Case No. SA21C50004

16.It falls to the Court to consider what is in the best interests and welfare of F; my decision is governed by CA 1989 and my paramount consideration is the welfare of the child. This is well established law and is not in issue. To consider what is actually in F’s welfare I must, as a matter of law, apply the welfare “checklist” in s1 of the Act. Domestic abuse is now as matter of law1 accepted as having an impact on children whether or not they are subjected to abuse directly. Moreover, the findings of domestic abuse in the instant case fall within the statutory definition.2 In this case F’s older siblings had all suffered significant harm while in the care of MX both when their mother lived with their father FX and later when she lived with FZ.17.I must and I do bear in mind the rights of MX, FZ and F under Article 8 of ECHR to respect for family and private life; their rights under Art 6 to a fair trial.318.Under s1(1) CA 1989 as set out above F’s welfare is the Court’s paramount consideration in the care proceedings; in addition, s1(2) provides any delay in making decisions concerning her future is likely to prejudice her welfare; and s1(3) provides the checklist of factors to be considered when determining where her welfare lies, and what order should be made. The final welfare decision in respect of F had already been subject to delay (the last time being to allow for an assessment of her mother) and it is imperative that she is not subjected to more. Consideration of this check list is obligatory (Cf Re DAM (Children: Care Proceedings) [2018] 2FLR 676, CA) and while s31 which governs the making of care orders is concerned principally with harm I remind myself the welfare check list has a wider range of factors.19.As to welfare and proportionality the phrase “nothing else will do” taken from the Supreme Court’s decision in Re B (Care Proceedings: Appeal) [2013] 1075, SC is in respect of adoption or placement order decisions and is not a concept to be applied in this case (Cf Re DAM above).4 Nonetheless I am mindful of the Court of Appeal decision in Re L (a child) (special guardianship order: reasons) [2020]EWCA 20, Civ. 20.It is submitted by her representatives on F’s behalf that the particularly important issues in respect of F’s welfare at her age are her need for safety, security and permanence. The Court must consider the capacity and/or ability of MX and FZ to meet those needs now and in the future. Given the findings of the Court the capacity or ability of MX and FZ to change within F’s timescales in order to be able to meet F’s needs is a pertinent issue. Thus I must consider any harm which F is at risk of suffering as well as which placement is better able to meet all of her needs. Against that I have to balance the potential harm and the prospective impact upon her of her being permanently removed from MX’s day to day care.21.It is axiomatic that wherever possible, as long as it is consistent with her welfare needs, a child should be brought up within her natural family (Cf. Re KD [1988] AC 806; Re W [1993] 2FLR 625; et al). This is a fundamental principle of Family Law which case law emphasises and re-emphasises (Cf. Re B-S (Children) (Adoption: Application of the Threshold Criteria) [2013] EWCA Civ 1146 [44]. The court adopted the approach set out by McFarlane LJ (as he then was) in Re G (A Child) (Care Proceedings): Welfare Evaluation [2013] EWCA Civ 965; “The judicial task is to evaluate all the options, undertaking a global, holistic and … multifaceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option …What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.’22.In Re J (Children) [2019] EWCA Civ 2300 the Court of Appeal emphasised that the discipline of identifying and articulating the realistic options and the advantages and disadvantages of each before making a final order should be followed. 5I keep in mind that the welfare analysis is not an evaluation of proportionality which requires a comparison of the welfare analysis of each placement; a comparison of the benefits and detriments of each option.23.I have been repeatedly referred to the Supreme Court decision in the case of Re H-W (Children) [2022] UKSC 17 which confirms that the above approach is rightly accepted as the standard for the manner in which a contemplated child protection order must be tested against the requirement that it is necessary and proportionate. 24.Once the s31 criteria are met it is for the Court to decide if it is satisfied that a care order (in this case that is the Local Authority’s plan) is in the child’s best interests. Counsel for FZ and MX urge the Court to consider that the imposition of a protective order in the form of an injunction prohibiting FZ from attending at the home of MX and F would provide sufficient mitigation to render the making of a public law protective order unnecessary. For reasons I shall expand on I consider that this in itself proffers a disproportionate response to the risks that have been found in this case; these risks go far beyond that of FZ simply returning to the home of F and her mother. Counsel have also failed to address the issue of enforcement for there is no evidence to support any contention that MX would report FZ if he did so. The history is of damaging, harmful parenting by MX and serious and pernicious abuse by FZ. There has been significant psychological and developmental damage to MX’s other older children and evidence of it beginning with F already being told inaccurately about past events and being set up for a conflicted upbringing dominated by her mother and father’s hostility to those with whom they disagree.