H-W (Children: Proportionality)

Hearing date: 23 September 2021

Approved Judgment

Introduction

This is an appeal by a mother (M) from care orders with a plan for the removal of three children into foster care. The family is complex. M has six children, A (21, a boy), and five girls: B (18), C (13), D (10), E (8) and F (1 ¹/₂). The proceedings concern the four younger children and the care orders now under appeal were made in relation to C, D, and E. At the same time, the Judge, His Honour Judge McPhee, made an interim order in relation to F that was intended to lead either to her being placed in the care of B after a special guardianship assessment lasting 12 weeks, or to her being placed in a foster-to-adopt placement, with family contact ending by the end of the year. Because no conclusion has yet been reached about that, this appeal does not formally include F, but its outcome will inevitably affect decisions about her. Since the Judge's orders were made on 26 July 2021, all four children have remained at home.

The father of C and D is F1, whose relationship with M lasted between 2007 and 2011. The father of E is F2, who had a sexually abusive relationship with M over a period of years, starting when she was a young teenager; they later resumed their relationship between 2011 and 2012. The father of F is F3, who has lived with M since 2014, having previously been the partner of M's mother. He has a son (G, 13), who lived in the family home between 2016 and 2018.

The background

The Local Authority has been involved with this family throughout M's life, prominent themes being sexual abuse and home conditions that were at times grossly neglectful. As a child, M spent much of her time in the care system and at that time there were concerns about her relationship with F2. A was born in 2000 when M was aged 16, and B in 2003, when she was 19. Neither of their fathers played any lasting role. C was born in 2008, D in 2010 and E in 2013.

The troubles experienced by M as a child soon emerged in the lives of her own children. By 2005, A had been placed on the Child Protection Register under the category of ‘neglect’ and, after escalating difficulties with his behaviour, he left the family home in 2012. He spent some time in a boarding school and was then placed in foster care. Also in 2012, C complained of being sexually abused by step-siblings at her father's home, and by A at home. Other sexual complaints were made against A by a half-sister, by B, and by G. The Local Authority's concerns further intensified with the return of F2 into M's life and in November 2012 it issued proceedings. The children remained at home under an agreement that F2 was not to be allowed to have contact with them, but in June 2013, shortly after the birth of E, he was found concealed in the home and the Local Authority applied for the children's removal. This was refused by His Honour Judge Wright, who found that greater harm would be caused by interim removal. He then conducted a two week fact-finding hearing and gave a very substantial judgment in October 2013, in which he found that the children were at risk of neglect and that a number of the allegations about A's sexual behaviour were proved. He also found that F2 had groomed M as a child and that he was a sexual risk to the children. The Local Authority maintained its plan for the removal of the four children who remained at home, but this was not supported by their Children's Guardian, while F2 sought an order placing E with him. In March 2014, Judge Wright gave a welfare judgment in which he made a residence order to M in relation to B, C, D and E, with a supervision order and an injunction against F2, which remains in effect. In A's case a care order was made. Contact arrangements for the fathers and for A were put in place. While the supervision order lasted, F2's monthly contact with E was professionally supervised, but after that it was supervised by M for about five years until early 2020, when professional supervision recommenced.

In 2016, the Local Authority took proceedings in relation to F3's six children, who were living with their mother, except for G, then aged 9, who was by then living with F3 and M. The matter came before His Honour Judge Wilding at a lengthy hearing in late 2016. The Local Authority sought the removal of G into foster care; this was opposed by his Children's Guardian. M and F3 gave evidence that A would always be supervised if he were to attend family gatherings in future. Judge Wilding was impressed by their evidence and found that G was doing well in their care. He made an order for G to live with F2 subject to a supervision order. However, the placement did not last. In July 2018, G moved into foster care and in January 2019, Judge Wilding made an order that he return to his mother. In doing so, he attached no blame to F3 or M for the breakdown of the placement with them.

Returning to B, C, D and E, it will be recalled that following Judge Wright's order in 2014 they were subject to a supervision order. Between 2015 and 2016, the Local Authority's involvement lapsed, but in 2016/17 a family assessment was carried out, and in April 2018, the children were again made subject to Child Protection plans for ‘neglect’, with each child having her own particular problems. In January 2019, an application by F1 for C and D to live with him was dismissed. In March 2019, the Local Authority stepped the matter down to Child in Need plans and on 28 October 2019 the case was closed to social services on the basis that the family had made considerable progress and that the children were happy. At the time M was expecting F, who was born in the late Spring of 2020.

Such a compressed account of the background to the current proceedings does not reflect the sheer volume of information that has been available to social services and the court across decades. It can be seen that at the most general level there were longstanding concerns related to neglect and sexual abuse, but that these had apparently receded by the end of 2019, with signs that M was maturing, and F3 was seen as a stabilising influence. Meantime, A was living away from home and his contact with the other children was supervised by M and F2, while F2's contact with E was similarly being supervised by M. At all events, M and F3 had up to this point succeeded in fending off attempts by the Local Authority and the other fathers to remove the children from their care.

The present proceedings

The Local Authority issued these proceedings on 31 March 2020. Earlier that day it had sought the removal of C, D and E under an emergency protection order without notice to the parents. B, who was by then aged 16 and living with other family members, is not subject to the proceedings, though she has been very much involved in them. The removal application, which was supported by the newly-appointed Children's Guardian, was refused by Her Honour Judge Mellanby, who gave directions in the care proceedings and made a non-molestation order against A, which among other things prevents him from coming to the family home. In May 2020, that order was extended by Judge McPhee until the end of the proceedings, so it remains in effect. Following her birth, F was joined to the proceedings. The court made interim supervision orders in relation to all four children, which continued until the final hearing.

The Judge conducted two substantial hearings. The first, lasting for some nine days, was a fact-finding hearing, leading to a judgment on 10 December 2020. The second, which took six days, ended with a judgment given on 26 July 2021 and with the orders now under appeal.

In his first judgment, the Judge made findings about the events leading to the issuing of the proceedings. These mainly occurred in November 2019, within a very short time of the case being closed to social services. The Judge found that at the beginning of that month A, then aged 20, had been attacked and was unable to remain in his own flat. M had allowed him to stay at the family home for about two weeks, during which time he sexually assaulted E, then 6, when he was briefly left unsupervised on the first floor landing. The assault, which A denied in evidence, was confirmed by E and witnessed by B, who had also been upstairs while the parents were downstairs, distracted by caring for an injured dog. After the assault, M had allowed A to remain in the property overnight and did not report what had happened to social services for three days.

The Judge accepted B's account of the assault on E. He found that M and F2 had failed to protect the children from sexual abuse and the risk of sexual abuse, and had delayed in reporting the...