Case No: MK16C80022
Neutral Citation Number: [2017] EWHC 997 (Fam) 
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Birmingham Family Court
33 Bull Street
Birmingham B4 6DS

Wednesday, 1st February 2017

	Before:

	MR JUSTICE FRANCIS

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B E T W E E N:

NORTHAMPTONSHIRE COUNTY COUNCIL
Applicant

- and -

(1) M
(2) F
(3) A
(by his Children’s Guardian, Lynda Beat)
(4) GM
(5) SG
Respondents

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MR P HORROCKS (instructed by LGSS Law) appeared on behalf of the Applicant
MISS A McKENNA (instructed by Northants Family Law) appeared on behalf of the First Respondent
MRS J PINKHAM (instructed by Atherton Godfrey Solicitors) appeared on behalf of the Second Respondent
MISS L CAVANAGH (instructed by Penmans Solicitors LLP) appeared on behalf of the Third Respondent, by his Children’s Guardian
MS P VAN SPALL (instructed by Borneo Martell Turner Coulston LLP) appeared on behalf of the Fourth and Fifth Respondents

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JUDGMENT
MR JUSTICE FRANCIS:

1	These proceedings, brought by an application dated 5th April 2016, concern A .  The case concluded late on Friday 20th January, leaving insufficient time for preparation and delivery of a full Judgment.  However, the parties all invited me to indicate my decision that day, which I did.  I ordered that A be placed with his grandmother and her partner SG.  Furthermore, I made it clear that I would be making a special guardianship order in favour of the maternal grandmother and SG.  When indicating my decision I gave short reasons and I now set out my full Judgment.  

2	In this Judgment I shall refer to the parties as follows:

(a) Northamptonshire County Council: “the local authority”; 

(b) M : “the mother”;  

(c) F: “the father”; 

(d) Lynda Beat: “the Guardian”; 

(e) GM: “the grandmother”; 

(f)  The grandmother’s partner Mr SG: “SG”.  

3	Also before the court are Human Rights Act claims brought respectively by the mother, the father and A (through his Guardian) against the local authority.  It was agreed from the outset of the hearing that I would not determine these Human Rights Act claims at this stage of the proceedings, primarily because there was insufficient court time and it was, properly, the view of all that I must first determine fundamental welfare issues in relation to A.  Moreover, and in any event, the court will not yet be in a position to determine what, if any, loss A has suffered.  I make clear from the outset, however, that I find the local authority to have been in egregious breach of its duties towards the mother, the father and A and I am completely satisfied that many (if not all) of the pleaded claims against the local authority or breaches of article 6 (right to a fair hearing) and article 8 (right to family life) are made out.  Only speculation, which is of course always to be avoided, could fuel consideration of what orders the court might have made had proper and timely steps been taken by this local authority in relation to A’s welfare. 

The history 
4	A was born in the early summer of 2012 and is accordingly four and a half years old.  His mother is M, who lives in Northamptonshire, as does his grandmother.  The grandmother has lived with SG since 2011 who, although not a blood relative to A, is in effect his maternal grandfather.  A’s father is F who lives in Doncaster near his parents.  The father has parental responsibility.  

5	Very sadly, and through no fault of any family members, uncertainty has shrouded almost all of A’s young life.  What is agreed is that this uncertainty must now end.  A was placed into the care of his grandmother and SG at the end of August 2013 and yet the local authority did not issue care proceedings until mid-February 2016.  In the intervening period, some nine or ten different social workers have been involved in this case.  The circumstances in which A came to be placed with the grandmother are troubling.  Whilst this court has nothing but praise for the grandmother and SG for the care that they have provided to A, the fact is that the legality of the placement is in serious doubt.  A had no independent reviewing officer between August 2013 and January 2014, even though he was a Looked After Child.  The local authority took a major role in making arrangements for A to be moved to his grandmother and it seems certain that it was exercising its powers and duties as a public authority, and in this regard I have been referred to the case of London Borough of Southwark v D [2007] 1 FLR 2181.  Indeed, in the local authority’s initial statement it was actually admitted and averred that they placed A with the maternal grandparents as carers. 

6	The family had first become known to social care back in 2012 following a referral from a health visitor who was worried about the mother, who she felt was vulnerable and lacking insight into the risk of meeting men on the Internet.  The health visitor felt that the mother was too trusting of the men that she was meeting on social media to the extent that she was inviting them home and allowing them to have contact with A, without being assessed.  A was only nine weeks old when these  concerns were first raised with social care.  Furthermore, the health visitor felt that although the mother was A’s sole carer, she was only managing this with a lot of support from her parents (by which I think we should take to mean her mother and SG).  The mother was provided with support via a common assessment framework where she was referred to various agencies for support around her parenting and lifestyle choices.  It was said at the time that she did not engage with the support offered such as Home Start and nor did she attend team family meetings.  Given where we now are, there is limited merit in analysing these historical issues which the local authority has not pursued at this hearing.  

7	At a strategy meeting, followed by a child protection conference, on the 24th September 2013, A was made the subject of a child protection plan under the category of neglect.  The statement of H C (referred to at this hearing as “H”) dated 13th January 2016 records that the mother was described by "various professionals" as a very vulnerable, needy, naive and immature adult.  That statement also records that on 10th October 2013, the mother signed a section 20 statement, “thereby formalising the arrangement for A remaining with maternal grandparents”.  It is this section 20 statement that is said to have legitimised A’s placement with the maternal grandparents.  Despite holding parental responsibility for A, the father was never asked to sign a section 20 statement, nor was he advised of his rights, or that he should seek legal representation.

8	I refer to the decision of the Court of Appeal in London Borough of Hackney v Williams [2017] EWCA Civ 26 and in particular to the judgment, at paragraph 34, of the President of the Queen’s Division, Sir Brian Leveson, when he said:  

“The 1989 Act contains coercive powers but section 20 is not intended to and does not create powers of compulsion: it falls within Part III of the Act, the essence of which is an emphasis on the fact that the assumption of responsibility for care and the provision of accommodation in these circumstances is voluntary.  As it is at the centre of this appeal, it is appropriate to set this provision out in full: 

(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of - 

(a) there being no person who has parental responsibility for him; 

(b) his being lost or having been abandoned; or 

(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

(2) Where a local authority provide accommodation under subsection (1) for a child who is ordinarily resident in the area of another local authority, that other local authority may take over the provision of accommodation for the child within - 

(a) three months of being notified in writing that the child is being provided with accommodation; or 

(b) such other longer period as may be prescribed.  

(3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.  

(4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare. 

(5) A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare. 

(6) Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare -

(a) ascertain the child's wishes [and feelings] regarding the provision of accommodation; and 

(b) give due consideration (having regard to his age and understanding) to such wishes [and feelings] of the child as they have been able to ascertain.  

(7) A local authority may not provide accommodation under this section for any child if any person who -

(a) has parental responsibility for him; and 

(b) is willing and able to - 

(i) provide accommodation for him; or 

(ii) arrange for accommodation to be provided for him, objects. 

(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section. 

(9) Subsections (7) and (8) do not apply while any person -

(a) in whose favour a residence order is in force with respect to the child; 

(aa) who is a special guardian of the child; or 

(b) who has care of the child by virtue of an order made in the exercise of the High Court's inherent jurisdiction with respect to children, agrees to the child being looked after in accommodation provided by or on behalf of the local authority. 

(10) Where there is more than one such person as is mentioned in subsection (9), all of them must agree.  

(11) Subsections (7) and (8) do not apply where a child who has reached the age of sixteen agrees to being provided with accommodation under this section.”

9	In paragraph 35, Sir Brian Leveson continued as follows: 

“…section 20 of the 1989 Act imposes a duty on the relevant local authority to provide accommodation to children if the conditions of subsection (1) or (3) are met; and a discretion to do so if the conditions of subsection (4) or (5) apply.  Under section 20(7), a local authority may not provide accommodation for a child if any person who has parental responsibility for that child objects, and is willing and able to provide accommodation for the child, or arrange for accommodation to be provided.”

10	He continued, at paragraph 36:  

“Under section 20(8), anyone with parental responsibility ‘may at any time remove the child from accommodation provided by or on behalf of the local authority’.  There is no requirement that notice is given to the local authority of this intention to remove their child from voluntary accommodation.  The power of immediate removal maintains the vital distinction between voluntary assumption of care and the provision of accommodation, on the one hand, and compulsory care, on the other.” 

11	Then, at paragraph 37, he said: 

“Thus, a local authority cannot prevent the exercise of this parental right to remove the child, even if the right is inappropriately exercised, because this parental right is explicitly granted in statute, by virtue of section 20(8) of the 1989 Act.  Where the local authority considers that this right is being inappropriately exercised, and the child is likely to suffer significant harm, the local authority could apply to the court for the exercise of compulsory powers under an Emergency Protection Order pursuant to section 44 of the 1989 Act.”

12	It seems to me to be highly likely that, had the mother known that the local authority could not prevent her from exercising her right to parental responsibility, she might have taken very different actions.  

13	Astonishingly, it appears that no formal assessment of the mother or of the father was made in 2013.  Whilst the mother agrees that she was experiencing personal and emotional difficulties at this time, it is clear that, at the time when A was placed with the grandmother, the threshold criteria were probably not met to any degree which comes close to being sufficient to warrant either (i) a statutory order or (ii) long-term separation of A from his mother.  In circumstances where the local authority failed to issue care proceedings for some 122 weeks after A was placed with the grandmother, I was not prepared to allow the local authority to attempt to establish threshold many years after the event.  In any event, the order of Mr Nicholas Goodwin QC dated 25th May 2016 records as follows:

“The threshold for the making of section 31 orders has not been conceded by the respondents and is not likely to be pursued by the local authority if the child is to remain placed long-term within the natural family.”

14	Thus, although these proceedings have many of the hallmarks of public law proceedings, with the applicant being the local authority, in reality they are more in the manner of private law proceedings, no threshold findings being sought by any party.

15	The mother has suffered enormous hardship and difficulties.  It had been her expectation that she was unable to conceive, and she described the knowledge that she was pregnant as a shock, but a very happy one.  However, after A was born the mother suffered from what she described as a low mood and anxiety.  The mother was haunted by memories and trauma of the abuse which she had suffered and she described with great emotion how A was so precious to her that sometimes she simply could not comprehend how she could possibly protect him.  The mother does not deny that she agreed on 22nd August 2013 that A could stay for a short while with the grandmother.  She knew that A would be safe and secure with her mother but at the same time she felt that her mother was constantly judging her.  However, there is nothing in the papers before me to suggest that there was a risk of harm on that day.  Threshold has to be considered on the day when the protective measures were instigated, in other words 30th August 2013.  From the mother’s perspective, leaving her son in the secure environment on her mother’s home suddenly became a placement and she felt unable to challenge it, unaware as she was that the local authority had specific duties, which it signally disregarded (and was to continue to disregard for some time still to come).  There is no doubt that at some point shortly after A went to the maternal grandmother the mother made her opposition clear.  She was unable to secure Legal Aid because there were no public law proceedings, yet the local authority behaved as if there were.

16	As I have said, although the local authority remains the applicant, these are not really public law proceedings at all, no care order being sought.  It is common ground among all parties that what governs the court’s decision is the ‘paramountcy’ principle, in other words how is A’s welfare best served?  Since the inception of the section 20 arrangement the local authority had declared a stated intention to work towards rehabilitation to the mother, although in reality this was not actively pursued.  Happily, A continued to have substantial contact with the mother.  At a Looked After Child review on 8th July 2014 it was noted that the mother had made progress, including completing cognitive behavioural therapy, attending a parenting programme, taking up unsupervised contact, an improvement in home conditions and management of debt.  The local authority noted, however, that by the end of 2014 “substantial difficulties had resurfaced”.  These are said to have included financial mismanagement.  I note that the mother is currently expected to manage on £130 per fortnight (with deductions being made for, I think, arrears of council tax and other debt) and, as I observed to Mr Horrocks during the proceedings, counsel for the local authority, while he was seeking to criticise the mother for financial mismanagement, it would be hard to see who would not find managing on such a sum almost impossible.  In any event, as I have said above, there were no proceedings and the “placement” with maternal grandmother was only valid for as long as the mother consented to it.

17	Moreover, the local authority behaved as though they held parental responsibility for A by imposing time and supervisory restrictions on the mother’s contact with A and effectively deprived her of the opportunity of exercising her parental responsibility over A.

18	By the time of the Looked After Child review on 21st January 2015, the local authority had decided that it would be best for A to remain with the maternal grandparents under a special guardianship order.  There was some suggestion that A had fallen and sustained injuries whilst in the mother’s care which was stated to be the result of inadequate supervision while she was using her mobile telephone.  Once again, this issue has not been explored at this hearing and I have not been asked to make findings.  Whilst I note some of the headline criticisms of the mother as an essential part of the history of this case, I make it clear that, in the absence of findings, allegations are not made out.  The burden of proof is on the local authority.  If an allegation is ultimately not pursued then as a matter of record the allegation is not established and the fact alleged did not happen.  The standard of proof is, of course, at all times the balance of probabilities.

19	The mother has undergone four separate parenting assessments.  The first, by J in April 2014, was positive.  She reported that the mother had evidently lost the will or expectation that she could ever retrieve her son from the care of others, yet within a very short space of time in this assessment made huge efforts once she appreciated that there was a real possibility that this would be considered.  Yet the local authority failed to provide any of the recommended support, such as multi agency support, appropriate planning and collaboration between agencies.   Astonishingly, the chair of the LAC review wrote a report only a month after this assessment and made no reference at all to the recommendations.  An assessment by L, a social worker, dated 30th October 2015 concluded that the mother would not be able to make the necessary changes within A’s timescales, and it was not in his interests to be returned to her care.  In the absence of proceedings, the local authority, of course, had no power to make such a determination and the mother was at liberty to require that A return to her care unless and until the local authority made an application.

20	I refer back here to the quotes that I have already set out from paragraphs 37 to 43 of the London Borough of Hackney v Williams case in the Court of Appeal, reported only last week.

21	Ms McKenna, for the mother, has been deeply critical of the assessment by Ms L, not least that she was part of the same team as the allocated social worker, the team view being that it was not the local authority plan to rehabilitate, and also criticism was made by Ms McKenna of the fact that Ms L was only six years PQE.

22	Proceedings were eventually commenced by the local authority on 5th  February 2016, some two and a half years after A was “placed” with the maternal grand parents.  On 15th February 2016 the matter came before the justices who directed a capacity and cognitive assessment of the father and a special guardianship order assessment of the grandmother.  On 23rd  February the maternal grandparents were joined as parties and permission was given for the instruction of an independent social worker to carry out a joint assessment of the father with support from the paternal grandparents and a stand-alone special guardianship order assessment of the paternal grandparents.  Furthermore, Eileen O’Connor, an independent social worker, was to carry out a parenting assessment of the mother and her boyfriend Mr B.  Not unreasonably, the mother’s solicitor complained at the delay in the issuing of these proceedings and asked for the matter to be listed before a High Court judge.

23	The matter came before Keehan J on 8th March 2016.  The local authority made no secret then of the fact that they had hoped to make a child arrangements order in favour of the maternal grandparents that day.  However, the maternal grandparents were not at court due to illness.  The matter came back before Keehan J on 23rd March 2016 and this time the maternal grandparents were present, albeit not legally represented.  By consent, a child arrangements order was made on an interim basis in favour of the maternal grandparents.  The local authority was directed to file and serve statements from the Director of Children, Families and Education and from a senior solicitor explaining in detail the reasons for the delays in assessment and planning and in issuing proceedings, the high number of social workers in the case, the rationale for the local authority’s response from January 2015 onwards to any request by the mother for return of A and whether and when the mother and/or father was advised to seek legal advice.

24	The report of the independent social worker Eileen O’Connor is detailed and based on six lengthy sessions with the mother.  The conclusion was that “I am confident that M can parent A into adulthood”.  There is a clear list of recommendations, which echoed the recommendations made by J two years earlier.

25	The proceedings were timetabled to an issues resolution hearing on 21st June 2016 when the matter came again before Keehan J.  At that hearing the matter was set down for a final hearing on 16th January 2017.   In her analysis dated 20th May 2016, the Guardian supported the continued placement of A with the maternal grandparents under a special guardianship order and this was confirmed in a position statement lodged on her behalf dated 22nd June.  However, on the first day of the hearing, the 23rd May, after consultation with the legal team, the Guardian proposed that an assessment was to be undertaken to assess the possibility in due course of a shared care arrangement in the family for A.  She made recommendations for specific work to be undertaken with the mother and the family including all respondents.  Having taken legal advice, they accepted the Guardian’s recommendations.

26	Specifically, the Guardian had recommended family therapy, the mother undertaking the freedom project, budgeting work with a family support worker as well as Theraplay A to aid her in becoming more emotionally attuned to his needs.  Regrettably, Theraplay had not even started by time this hearing commenced two weeks ago.

27	The local authority expressed its serious concern as to further substantial delay.  Given the history of this case and the extraordinary delay and dereliction of duty of the local authority, that was indeed a bold submission.  However, the matter was adjourned to an issues resolution hearing in November 2016 with a new final hearing in January 2017 (in other words, this hearing).  A new independent social worker was to be instructed to carry out an assessment of A’s needs and the issue of the parenting arrangements most suited to him, with permission for a Part 25 application which could be dealt with by the court on the papers without the need for a hearing.  The respective claims by the mother and the father and the Human Rights Act claims were also listed for determination during the final hearing in January 2017 (in other words, this hearing).

The parties’ positions at this hearing
28	The parties’ respective positions at this hearing may be summarised as follows:

(a)  The local authority continues to seek a placement with the maternal grandparents supported by a special guardianship order.

(b)  The Guardian supports the local authority’s position, but is deeply critical of the local authority’s conduct.

(c)  The mother seeks A in her full-time care.  In the event that she is unsuccessful in this quest, she does not accept the view of the local authority or the children’s Guardian and opposes the making of a special guardianship order to the maternal grandmother.

(d)  The father supports the local authority and the Guardian.  Although he did not support the making of a special guardianship order at the commencement of the final hearing, he changed his mind having heard the evidence of the Guardian.  If the court does not accede to placement with the maternal grandparents, he wishes A to live with him, to be supported by his own parents.

(e)  The maternal grandparents also support the local authority and the Guardian, and wish A to live with them. They strongly desire the support that they feel can be provided by the making of a special guardianship order.  It is their case that a special guardianship order will eradicate the need for what they refer to as “negotiation” in respect of A, and will mean that A will grow up with certainty as to where his home is.  They also appreciate that it would make it far harder for the mother to apply to vary A’s living arrangements by applying for a child arrangements order.  The mother makes no secret of the fact that, if A were placed with her parents without a special guardianship order, she would be likely, in due course, to make an application for a child arrangements order in the hope that A could be returned to her care.

The up to date position
29	Following the hearing in May 2016, a fresh independent social worker was instructed to carry out an assessment of A’s needs and the issue of the parenting arrangements most suited to him.  The local authority agreed to meet the cost of and incidental to the instruction.  Unfortunately, the parties failed to apply to instruct a fresh independent social worker, but on the application of the child through his Guardian dated 4th November 2016 the court gave permission to the parties jointly to instruct Diane Clark, independent social worker, to carry out an assessment of A’s needs and the parenting arrangements best suited to him and to report by 12th December 2016.  Meanwhile, the local authority was directed to carry out an assessment of the suitability of Mr B to provide support to the mother in caring for A.  In December 2016 Ms N undertook a viability assessment of Mr B.  This identified concerns relating to cannabis use, health challenges and a lack of parenting experience.  The assessment recommended that Mr B is not suited to providing support for the mother in the care of A.

30	The court has the benefit of the independent social worker’s report, namely that of Diane Clark dated 14th December 2016.  Ms Clark also gave evidence to the court and was cross-examined.  Ms Clark’s conclusions, which are supported by the local authority and by the Guardian, are that A should remain living predominantly with his maternal grandmother and her partner.  She firmly believes that a co-parenting model would not be in A’s best interests.  Among the headline issues forming the basis of Ms Clark’s recommendations are the following:

(a)  Throughout his young life thus far A has predominantly lived with his maternal grandmother and her partner SG.

(b)  A’s behaviour can challenging and the grandmother and SG have more success in meeting these challenges as they face them head-on whereas the mother will tend to back away from A which gives him more determination and power to continue.

(c)  The mother was not emotionally attuned to A’s needs and did not pick up on his body language that was expressing particular feelings such as frustration, anger, etc.

(d)  The mother finds it difficult to establish appropriate boundaries.  A would tend to ignore his mother and become challenging towards her.  The mother would back away from A holding hands out in front of her in an attempt to stop him from reaching her.  A would take little notice of his mother and what she was telling him and would carry on being aggressive.

(e)  The mother struggles financially (although this is not at all surprising given the very limited resources available to her).

(f)  The mother would offer A choices, such as the choice of what to eat for lunch, only to find that in fact he did not have the items that she was offering him.  The grandmother and SG were able to offer A considerable emotional support and understanding.  They are very much in tune with A’s emotional well-being from his actions and his body language.  They can often foresee a negative reaction and step in to use distraction techniques before he throws a tantrum.  

(g)  The grandmother and SG would put appropriate boundaries in place for A.  A knows the boundaries, rules, expectations within this environment that will challenge them as most children do.   The mother is unable to establish what appropriate boundaries are.  Crucially, in Ms Clark’s opinion, the mother struggles fully to meet A’s emotional needs.  She said that her main area of concern is the lack of ability to provide consistent boundaries for him which will leave him feeling unsafe and out of control of his emotions.  She said that he is four years old and if the situation is not rectified it will only become out of control and his actions will get more serious to the point when she believes he could become beyond the control of the mother.  As to as to co-parenting, she concluded that it would not be in A’s best interests to have a co-parenting model to meet his care needs.  She was of the opinion that A is struggling with the current arrangements of having regular weekend contact with his mother and some additional contact with his father.  She said that he needs to have consistency of a stable and secure environment that will meet his needs and make him feel safe.

(h)  The mother was unable to deal with his emotions and anger and did the opposite of this by shouting at him and challenging him.

31	I should add that there were many reasons given by Ms Clark which are set out carefully by her in her comprehensive report.  I do not, for obvious reasons, in this Judgment go into each and every one of those but I do, of course, take each and every one of them into account when reaching my decision.

32	Ms Clark gave evidence in court and was an impressive witness, in my judgment.  She was quick in her praise of the mother and said that there were lots of positives about her, in particular, she volunteered that the mother had benefited much from the Freedom Project.  She said that it was evident that the mother had taken on board much of the learning from the programme and that she was able to understand the differences between her many difficult and abusive past relationships and her current and more stable relationship.  The most notable part of her evidence, however, was in respect of boundaries.  Ms Clark noted that A has been living between three adults (the grandmother, the mother and the father) who were all different in their approach to parenting.  She expressed real concern that A needs consistency or he will feel unsafe and she said like most children he will be used to a particular style of parenting.  He needs to be able to trust what the adult is saying. He finds his mother unpredictable.  Whether she can move on and put into practice she said would be hard to answer.  When asked about her reaction to placing A into the sole care of his mother, she said: “I don’t think I can put a timescale on it, it will be taking a huge risk to move him from the place where he is flourishing and settled, to a placement with his mother which is not yet good enough.  He needs to know what his future holds.  This should not be put off indefinitely.”  She stressed the need for long-term stability and expressed her very strong view that A is more stable with the maternal grandparents.  Regarding Mr B, Ms Clark said that he saw himself as a playmate for A, he did not see himself as a father figure.  Furthermore, she observed that the mother seems to change her view and that there are queries at times as to what part Mr B would  play.

33	It would have been obvious to anyone in court (and I made it obvious in giving the short reasons that I did when giving my decision at the end of the hearing) that I have very considerable sympathy indeed for the mother in this case.  I have already noted the abuse that the mother suffered as a very young girl.  I have noted the questionable circumstances under which A was placed in the care of the grandmother.  The mother finds, for example, that she is being criticised for turning to her own mother for help.  What young mother, I ask, would not from time to time turn to her own mother if she could for help with parenting skills?  It is an extraordinary tribute, in my judgment, to both mother and grandmother in this case that they have been able to remain not only on very friendly terms but quite exceptionally close and supportive of each other, yet at the same time be on the opposite sides of contested proceedings.  When the mother tried to turn to her own mother for help, she found that she was being criticised and that her every move was being watched.  I noticed in this court that, even as I gave my decision and set out a brief summary of my reasons on that Friday afternoon, the mother turned to her own mother for comfort and they hugged each other as the tears flowed.

34	Similarly, in relation to Mr B the mother has been in a quandary: her past partners and associations have been the subject of criticism, probably for good reason.  Mr B, it seems to me, is in a quite different category and I can well understand why the mother may have obfuscated as to the extent to which she wanted to admit that he was an important and maybe permanent part of her life.  I was asked to agree to let him come into court to support the mother on the day when she was giving evidence.  Although I did not hear any evidence from Mr B I was able to observe the sensitive way which he seemed to be able to understand the mother’s needs and emotions and to help to calm her and to look after.  I have no reason to believe that their relationship is anything other than one of commitment and that they offer each other mutual support.

35	Ms Clark was ready to accept, when pressed by Ms McKenna for the mother, that the mother has only been given limited chances to implement the theory that she has learnt.  She admitted that it is clearly a massive disadvantage to the mother that she has not had A in her care for some years.  It was in many respects, in my judgment, unfair to compare the mother’s care of A with that which her own mother could provide.  Her own mother is an experienced parent and grandparent whereas the mother has had her own ability to experience parenting taken away from her for many years.

36	Three fundamentals emerged very clearly from Ms Clarke’s evidence:  

(i)   The grandmother is far more able than the mother to provide for A’s emotional needs.

(ii)  Taking A away from his grandmother and placing him with the mother would pose an unacceptable risk to A’s future well-being.

(iii) There would appear to be an underlying manifest unfairness in all of this because the mother (and also the father) have been deprived of the opportunities to show that they are capable of providing properly for A’s physical and emotional needs.

37	Following the May 2016 hearing, a new social worker was appointed by the local authority.  I have already commented on the volume of social workers in this case and the adverse effect that this must have had upon the mother and A as well.  The court has been extremely lucky, however, to have had the evidence of Jennifer Millington who is the social worker that was appointed following the May 2016 hearing.  As I observed during the course of the hearing, it is extremely rare in these cases for the allocated social worker to have the trust and support of every party.  At least one good consequence of the dreadful catalogue of failures by the local authority is that from June 2016 onwards, when Ms Millington started work on case, A and his mother have been well served by a truly excellent social worker.

38	As well as the voluminous written evidence of Ms Millington, I had the benefit of hearing her oral evidence and she was cross-examined, in particular, by counsel on behalf of the mother.  Ms Millington was clear that A should continue to be placed with the grandmother.  She expressed the view that to move A from the grandmother would be a “huge risk” and that it would be “detrimental to his welfare”.  The principal concerns which she expressed were:

(a)  inconsistency of the mother’s parenting, the mother’s inability to enforce rules and boundaries which would lead to A becoming unmanageable when he grows older;

(b)  that A would be confused by the introduction of Mr B as another significant adult in his life;

(c)  concerns that, although the mother wants to please A, A knows exactly what he has to and is able to “play the  mother”;

(d)  concerns over the mother’s budgeting;

(e)  concerns that, in times of need, the mother would return to her own mother for support.

39	Ms Millington said that she had devoted at least half a day and often a day a week to this case since last June.  She is a social worker with very considerable experience and I have no doubt at all that she knows this family extremely well and has been able to reach fully reasoned conclusions.  I do not agree that it is fair to criticise the mother for turning to her own mother in terms of need for, as I put it, and I have already said earlier in this Judgment, what mother would not do so given this opportunity.

40	As I said in respect of Ms Clark’s evidence I repeat in respect of Ms Millington’s.  She has filed voluminous evidence and she gave lengthy evidence in this court, all of which I have taken into account and for the purposes of this Judgment have merely tried to summarise the most salient parts.

41	The combined effect of Ms Clark’s and Ms Millington’s evidence is overwhelming and left me in no doubt at all that there were very significant risks associated with moving A away from the grandmother to the mother.

42	Impressively, but importantly, Ms Millington made a complete and unreserved apology to the mother and to A and to the father on behalf of the local authority.  She was ready and willing to criticise the actions of many of the social workers who had previously been allocated to this case.  This included a remarkable moment when it was disclosed that one of the earlier social workers openly discussed A’s wishes and feelings about his various family members in front of those very family members.  There was one occasion, I was told, when the social worker asked A to draw a picture showing which family members were within and which were without a particular circle, all of this in the presence of the very family members being discussed.  As this social worker was not in court to defend or comment upon what was being said of her, I have decided that it would be inappropriate to name her in this Judgment, although her identity is clear from the evidence and was discussed in this court.  Ms Millington apologised for the fact that many of the various recommendations made over the months and years had not been followed.  She paid many tributes to the way that the mother has endeavoured to and largely succeeded in improving herself.  Examples, which I have already given, were undergoing the cognitive behavioural therapy and Freedom Programme. She acknowledged that the mother has “sorted her home, got her finances straight, developed a social regime and appropriately cared for A for some of the time”.   She recognised that the mother’s finances are extremely tight.  She sensitively and tactfully dealt with criticisms of the mother, referred to by me above, but, as with Ms Clark, the overwhelming impression I had was that it would be a risk to move A out of the care of the grandmother.

43	The father gave evidence to the court and expressed his strong view that A should remain with the maternal grandparents.  He said that he would love A to live with him but “I know deep down in my heart it’s not in his best interests”.  I was in no doubt at all that the father loves A very much indeed and that the father will (and should) continue to play an important part in his life.  He expressed his thanks to Ms Millington for her support.  He has a high regard for the maternal grandparents who, in turn, respect and get on well with him.  The father told me that he had changed his mind in relation to the special guardianship order, and it was evident that the father was supportive of the local authority and the Guardian’s position in this regard.  I have no doubt that the father did so believing it to be in A’s best interests and that he now supports the making of such an order.

44	I have been greatly assisted by the up to date case analysis and report of the Guardian, Ms Lynda Beat, dated 13 January 2017.  Her report supports the Local Authority’s conclusions, but she is deeply critical of the Local Authority’s past failures.  Ms Beat referred to the social work evidence documented above and indicated that the starting point is that “A is in the care of his grandmother and has been for a very long time, and is thriving in her care”.  She considered the welfare checklist and was certain that delay could no longer be tolerated and that no more time could be taken to see if the mother could bring her level of care up to the required standard.  She pointed out that “A is very settled” and that “A has been living for the vast majority of his life with his grandmother and with whom he receives a very high standard of care”.  She concluded that “A needs permanency to feel secure and certain about his life and I cannot see that another period waiting to see if his mother is successful will be in his best interests”.	

45	Ms Beat strongly supports the making of a Special Guardianship Order in favour of the maternal grandmother and SG.

46	I turn, therefore, to the welfare checklist, having covered it above but summarising it now:

(a)  The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding).
A is not yet five years old and so it is unlikely that he is able to express a view about where he would like to live in any sense that could mould its determination.  It is clear that A loves all of the important adults in his life, namely the maternal grandparents, the mother and the father.

(b)  A’s physical, emotional and educational needs.
There is no doubt from all that I have read and heard that A’s physical, emotional and educational needs are met by and with the maternal grandparents.  The mother has ensured that A has a good school and travelled to it, and she has ensured that he arrives there on time when he has been with her.  My concern following all that I have read and heard is more to do with A’s emotional needs which I have referred to in some detail above.  The view of the independent social worker, local authority social worker and the Guardian is that consistent parenting is now required, with secure boundaries and routines, and that with these in place A’s behavioural difficulties are likely to ameliorate. There is no doubt on the evidence that I have heard from all of these professionals that A’s behaviour deteriorated during the period of experimental shared care.

(c)  The likely effect on A of any change in his circumstances.
The assessment as to whether A could live with his mother in a shared arrangement with his grandmother and grandfather has caused considerable change for A.  It is clear from all that I have read and heard that A has been demonstrating behaviour in school showing anxiety, and I have heard repeatedly from experts in this case that there is a substantial danger for A, unless it can be justified, that the change will not be to his benefit.  Everything that I have read and heard persuades me that there is a great deal of benefit to A in maintaining the status quo and that there is risk in changing his current circumstances.  That is a risk which it would be dangerous to take and that I am not prepared to take.

(d)  A’s age, sex, background and any characteristics of his which the court considers relevant.
As I have said, A is not yet five years old and has many years of childhood ahead of him.  It is an unhappy fact of his life that he has been surrounded by insecurity and what he now requires is consistency, stability and security in his care.

(e)  Any harm which A has suffered or is at risk of suffering.
As I have catalogued above, there was a failure properly or at all to assess A’s needs or whether they were capable of being met by his mother.  It is impossible to know at this stage what effect these failures will have on him.  It must, of course, be the hope of everybody that he will mature into a secure and contented young man.  I must be very careful indeed to be satisfied that risks are not now taken that will put him at risk of suffering harm if the status quo is again interfered with.  It is not suggested that A is at risk of harm in the care of his mother (that is in the sense of physical harm), my concerns, as I have said, are to do with his emotional well-being.

(f)  How capable are each of A’s parents, and any other person in relation to what considers to be relevant, it is of meeting his needs.
As I have already found, the maternal grandparents are in the best possible place to provide consistent and proper care for A in the fullest sense of that word.  Whilst the mother’s home environment is more than adequate, the issues turn on her ability to retain, and consistently apply, behavioural management techniques and to be attuned to A’s emotional needs.  I have already commented on the father’s position.

(g)  The range of powers available to the court under act this Act in the proceedings in question.
The issues for the court which I have identified above are:

a)  whether a child arrangement order should be made in favour of maternal grandparents, the mother or the father;

b)  whether I should make a special guardianship order if I decide, as I have, that A should reside with the maternal grandparents;

c)  contact.

47	As I have said above, the court is guided is by the paramountcy principle.  I have been taken helpfully to some relevant authorities which are material to my decision-making process.  I have in mind all of the authorities to which I was and refer briefly to the following ones: In Re G (Children) (Residence: Same-Sex Partner) [2006] 2 FLR 629, the Supreme Court stated that there is no question of a parental right; no presumption in favour of natural parents.  In Re B (A Child) (Residence: Second Appeal) [2009] 1 WLR 2496, the Supreme Court determined that the welfare of the child must be the overriding factor.  In ultimately determining disputes about residence and contact, there can be no dilution of its importance by reference to extraneous matters such as whether one placement was with a natural parent and one with a grandparent.  Lord Kerr said, at paragraph 37:

“All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests.  This is the paramount consideration.  It is only as a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim.” 

48	In my judgment, the mother justifiably complains that “this is a woeful tale cataloguing a chronic lack of proactive social work for the child to be reunited with mother”.  (That is a quote taken from the mother’s own counsel’s position statement.)  One of the most poignant moments in this case, in my judgment, came during the cross-examination of the mother by counsel for the Guardian, when the mother said: “Every day I was frightened that they might stop me seeing A, I was always under scrutiny.  I wanted the world, I had lost all that time.  It was anxiety from being assessed and it was making up for lost time.  It was like there was a Big Brother camera on me.  I always felt that I had be the perfect mum, not just a good enough mum.  I feel like I've failed.”  Then, at the conclusion of her cross examination, she said that she would think about the possibility of A going live with her mother.  It seemed to me that, in her heart, the mother knows that A’s best interests are served by his remaining with her mother and SG.  This poor mother, who suffered so much, as a very young child, is now the victim of a catalogue of failures by a local authority.  It is impossible for me to know how these difficulties might have been resolved had they been addressed in good time.  However, it is completely clear to me that A’s welfare lies with remaining with the maternal grandparents and that any other course would pose an unacceptable risk.  This finding is based on all of the information that I have set out above and, in particular, based on the analysis presented to the court so effectively by Ms Millington and Ms Clark.

Contact
49	I deal with contact, although I make clear that what I say now is still subject to any further negotiation between counsel or any further submissions that counsel may want to make to me.  But I say is, I hope, helpful guidance on the subject of contact.

50	Mercifully, the parties are largely in agreement in respect of contact.  I invited the parties’ respective advocates to try and agree a schedule of contact on the basis of the various orders that I might have made. Moreover, the maternal grandmother made it clear that she would operate what she referred to as an “open door policy” so far as the mother (and I think the father) is concerned.  In other words, the mother can visit A at the grandmother’s home as often as she may reasonably wish.  (I understand that she lives a short driving time away from her mother.  The father, of course, lives much further away.)  It is agreed that A should spend either a Saturday or a Sunday with his father one weekend a month.  It is agreed in respect of the school holidays that A should spend Monday to Thursday in respect of his half terms alternately with the mother and with the father.  It  is agreed that A should spend four days each Easter holidays respectively with his mother and his father; and finally, four days each Christmas holidays respectively with his mother and his father.  It is agreed that A spend Christmas this year (2017) with his father.  It is agreed that A should spend one week of the summer holidays with each of his mother and his father, with balance of the long school summer holidays reverting to term-time contact thereafter.  The only issue between the parties, so far as I can tell now, relates to the frequency of the mother’s weekend contact.  The strong view of the Guardian and the social workers to whom I have referred, is that A should have staying contact with his mother one weekend in four.  The mother’s preference is to have staying contact each alternate weekend.

51	Once again I find myself having immense sympathy with the mother’s position.  However, in the view of the professionals involved A needs a weekend off at what is to be his home.  I have no hesitation in agreeing with what has been said to me by the professionals in this regard, which is also supported by the maternal grandmother.  I have no doubt that, in accordance with the grandmother’s clear and helpful statement that she would operate an open door policy, the mother will be able to visit A on the intervening weekend.  Furthermore, in due course, it is possible that the arrangements may be altered.  For the time being, however, my order is that contact with the mother will be one weekend in four, subject, as I have said, to any further agreements or submissions.

Special Guardianship Order
52	The local authority ask me to make a special guardianship order in favour of the maternal grandparents.  This application is supported by the maternal grandparents, the father and the Guardian.  It is opposed by the mother.  In considering the application, I have regard to the provisions of sections 14A to 14F of the Children Act 1989.  I am in no doubt at all that I must make a special guardianship order in this case.  It gives parental responsibility to the maternal grandparents.  It means that ongoing professional support will continue.  It has an added advantage of extra funds for the maternal grandparents, although that factor does not guide my decision.  Crucially, it also recognises the central role of the maternal grandparents.  As the Guardian so effectively put it in her oral evidence: “It means that the grandmother can make a decision rather than negotiate and go round in circles”.

Human Rights Act claims
53	Ms Cavanagh very helpfully set out ten declarations that she was seeking that Northamptonshire County Council has acted incompatibly with the rights of A, a child, as guaranteed by articles 8 and 6.  I deal with some of them but I am conscious of the fact that the Human Rights damages aspects of this case are to be put off to another day.  I do, however, agree that:

(1)  It appears that the local authority removed and placed A with his grandmother, thus accommodating him, pursuant to section 20 of the Children Act, between 22nd August 2013 and 16th January 2016 probably without lawful authority, thereby causing the welfare of A to be imperilled by a wrongful legal status.  This included living in a household where no person held parental responsibility for him, leaving him without the protection under the Children Act of having a statutory parent as a substitute for care by a carer or parent with legal rights for him.  A and/or his parents and/or grandparents lived without any certainty as to where he would spend the rest of his childhood.

(2)  It appears to me that the local authority did not treat A as a Looked After child between August 2013 and 9th October 2013, and he had no independent oversight or scrutiny of his accommodation until 10th January 2014 when an independent reviewing officer was allocated to him.

(3)  It is a fact that the local authority failed to issue care proceedings for A between August 2013 and January 2016.  This effectively deprived A of:

(a)  the protections afforded to him as a subject child under Part 4 of the Children Act;

(b)  justification by way of evidence for the removal from his mother’s care;

(c)  access to the court and the procedural protection of the Guardian;

(d)  the promotion of reasonable contact;

(e)  a court-determined timetable for an expedited decision about his future.

(4)  I find that between August 2013 and 20th January 2016 the local authority failed to carry out full and adequate assessments with a view to establishing whether A could return to his parental care; and that there was a failure to assess the parents and A’s needs at all during that first year.

(5)  Between August 2013 and 20th January 2016 the local authority failed to carry out any adequate care planning with the objective of the rehabilitation of A to parental care, thus causing inordinate delay in securing for him a permanent home.  This was made worse by the allocation of at least eight different social workers and two independent reviewing officers.

(6)  The local authority appears to have imposed restrictions upon A’s contact with his mother and his father between August 2013 and March 2016 without any lawful authority.

(7)  It appears that the local authority failed to ensure that there were sufficient procedures in place to give effect to the recommendations of the Looked After Child reviews.

(8)  The independent reviewing officer of the local authority failed to identify that A’s human rights had been or might be infringed.  I also find that the mother’s and the father’s rights have been interfered with.  I have already set out the catalogue of failures and delays and incompetencies by this local authority in carrying out its duties towards this mother.  Even when it had decided what steps ought to have been taken, it still did not take them, as I have catalogued in my Judgment, for a period of years.

54	Plainly I cannot conclude the Human Rights Act claims today.  The local authority is entitled to make further submissions, as are the parties themselves through their advocates.  In any event, no assessment of damages in respect of A could be made now for the reasons have already referred to earlier in this Judgment.  I do, however, encourage the local authority in the strongest possible terms to enter into sensible negotiations forthwith to resolve the damages claims of the adults in this case.  Whatever failures this local authority may be guilty of in the past, I make clear that, in Mr Horrocks, they have been represented at the best possible level, and I have said that already in relation to Ms Millington.  So with the expertise that they now have they should take steps to make amends in so far as they can.  There is plenty of reported authority about damages in these cases that the lawyers will have access to.  I am going to reserve this case to myself and fix a date when I shall deal with the issue if it cannot be agreed.  I shall hear submissions as to the appropriate time estimate and the period of reflection needed to enable sensible negotiations to be undertaken, perhaps with the benefit of an experienced mediator or lawyer familiar with these types of cases.

55	I want to end by thanking all counsel and their respective legal teams.  This has been a difficult and emotional case and I have found their help invaluable.  

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