A recent care case heard in Cardiff Family Court highlighted the experiences of children living in fear of their parents’ unpredictable and violent behaviour. The judge said that despite her having 30 years experience in care work, the children’s descriptions (in video interviews) of the effects on them of living with chronic neglect had shocked her. She was ‘frankly, horrified’ when she heard at first hand from the children how their dread built up each week as Friday night approached, which was when their parents purchased drugs for the weekend.
These proceedings included ‘a Re W hearing’ where a decision is made about whether a child should give direct evidence. This is very rarely ordered, although there is no presumption against children being permitted to give evidence. (Children are quite often invited to ‘meet the judge’ these days but that is planned as a reassuring event for them; it doesn’t take place in the courtroom and doesn’t include evidence.)
I attended two hearings as a legal blogger in this case in May and October this year.
Background
Mr A and Ms B lived with four children, aged between 15 and three years old. The oldest child (who I’ll call ‘Mia’ – not her real name) was the daughter of Ms B and an ex-partner, Mr C. Mr A and Ms B were the parents of the two youngest. The father of 13 year old Ben (again, not his real name) was unknown. Ms B had previously told Ben that his father was dead, although she had recently agreed to a number of DNA tests in attempts to identify him. Mr A and Ms B had been in a mutually abusive relationship that had involved the police being called on several occasions over at least the past eight years.
The local authority became involved following incidents in the home and reports of violence by Mr A towards Ms B and the children that led to the police being called in 2024. Following investigations into injuries caused to Ben and a younger sibling, Mr A and Ms B told authorities that they had separated and eventually, no further action was taken, as it was believed that Mr A was no longer a risk to Ms B or the children. Mr A has a criminal record that includes violence; he has been assessed as presenting a medium to high risk of domestic abuse against women.
However, it later transpired that Ms B and Mr A had not in fact separated when they’d told social workers they had. The local authority had ‘had the wool pulled over their eyes’, as their lawyer put it. As expressed in the local authority case summary: ‘Each child is observed to be upset and disappointed every time they discover that their mother has returned to the man who has caused them significant harm.’ Because the local authority could not be certain when Mr A and Ms B were still in a relationship or not, the final parenting assessments of Mr A and Ms B were done on a ‘together and apart’ basis i.e. an assessment of each parent’s ability to care separately and one of their ability to care together – all were negative.
An alleged attack on Mia by Ms B earlier this year, when she pulled her daughter down the stairs by her ponytail, in front of the younger siblings and two of the daughter’s friends, led to criminal charges against Ms B. Mia had multiple injuries. Ms B is on bail conditions that stipulate she can’t currently live with the children. Mia went to live with Mr C (who has shared parental responsibility) and Mr C’s partner. The three youngest were placed with their maternal grandmother under section 76 (Wales equivalent to s 20 in The Children Act 1989). The local authority applied for care orders.
Court hearings
At the Case Management Hearing (CMH) in May, the court made interim supervision and child arrangements orders for Mr C and his partner in relation to Mia. Discussions took place about what could be ascertained from the police about their intention to interview any of the children. Other matters covered were sibling assessments and temporary placements for the three younger children because the grandmother was going into hospital for planned surgery. Although both Mr A and Ms B accepted that the interim ‘threshold’ of ‘reasonable grounds to believe’ that the children were suffering or at risk of significant harm had been reached, they didn’t agree to each item in the threshold statement. Mr A said he had been too intoxicated to remember how the children had been injured in earlier incidents and Ms B said she had been acting in self defence when Mia was injured, although she hadn’t at that stage filed a response document to the local authority threshold statement.
The judge said she didn’t want to see any attempt to undermine the children’s credibility; she said they had already spent too many years not being heard. However, it wasn’t known at this point exactly how their evidence would be presented in the family court because police decisions were still awaited.
The Cafcass Guardian was very concerned about the disruption all the children had suffered, especially the impact on Ben, who’d been the one who’d rung 999 when Mia was assaulted by Ms B. Ben and the two youngest children were able to stay in suitable temporary placements with family and friends while their grandmother was in hospital. However, the children’s solicitor explained that Ben was desperate to talk about what had happened to him. This posed potential risks to the admissibility of evidence in any criminal proceedings. My understanding was that the solicitor was concerned that Ben wanted to talk to people he felt he could trust to listen to him, but it was difficult for him to understand that, for the time being, he had to limit sharing details to certain adults. Ben was also very keen to find out who his father was and how they might start a relationship. The children’s solicitor described Ben as ‘anguished’ about his paternity. The solicitor asked for a further urgent CMH to be listed in a week’s time, by when it was anticipated the information from the police would be available
An Issues Resolution Hearing (IRH) was set for late September, but before then, more issues arose about whether the police would interview the children to obtain their accounts – eventually the local authority had to pay for Mia and Ben to be interviewed by a specialist service. The IRH would then include the decision that had to be made about a Re W hearing – would Mia and Ben be permitted to give evidence? As matters progressed, the IRH was re-listed for October, to include a decision on whether a Re W hearing was required and, if not, whether the IRH could become the final hearing (FH).
Prior to the listed IRH/FH, the local authority care plans were for Mia to live with Mr C and his partner under a child arrangements order with a supervision order for 12 months. Mia was reported to be flourishing in their care (‘a different child’) and they’d had a positive parenting assessment. I’m not sure exactly why the supervision order was necessary, but perhaps while contact arrangements started to settle down, given the history. The situation for the three children who didn’t have a safe parent to live with was more complicated.
Kinship placement formalities
The plan for the three younger children was to stay living with Ms B’s mother, the maternal grandmother, as a kinship foster carer. Since the case of JW (Child at Home under Care Order) [2023] EWCA Civ 944, there is an expectation that if children can be safely placed with their parents or relatives, they shouldn’t be subject to care orders, unless there are exceptional circumstances. The local authority believed that the circumstances here justified a ‘care order at home’ plan ‘due to the extremely toxic and complex dynamics of the family and the very high risk that this presents to the three youngest children placed in MGM’s care.’ Another factor was the grandmother’s recent health problems, although she was reported to have recovered well from her surgery. One of the positive aspects of the plan was that Mr C’s partner and the grandmother had developed a good relationship.
However, at the October hearing, formal approval of the grandmother as a foster carer hadn’t been completed, because of a delay in receiving a DBS check. This was most likely a technical issue as the delay hadn’t been her fault; she just didn’t have a full set of the usual ID documentation. No one was expecting the DBS check to reveal anything new about her and therefore it was envisaged she would be approved as soon as the fostering panel met after the DBS check arrived. However, this left the local authority proposing either a care order, with a view to a kinship foster placement (subject to fostering panel approval) – or adjournment until the fostering panel approval was through. Either way, if it turned out that for an unforeseen reason the grandmother couldn’t be approved, the court would be faced with very difficult decisions for Ben, who would not settle into local authority foster placement. As was expressed by the local authority lawyer and endorsed by the guardian, for Ben, it was ‘Grandmother or bust’.
Outcome
Orders could be made at the IRH/FH, in accordance with the local authority plans, for Mia. However, the evidence about Ben’s ongoing distress and the uncertainty he felt was very troubling for the court. The judge suggested that Ben would feel more secure if his grandmother was made a special guardian than a kinship foster carer, sooner rather than later. Although this would differentiate his legal status from the two younger children, she thought Ben would see that positively. However, it was concluded that Ben currently needed the level of support from the local authority that a care order would bring, especially as his behaviour in school meant he was on the brink of a fixed exclusion. The LA lawyer explained that, if a care order was made, Ben and his grandmother would have access to more intensive support as a ‘looked-after child’ than he would under a SGO.
The care orders relating to Ben and the two youngest were a little unusual, in that they were final orders, even though the fostering approval was outstanding. The order therefore included a recital (record of agreement) that should the grandmother for any reason not be approved or be de-registered in the future, the local authority would not remove the children before she had time to apply for a ‘private law’ order (probably a SGO). There was an adjourned Final Hearing listed in late November, but because everyone was agreed on the care orders, this hearing would be vacated if all went to plan, and the care orders would stand. I understand that an urgent fostering panel meeting was called so that this formality could be completed, and therefore the final orders were those made in October.
The length of time between the issuing of care applications and the orders made in the October IRH/FH had been 25 weeks.
Ben’s voice in these proceedings
By the IRH/FH, Mr A and Ms B had conceded enough of the threshold statement, and the video interviews with Ben and Mia were sufficient evidence for the judge and nobody pursued a Re W hearing in order to persuade the judge that the children should give evidence– this wasn’t necessary for the court to come to a decision about the significant harm they had suffered. The local authority and the Cafcass guardian also put forward strong evidence about the children’s views.
I mentioned in the introduction that judges often offer or agree to meet children who are subject to applications. It was reported quite early in this case that Ben wanted to meet the judge and, at the October hearing, HHJ Edwards said she would be happy to meet him if he still wanted that.
Sadly, Ben never did find out who his father is and it seems unlikely he ever will. He has a lot to grapple with, but there is a wider family and friends network there for him, as well as social work support. Although he was struggling at school in current circumstances, he was clear that he valued being in that school, which had become a safe haven for him in recent years. Ben’s voice really came through to me in those hearings, and I hope he feels that the professionals and the judge were all listening.
The threshold of harm and parallel criminal proceedings
Ms B’s lawyer told the court that Ms B had ‘been advised’ not to accept all of the matters set out in the local authority threshold statement. As usual, Ms B would have had a different lawyer acting for her in the criminal proceedings, so I assumed that the family lawyer had been told by Ms B that this was advice from her criminal lawyer, although exactly what had been advised by a solicitor not in the court room couldn’t be checked. I understand it is unusual for privileged advice (between a lawyer and their client) to be disclosed in this way. This is just one of the tricky elements in parallel family court and criminal court proceedings.
In this care case, the judge referred the advocates to A Local Authority v DG & Ors [2014] EWHC 63 (Fam) where Mr Justice Keehan had said in the context of linked care and criminal proceedings: ‘It is wholly inappropriate and potentially a contempt of court for a legal practitioner to advise a client not to give a full, accurate and comprehensive response to the findings of fact sought by a local authority in the threshold criteria document’ [para 42].
Some thoughts on ‘neglect’
The judge’s comments about the impact of chronic neglect reminded me of an interview I’d read with Professor Marion Brandon, Lessons from two decades analysing serious case reviews in which she’d said:
Neglect was also a background factor in most of the cases but was rarely the primary cause of death or harm… when practitioners classified a case as neglect they sometimes failed to see what else was happening…. So we should be aware that neglect can be a flag for other things happening…. neglect sometimes stops practitioners from understanding what’s going on because it seems to be everywhere. What we tried to do in our serious case review work was ask, ‘What kind of neglect is it?’… She added that, instead of saying ‘It’s everywhere’, social workers need to be enabled ‘to hold steady in confusing, overwhelming cases, and instead of just saying, ‘It’s everywhere,’ to ask themselves, ‘What’s it like in this family, in this case, for this child?
In this case, there seemed to be a plethora of evidence of physical and emotional harm to all the children, to which the local authority responded quickly, and social workers were able to comprehensively assess the children’s needs. However, it’s sad if there hadn’t been an earlier referral because other professionals who’d known the family didn’t see past the neglect to how damaging the children’s environment was.
Image of teenage boy at pxhere.com
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