrative. Child C and Child B were referred to CAMHS on 23^rd July 2015 and Child A on 17^th November 2015. Despite the referrals, CAMHS did not challenge the children’s resistance to talking about their past life experiences.

On 18^th May 2015, the maternal grandmother, MGM lodged an application for permission to apply for a contact order pursuant to section 34(3). Permission was subsequently granted on 26^th July 2015.

On 20^th May 2015, the supervision record for Rebekha Phillips records that the legal department had advised that the children’s request for a change of surname could be considered at the time of the carers’ application for an SGO.

In July 2015 the local authority made a referral to the Therapeutic Intervention Support Service (‘TISS’).

On 22^nd September 2015, HHJ Rundell gave a judgment in this second set of proceedings, noting that therapy had been slow to start and Dr Asen’s further assessment of the children should await its completion. On 6^th November 2015, the proceedings were adjourned until June 2016 for this work to take place. The court noted that Dr Asen’s recommendation for therapy had been put into effect in a limited way, through the CAMHS referral but the work he had advised had not been done. An adjournment was “the least worst outcome”.

On 17^th November 2015, Child A commenced attendance at CAMHS, and the social worker started to receive advice from TISS.. Child C and Child B did not receive input from CAMHS. Rebekha Phillips began life story work, in consultation with TISS, but this was superficial, appearing not to address the children’s “false narrative” and did not involve discussion and challenge about their life pre-care.

The matter came before HHJ Plunkett for the first time on 20^th June 2016. The proceedings were again adjourned and a further order on 5^th July 2016 directed a further report from Dr Asen. Within his preliminary report, dated 30^th September 2016, Dr Asen indicated that all four children had made great progress in their emotional and social development since they were last assessed and were well settled in their placement. They wished to be known as XX. Dr Asen recorded that the children’s positions as to contact with the birth family had not changed in the period since his previous assessment and that the children had not changed their beliefs and narratives as to what had happened prior to their removal. Their past experiences and false narrative had not been discussed or further explored with them in the intervening 3 years, either therapeutically or via professional-led life story work. In his view it was:

“…essential for each child’s self-image and identity formation, to have balanced views, including positive ones, about members of the birth family whom they literally - and collectively - appear to demonise. In the long-term the likely impact of holding such negative feelings and views of the maternal extended family is harmful for their psychosocial development and also their future ability to form and sustain trusting relationships. It is for this reason alone very important that all four children remember and recover positive attributes and memories of their birth family. Indirect and direct contact would assist this process.”

Dr Asen raised concerns that the interveners had not been equipped by the local authority to provide positives about the birth family and their only information about the past had been the children’s ongoing, negative narrative about their past. The interveners had not been provided with a copy of the fact-finding judgment and had not been reacquainted with it over the past few years, nor had they been given a copy of Dr Asen’s 2013 report. The life story work undertaken to date had not focused on the children’s lives prior to removal from their mother’s care and so could not equip them to focus on positives about their birth family.

On 6^th October 2016, HHJ Plunkett, following consideration of the interim report, gave directions for the disclosure of certain key documents to the interveners, including the 2013 fact-finding judgment. An addendum report was ordered for 28^th November 2016. Dr Asen met Mrs XX and her daughter Miss XX on 10^th November 2016 to discuss the fact-finding judgment. Both indicated that they found it difficult to reconcile the judgment with their experience of the children’s behaviour in placement and the allegations they had made. They explained that they had only had the 2013 judgment for one day. Dr Asen recorded that the interveners would require time, guided reading and professional support to access the documents fully.

From an early stage, the mother had indicated that she would not force the issue of contact against the children’s wishes and, accordingly, the focus was on reestablishing contact with the maternal grandmother within the framework of her application. Dr Asen proposed a period of preparatory work with a view to direct contact taking place in mid-February 2017.

An Issues Resolution Hearing was listed on 2^nd December 2016 before HHJ Plunkett. On that occasion, the court, dismayed by the lack of progress, recorded in a recital to the order that:

“it is concerned about the surprising degree of resistance to accept the clear judgement from the fact finding hearing by the Foster Carers and raises the option to move the children to Foster Carers who understand and support the reality as letting the children grow up not knowing the truth is likely to cause them emotional harm”.

At a further hearing before HHJ Plunkett on 12^th January 2017, the local authority produced a plan to progress contact, which the court endorsed. Further work by the local authority was also endorsed by the court at the hearing on 22^nd February 2017.

The second set of proceedings concluded at a hearing before HHJ Plunkett on 28^th April 2017. The local authority provided a detailed amended care plan to include future contact, therapy and life story work for the children. The maternal grandmother’s application for contact was dismissed with no defined contact order.

On 15^th May 2017, Janet Watkins requested further legal advice regarding the change of surname. Gill Cox (Head of Service) agreed, on 21^st July 2017, that the local authority should make an application to bring this about.

On the 31^st July 2017, Victoria Leader became the Team Manager (Looked After Children team).

During the summer of 2017, input was provided by Dr Ali Davies (Clinical Psychologist, Action for Children) to Mrs XX for support with therapeutic parenting.

In the updated September 2017 care plans it was recorded that permanency by SGO was being considered.

In October 2017 the children had requested a new social worker. The case was reallocated to Hannah Ellis. During the period of involvement of Janet Watkins and Hannah Ellis there was further collation of birth family photographs, the children sent a card to their mother and had asked to visit places from their past and received a photograph from their mother. There was, however, no further professional-led life story work undertaken to address the children’s understanding of their lives preplacement once Janet Watkins’ involvement ceased. On 13^th July 2018, the children had a second contact with the maternal grandmother.

At the March 2018 LAC review it was recorded that the interveners had wanted to care for the children under an SGO for some time, but this had not been progressed during the previous contact proceedings. The local authority was to fund legal advice for the interveners and seek its own legal advice in relation to the change of surname.

On 3^rd May 2018, Hannah Ellis completed a Child and Family Assessment. This recorded the children’s wishes to be adopted by the XXs. Hannah Ellis gave her full support to SGOs, with an assessment to commence without delay. This would include work with the children and carers to support family contact.

Kathryn Straughan was allocated from the fostering team to undertake this assessment, to supplement her role as the fostering link worker. In accordance with Herefordshire County Council policy, the special guardianship support plan was completed first, prior to the special guardianship assessment.

The July 2018 LAC review further recorded the local authority’s plan for SGO assessments to be completed and presented to the court by the end of September 2018.

In February 2019, Child C was unwell with a high temperature and headache. She suffered intermittent symptoms throughout March and April 2019 and the interveners sought appropriate medical attention.

On 22 March 2019, Florence Kandodo became the allocated social worker for the children.

On 28^th April 2019, Child C’s health deteriorated, and she experienced involuntary muscle movements and tics. The interveners took her to hospital in Hereford that evening, having first spoken to the NHS 111 service. She was noted to be awaiting review by CAMHS but now needing an urgent review. She was referred to the CLD Trust’s counselling service and her carers sought an expedited review.

On 2^nd May 2019, she was taken to hospital a second time, was admitted to the Children’s Ward at Hereford County Hospital for overnight observations but was discharged the following day. On the 3^rd May 2019, Child C was urgently referred to CAMHS by Kirstie Gardner, specialist nurse for children in care.

On 10^th May 2019, the local authority special guardianship assessment was completed by Kathryn Straughan and Florence Kandodo, recommending that all four children be made the subject of special guardianship orders. This was in accordance with their wishes and feelings. The assessment also recorded that the children wished to be known by the surname XX.

On 13^th May 2019, Florence Kandodo referred Child C to CAMHS.

On 14^th May 2019, Child C had an appointment with CAMHS and was diagnosed with anxiety and PANDAS (Paediatric Autoimmune Neuropsychiatric Disorder Associated with Streptococcal Infection). She was prescribed various medications and was to return to school and there would be further referrals to a paediatric neurologist/immunologist. However, she continued to be very unwell and was unable to return to school.

On 26^th May 2019, Child C was again admitted to Hereford County Hospital. She was suffering with chest pains, left side paralysis and tics. The following day she was transferred to Birmingham Children’s Hospital where the seriousness of her condition became rapidly apparent. By the evening of 27^th May 2019, she was placed in an induced coma, suffering from severe sepsis. At approximately 23:00 hours, medical consent for a potential operation to replace her aortic valve was provided by Gill Cox (Head of Service), subject to the medical team deciding that it was necessary. The operation took place on the afternoon of 28^th May 2019.

On 28^th May 2019, the mother attended the hospital for her first visit to see Child C. No social worker was present, and she was met by Mrs XX and her daughter. The following day, MGM and F were due to have had contact, but these visits did not go ahead despite the maternal grandmother attending the ward. MGM had a supervised visit to Child C on 30^th May 2019.

By 3^rd June 2019, the hospital confirmed to the local authority that Child C remained on life support and there had been no real change in her condition since 31^st May 2019.

On 5^th June 2019, Birmingham Children’s Hospital reported that Child C condition had deteriorated. A CT scan identified multiple areas of infarcts in many organs, clots in her left ventricles, blood collecting in her stomach, fluid in her pleural cavity and active bleeding in her stomach. Her condition was described as unstable.

On the morning of 6^th June 2019, Birmingham Children’s Hospital contacted the local authority with the information that the hospital was seeking consent to redirect the pathway for Child C to remove life support.

The agreed timeline of events that occurred on 6^th June 2019, is set out in paragraphs [104]-[120] below.

At 11.05am on 6^th June 2019, Chris Baird (Director of Children and Families) gave written consent to stop ongoing care for Child C and to redirect to palliative care. Child C died at 11.54am that day.

On 17^th June 2019, the local authority reallocated the case from Florence Kandodo to Claire Wilce. A strategy meeting was convened on 11^th June 2019. The chair’s summary included the recommendation that the SGO report be revisited and amended if required.

On 13^th June 2019, case records detail a meeting between the foster carer, Alison Forshaw (Fostering Team Manager) and Karen Brooks. The interveners were informed that the new fostering link social worker would be Suzanne Musgrove. Kathryn Straughan remained the assessing fostering worker. Concern was noted about Mrs XX’ emotional state and ability to respond calmly to LA professionals at that meeting. Other conversations in the period after Child C’s death raised similar concerns.

On 17^th June 2019, Clare Wilce and Karen Brooks visited the children in their fosterplacement. Child A withdrew from the meeting in distress and all three children subsequently reported being upset as a result of the meeting. On 19^th June 2019 Child A, Child B and Child D spoke to their advocate, Claire Harris, and made a complaint about Clare Wilce and Karen Brooks. As part of the complaint, the children again raised their wish to change their surname.

A further local authority meeting was convened on 20^th June 2019, involving Gill Cox, Alison Forshaw, Carol Moreton, Claire Wilce and Karen Brooks to consider the issues in the relationship between the local authority and the interveners and any

On 21^st June 2019, the IRO met with the interveners and briefly with the children. HHJ Plunkett wrote to the local authority following receipt of a letter from the maternal grandmother. The local authority updated HHJ Plunkett with the procedures in place to consider the impact of Child C’s death on the other children and stated that there were no concerns regarding the care Child C had received from the interveners.

On 24^th June 2019, a supervision meeting took place between Gill Cox and Vicky

Following the meeting on 24^th June 2019, Vicky Leader wrote to HHJ Plunkett informing him that:

“The local authority does currently hold concerns around some aspects of the care being provided to the children. These concerns have become more evident during the period of Child C’s hospitalisation and thereafter. There is no doubt that the carers are committed to the children and have fully supported Child C to the point that she sadly lost her battle. However, the concerns that were raised during the court proceedings of 2016 have been magnified in respect of the foster carers views towards the birth family. This will need further robust assessment and consideration within the updating SGO assessment.”

On 27^th June 2019, a discussion took place between Suzanne Musgrove and Alison Forshaw. A “chronology of concerns” was to be drafted for the foster-carers’ panel review. The following day, Vicky Leader wrote to the interveners and confirmed that the local authority would update the SGO assessment in a timely way. A referral was made to Phoenix Bereavement Services.

Child C’s funeral took place on 5^th July 2019.

At a meeting convened on 16^th July 2019, the local authority decided that Alison Forshaw would work with Kathryn Straughan to plan the updating SGO assessment.

On 19^th July 2019 the mother emailed the local authority to set out her opposition to the potential SGO.

It emerged during the course of the evidence that the local authority operated a ‘LAC reduction policy’ whereby certain children’s ‘looked after’ status would be reviewed with the aim of moving them on, for example, to a special guardianship order or rehabilitation home, where this was warranted. On 24^th July 2019, a meeting took place between Chris Baird, Liz Elgar and Gill Cox to discuss the policy: “it needs now to be taken forward with much more drive than it has been”.

Kathryn Straughan’s personal supervision with Alison Forshaw took place on 26^th

On 2^nd August 2019, Suzanne Musgrove emailed Kathryn Straughan setting out her concerns about the carers, albeit noting she had only met them three times and had not been involved in “the conflict between other professionals leading up to and at the time of [Child C’s] death”. There are no other recordings evidencing the process by which Kathryn Straughan gathered information for her assessment. Her evidence is that she conducted her assessment from the Mosaic recordings on the system.

On 27^th September 2019, the mother made an application for contact with the children pursuant to section 34(3).

On 10^th October 2019 at 22.36pm, Kathryn Straughan emailed Alison Forshaw in the following terms:

“I have completed the YY assessment with the view that I cannot recommend a SGO at this time due to concerns in relation to contact and identity issues. Following your comments Thursday I have also drafted an alternative ending recommending a sgo with a tight support plan. Could you see what you think of this. Gill would need to agree it. I am considering putting both stances to the court and inviting the court to choose between the two. I remain of the view that it is too soon to recommend a SGO but feel that this may be an acceptable alternative???”

On 11^th October 2019 at 11.16am, Kathryn Straughan emailed Alison Forshaw enclosing a copy of the SGO assessment. This assessment (and those that followed) was conducted on a “paper only” basis, without the assessing social worker speaking to the interveners or the children directly. This unequivocally recommended that SGOs should not be made and that the care orders should not be discharged. The email was, however, accompanied by a second message attaching a document entitled ‘Alternative Recommendations’. At 17.06pm, Alison Forshaw emailed Kathryn Straughan and asked her to “revisit” the SGO assessment and make a recommendation.

On 11^th October 2019 at 17.24pm, Kathryn Straughan emailed Alison Forshaw informing her that she was resigning from her position.

On 16^th October 2019, the interveners were reapproved by the local authority’s fostering panel.

On 22^nd October 2019, there was a further personal supervision between Kathryn Straughan and Alison Forshaw. The SGO assessment was discussed.

On 29^th October 2019 at 10.47am, Alison Forshaw emailed Gill Cox and Vicky Leader with what was described as the “amended assessment” of Kathryn Straughan.

On 8^th November 2019, the local authority issued its application for discharge of the care orders in relation to all children. On 3^rd December 2019 it issued its application to change the children’s surnames.

On 29^th January 2020, a family meeting took place between Claire Wilce, the mother and her husband and the interveners.

In family proceedings there is only one standard of proof, namely the balance of probabilities. This was described by Denning J in Miller v Ministry of Pensions [1947] 2 All ER 372:

In Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 FLR 141, Baroness Hale, while approving the general principles adumbrated by Lord Nicholls in Re H and Others, expressly disapproved the formula subsequently adopted by courts to the effect that ‘the more serious the allegation, the more cogent the evidence needed to be to prove it’. Baroness Hale stated:

“[70] My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under s 31(2) or the welfare considerations in s 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.

[71] As to the seriousness of the consequences, they are serious either way. A child may find her relationship with her family seriously disrupted; or she may find herself still at risk of suffering serious harm. A parent may find his relationship with his child seriously disrupted; or he may find himself still at liberty to maltreat this or other children in the future.”

The inherent probability of an event remains a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred: common sense, not law, requires that in deciding this question regard should be had,

The rule of R v Lucas [1981] QB 720 was adopted in the family courts in A County Council v K, D and L. The principle is that if the court concludes that a witness has lied about one matter it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure.

In the criminal courts a lie can only be used to bolster evidence against a defendant if the fact-finder is satisfied that the lie is deliberate, relates to a material issue and there is no innocent explanation for the lie.

The court has considered the case of Re: H-C (Children) [2016] EWCA Civ 136, in particular paragraphs 98 to 100 of the decision of Lord Justice McFarlane, as he then was, where he said:

“98.

The decision in R v Lucas has been the subject of a number of further decisions of the Court of Appeal Criminal Division over the years, however the core conditions set out by Lord Lane remain authoritative. The approach in R v Lucas is not confined, as it was on the facts of Lucas itself, to a statement made out of court and can apply to a "lie" made in the course of the court proceedings and the approach is not limited solely to evidence concerning accomplices.

99.

In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of R v Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the "lie" has a prominent or central relevance to the case such a self-direction is plainly sensible and good practice.

100.

One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the "lie" is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane's judgment in Lucas, where the relevant conditions are satisfied the lie is "capable of amounting to a corroboration". In recent times the point has been most clearly made in the Court of Appeal Criminal Division in the case of R v Middleton [2001] Crim.L.R. 251.

In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt”.

I respectfully agree.

When considering making decisions and orders in respect of children their welfare best interests are the court’s paramount consideration: s1(1) Children Act 1989 (‘the 1989 Act’). I take account of those relevant factors set out in the welfare checklist: s1(3) of the 1989 Act.

I have regard to the Article 6 and 8 rights of each child, the mother, the father and of the interveners, as the prospective special guardians. Where, however there is a tension between the Article 8 rights of a child, on the one hand, and of an adult or carer, on the other, the rights of the child prevail - Yousef v The Netherlands [2003] 1 FLR 210.

The legislative provisions relating to special guardianship orders are set out in ss14A14C and 14F of the 1989 Act:

“Special guardianship orders

(1)

A “special guardianship order” is an order appointing one or more individuals to be a child’s “special guardian” (or special guardians).

(2)

A special guardian—

(a)

must be aged eighteen or over; and

(b)

must not be a parent of the child in question, and subsections (3) to (6) are to be read in that light.

(3)

The court may make a special guardianship order with respect to any child on the application of an individual who—

(a)

is entitled to make such an application with respect to the child; or

(b)

has obtained the leave of the court to make the application, or on the joint application of more than one such individual.

(4)

Section 9(3) applies in relation to an application for leave to apply for a special guardianship order as it applies in relation to an application for leave to apply for a section 8 order.

(5)

The individuals who are entitled to apply for a special guardianship order with respect to a child are—

(a)

any guardian of the child;

(b)

any individual who is named in a child arrangements order as a person with whom the child is to live;

(c)

any individual listed in subsection (5)(b) or (c) of section 10 (as read with subsection (10) of that section);

(d)

a local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application.;

(e)

a relative with whom the child has lived for a period of at least one year immediately preceding the application.

(6)

The court may also make a special guardianship order with respect to a child in any family proceedings in which a question arises with respect to the welfare of the child if—

(a)

an application for the order has been made by an individual who falls within subsection (3)(a) or (b) (or more than one such individual jointly); or

(b)

the court considers that a special guardianship order should be made even though no such application has been made.

(7)

No individual may make an application under subsection (3) or (6)(a) unless, before the beginning of the period of three months ending with the date of the application, he has given written notice of his intention to make the application—

(a)

if the child in question is being looked after by a local authority, to that local authority, or

(b)

otherwise, to the local authority in whose area the individual is ordinarily resident.

(8)

On receipt of such a notice, the local authority must investigate the matter and prepare a report for the court dealing with—

(a)

the suitability of the applicant to be a special guardian;

(b)

such matters (if any) as may be prescribed by the Secretary of State; and

(c)

any other matter which the local authority consider to be relevant.

(9)

The court may itself ask a local authority to conduct such an investigation and prepare such a report, and the local authority must do so.

(10)

The local authority may make such arrangements as they see fit for any person to act on their behalf in connection

with conducting an investigation or preparing a report referred to in subsection (8) or (9).

(11)

The court may not make a special guardianship order unless it has received a report dealing with the matters referred to in subsection (8).

(12)

Subsections (8) and (9) of section 10 apply in relation to special guardianship orders as they apply in relation to section 8 orders.

(13)

This section is subject to section 29(5) and (6) of the Adoption and Children Act 2002”

“Special guardianship orders: making

(1)

Before making a special guardianship order, the court must consider whether, if the order were made—

(a)

a child arrangements order containing contact provision should also be made with respect to the child,

. . .

(b)

any section 8 order in force with respect to the child should be varied or discharged.

(c)

where a provision contained in a child arrangements order made with respect to the child is not discharged, any enforcement order relating to that provision should be revoked, and

(d)

where an activity direction has been made—

(i)

in proceedings for the making, variation or discharge of a child arrangements order with respect to the child, or

(ii)

in other proceedings that relate to such an order, that direction should be discharged.

(1A) In subsection (1) “contact provision” means provision which regulates arrangements relating to—

(a)

with whom a child is to spend time or otherwise have contact, or

(b)

when a child is to spend time or otherwise have contact with any person;

but in paragraphs (a) and (b) a reference to spending time or otherwise having contact with a person is to doing that otherwise than as a result of living with the person.

(2)

On making a special guardianship order, the court may also—

(a)

give leave for the child to be known by a new surname;

(b)

grant the leave required by section 14C(3)(b), either generally or for specified purposes”

“Special guardianship orders: effect

(1)

The effect of a special guardianship order is that while the order remains in force—

(a)

a special guardian appointed by the order has parental responsibility for the child in respect of whom it is made; and

(b)

subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).

(2)

Subsection (1) does not affect—

(a)

the operation of any enactment or rule of law which requires the consent of more than one person with parental responsibility in a matter affecting the child; or

(b)

any rights which a parent of the child has in relation to the child’s adoption or placement for adoption.

(3)

While a special guardianship order is in force with respect to a child, no person may—

(a)

cause the child to be known by a new surname; or

(b)

remove him from the United Kingdom, without either the written consent of every person who has parental responsibility for the child or the leave of the court.

(4)

Subsection (3)(b) does not prevent the removal of a child, for a period of less than three months, by a special guardian of his.

(5)

If the child with respect to whom a special guardianship order is in force dies, his special guardian must take reasonable steps to give notice of that fact to—

(a)

each parent of the child with parental responsibility; and

(b)

each guardian of the child, but if the child has more than one special guardian, and one of them has taken such steps in relation to a particular parent or guardian, any other special guardian need not do so as respects that parent or guardian.

(6)

This section is subject to section 29(7) of the Adoption and Children Act 2002”

“Special guardianship support services

(1)

Each local authority must make arrangements for the provision within their area of special guardianship support services, which means—

(a)

counselling, advice and information; and

(b)

such other services as are prescribed, in relation to special guardianship.

(2)

The power to make regulations under subsection (1)(b) is to be exercised so as to secure that local authorities provide financial support.

(3)

At the request of any of the following persons—

(a)

a child with respect to whom a special guardianship order is in force;

(b)

a special guardian;

(c)

a parent;

(d)

any other person who falls within a prescribed description, a local authority may carry out an assessment of that person’s needs for special guardianship support services (but, if the Secretary of State so provides in regulations, they must do so if he is a person of a prescribed description, or if his case falls within a prescribed description, or if both he and his case fall within prescribed descriptions).

(4)

A local authority may, at the request of any other person, carry out an assessment of that person’s needs for special guardianship support services.

(5)

Where, as a result of an assessment, a local authority decide that a person has needs for special guardianship support services, they must then decide whether to provide any such services to that person.

(6)

If—

(a)

a local authority decide to provide any special guardianship support services to a person, and

(b)

the circumstances fall within a prescribed description, the local authority must prepare a plan in accordance with which special guardianship support services are to be provided to him, and keep the plan under review.

(7)

The Secretary of State may by regulations make provision about assessments, preparing and reviewing plans, the provision of special guardianship support services in accordance with plans and reviewing the provision of special guardianship support services.

(8)

The regulations may in particular make provision—

(a)

about the type of assessment which is to be carried out, or the way in which an assessment is to be carried out;

(b)

about the way in which a plan is to be prepared;

(c)

about the way in which, and the time at which, a plan or the provision of special guardianship support services is to be reviewed;

(d)

about the considerations to which a local authority are to have regard in carrying out an assessment or review or preparing a plan;

(e)

as to the circumstances in which a local authority may provide special guardianship support services subject to conditions (including conditions as to payment for the support or the repayment of financial support);

(f)

as to the consequences of conditions imposed by virtue of paragraph (e) not being met (including the recovery of any financial support provided);

(g)

as to the circumstances in which this section may apply to a local authority in respect of persons who are outside that local authority’s area;

(h)

as to the circumstances in which a local authority may recover from another local authority the expenses of providing special guardianship support services to any person.

(9)

A local authority may provide special guardianship support services (or any part of them) by securing their provision

by—

(a)

another local authority; or

(b)

a person within a description prescribed in regulations of persons who may provide special guardianship support services, and may also arrange with any such authority or person for that other authority or that person to carry out the local authority’s functions in relation to assessments under this section.

(10)

A local authority may carry out an assessment of the needs of any person for the purposes of this section at the same time as an assessment of his needs is made under any other provision of this Act or under any other enactment.

(11)

Section 27 (co-operation between authorities) applies in relation to the exercise of functions of a local authority in England under this section as it applies in relation to the exercise of functions of a local authority under Part 3 and see sections 164 and 164A of the Social Services and Well-being (Wales) Act 2014 for provision about cooperation between local authorities in Wales and other bodies”

The essential features of an application for a special guardianship order and which the court must scrutinise with care before making the order are:

A key element of the support plan is the arrangements for contact between the children and their mother, father and family and the support the local authority will provide to arrange and support contact: see also s.14B of the 1989 Act.

The principal findings of fact sought by the mother against the local authority were as follows:

The principal findings of fact sought by the mother against the interveners were as follows:

The principal findings of fact sought by Child A and Child B against the local authority were as follows:

In light of the concessions made by the interveners in respect of the findings of fact sought by the mother, the local authority made further concessions in the following terms:

In each schedule of findings of fact sought the principal findings were supported by particulars of events or omissions which it was submitted provided the factual matrix for each finding.

Prior to the start of this hearing various concessions and/or responses were filed and served by the local authority and by the interveners. During the course of the early part of this hearing extensive negotiations and discussions took place between the parties. The outcome of the same was that the findings of fact to be made by the court were agreed.

The findings of fact are, given the very lengthy history of this case, very substantial. In essence, each of the principal findings sought by the mother and Child A and Child B (set out in paragraphs 95 and 98 above) were agreed and I had no hesitation in making each of those findings of fact. The agreed schedules are appended as follows:

During the course of this hearing, in circumstances which I shall describe later in this judgment, an issue arose about the provenance of the special guardianship assessment report dated 22^nd October 2019. I heard oral evidence from the fostering social worker, Kathryn Straughan, the fostering team manager, Alison Forshaw, and from the Head of Service, Gillian Cox.

In light of the evidence received by the court from these witnesses and on the basis of the disclosure of additional documents, the respondents and the interveners all invited me to make findings of fact in respect of the production of the special guardianship assessment report. The schedule of findings of fact sought is set out in Appendix 4 to this judgment. The local authority did not oppose the agreed findings of fact sought.

I shall consider the making of findings of fact on this issue when I have reviewed the oral evidence I heard at this hearing and the documents which were provided to me.

In May 2019 Child C became unwell with a suspected streptococcal infection. She deteriorated and was admitted to the emergency department of Hereford County Hospital on 26^th May 2019. The following day she was transferred to the paediatric intensive care unit (‘PICU’) at Birmingham Children’s Hospital (‘BCH’). She was diagnosed with septicaemia, myopathy and multiple organ dysfunction. By the evening of 27^th May 2019 Child C was unconscious, in an induced coma, on a life support ventilator.

The interveners and the other children were present at BCH. Arrangements were made for the mother to visit Child C but not the other children: none of whom she had seen in over seven years.

Various issues arose between the interveners and the mother about her visits to see Child C. I have not heard evidence from either the mother or the interveners. Accordingly, I do not consider it appropriate or necessary to set out in this judgment the competing accounts of events which took place at BCH. Suffice it to say that it was an extremely stressful and distressing time for all.

Over the succeeding days Child C remained in a stable but critical condition.

The mother and the father were not involved in any meetings with the treating clinicians nor forewarned by the doctors of the potential outcome that Child C may die and/or that a decision may need to be made to withdraw life support.

Child C’s condition significantly deteriorated over the night and early morning of 5^th and 6^th June 2019.

At 8:39am on 6^th June the treatment coordinator nurse at BCH spoke with Vicky Leader to inform her that Child C was deteriorating; the life support machine was simply delaying the inevitable outcome. The treating clinicians had agreed a plan to remove life-support (‘ECLS’) from her but this would need consent.

Vicky Leader spoke with Liz Elgar, one of the applicant’s assistant directors of children’s services, who said the hospital would need to set the position out in writing and the authority would need to seek legal advice. It was agreed the parents needed to be informed and that they should be given the opportunity to have a goodbye contact.

At 9:34am Vicky Leader telephoned the mother to tell her that the hospital planned to withdraw Child C’s life support and that the mother may consequently want to seek legal advice. The mother said she wanted what was best for Child C and that she wanted to come to say goodbye to her daughter. She told Ms Leader that she and her husband were on their way to BCH.

At 9:42am Ms Leader telephoned the father who said he was in agreement with what was proposed but he did not wish to see Child C in her current state and he, therefore, did not wish to have a goodbye visit.

At 9:51am Dr Zafurallah, one of Child C’s treating consultants, sent an email to Ms Leader and the Head of Service, Gill Cox, in which he concluded that:

“due to the urgency of the matter and her continued rapid deterioration, I am unsure how long more she will survive. ”

This email was forwarded by Ms Leader to Mr Baird, the director of children’s services, noting that the information in this email would need to be given to the parents and that

“mum is making her way to Birmingham and Karen Brooks will support her to say goodbye. Dad has decided not to attend for contact. We will now need to plan how this will be managed sensitively as the carers and siblings will also be present.”

At 10:04am Ms Leader recorded that the mother would be arriving at the hospital about 11:30am to 12:00pm.

At 10:24am Ms Leader spoke with the mother to give her the information from Dr Zafurallah. The mother said that she did not want Child C to suffer any longer and that she was in agreement with the doctors. In a separate phone call the father gave the same response to Ms Leader.

At 10:40am Mr Baird sent a draft response to Dr Zafurallah to the local authority’s legal department for approval. At 10:43am Tim Marks one of the then local authority solicitors replied to Mr Baird as follows:

“discussed this with Liz and we agreed birth parents need to be informed about the medical advice. We need to consult with them but my legal advice is our duty as corporate parents is to accept the medical advice and avoid unnecessary suffering. If this is contrary to the parents wishes it is unfortunate but we need to take that course”

As I shall set out shortly this legal advice, as Mr Baird now accepts, was wrong.

At 10:57am Ms Leader spoke to Ms Elgar about who should be present when the life support machine was switched off. Her note of this conversation reads

“agreed with Liz that if the carers and siblings are able they should be a priority to be present with Child C when the life support machine is switched off. Mum should then be the next to say her goodbye to Child C before MGM, Uncle M and Aunt M are given this opportunity. Agreed that I need to check with hospital if it would be possible to delay the surgery to remove the pipes to enable the mother to say her goodbye before she dies.”

At 11:05am Mr Baird’s email, giving the local authority’s consent to withdrawing life-support, was sent to the BCH. The email included the following

“My colleagues are also working with Child C’s foster carers and birth family at this time and we hope we will be able to sensitively arrange for people to be able to say goodbye. We also appreciate Child C condition and the rapid deterioration that you set out”

At 11:08am in a telephone call between Ms Leader and members of the nursing team it was indicated that the process of withdrawing life-support had commenced and the surgeons would be removing the medical equipment from Child C’s heart at midday during which procedure she would die.

At 11:22am Ms Leader spoke again with the treatment coordinator nurse to enquire if there was any scope for delaying the medical procedure given that the mother was so close to arriving at the hospital. The nurse replied that it would be difficult from a health perspective to further delay these procedures.

At 11:48am Ms Leader passed this information to the mother who said she was close to the hospital.

At 11:54am Child C’s life support machine was switched off and she died immediately.

Shortly thereafter the mother arrived at BCH and was told Child C had died.

The surgical procedure to remove the medical equipment from Child C’s heart was undertaken. She was then prepared to be seen by her family. Child A, Child B, Child D and the interveners saw Child C first. The mother was then able to see and spend time alone with Child C.

Unfortunately, the funeral which was principally arranged by the mother was not without incident. I propose to say no more on this subject for three reasons:

For completeness I should record that Mr Baird as the director of children’s services, members of the management team and a number of past and current social workers attended Child C’s funeral to pay their respects.

Ms Meyer QC and Ms O’Malley, leading and junior counsel for the local authority, provided me with comprehensive submissions on the statutory provisions and the extensive case law in respect of a local authority exercising its parental responsibility to consent to medical treatment for children in its care. With due acknowledgement to

The effect of a care order being made in respect of a child is set out in the provisions of s.33 of the 1989 Act which provides:

“Effect of care order.

(1)

Where a care order is made with respect to a child it shall be the duty of the local authority designated by the order to receive the child into their care and to keep him in their care while the order remains in force.

(2)

Where—

(a)

a care order has been made with respect to a child on the application of an authorised person; but

(b)

the local authority designated by the order was not informed that that person proposed to make the application, the child may be kept in the care of that person until received into the care of the authority.

(3)

While a care order is in force with respect to a child, the local authority designated by the order shall— (a) have parental responsibility for the child; and

(b)

have the power (subject to the following provisions of this section) to determine the extent to which —

(i)

a parent, guardian or special guardian of the child; or

(ii)

a person who by virtue of section 4A has parental responsibility for the child,

may meet his parental responsibility for him.

(4)

The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare.

(5)

Nothing in subsection (3)(b) shall prevent a person mentioned in that provision who has care of the child from doing what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting his welfare.

(6)

While a care order is in force with respect to a child, the local authority designated by the order shall not—

(a)

cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made; or

(b)

have the right—

(i)

(ii)

to agree or refuse to agree to the making of an adoption order, or an order under section 84 of the Adoption and Children Act 2002, with respect to the child; or

(iii)

to appoint a guardian for the child.

(7)

While a care order is in force with respect to a child, no person may—

(a)

cause the child to be known by a new surname; or

(b)

remove him from the United Kingdom,

without either the written consent of every person who has parental responsibility for the child or the leave of the court.

(8)

Subsection (7)(b) does not—

(a)

prevent the removal of such a child, for a period of less than one month, by the authority in whose care he is; or

(b)

apply to arrangements for such a child to live outside England and Wales (which are governed by paragraph 19 of Schedule 2 in England, and section 124 of the Social Services and Well-being (Wales) Act 2014 in Wales.”

Subject to the provisions of ss.33(b) and ss.33(7), there is no limit or restrictions placed on the extent to which the local authority may exercise its parental responsibility for a child.

The issue of the exercise of parental responsibility by a local authority which had a care order in respect of a child was considered by the Court of Appeal in Re C (Children) [2016] EWCA 374. King LJ said the following at paragraph 57 to 62 of the judgment:

“57.

It is common ground that the effect of the making of a care order or interim care order by virtue of section 33(3) CA 1989 grants a local authority parental responsibility.

Section 33(3)(b) goes further, as it not only allows a local authority to share parental responsibility with a parent, but gives it the power to:

"determine the extent to which a parent may meet his parental responsibility for the child."

58.

That power is however subject always to section 33(4) CA 1989 which states:

"(4)

The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child's welfare."

59.

A local authority can, by virtue of the power conferred upon it by section 33(3) CA 1989, therefore limit the power of a parent to make major decisions regarding a child's life. The local authority effectively holds a 'trump' card, which it can choose to play, in the decision making process in relation to a child in care subject to section 33(4) CA 1989. An example of the use to which this power is routinely (and appropriately) put is in deciding where a child in care is to live.

60.

In private law cases, some issues are considered so fundamental to a child's wellbeing that, even if a parent has a child arrangements order stating that the child is to "live with" them (an old terms residence order), that parent cannot make certain decisions without the written consent of every person who has parental responsibility or the leave of the court, including, under section 13 CA 1989, changing a child's surname.

61.

Similarly, where there is a care order in place, the power conferred upon a local authority by section 33(3)(b) CA 1989 excludes certain circumstances where Parliament was of the view that the issue in question is too significant to be determined without either consent or a court order. These matters are set out in subsections (6) and (7) of section 33 CA 1989 and include at section 33(7)(a) CA 1989, causing the child to be known by a new surname.

62.

Nowhere in the Act is there a similar restriction preventing a local authority from using its powers under section 33(7) CA 1989 to overrule a parent in relation to a forename, whether in relation to the naming of a new born baby who has been taken into care shortly after his or her birth, or at all.”

A little later in the judgment, King LJ made the following observations at paragraphs 90 and 91:

“90.

Whilst I may not necessarily agree with the precise way that jurisdictional issues have been approached or expressed in these very difficult cases, what is clear is that there is a cohort of cases where the common theme is that a party (whether it be a local authority or, often, an NHS Trust) has sought to bring an issue before the court, believing it to be of too great a magnitude to be determined without the guidance of the court, and without all those with parental responsibility having an opportunity to express their view as a part of the decision making process.

91.

Most commonly, examples are found in the so called 'medical treatment' cases where, either an NHS Trust seeks a declaration from the court that they would not be acting unlawfully in pursuing or desisting from a form of treatment notwithstanding the parent's refusal to consent, or alternatively, a local authority seeks to invoke the inherent jurisdiction of the court and thereby to submit to the court's jurisdiction notwithstanding that care proceedings may have been open to them”

She then noted that in requiring a local authority to invoke the jurisdiction of the court in relation to a serious medical issue the court was not conferring power upon a local authority, rather that the High Court was using its inherent jurisdiction to limit, circumscribe or sanction the use of the power which the local authority already has by virtue of s.33(3)(b) of the 1989 act: see paragraph 97. She concluded in paragraphs 98 and 104 as follows:

“In the medical treatment cases the decisions to be made may well be a matter of life and death. In the present case, the limitation on the exercise of parental responsibility proposed by the local authority, whilst not life threatening, is life affecting. Further such a decision potentially involves such a serious invasion of the Article 8 rights of the mother that I am satisfied that the court should invoke its inherent jurisdiction in order that it may either sanction the local authority's proposed course of action as in the interests of the children or, alternatively, to refuse to sanction it as for example being in breach of Article 8.”

“I have reached the conclusion that there is a small category of cases where, notwithstanding the local authority's powers under section 33(3)(b) CA 1989, the consequences of the exercise of a particular act of parental responsibility are so profound and have such an impact on either the child his or herself, and/or the Article 8 rights of those other parties who share parental responsibility with a local authority, that the matter must come before the court for its consideration and determination.”

I was helpfully referred by Ms Meyer QC and Ms O’Malley to two later decisions of the Court of Appeal which approved and reinforced the observations of King LJ in Re C (above), namely:

I have taken account of all three cases and respectfully agree with the observations of the Court of Appeal on the proper ambit and use of powers granted to a local authority under a care order by virtue of the provisions of s.33(3) of the 1989 Act.

In Child C’s case, therefore, the profound life and death decision to consent to the withdrawal of life support ought to have been the subject of an application to the High Court either by BCH or by the local authority. It was wrong and an inappropriate use of its powers under s.33 of the 1989 Act for the local authority to have exercised its powers to consent to the withdrawal of Child C’s life support.

Both the mother and the father told Ms Leader on the morning of 6^th June 2019 that they agreed with the decisions of the treating clinicians. The local authority has now accepted that given:

It is, to say the very least, extremely regrettable that the mother was not able to say goodbye to her daughter before she died. It may well have been the case that even if life support had not been withdrawn at 11:54am on 6^th June Child C may still have died before her mother was able to see her. We shall never know.

I must emphasise, for the avoidance of any doubt, that this court does not, and no party to the proceedings asserted that, the decisions made by and medical treatment given to Child C by the treating medical team at BCH should be impugned or criticised in any way.

In June 2019 the local authority did not have a policy or protocol for the actions to be taken in response to a child requiring serious medical treatment or requiring the withdrawal of life sustaining treatment and the giving or obtaining of consent for the same. There is now a policy in place which is compliant with the guidance given in the case of Re C (Children) above.

In May 2018 the then children’s social worker completed a children and family assessment which recommended that a special guardianship assessment should be undertaken in respect of the children and the interveners. Kathryn Straughan, the interveners’ fostering social worker, completed that special guardianship assessment in May 2019. It is recommended that special guardianship orders (‘SGO’) should be made in respect of (then) all four children in favour of the interveners.

After Child C’s death on 6^th June 2019 it was decided that the special guardianship assessment report should be updated by Ms Straughan who, shortly after Child C’s death, had been replaced as the interveners’ social worker by Suzanne Musgrave. The updated assessment dated 22^nd October 2019 was signed off by senior managers and was filed with the court in November 2019. It also supported the making of an SGO in favour of the interveners.

Shortly prior to the commencement of this hearing an unsolicited statement was provided by Ms Straughan to the local authority. As a result of this statement a number of issues arose in respect of the updated special guardianship assessment report, namely:

The issue of the disclosure of relevant documents proved to be very considerable and caused very significant delays in the conduct of this hearing. I shall refer to this later in the judgment, but the ongoing, very late disclosure of documents had two immediate consequences:

Accordingly, by day 11 all issues on the findings of fact sought by the mother and by Child A and Child B had been agreed and I was provided with agreed concessions as referred to in paragraph 101 above and as set out in Appendices 1, 2 and 3.

The remaining disputed issues related to the updated special guardianship assessment report. The respondents and the interveners jointly sought findings of fact on these issues as set out in the findings sought at Appendix 4.

The evidence called at the hearing was limited to these findings and Mr Baird gave evidence about the actions and the role of the local authority more generally.

Kathryn Straughan had been the interveners’ social worker but was reassigned in June 2019. After Child C’s death she was asked to update her May 2019 special guardianship assessment report by her team manager, Alison Forshaw. She had instructed her to undertake the update as a paper-based exercise and that she was not to visit the interveners.

Ms Straughan believed there were some positives about the children's placement with the interveners: the children were settled and felt part of the family, the children, however, struggled with their sense of identity, with their views about their parents and wider family and with the issue of contact. These concerns and the concerns about the attitude and approach of the interveners towards the birth family escalated after Child C’s death. Ms Straughan did not consider that the interveners genuinely believed that contact with the parents and their wider family was in the best interests of the children.

She told me that she had real reservations about SGOs being made in favour of the interveners. She did not consider this order to be in the best interests of the children.

As foreshadowed in a supervision meeting with Ms Forshaw on 3^rd October 2019, on 10^th October Ms Straughan sent her updated assessment report to Ms Forshaw by email. The body of the report was largely negative about the interveners. She concluded with a recommendation that the children should remain the subject of care orders, not SGOs. She asked Ms Forshaw whether she could leave the alternative to the court of making SGOs on the basis of a comprehensive and detailed special guardianship support plan.

On 11^th October 2019, Ms Forshaw emailed Ms Straughan in response and said she had to ‘make a recommendation’. Ms Straughan then resigned. Consequently, Ms Straughan, without materially changing the body of her first updating report, changed the recommendation of the report to one of supporting the making of SGOs. This was sent to Ms Forshaw on 28^th October 2019.

She told me she had the clear impression that Ms Forshaw and Ms Cox supported the making of SGOs in favour of the interveners. She felt she had been directed to recommend SGOs to be the right solution and she had changed her recommendation so that it was aligned with the ‘local authority’s view’.

I note that when Ms Forshaw emailed the updated report on 23^rd October to Ms Cox, she had replied that she was pleased that Ms Straughan had made a recommendation.

I further note that Ms Straughan told me that this was the first and only time she had been asked to prepare a paper-based special guardianship assessment report or an updated report.

Ms Forshaw stated that concerns about the children's placement with the interveners were magnified after June 2019. In response to the question that these concerns were incompatible with an SGO she replied, ‘…it feels like that now!’ I do not understand why ‘it did not feel like that’ in October 2019.

She said she could not recall instructing Ms Straughan to confine her updating assessment report to a paper-based exercise. She continued that she had no view on what the ultimate recommendation should be and that she had not put pressure on Ms Straughan to make a recommendation in favour of SGOs. When pressed on this issue by Mr Goodwin QC, leading counsel for the mother, Ms Forshaw accepted that in her first updating report Ms Straughan had made a clear recommendation, namely that the children should remain the subject of care orders. So, Mr Goodwin QC asked why in her email of 11^th October 2019 she had asked Ms Straughan to make a recommendation? The best Ms Forshaw could do was to say that now her request did not make sense, but she added she had not led Ms Straughan to make a recommendation in favour of the making of SGOs.

Ms Forshaw told me that she felt the first version of the updating report had been unfair to the children and the interveners. I struggled with understanding this answer because the only substantive change between the two versions was that the later supported the making of SGOs. When asked if she considered the second version fairer only because it supported the making of SGOs, Ms Forshaw could not give a satisfactory answer.

When it was suggested that save for the first updating report having been emailed to Ms Cox, Ms Forshaw had sought to suppress the first version, Ms Forshaw said she thought both the first and the second updated reports had been sent to the legal department. Only the second version was filed at court and served on the parties. I have not seen any evidence of the first version having been sent to the legal department. Indeed, the first the court and the other parties knew of the first version is when Ms Straughan’s statement of February 2021 was filed and served by the local authority.

When Ms Forshaw was asked if she had asked Ms Straughan how her visits to the interveners were progressing, she said she did not know if she had done so. When asked if she had raised with Ms Straughan why there was not a single reference to any visits to the interveners in either of the first or second versions of the report, she claimed she had. Unfortunately, she had not recorded a single one of these discussions.

Ms Forshaw agreed that on one view the first version was a really poor assessment report. When asked why then had she signed off the second version when it was not materially different to the first one save for its recommendation, she simply said she had been under pressure to file the report with the court.

Ms Forshaw was recalled to give evidence after Mr Baird had given evidence. She was asked again whether she had asked Ms Straughan about her visits to the interveners; she said she could not remember. When asked if she had asked about the interveners’ reactions to her visits, she first replied no and then said she could not remember.

She said she did not think that Ms Straughan had changed her recommendation to appease her or Ms Cox. She was asked why she had signed off the second version when the body of the report did not support the recommendation. Once again, the best Ms Forshaw could do was to reply that the report just had to go to the court.

Towards the end of her evidence Ms Forshaw was pressed again about whether she has spoken with Ms Straughan about her visits to the interveners. This time she said that maybe she just did not ask her.

Miss Cox could not recollect (an answer frequently used by this witness) whether she had seen the first version of the updating assessment report. She could not recollect whether Ms Forshaw had told her that this first updated report did not support the making of SGOs. She said she had not read the second version of report save for reading the recommendation. Having now read this report in full she did not invite the court to rely upon this report in support of making SGOs in favour of the interveners.

Ms Cox confirmed that prior to early 2017 no life story work had been undertaken in the preceding five years with any of the children. She said that after a few months the work of Janet Watkins, who undertook the work with the children, was paused to give the children a break. It never restarted.

No therapy was ever undertaken with the children. Ms Cox was asked what oversight she had given to this case. She replied that the case had fallen off her radar because of the breadth of her workload, although she conceded this was no excuse. I do not understand how this high profile and complex case which had caused serial concerns for many professionals working with the children and with the interveners could ‘fall off the radar’ of the Head of Service.

She conceded that the children, the mother and the interveners had been badly served by this local authority. She agreed that accordingly the children had suffered for which she had real regret.

Like Ms Forshaw, Ms Cox was recalled after Mr Baird had given evidence. She continued to assert that as the Head of Service, she had not needed to read either the first or second versions of the updated assessment reports because they had been signed off by the team manager. When Mr Baird’s dismay at this state of affairs was put to Ms Cox, she asserted that the director of children's services did not know the usual practice adopted in Herefordshire.

When asked whether she should have read the entirety of both versions of the updated report she said that she wished she had. Ms Cox accepted that the ‘safety net’ oversight (i.e. the quality assurance check), which Ms Forshaw and herself should have provided, failed in this case.

In light of the observations of HHJ Plunkett recorded in the order of 2^nd December 2016, Ms Cox was asked what consideration had been given to moving the children to an alternative foster placement. She gave the startling and deeply concerning oneword answer, ‘none’.

Vicky Leader was the team manager of the children's team. She played a major role in coordinating visits to Child C in hospital. She also played a key role in liaising with the parents and the hospital on 6^th June 2019.

Whilst at the time she had considered the October 2019 updated assessment report to be fair and balanced, she now accepted it was flawed. She said she now recognised there was strong evidence against the making of SGOs.

She had never been sent or seen the first version of the updated assessment and had only had the opportunity to read it the day before she had given her evidence.

She, like other witnesses, asserted that the chronic concerns about the children’s foster carers were magnified after June 2019.

I found Ms Leader to be a measured and reliable witness who answered all questions in an open and ready manner.

I formed the same impression of Ms Straughan notwithstanding the criticisms of her made by Ms Forshaw. Even if these criticisms, that Ms Straughan was a challenging individual to work with, that her performance was at times sub optimal or that she was avoiding writing the updated assessment report, about which I make no comment, were true, they would not detract from the straight forward and credible evidence given by Ms Straughan.

I regret I cannot make these observations about the evidence given by Ms Forshaw or Ms Cox. Where there is a conflict between the evidence of Ms Straughan and Ms Forshaw, I prefer the evidence of Ms Straughan.

I remind myself that Ms Forshaw had first-hand experience of difficult meetings with the interveners. She visited the interveners on 13^th June 2019 with another social worker and noted with concern that Mrs XX had said that they always spoke openly and about everything in front of the children.

If Ms Forshaw had not instructed Ms Straughan to undertake a paper-based updated assessment report, I cannot begin to understand why she did not ask Ms Straughan about how her sessions with the interveners were progressing. I cannot accept that Ms Forshaw had simply forgotten any of these alleged conversations.

Ms Forshaw’s evidence about why she had sent an email to Ms Straughan on 11^th October 2019 asking her to make a recommendation when, as she accepted, Ms

I am fortified in coming to that conclusion by the fact that despite knowing the substance of the body of the second version of the updating report which did not support the recommendation made, she submitted the report to the legal department for filing at the court. She did not raise this disjoint with Ms Straughan because she had the recommendation she wanted.

Likewise, the only credible reason for Ms Cox limiting her reading of the second version of the updating report to the recommendation is because she had got the answer she wanted, namely a recommendation in favour of the making of a SGO. Hence her subsequent email to Ms Forshaw that she was ‘pleased’ that Ms Straughan had been able to make a clear recommendation.

If these conclusions appear a little harsh or unfair, I refer to two further matters which strongly demonstrate the approach of the senior management team of this local authority’s children’s services department to this case (for the avoidance of doubt I do not include Mr Baird in my reference to the senior management team for these purposes).

Dr Asen had from time to time, between 2013 and 2016, been instructed to advise on the way forward in this case. He is one of the most experienced and highly regarded child psychiatrists in the field of high conflict children’s cases in the country. In 2014 a social work professional had recorded on the social work files that Dr Asen had expressed a view that the judgment and order of HHJ Rundell in the fact-finding hearing of 2013 was wrong and it should have been appealed. If this had been Dr Asen’s view he would have expressed it in one of his reports. He did not. I do not understand the motive for this false recording, but it indicates that the same professional in the local authority was not supportive of Dr Asen’s involvement in this case or of the positive change he was seeking to achieve.

For the purposes of the hearing before HHJ Plunkett on 2^nd December 2016 when he was hearing the maternal grandmother’s application for contact, the local authority filed and served a position statement which contained the following:

“The local authority’s position at the last hearing was that contact should not progress to direct contact at this stage and challenged Dr Asen’s assessment. Then local authority believes that there is significant use of emotive language in Dr Asen’s report, which unhelpful and can be taken out of context; this raises concerned over the impartiality of the report and the conclusions he has come to. The local authority believed that there should be some work undertaken to progress matters, but that this must be done at the children’s pace and taking into consideration their very strong wishes and feelings.”

“The local authority believes that it can progress contact via the LAC review process. The local authority has significant concerns around the impact of direct and indirect contact and the children at this time, which are set out in detail within the local authority evidence. The parents are against any contact taking place between the children and their extended family; this is supported by the local authority, who share parental responsibility at this time.”

“The local authority wishes to progress life story work, at a pace right for the children, and in line with their emotional needs. The local authority is committed to undertaking this work and sees this as a part of the social workers role, and not of a child psychiatrist. The local authority is committed to promoting contact between the children and the extended family, but this must be in line with their emotional needs.” 184. Two important points arise:

In his order of 2^nd December 2016 HHJ Plunkett, understandably and wholly reasonably given the history of this case, included the following recital in his order:

“[the court] is concerned about the surprising degree of resistance to accept the clear judgment from the fact finding hearing by the Foster Carers and raises the option to move the children to Foster Carers who understand and support the reality as letting the children grow up not knowing the truth is likely to cause them emotional harm”

What did the local authority do in response to this very serious expression of concern by a judge that the children were suffering emotional harm in their foster placement and that consideration should be given to moving them to an alternative foster placement? Very shockingly the answer is nothing.

Ms Cox confirmed this in her evidence.

Worse still, on day 14 of this fact-finding hearing a note was disclosed of a meeting held on 13^th December 2016 between Ms Cox and Mr Scott, a then assistant director of children’s services. At point 12 of 12, I repeat point 12 of 12, the following is recorded:

“YY case. In court. Challenge from Judge P re contact for relatives, ‘brainwashing’ by social workers/foster carers. Cafcass to visit children soon. Children plan in overview which we support. GC to discuss with AC on her return.”

HHJ Plunkett is not just a senior and hugely experienced family judge, he is the Designated Family Judge for Hereford and Worcester. The lack of any response to, or action taken in respect of, the concerns expressed is truly woeful. The utterly contemptuous response of an assistant director of children’s services of this local authority is absolutely appalling and shocking. It is completely inexcusable. However, this demonstrates the skewed and wholly inappropriate response of this local authority to the desperate needs of the children and reveals a mindset which has ultimately caused them considerable possibly irreparable emotional and psychological harm. I sincerely hope it has not.

Mr Baird commenced his evidence by saying that the conduct of his children’s services department in this case had been appalling. He told the court that he was fully committed to make substantial changes to the operation of the department and that he had the support of the county’s councillors to do so.

He explained that the LAC Reduction policy was introduced because this local authority had far higher numbers of looked after children than many comparable local authorities. He emphasised that it had been his intention that children should cease to be looked after children if that was in the individual child's welfare best interests. He denied that there was any expectation that special guardianship orders would be the vehicle by which looked after children left the care of this local authority.

Mr Baird described the death of Child C as a deeply distressing event for the children, her parents and the interveners. He readily acknowledged that he could and should have dealt better with the issue of giving consent to the withdrawal of Child C’s life support. Further, he recognised that he should have involved the mother more in the decision-making process. Mr Baird accepted the local authority should have made an application to the High Court for permission to withdraw life support or, alternatively, should have invited the hospital trust to do so. This is now the policy of the local authority.

Mr Baird accepted that he should have been more proactive in assuring the quality of the work performed by his social workers, team managers and his leadership team and the quality of decision-making processes.

He was not in post in late 2016 when HHJ Plunkett had made his observations about the children and interveners in a recital to his order of 2^nd December 2016. Indeed, he had been unaware of it until the commencement of this hearing. He would have expected the authority’s legal department and Head of Service to take action on judicial observations.

When it was put to Mr Baird that Ms Cox, as the Head of Service, had not read the 11^th October 2019 version of the SG assessment report and had only read the conclusion of the 22^nd October version, he said this was deeply concerning and deeply distressing to him. He apologised to the court. He said that he would have expected a greater degree of attention by the Head of Service which he agreed was absolutely vital, especially in this case.

Mr Baird agreed that the process by which the updated assessment report had been prepared was appalling and shocking. Once more he apologised to the court and said he would write letters of apology to the children, the mother and the interveners.

He accepted there had been a complete breakdown of trust between the children, the mother and the interveners, on the one hand, and the local authority on the other.

I have no hesitation in accepting the evidence of Mr Baird. I do not, for one moment, doubt the sincerity of his desire to bring about real change in this local authority’s children services department for the benefit of the children and families with whom it comes into contact.

He was appalled by the conduct of his local authority over a prolonged period of time. I accept his apologies.

From Mr. Baird’s demeanour when giving evidence, it was plain that this case and the actions, failures and omissions of the local authority have borne down heavily on him: most especially the issue of the withdrawal of life support from Child C. I have no doubt that in his role as director of children’s services he genuinely and sincerely sought to seek improvements in the performance of the department and the outcomes for Herefordshire’s looked after children.

The disclosure of relevant documents and records in this case was truly lamentable. We lost the first 8 days of this fixture because vast volumes of documents were being disclosed by the local authority. The Supplemental Bundle eventually comprised over 2,000 pages of material and the fostering records bundle contained in excess of 700 pages of documents.

From this failure flows three important matters:

It is a testament to the expertise and professionalism of leading and junior counsel for all parties and their solicitors that, notwithstanding the lost days at this hearing, all necessary witnesses were heard and closing submissions completed within the 20-day fixture. I am extremely grateful to all of them. This judgment inevitably had to be reserved.

It is no fault of Ms Meyer QC that at the conclusion of this hearing I still do not have a complete understanding of why there was such a spectacular failure in the disclosure of relevant documents prior to the commencement of this hearing. I note this local authority had no policy relating to the disclosure into public law proceedings or, indeed, any legal proceedings. This must be remedied without delay and will no doubt be one of the subjects for the internal and external reviews, which are to be established by Herefordshire Council, to consider.

Two final matters on this subject:

By the conclusion of the oral evidence called at this hearing all parties, including the local authority, were agreed that the court should make findings of fact in respect of the concessions set out in Appendices 1, 2 and 3. I unhesitatingly do so. I am satisfied that each concession is, on the totality of the evidence, proved on the balance of probabilities. The written evidence overwhelmingly demonstrated the failures, acts and omissions set out in these three documents.

The only issue in contention related to the provenance of and the circumstances in which the final updated special guardianship assessment report of 22^nd October 2019 was produced. My findings of fact in relation to this issue are set out in paragraphs 177-180 above. In summary I found that:

Accordingly, and for the avoidance of any doubt, I am satisfied that, on the totality of the evidence, the matters set out at paragraphs 1, 2a(i), 2(b-n) and 3 of Appendix 4 are proved on the balance of probabilities. I, therefore, make findings of fact in respect of each one.

During the course of closing submissions it became clear that no party invited the court to make a SGO in respect of the children in favour of the interveners nor did any party invite the court to direct a further special guardianship assessment report should be prepared, whether by this local authority or by an independent social worker.

All parties were agreed that, at least for the foreseeable future, the children should each remain the subject of care orders. The only issue was whether I should grant the local authority’s application for permission to withdraw its application for the discharge of care orders. The local authority preferred this course and the children’s guardian supported these proceedings being brought to a conclusion. The guardian considered that there were real benefits to the children, the mother and the interveners to future proposed assessments and therapeutic work being undertaken outside of court proceedings. This was a recommendation she made on a fine balance.

The mother, Child A, Child B and the interveners strongly opposed these proceedings being brought to a conclusion at this time. They each invited the court to adjourn the local authority’s application to withdraw the application for the discharge of care orders. These applications should, they submitted, be reconsidered when Dr Williams had undertaken the agreed assessments of the children, the mother and the interveners and had commenced some therapeutic work.

The parties were agreed that Dr Williams, assisted by one of his colleagues would undertake psychological assessments of the mother and the interveners and he would assess the present wishes, feelings and views of Child A, Child B and Child D. He would further undertake therapeutic work with all of the children.

The focus of these assessments and of this work is:

In light of this agreed focus, it will be vital that the mother and the interveners can evolve a positive and productive working relationship. The children should be made aware of this cooperative relationship. Therefore, in due course I will proceed cautiously and temper any overall observations I make in this judgment about the role of the interveners in the children’s lives since their placement with them in late 2012.

Earlier in these proceedings Child A, Child B and the interveners were pressing the court to bring these proceedings to an end as soon as ever possible. The volte face at the conclusion of this hearing sent a very powerful and persuasive message to the court. Sadly, but understandably, they have lost all confidence in the local authority. Accordingly, along with the mother, they wish the court to retain oversight of the work of Dr Williams until he has filed his reports and commenced therapeutic work with the children.

I completely understand and accept the potential benefits that ending these proceedings could bring to the children, the mother and the interveners. I agree the decision for the court rests on a fine balance as submitted by the guardian. The stance adopted by those who could potentially benefit from bringing proceedings to an end persuaded me, that in the welfare best interests of the children, the balance decisively fell in favour of adjourning the local authority’s applications until Dr Williams had undertaken his assessments and has commenced therapeutic work.

The local authority has agreed it should bear the costs of the work of Dr Williams.

The local authority had also agreed to fund the costs of bereavement counselling for the children, the mother and for the interveners.

It is a testament of the mother’s understanding of the current feelings of the children and to the child focused approach she has adopted to these proceedings that she does not pursue her application for contact at this hearing. It remains, of course, her heartfelt wish and desire that she will, in due course, be able to restore her relationship with Child A, Child B and Child D and to resume some form of regular contact with each of them.

The children have been utterly failed by this local authority. By its actions, failures and omissions over the course of the last eight years it has compounded the emotional and psychological harm the children have suffered. The local authority has ignored, indeed, challenged the advice of a hugely experienced child psychiatrist for reasons which I do not begin to understand. It has treated with contempt the clarion call of a senior family judge for the local authority to re-evaluate its approach to these children, to the family and to the carers.

I can only hope there is now the time and the opportunity to repair this damage and to give the children a positive sense of their identity, of their family and to enable them to have meaningful, positive and beneficial contact with their mother and their wider family.

The mother has accepted her past failings in her care of the children compounded by her own experience of mental ill-health. These matters do not begin to explain or

I very much hope that, notwithstanding past failures, matters can now be progressed to a stage where the mother can play a meaningful role in the lives of her children. Despite the way in which she has been so badly treated by the local authority it is hugely impressive that the mother remains focused on the welfare best interests of her children. She was able to consent to the children changing their names to XX, she did not ask to disrupt the placement with the interveners, and she did not seek to pursue her application for contact. These are graphic demonstrations of her love for her children and of her desire to put their welfare best interests to the fore.

The interveners have, albeit at a later stage, accepted and admitted their past failings and errors. They are set out in summary at paragraph 95 above and extensively in Appendix 2.

These failings and errors have to be set out in proper context as counsel for the interveners was keen to stress. They were new and relatively inexperienced foster carers. They took on the care of four young and challenging children. They gave them a loving, secure and stable home. They made them feel a part of a warm and caring family unit. They were not advised by the local authority that the children’s adoption of their surname is contrary to s.33(7) of the 1989 Act nor that the children calling them ‘mum’ and ‘dad’ was wholly contrary to good social work and fostering practice. I accept that they took these steps out of the best of motives. I accept that they saw themselves as champions of defending the children’s expressed wishes and feelings but in doing so they in fact compounded the harm the children were suffering and would suffer from being alienated from their parents and their wider family.

My strongest criticism must be directed at this local authority. In the whole of my professional life I have rarely encountered such egregious and long-standing failures by a local authority. The worst of it is, I cannot after the closest possible enquiry, understand why or what motivated the local authority to fail these children, this mother and the interveners as appallingly and for as extended a period of time. The whole history of the role of this local authority in the lives of these children is highly inexplicable. The only matter which is clear to me is that it did not have the welfare best interests of the children at the heart of its decision-making, such as it was.

This must call into question whether this local authority’s children’s services department is fit for purpose. That is a question which is not for me to answer. I can say that they had failed these children in an extraordinary manner over a prolonged period of time.

I am told and accept that the mother and the interveners have been shocked by the evidence they have heard over the course of this hearing and I well understand why this is the case.

I concluded the hearing by thanking the mother, her husband and Mr and Mrs XX for the great dignity and composure they had each demonstrated throughout this hearing

I have made the findings of fact agreed by the parties and those findings of fact which I found proved having heard evidence from a number of local authority witnesses.

The local authority’s application for permission to withdraw the applications for the discharge of the care orders and for the discharge of the care orders are adjourned. The applications will be reconsidered by the court when Dr Williams has filed his reports and has commenced therapy with the children.

I make no order on the mother's application for contact with the children.

With the consent of all parties I gave permission for Child B’s and Child D’s surnames to be changed from YY to XX. I had previously given permission for Child A surname to be changed to XX on 20^th August 2020. I am told the children were delighted by this news and were pleased to be told that these orders have been made with the consent of their mother.

The local authority’s actions, omissions and failures in this case have been spread over a period in excess of eight years. Mr Baird readily accepted and described the conduct of the children's services department in the lives of these children as appalling. He was plainly right to do so. He offered to write a personal letter of apology to Child A, Child B, Child D, the mother and the interveners and will ensure this course has been taken.

Prior to receiving final closing submissions, I received a letter of apology to the court in respect of the local authority’s conduct in the light of these children from Herefordshire Council. The letter was signed by the Chief Executive of the council and by two of the deputy Chief Executives.

I was told by Ms Meyer QC that the council had agreed to undertake an internal review of the council's children services department and would commission an independent external review of the same.

I gave permission for a copy of this judgement, once handed down, to be sent to named officers in Herefordshire Council in order to inform the reviews. Further, I was told that once an anonymised published version of this judgment was available, the Council proposed to call a full Council meeting at which the contents of this judgment would be discussed, and the way forward would be considered.

I have directed that a copy of this judgment should be sent by the local authority to the following:

We have already made concessions within the most recent response to mother with regard to issues surrounding delegated authority.

The local authority will accept that important documents were not always provided to the foster carers at an appropriate time, promptly or sufficiently in advance for them to consider, understand and assimilate the contents without feeling rushed or under pressure.

That the number of different social workers for the children over the period of their placement would have added to communication difficulties, lead to a feeling that the children and carers were having to repeat information and further increased the risk of important information being overlooked. It would also inevitably have led to the need for the foster carers and children to rebuild fresh relationships with professionals.

We have already made concession within the response to mother with regard to there being a breakdown in trust in the relationship between local authority and foster carers.

On 22^nd January 2014 the local authority agreed a plan whereby the children would remain living in their placement with Mr and Mrs XX

On the 27^th January 2014 the children were made subject of final care orders and the court approved the care plans whereby they would remain living with Mr and Mrs XX

On 16^th April 2014 Mrs XX told the social worker (Rebekha Philips) that she had been thinking about applying for an SGO for the children as she would like to care for them for the rest of their childhood.

On the 23^rd April 2014 the social worker (Rebekha Philips) reported to the Looked After Child(ren)’s review that the local authority care plan was for the children to be looked after on a permanent basis with no return to the birth family, and that consideration of more legally secure options such as adoption or SGO should be made. It was reported that the LA wished to place the children together.

On 30^th October 2014 the social worker (Rebekha Philips) reported to the looked after children’s review that it was anticipated that the children would remain with Mr and Mrs XX for the duration of their childhood, and that the LA would give consideration to further securing the children’s placement via SGO or adoption. It was recommended that the social worker (Rebekha Philips) should request independent legal advice for Mr and Mrs XX.

On the 12^th March the social worker (Rebekha Philips) reported to the Looked after children’s review that the children would remain in their long-term placement with Mr and Mrs XX for the duration of their childhood. It was reported that during the period to the next review, the LA and foster carers would give consideration to the further securing the placement via an SGO or adoption. It was reported that Mr and Mrs XX had made an application to be assessed for an SGO, but that the social worker (Rebekha Philips) was awaiting directions from her manager regarding this matter. It was reported that the placement was meeting the needs of the children, they felt happy and settled there and clearly identified themselves as being part of the XX family.

On the 15^th April 2015 the social worker (Rebekha Phillips) conducted an interview with the children as part of the SGO assessment during which they all confirmed they wanted and SGO and that they just wanted to get on with a ‘normal life’.

On the 28^th May 2015 the social worker (Rebekha Philips) interviewed Mrs XX about the SGO application and gathered her views on contact with the children and extended family.

On the 13^th July 2015 the children’s care plans stated that Mr and Mrs XX were committed to caring for the children during their minority, that all children have expressed that they are very happy living with their carers and want to remain with them forever and that the carers would like to apply for SGOs. It was stated that this would need to be considered after the completion of the maternal grandmother’s contact application.

On the 9^th September 2015 the looked after children’s review noted that the SGO application was presently on hold alongside the contact application for the extended family, that the contact arrangements and possible options for the future should be decided before proceeding with any SGO application, that the outcome of the contact application should be awaited, there should be a revised assessment of the children’s support needs to feed into an SGO assessment and long term support for the carer, the foster carer had been advised to seek advice from the fostering network. The social work reported noted that the children had been upset by the delay in the SGO. The report of Rebekha Philips for the review dated 9^th September 2015 included under the update in recommendations since the last review that “funding will be provided following a successful assessment”. The judgement and order of HHJ Rundell of the 22^nd September 2015 adjourned the contact proceedings pending the undertaking of therapy which he considered may have been delayed unduly. A similar situation was repeated with the judgement on the 6^th November 2015

The looked after children review of 7^th June 2016 noted that the SGO application had been put on hold awaiting the outcome of the extended family application for contact (due 20^th June 2016). Within these contact proceedings Dr Asen was commissioned to prepare a reports and made recommendations.

Within the contact proceedings Court orders were made judgments provided on the 2^nd December 2016 and 12^th January 2017. On the 28^th April 2017 the court dismissed the maternal grandmother’s application for contact on the provision of a detailed plan for future contact, therapy and life story work.

On the 22^nd August 2017 the social worker (Janet Watkins) visited the children and foster carers. The discussion included whether to apply for and SGO as this was what the children wanted and how contact with maternal grandmother could be supported through the SGO support plan. The children were very clear that they did not want contact with the maternal grandmother. The social worker was to take legal advice as to how the court would view the SGO application if the children were not having contact with the maternal grandmother as per the care plan.

On the 1^st September 2017 the children’s care plans stated that it was hoped that eventually permanency would be secured by an SGO plan which had been proposed previously but had been delayed due to the maternal grandmother’s application for contact. The care plans also recorded that it is likely that the court would want to be satisfied that children’s services and foster carers are undertaking the tasks they agreed to before granting and SGO.

On 19^th September 2017 at the children’s LAC review it was reported that Child B had lost trust in her social worker (Janet Watkins) and had requested a change in social worker. It was also recorded that the application for SGO had been put on hold following the court hearing in respect of contact with wider family members, and that any consideration of progression to an SGO would require a robust assessment as to the foster carer’s ability to promote the children’s identity within their birth family should the local authority not be involved. It was recorded that the children had clearly told the IRO that they wished to be adopted by the foster carers and they expressed frustration and confusion about this plan not progressing. The progression of the any application for SGO did not form part of the list of recommendations.

The Looked after child(ren) review of 6^th March 2018 recorded that the children are happy in their placement with Mrs XX, Mr XX and Miss XX and describe this as their home and their family. The children’s consultation forms raised the issue of them wishing to be adopted by Mrs XX and Mr XX which the local authority saw as the children wishing to formalise their care arrangement. Mrs XX and Mr XX notified the LAC review that they would like to make an application to care for the children under an SGO, that it was noted that they had wanted to do this for some time however it had been agreed that this request would be put on hold whilst the previous court hearing (issues in relation to contact with wider maternal family) concluded. The record also indicated that the local authority did not propose any changes to the care plan at this time. The recommendations included the need for the social worker to update the child and family assessment and to review the suitability of permanency options including adoption (although the social worker had expressed the view that this may not necessarily be appropriate given the children’s links to their birth family). It was recommended that the local authority should fund legal advice for the foster carers regarding their wish for an SGO to include a written advice regarding what financial support can be offered.

On the 9^th April 2018 the social worker (Hannah Ellis) visited the children and noted that the children were happy and wished to remain in placement. She noted that consideration should be given to an SGO.

On 3^rd May 2018 the social worker Hannah Ellis completed her review assessments of the children. She noted by this time the children had been in placement for six years., had developed a clear attachment to their carers and wanted to stay with them forever. The assessment concluded by recommending that it was in the children’s best interests to remain with their foster carers under an SGO and that the SGO assessment should commence in a timely manner without drift or delay. The assessment included concern about loss of birth identity, concern that once SGO was made birth contact would not be promoted, that the SGO assessment would need to include work and support around family contact.

On the 24^th July 2018 at the looked after children’s review it was recorded that the care plan for the children was one of permanency via SGO to the foster carers. It was recommended that the LA plan was for the SGO assessment to be completed and presented to the court by the end of September 2018.

On the 18^th September 2018 the social worker (Hannah Ellis) visited the children who stated that they wanted the SGO to hurry up. It was recorded that the local authority plan was for the SGO application to proceed, that the LA supported the application and were awaiting the foster carers means testing form to be returned in order to move forward.

On the 25^th September 2018 the social worker (Hannah Ellis) recorded that the SGO support plan had been commenced

On 31^st October 2018 the social worker (Hannah Ellis) wrote to the Mother informing her that the SGO plan was still under discussion with the carers and that the LA was awaiting the carer obtaining legal advice which she hoped would be completed prior to the next Looked after Children review on the 13^th November 2018.

On 13^th November 2018 the looked after children review recorded that the care plan remained that eventual permanency would be secured by an SGO plan and it was recommended that the SGO should progress swiftly to provide the children with stability and closure.

On 20^th February 2019 the children’s care plans stated that the plan was for SGO, that all the children wanted this and that they did not want to have any involvement with the local authority and would prefer not to have a social worker.

On the 17^th April 2019 Florence Kandodo visited Child A and Child C who both said they had been wanting this for a long time and that Child C said she would love a life without social workers.

On the 1^st May 2019 the social worker Florence Kandodo wrote to Alison Forshaw and Vicky Leader confirming that she had not yet completed her section of the SGO assessment, was unsure of some sections that included parent details and had been advised to hold off for now.

On 3^rd May 2019 the social worker (Florence Kandodo) confirmed in supervision that she had completed her parts of the SGO plan but another part was still to be written by another worker (Kathryn Straughan). A discharge statement was to be completed once it was known that the carers were agreeing to the making of the SGO order.

On 9^th May 2019 the social worker (Florence Kandodo) confirmed that the SGO assessment had been completed.

On the 10^th May 2019 the IRO Louise Bath recorded that the LA plan was progressing and that it was intended that the local authority would file an application to have the children’s care orders discharged in favour of an SGO to foster carers by 31/05/19

On the 14^th May 2019 the social worker (Florence Kandodo) and other professionals agreed that the SGO should continue with a brief addendum report to reflect a significant change in circumstances since the assessment and support plan were completed.

On the 27^th May 2019 the social worker (Florence Kandodo) filed a statement in support of the LA’s application to discharge the care order and replace it with an SGO.

On the 4^th June 2019 the Head of Service Gill Cox, in an email to maternal grandmother MGM, confirmed that the local authority was not progressing the SGO at that moment. Florence Kandodo was to amend the report to reflect MGM’s views.

On 11^th June 2019 the Head of Service Gill Cox wrote to the foster carers explaining that the SGO application would be placed temporarily on hold following Child C’s death

On the 24^th June 2019 Head of Service Gill Cox, and team manager Vicky Leader, agreed that the SGO report should be updated after Child C’s funeral within 6 weeks, the SGO plans could then be updated if necessary and the application to discharge the care orders then made. On the same day the local authority updated HHJ Plunket of that plan by letter.

On the 28^th June 2019 the social worker (Claire Wilce) visited the foster carers and said that she was the new social worker and would be progressing the SGO the visit also dealt with other matters.

On the 8^th July 2019 the children made a formal complaint to the local authority (via the children’s rights worker Claire Harris) expressing concern over the length of time that the SGO process was taking.

On the 11^th July 2019 it was recorded in supervision that the children had been informed by the IRO that if nothing had been progressed in relation to the SGO within 6-8 weeks then they should have independent legal representation. It was agreed that the SGO paperwork should be updated and progressed by the social worker (Claire Wilce).

On the 19^th July 2019 the LA solicitor (Tim Marks) confirmed that recent events (not connected with Child C’s death) had led the social work team to consider that a review of the SGO report was necessary and that no conclusions had been reached.

On the 25^th July 2019 the social worker Claire Wilce recorded that the care plan was for an SGO and that the LA had offered the foster carers financial assistance to support them in making their application. However it was also recorded that she was unsure about

On the 26^th July 2019 the team manager (Vicky Leader) confirmed that the current position was now that the LA was not intending to apply to discharge the care orders but instead had offered to fund the carer’s application for an SGO.

On 11^th October 2019 the updated Connected Persons Assessment of the foster carers was completed by Kathrine Straughan recommending that an SGO should be granted.

The local authority application for discharge of the care order is dated 8^th November 2019, which confirmed that this was to be replaced with an SGO. However the application was not accompanied by an application for a change of surname. On 21^st November 2019 the children were wrongly informed by the social worker, Claire Wilce, that the application for an SGO and change of surname had been made at the same time. The application for a change of surname was not made until 3^rd December 2019. It is accepted that when the children were informed of this on the 21^st November they indicated that they were fed up it had taken so long.

On the 22^nd January 2014 the local authority placement panel agreed a plan whereby the children would remain living in their placement with Mr and Mrs XX

On the 27^th January 204 the children were made subjects of final care orders and the court approved the care plans whereby they would remain living with Mr and Mrs XX

On 16^th April 2014 when Child A first asked if she could change her surname to XX the social worker (Rebecca Philips) promised she would look into it.

ON the 23^rd April 2014 the social worker (Rebekha Phillips) stated in here report for the looked after children review that direct work would be done with the children to help them understand what their surname means to them and that if the children wished to be known by a different surname, they could choose to do this without/before legal name changes are made.

On 23^rd May 2014 the social worker (Rebekha Philips) approached the Head of Service (Joanne King) in respect of gathering the views about whether the children could be known informally as XX, it was noted that the children were hating the way their name sounded and that they wanted the same name as the foster carers.

On 28^th October 2014 the social worker Rebekha Phillips stated in her report for the looked after children’s review that the children had informally asked school to call them by their carer’s surname which was their right to do, it was stated that there needed to be discussions with managers about their legal position of supporting the children to change their names.

On the 12^th November 2014 the social worker (Rebekha Phillips) requested legal advice about the children changing their name.

On 29^th November 2019 the social worker Claire Wilce, confirmed in her sworn witness statement C79, that on the 12^th November 2014 the LA received written consent from

The social work report of Rebekha Philips of the 6^th March 2015 for the looked after children’s review reflects that the birth father had signed a letter to agree to the children changing their name to XX and that the mother was to visit the social worker the day after the looked after children review and has agreed to sign a letter also.

On 12^th March 2015 it was recommended at the LAC review consent as to the change of name should be completed.

On the 13^th May 2015 the social worker (Rebekha Philips) noted that although Mother had verbally agreed to the name change she had not attended the office provide written consent. The team manager (Tudor Walters) advised the social worker (Rebekha Philips) to accept legal advice in respect of a name change and to make application alongside the SGO application. However this was not progressed at that time. By this time the maternal grandmother’s application for permission/contact was before the court.

On 9^th September 2015 The minutes of the Looked After Children review noted that the name change was being used informally, that Father had agreed, and that Mother was in the middle of talking to her CPN about the matter. It was also confirmed on 9^th September 2015 by the social worker Rebekha Philips in her report to the Looked after Children review that as part of the SGO application a request had been made to change the children’s names legally.

On 10^th May 2016 the children remained consistent in their wishes to have their name legally changed to that of the carers.

On 7^th June 2016 a review meeting noted that court direction was needed in respect of the name change because although father had agreed mother was changing her mind.

On 17^th June 2016 the children’s care plans noted that father agreed to the children changing their names. In the core assessment of the 23^rd August 2016 noted that mother supported the SGO but is thinking about the legal name change and at times feels the children should remember the family they come from.

On the 15^th May 2017 the social worker (Janet Watkins) requested further legal advice about the name change and was advised to make an application to court if the Head of Service agreed (Gill Cox) agreed to the proposed name change

On the 19^th July 2017 mother agreed to the children changing their names in a meeting with the social worker (Janet Watkins) although Father was now stating that he wanted nothing to do with the local authority

On 21^st July 2017 the Head of Service Gill Cox agreed that the local authority should make an application for the children to change their surname. However the matter was not progressed at that stage.

On the 21^st August 2017 a letter requesting permission to change the children’s names was sent to father.

On 1^st September 2017 the children’s care plans stated that the children wanted their name changed legally to XX and stated that Mother had given agreement but that no reply had yet been received from father.

On 19^th September 2017 the looked after children review minutes noted that Child B had asked if she could change her surname from YY to XX

On the 19^th September 2017 the looked after children review minutes for Child A noted that the local authority advised that as Mother currently retains parental responsibility her views must be ascertained; it was agreed that the issue would remain on hold at present however would be pertinent to the agenda of future looked after children reviews as an expressed consideration of the children to be considered.

On 6^th March 2018 the Looked after children review minutes noted that the children have asked if their names can be changed to XX and recommended that the local authority should seek legal advice re pursuing the children’s request and to seek consent for this if assessed a being in their best interests

On the 24^th July 2018 the Looked after children review minutes noted that the children had expressly stated that they wanted to be known as XX and that their request would be dealt with at the same time as the SGO application. However the recommendations did not refer to any legal application having yet been made.

On the 18^th September 2018 Child A told the social worker (Hannah Ellis) that she wanted her name changed prior to her exams and Child B said she wanted her name changed as soon as possible.

On the 13^th November 2018 at the looked after children review it was recorded that the children wanted to change their names.

On the 11^th January 2019 the children told the social worker (Hannah Ellis) that they wanted the speedy progression of their name change.

On either 22^nd March 2019 or 22^nd April 2019 the case was transferred to a new social worker but the local authority records are unclear about the exact date. Whilst the date of change of social worker may be unclear or inaccurate, it is accepted that change of name for all the children was one of the primary issues in the case which needed to be resolved or brought about before the court at that time.

On the 17^th April 2019 Child A (and Child C) told the social worker (Florence Kandodo) that they wanted their surnames changed.

The child death review form sets out that on 26^th April 2019 the children told the social worker (Florence Kandodo) that they were all in favour of a name change whilst this is not recorded in the looked after children visit record for that date it is accepted that this would have been the view of all four children.

On 3^rd May 2019 the social worker (Florence Kandodo) agreed with her manager (Vicky Leader) in supervision that one of the actions required in the case was a surname change.

On the 10^th May 2019 Vicky Leader asked Florence Kandodo to prioritise the preparation of the statement for the discharge of the care order so that the matter could be taken to court. She indicated that she would arrange a brief legal meeting and she asked the social worker whether she was right that the children wished to change their names and if so this needed to be included in the statement.

On 10^th May 2019 the Looked after children review recorded that although the children had not been sent copies of the consultation form, their records and the SGO assessment clearly demonstrated that they had all consistently asked to be known by the surname XX and wished this change to be legalised.

On 24^th May 2019 mother told the social worker Florence Kandodo that she agreed to the name change

On 27^th May 2019 the social worker Florence Kandodo submitted a statement in support of the LA’s application to change the children’s surname to XX on the basis that it was in the children’s best interests.

On 10^th June 2019 a local authority planning meeting confirmed that the LA knew the children wished to have their name changed

On 12^th June 2019 Mrs XX wrote to the LA stating that after Child C’s death, it was now even more important for the children to have their names changed

On 19^th June 2019 the children spoke to their advocate (Claire Harris) and made a complaint about the social workers (Claire Wilce and Karen Brooks) including a complaint about the local authority’s progress in officially changing their names

On the 11^th July 2019 the duty solicitor at the local authority (Tim Marks) emailed the social worker (Karen Brooks) stating that he understood the children were known on the LA system as XX and asking if this had been agreed by the parents and stating that he was worried that the LA may have changed the children’s names which would be beyond the local authority power.

On 26^th July 2019 the social worker Claire Wilce notified the team manager (Vicky Leader) that she was seeking legal advice for the children, including advice about changing their names and advice about what they could do in the event that the local authority was not acting in a timely way.

On the 16^th August 2019 the children attended their looked after review, stated their wishes to change their surname and requested updates about progress. They enquired as to what was happening about the appointment with an independent solicitor and were informed that a local solicitor had agreed to have an initial consultation meeting with Child A and Child B and will be contacting them to arrange a date. It was noted that Child A and Child B would ideally like the meeting to take place before they returned to school. The IRO explained that the children intended to take independent legal advice. The record also notes that Vicky Leader spoke with Head of Service regarding making the application on the children’s behalf and it was decided that it would not be actioned at this time by the local authority. The care plans indicated that this would be progressed following completion of the updated SGO and would be considered in the Court arena. However this was not communicated to the children at the Looked After Children review. They were simply told that the local authority was not actioning the change of name at this time.

On 11^th October 2019 the updated connected persons assessment of Mr and Mrs XX noted that the children remain clear in their wishes to change their name surname to XX.

On 12^th November 2019 the team manager (Vicky Leader) confirmed that the local authority would continue to make an application for a name change for the children irrespective of whether an SGO was granted.

On 21^st November 2019 the children told the social worker (Claire Wilce) that they were fed up that the name change application has taken so long.

On 29^th November 2019 the social worker (Claire Wilce) acknowledged that the issue of the children’s name change had not been managed appropriately and should have been addressed formally through the court process since the making of final care orders in January 2014.

On 3^rd December 2019 the LA finally issued an application for the change of surname for the children.

The foster carers agree that they assumed the truth of the children’s allegations and that they were affected emotionally by the verbal and behavioural distress demonstrated by the children in placement.

The foster carers were given the outcome of the finding of fact on 22.08.13. At a professionals’ meeting on 27.11.13, Dr. Asen stated that the foster carers did not question the FOF outcome. The foster-carers understood that the FOF decisions were authoritative and would govern work to be done with the children under their care plans. They concede that until the completion of Janet Watkins’ work in 2017 they - individually and jointly - found it extremely difficult to match up the judge's findings with what the children had alleged, how they behaved and the medical problems of toileting/soiling (all of which continued after the FOF hearing).

After a clinic on 18 March 2014 Dr. Fiona Goodwin (Consultant Paediatrician) wrote of “a catalogue of significant neglect and harm within the birth family apparently involving a family network of abuse. All four children were exposed to inappropriate sexual material and all four children have disclosed penetrative sexual abuse perpetrated by both their mother and father. Child D has also disclosed that anal penetration included implements such as a knife and fork. Since being in Mrs XX care all four children have had difficulty with constipation and toileting”. Dr. Goodwin referred them to CAMHS and noted that “these children have endured an extreme level of abuse which included abuse of a sexual nature so in my view it is imperative to include CAMHS in their overall management”. Mrs XX agrees that she gave the information contained in the part of the letter recording Information Relating to Sexual Harm at Dr Goodwin’s request and in the presence of Lynette Chan. Mrs XX cannot recall if Ms Chan added any comments. The children were not present.

An undated social work record (no author identified) but believed to date from February or March 2015 includes the text: “….as soon as Child B mentioned wanting to know more about her family the carer interrupted and told me she didn’t necessarily mean what I thought and that she did not always understand what she was saying. Whilst there will be an element to this which is correct, I felt this could have been said after the session and was unnecessarily controlling the response in front of the other children who would also have heard this”. The foster carers have no certain recollection of this meeting but Mrs XX accepts she may have made an intervention of this sort given a history of professionals sometimes making assumptions or mistakes about (i) what the children had asked or stated; and (ii) which family was being referred to (given the use of familiar names in placement), she may have made an intervention of this sort. As a result of the work following Child C’s death, the foster-carers (and Mrs XX in particular) have taken on board the need to allow professional to lead discussions. For their part, they find it most helpful when any given professional tells them in advance whether their participation and encouragement is wanted during any discussion a social worker is having with the children.

The foster-carers agree that ‘on the ground’ they were unable to, and did not, provide information to correct or challenge the children’s ongoing assertions of abuse by birth family members and the negativity towards them beyond the approach they were told to follow in Dr Asen’s script. Specifically, they only used general reminders that the children were loved by their birth family and that some family members were asking for contact. They used the scripted messages of empathy/sympathy/listening in response to the children’s ongoing complaints about abusive treatment. Mrs XX was experiencing the emotions of stress, intrusion, and protectiveness and defensiveness in respect of the children and the settled state of the placement and what they felt was the children’s ‘recovery’.

With hindsight, the foster-carers realise that the structure and activities they set up for the children (which were commended as therapeutic/reparative parenting) also made it easier for them and for the children to distract themselves from and deflect difficult birth family issues. In particular, the LA’s timetable (which involved the children in the period 20132016 being asked about/offered contact at set points in each year) was seen by the fostercarers as disrupting the children’s settled state and their overall progress. The fostercarers acknowledge:

The foster carers’ emotions were made worse by their frustration about various issues already pleaded on their behalf including (i) inconsistent care planning and messages to the children; (ii) the lack of suitable therapeutic support; (iii) the lack of professionally directed life story work and information with which the foster-carers could give specific details and positives to the children about their birth family and (iii) a revolving door of professionals.

However justified the foster-carers’ frustrations may have been and howsoever local authority staff members themselves may have demonstrated interpersonal failings from time to time, for their part the foster-carers agree and concede that they (and Mrs XX in particular) frequently expressed themselves in words that were too blunt and in a manner which was challenging and critical of the LA and other professionals. Those dynamics have been pronounced:

At his meeting with the foster-carers on 21 November 2016 Dr. Asen noted “She [MGM] then pleaded with the foster carers to consider that there may be other reasons as to why the children have been making the allegations. She said that one reason could be that they maybe wanted to stay with the foster carers. Mrs XX immediately rubbished this suggestion, but MGM remained calm and, a little bit later, asked the foster carers again to consider other reasons as to why the children may have been making the allegations. Miss XX said that she and her mother were supporting the children and had been trying to get the children's views across” . The foster-carers agree that Dr. Asen has accurately summarised what MGM said and Mrs XX said she did not agree that the children had invented sexual abuse allegations in order to stay in placement. The words extracted cannot properly be divorced from their whole context which show all three lay parties (MGM, Mrs XX and Miss XX] making significant efforts to hear each other and express their respective viewpoints:

“MGM said she was not asking the foster carers to dismiss what the children had said and that she understood that the children were adamant they had been abused by family members. She [MGM] then pleaded with the foster carers to consider that there may be other reasons as to why the children have been making the allegations. She said that one reason could be that they maybe wanted to stay with the foster carers. Mrs XX immediately rubbished this suggestion, but MGM remained calm and, a little bit later, asked the foster carers again to consider other reasons as to why the children may have been making the allegations. Miss XX said that she and her mother were supporting the children and had been trying to get the children's views across. MGM pointed out that the years before the children had come into foster care would have had an effect on their lives including positive experiences they had had. Miss XX replied that she and her mother did not know the positive things and events as the children only talk about the negative ones. Mrs XX then said that she accepted the judgement ‘100% but we can't ignore what the children have said and what they've put us through’. MGM repeatedly stated that the foster carers had done an ‘amazing job’ and that the children had come into a loving family and that the foster carers had given the children stability. She added that the children need to have ‘the positives about their past remembered…to bring out good memories so that they can integrate them’ and she pointed out that no life story work had been done with the children about the time before they came into foster care. At the end of the meeting - which lasted about 100 minutes - there was a collaborative conversation which resulted in Mrs XX suggesting that, with regard to the life story work, she would be willing to meet with MGM in the presence of a third party such as the children's Guardian. She acknowledged that it was very important for the children to undertake life story work and that it was important for them, the foster carers, to understand and know more about their lives with their birth family.”

Dr Asen’s report confirms that in the absence of life story work the foster-carers did not have positive information with which to supplement the December 2013 script. This meeting was one occasion upon which they sought it. Mrs XX further admits that as of this date in November 2016 she did struggle to understand the benefits for the children in wider family contact, given their stated wishes and ongoing presentation.

In January 2017 the social worker Janet Watkins undertook some work with the foster carers. She recorded that (as explained in HHJ Rundell’s judgment in July 2013) in December 2012 Child A had told SW Lynnette Chan that she wanted to see her birth family (and had named them). Mrs XX told Janet Watkins that Child A had been confused and was in fact clear she did not want to see the family. Mrs XX’ concession has been made on the basis of her best recollection of her 2017 conversation with SW Janet Watkins in which she explained her understanding of Child A’s wishes in 2012 and her recollection that Child A (then aged 8) had told her carer that she wanted to have contact with birth family one day when she was ready and that this was something the foster-carers had been promoting and building up to but said she did not feel ready yet. The foster-carers have an open mind about the fact that Child A may have expressed different wishes and feelings at different times to different people (and especially so in 2012 around the time that she - and the other children - made allegations which were not true).

From January 2017, the foster-carers were provided with a clearer understanding of the FOF judgment, the court’s concerns about the lack of effective LSW/contact in the period 2013-2017 and Dr Asen’s recommendations for work with the children. They nevertheless acknowledge that their (productive) work with Janet Watkins work was marred by the fact that they felt under pressure of time and being told by the LA that the judge may remove the children from their care. They were aware that the children demonstrated partial engagement / partial resistance to SW Janet Watkins and her work which added to their anxiety.

The foster-carers acknowledge that, during all periods, their emotions, fears, frustrations were likely, at times, to have:

For the avoidance of doubt the foster-carers never gave any negative narrative to the children, nor did they ever intentionally discourage or undermine any meeting or session which sought to encourage contact or to provide the children with information about their life story, their birth family members or the love and good wishes being sent to them.

The mother has alleged that the foster-carers overstepped the boundaries of their role and considered that the parental responsibility delegated to them as foster-carers gave them superior rights over the children without proper recognition of the parental responsibility retained by the mother. The foster-carers refer to the LA’s concessions in relation to the operation of its parental responsibility and delegation of authority. There was no delegated parental responsibility paperwork on file between a document in 2012 and a process to remedy this (following Child C’s death). The foster-carers do acknowledge they have felt they have a superior knowledge of the children at any given time. They accept this may have been a contributing factor to the concessions they have already made, in particular:

In relation to matters of the proper use of delegated parental responsibility, the fostercarers have set out the history of the use of ‘familiar’ names in the placement and the use of the surname XX. There was no deliberate ‘overstepping’ of fostering boundaries. The foster-carers were new carers. Neither was imposed or encouraged by the foster-carers. Neither was stopped or discouraged by social workers or therapeutic professionals. To the contrary, professionals endorsed promotion of the children’s wishes and the concept of ‘security’ and belonging. In 2019, FSW Suzanne Musgrove noted that “the fostering service had not supported [MRS XX] to understand the boundaries that need to remain intact so that she understood the fostering role”. The delegated authority paperwork is unsatisfactory and does not seem to have been renewed until 2019, despite it being an action point in 2017 and 2018.

The foster-carers now know that the LA approval of the use of their surname, even informally and on school and LAC records, was unlawful and should never have taken place. The foster carers now know that the use of ‘Mum’ and ‘Dad’ is contrary to good fostering practice and should never have taken place. They understand the upset caused to the birth family by this issue and recognise that it was extremely unhelpful as part of a larger picture in which the FOF judgment, birth family identity, life story work and contact were not properly progressed. Child D, given his young age on coming into placement, suffered actual confusion about his birth origins.

The foster carers now know that, even though they understood an SGO application to have been imminent, they should not have taken Child D to visit a new school without social work agreement. They are now aware that the LA’s ‘best interests’ decision that Child D could move school was made against the wishes of his mother. They understand that this would have caused M upset and a sense that her parental responsibility was not being respected. Insofar as their actions made it harder for the local authority to administer its joint statutory parental responsibility with Child D’s parents, they apologise to the mother, the father and the local authority. They have received detailed delegated authority paperwork and guidance since 2019.

The foster carers have given a detailed account of the degree to which they were consulted, involved or not involved in arrangements for birth family members visiting Child C in hospital. They now know that all contact issues and finer details of contact - including supervision - should have been a matter between the local authority, the hospital and the family members. At no time did the foster-carers have any motive other than care for Child C and respect for what they understood to have been her wishes (hence supporting unlimited contact by her mother).

With hindsight, they realise that (during Child C’s hospitalisation) they were experiencing intense emotions including helplessness, protectiveness and defensiveness. As previously conceded, they felt that they had the best knowledge of Child C and her likely wishes and feelings and this emotion was to the fore at this time, together with a degree of frustration about lack of clarity within LA planning and a raft of new professionals.

During Child C’s hospitalisation one of her consultants, Dr Jane Clarke, recorded on 27 May 2019 that the biological family were responsible for neglect and physical and sexual abuse. It is admitted that an entry within Child C’s medical records timed at 04.10 in the morning of 27 May 2019 states: d/w foster mum re: PMH/Social Hx biological family abused all 4 children - physical, CSA, neglect.. The entry goes on to record that the placement had been home to Child C and her siblings for seven years. Dr Clarke has clarified that she used ‘CSA’ as a medico-legal abbreviation for ‘child sexual abuse’. Mrs XX does not have a clear recollection of this but accepts she told Dr Clarke the types of abuse listed (or selected/agreed with them if given a list of options by the doctor). Insofar as she stated or agreed to sexual abuse, Mrs XX was not intending to convey any untruth or sexual harm beyond that found by the court in the FOF judgment.

On 31 May/1 June 2019, at BCH, Mrs XX informed Nurse Clare Marshall “that she was worried even if she was dead and biological family came in and left unsupervised, they would abuse Child C”. Mrs XX recalls using these words within a wider exchange during which she asked Ms Marshall what the procedure would be should Child C die. She was reassured that the hospital was aware of Child C’s situation as a Looked After child and given a brief overview of BCH procedures for death of a child and postmortem visiting. Mrs XX recalls her concern was focused upon any unsupervised access by F.

On 13 June 2019 Mrs XX was recorded as saying to professionals visiting her home “the children know everything” and that “she intended to share everything”. She accepts that her emotions in the aftermath of Child C’s death and frustration with numerous recent LA exchanges led to some actions on her part which were insufficiently professional. Mrs XX’ reference was to the fact that the children had already been involved in thinking about possible funeral plans (a) at the hospital with BCH staff and (b) after Ms

The foster-carers concede that Child C’s hospitalisation and death pitched them into a state of extreme anxiety and, later, grief. There were occasions when their thoughts, words and behaviours were skewed by those emotions and were not in keeping with neutral, professional behaviour. There were other times when the assumptions, words and behaviour of individual professionals (and the overbearing volume of professional contact and new professionals) caused or contributed to difficult meetings. The fostercarers acknowledge their role and their failings within those dynamics and agreed to engage in detailed work to remedy matters.

The foster-carers have reiterated their acknowledgement of, and sympathy for, the pain and distress felt by Child C’s mother in circumstances where her first direct contact with her daughter in several years took place in the extremely upsetting circumstances of Child C’s critical illness. Not only was the maternal grandmother in the same position, but the foster-carers now have a better understanding of the events of 29 May 2019 which resulted in MGM arriving at the hospital with Florence Kandodo but being refused access to Child C by the hospital. They acknowledge the emotional devastation which would have been felt by Child C’s grandmother at that time. To the best of their understanding, F also arrived at the hospital expecting arranged contact and was unable to see Child C, with the result that his contact with her was never renewed before her death.

Notwithstanding that a Child and Family Assessment was completed on 3 May 2018 recommending that special guardianship orders were in the welfare best interests of the children, the local authority thereafter wholly failed to undertake a robust, analytical, evidence-based and, ultimately, reliable special guardianship assessment of the children’s carers.

In relation to (1) above, the local authority failed to ensure that there was a proper management and/or supervision structure in place such that the failures of the assessment process were not recognised or remedied by the local authority in any way. In particular:

The local authority does not have proper mechanisms in place to ensure that social care records and other material from within the local authority are subject to a timely, proactive and impartial disclosure process. That lack of process has interfered with and prevented proper disclosure within these proceedings resulting in (but not limited to):