Case No. LV20C00210

1.At the commencement of this hearing, I was invited to make care orders in respect of three children: A, a young person who is approaching 16 years of age; T, a young boy approaching 6 years of age and S, a boy who will very shortly be 2 years of age. Despite their differing ages, each of the children has an August birthday. A was made subject to Child Protection plans in January 2015, identified as being at risk of emotional harm. T was initially accommodated for a short period, by Cumbria Children’s Services, in August 2016. A was removed from her mother’s care under the aegis of Section 20 of the Children Act 1989 on the 4th December 2019. 2.At the commencement of the proceedings, both these children were subject to interim care orders made by the Liverpool Family Court. Both T and A are placed together in a foster placement in which it should be recorded they are thriving. All agree that their relationship is central to their mutual and individual emotional wellbeing. There is also agreement that separating them at this point would be inimical to their respective welfare needs. 3.It has been submitted that these proceedings have “an exceptionally long and complicated history, involving multiple expert and other assessments”. I do not entirely agree with that characterisation of the case. Certainly, the litigation history is lamentable and undoubtedly, the delay in achieving a final hearing has been entirely irreconcilable with the obligation to promote the welfare of the children. That said, the issues in this case are paradigmatic of many cases that are heard regularly in the Family Court by both District and Circuit Judges. The expert evidence, as it has evolved, is really focused on two witnesses, Dr Weir, Consultant Psychiatrist and Dr Hansen, Consultant Psychologist. Their reports reflect their complementary disciplines. Their conclusions are mutually supportive. Their analysis is entirely uncontroversial, within the parameters of their respective professions. Their evidence is unchallenged by any other expert. 4.It is correct to say that there have been many assessments in this case. For reasons that I have struggled to understand, there have been 5 residential placements of Mother (M) and baby. That is not merely unusual but in the experience of every professional in the case, entirely unprecedented. Each of the assessments produced significantly negative information regarding M’s capacity to care for S in the long term. 5.This is the fourth occasion on which the case has been listed for final hearing. Some of the adjournments can be explained, at least in part, by the exigencies of the pandemic. However, I am also left with the clear impression that a rather more robust approach to case management, by all concerned, would have avoided delay of this magnitude. Specifically, the plans for A and T ought to have been resolved at least 12 months ago. In the intervening period, there has been no coherently arguable alternative to the arrangements that I have endorsed today and which, I emphasise, proceeded by agreement at this hearing following discussions at a pre-hearing review, which I listed on short notice. 6.The significance of this delay is that both A and T have been anxious and unsettled by the lack of clear plans for their future. Rather than wait until the end of this hearing, I made final orders on the second day in respect of them both. I did so to signal that the Court recognised and was aware of the impact that the uncertainty had on them and to make at least some small gesture of reparation. It is right that I record that A, who has been very clear from her reception into care and consistently thereafter, that she wishes to remain in foster care, was manifestly relieved. The key social worker has told me that A has blossomed in her foster home. The changes in her are not merely emotional, in the sense that she has developed her self-confidence, but also physical. I have been told that she stands in a way that is now relaxed and confident and no longer cowed and apologetic. All who have encountered her describe a young person effervescing with talent and aspiration. Her sensitively expressed wishes and feelings about her future should have been respected much earlier. It is also important to note that on their reception into foster care A was observed to have established a parenting or caring role in respect of her much younger half-sibling. Gradually, and to their mutual benefit, they have each let go of these respective roles to a significant degree. Nonetheless, they remain the primary focus of their respective worlds. 7.The catalyst for these proceedings was an injury to A’s eye caused by M on 4th December 2019. On that day, Ms Melissa Swan, a social worker, arrived at the family’s address to conduct an assessment. M was described as being in an ‘erratic’ state. She was indicating that she could not ‘put up’ with A anymore and said that she ‘wanted her gone’, by which it was clear that she wanted her to be taken into care. The social worker took A to sit outside in her car to talk to her in private. A said that M had been ‘goading her’ for days, ‘winding her up’ and that when she retaliates her mother records her so that ‘she can show people what she is like’. When M was spoken to, she accepted that she had punched A in the face but contended that this was in response to A’s aggression. M’s position in the litigation is that she did not punch A but, as I understand it, slapped her on the face. She contends that the substantial ring that she was wearing at the time made contact with A’s face and explains the extent of the injury. She brought the ring to Court to show me. M also referred to ‘recordings’ she had made, though she contended that they reflected the reality of A’s behaviour rather than the contrivance asserted by her daughter. The ‘threshold criteria’, pursuant to Section 31(2) of Children Act 1989, having been agreed and having regard to the wider issues in the case, it was not thought necessary to resolve these differences in account. If I may say so, I entirely agree with the correctness of that approach. 8.One of the reasons which may illuminate at least some of the drift and delay in this case has been the failure fully to grasp the complexion of the identified harm and the character of future risk. Though there are many hundreds of pages filed in these proceedings, I have not found, in any of the statements, a clear analysis of either the nature of the contemplated harm or the likely risk of it. In a ‘Summary and Preliminary Report’ prepared following A’s medical assessment at the Safeguarding Unit in Alder Hey Children’s Hospital, the examining doctor identified the following concerns. This was really the first and clearest iteration of risk and ought to have provided a good starting point for assessment:‘based on the story/social history that can cause significant harm to the child and would need further attention by social care/police’:“Multiple concerns regarding emotional abuse; Historical physical abuse of elder child; Disclosure of sexual abuse (historic)”9.When S was born, in August 2020, there was a perception that the decision as to whether M and S should remain together should be determined solely on the basis of whether there was an immediate physical risk to the baby and/or if there was, whether sufficient protection could be put in place. Indeed, I note that when His Honour Judge Sharpe came to consider whether there should be (a second) residential assessment, he made the following observation: “Nobody has sought to argue that, in this case, the emotional or psychological welfare of [S] will be impacted by being within or outwith the care of his mother. It is all therefore about physical safety and in that regard, I was then immediately addressed in evidence by three witnesses on behalf of the local authority…”10.Physical harm to a child, or risk of it, rarely, if ever, exists in a vacuum. There is inevitably an emotional component. As I have highlighted above, ‘multiple concerns regarding emotional abuse’ had rightly been identified from the outset in this case, along with ‘historical physical abuse’ of two elder children and ‘allegations of sexual abuse’ made by both of them. When contemplating the separation of a mother and baby, at an interim stage in care proceedings, it is misconceived, in my judgement, to divide concepts of ‘harm’ into discrete silos or to evaluate risk only by reference to immediate physical safety. A child’s best interests cannot be evaluated in suspended animation. Assessing welfare is an exercise in a continuum, not in a vacuum. An assessment of risk confined to immediate physical harm is likely to be artificial and, inevitably, incomplete. When a decision is made, against a background of identified welfare concerns, to place a mother and baby together, it is one which requires recognition of the broad canvas of available evidence which is likely to illuminate both immediate and longer-term risk to the child. The decision to place mother and baby together in a residential placement, reflects not only recognition of their respective rights and interests, pursuant to Article 8 and 6 ECHR, but also a disciplined forensic focus on the objectives of such a placement and, accordingly, the proportionality of intervention. It is to be remembered that the legal framework providing for such assessment is found in Section 38(6), Section 38(7A) and (7B) of the Children Act 1989. “38