IMPORTANT NOTICE
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: KH14C0041……………..

IN THE FAMILY COURT SITTING IN HULL

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF CK, TK, LK, MK

Date: Wednesday, 01 April 2015.

Before: HHJ Pemberton

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Between:

	NELC	Applicant	
	- and -		
	AE (1)

DK (2)
CK (3)

The children (4)

Respondents	
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Mr Burdon for the Applicant
Mr Wilson for the 1st Respondent
Mr Watterson for the 2nd Respondent
Mr Ahmed for the 3rd Respondent
Mr Goodwin for the 4th-6th Respondents

Hearing dates:
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APPROVED JUDGMENT

1.	These are care proceedings concerning 4 children of the family.  They are CK who was born on 04/10/1999 and is now 15; TK born on 14/02/2002 and now 13; LK born on 17/04/2003 and now 11 and MK born on 03/05/2009 and is now 5.  The parents of all four children are AE and DK.  

2.	The Local Authority seeks final care orders in respect of all 4 children.  Its plan is that all 4 children should remain in their current foster placements with the 3 boys in one placement and CK in a separate placement on her own.  These applications are opposed by the first respondent mother (the mother).  She would invite me to return the children to her care and if I do not accede to her request for all 4 children to return, then to return CK.  The second respondent father oppose these orders and would invite the court to return the 4 children to the care of their mother where he proposes he would visit them on a regular basis.  That has been his position throughout the proceedings.  The Children’s Guardian supports the LA applications.  CK is separately represented in the light of her age and understanding.  The application is opposed by CK in relation to orders relating to herself and she has filed a statement confirming this.

The Issues and the Evidence
3.	I have read the bundle of papers provided to me in this matter which run to some 3 lever arch of papers.  I have also heard evidence in court from the father, the allocated social worker, 2 further local authority social workers, the mother and the Children’s Guardian.  I have considered the very helpful written submissions filed by all parties.

4.	Essentially, the LA case is that the children have been at risk of suffering harm and are at further risk of harm due to their father’s volatile and at times violent behaviour.  The threshold document that the LA has filed sets out the concerns in relation to the father’s behaviour, both as recorded in the LA records and as reflected in his criminal records.  It also records that the parents have failed to adhere to action plans and agreements put in place and have failed to be open and honest with professionals, maintaining a relationship whilst telling professionals that the relationship has ended.

5.	The central issues in this case are therefore the risk Father poses to Mother and the children and the Mother’s ability to protect the children. 

Background history
6.	I will briefly set out some of the significant issues in respect of the history of these proceedings. The LA have filed a 6 page chronology which details it’s involvement with the family back to 2006.  I note that the chronology is not accepted in its entirety by the parents but it is helpful to use as a tool in terms of what the LA have recorded in relation to this family.

7.	An initial 2006 contact was received from the police who had concerns that CK was seen caring for TK.  A year later the first referral was received that related to concerns about domestic violence and abuse between the parents.  The record is that they had received 3 calls, 2 from the father and one from the mother in which each alleged assault by the other.

8.	In January 2013 there was a serious referral from the police.  Mother had alleged that she hade been “beaten up” by the father and that she had had to leave the home, leaving her children in the home.  This incident was assessed as being a high risk incident with the mother being recorded as having expressed fears that the father had threatened to rape her in the past and she was fearful that he may carry out this threat.

9.	The father’s PNC disclosure has been filed within these proceedings and shows that he was convicted in February 2013 of assault by beating and criminal damage relating to the incidents on 19th January 2013.  The probation report that has also been filed sets out the detail and basis of conviction.  The father had hit the mother in the eye with the end of a screwdriver.  

10.	A Marac meeting was held in March 2013 which recorded ongoing significant concerns in respect of risks to the children as the father was recorded as living in a caravan in the driveway of the family home.  The LA put protective measures in place.

11.	The children were initially recorded as children in need but due to the escalating concerns, a child protection conference was convened in June 2013 and the children were made subject to child protection plans.

12.	Sadly, according to the LA records, this did not resolve issues as later that month, CK is recorded as contacting the police as her father was in the house and was arguing with her mother.  CK is recorded as being scared.  The mother also contacted the police at this time to report that the father was shouting through the letterbox of the family home and refusing to leave.  The children were all present.  

13.	The mother reported harassment from the father, in one day recording 23 missed calls and 25 texts, and it is recorded that within these texts and calls her had threatened to kill himself. In later texts he threatened to take the children.

14.	In the light of this behaviour, the mother applied for, and was granted a non molestation order.  Again, the making of this order did not resolve matters as there are further records of the father being seen at the mother’s home and with the children.

15.	In November 2013, the mother and all 4 children moved to a refuge in Stoke on Trent.  The father’s behaviour is recorded as continuing to be erratic and threatening with recordings of him threatening to firebomb a Children’s services office, and causing criminal damage at Probation premises.  He is also recorded as having threatening to “slash the probation officer’s face”.  The father was subsequently convicted of 2 breaches of the non molestation order; making malicious phone calls and criminal damage.  He received a custodial sentence in respect of these convictions.  The father also disclosed that he was aware of the mother and children’s whereabouts in the refuge.  This led to the mother and children having to move again to an alternative refuge in Louth.  However, despite the mother having signed an agreement to ensure that she and the children did not come into contact with the father, information was received that contact was taking place.  This led to the mother and the children being evicted from the refuge and the children remained subject to a child protection plan.  There were ongoing reports that the father was once again having regular contact with the mother and children and reports of him being seen at the family home.  

16.	Given these escalating concerns, the LA commenced the Public Law outline procedure in June/July 2014.  However, events overtook the planning as on the 30th September LK was noted at school to have several bruises and that he was recorded by his school as saying his father’s name and repeating the word “angry”.  He also made reference to CK’s phone.  When CK was seen later that day she is recorded as reporting that her “dad went berserk and smashed it [referring to her phone] up”.   I should note here that LK suffers from a number of health issues including epilepsy, coeliac disease, autism and has developmental delay.  He has communication difficulties and his speech and language is described as unclear.  

17.	LK was referred to hospital for examination in relation to his bruises.  The hospital reported concerns that the father had attended to see LK and had been rude and abusive leading to the police being called to escort him from the ward.  The consultant who examined LK raised concerns that the injuries could be non accidental in nature and he was concerned about some of the bruises that he noted.  Due to the concern that LK may have been injured, and against the background of concerns in respect of father’s behaviour, the LA applied for an emergency protection order in respect of all 4 children and I granted this on the 2nd October 2014.  Care proceedings were then issued.

The assessments
18.	During the course of the proceedings there has been a psychological assessment of the father by Dr McAnespie who was jointly instructed by all the parties.  He has provided three reports.  Whilst acknowledging that his report is negative in relation to the father, he does believe that he loves his children and is trying to do what is best for them but in a distorted way.  Dr McAnespie feels that these difficulties are a manifestation of his personality disorder.  He identifies a 

“significant risk of emotionally dysregulated conflict which the children would be likely to be witness to, to at least some degree, and of course a significant risk of further assault given the right circumstances.  Whether directly involving the children or not…I would be concerned about the emotional impact of his children being exposed to ongoing domestic violence and conflict, particularly given their extra vulnerabilities”

19.	In terms of the causes of these behaviours, he says 
“The father presents with antisocial and paranoid personality difficulties which may benefit from psychological intervention. In my opinion he would have to be treated at least partially in order to allow Mr K the insight and skills to be able to work more productively with the local authority…..”

20.	He also records that in order for the father to safely manage his risk of violence, he would need to acknowledge such risk exists – without such acknowledgement, there can be no feasible plan to safely manage his potential for aggression (my emphasis).  With regard to prognosis and likely engagement  he says, 
“unfortunately due to the very characteristics of Mr K’s personality difficulties….. and the fact that Mr K does not acknowledge in any way that he has any difficulties that aren’t solely due to external causes, i.e. the system, it is not my opinion that at this point in time he is likely to engage in or benefit from the provision of therapy”.

21.	In his view, 
“the father has no internal motivation to change anything and therefore given his antisocial and paranoid personality disorders, his proclivity towards self sabotaging; and the account of his attitude towards authority in general and social services in particular, he is not likely to engage in an honest, non-aggressive manner or to respond to advice to any greater degree than he has demonstrated already”.

22.	Dr McAnespie has not been required to come to court to give evidence and his evidence is therefore unchallenged.  I adopt and accept his findings and conclusions.

23.	A paediatric assessment has been undertaken by Dr Austin in respect of LK’s injuries.   In his view in a child of this age with the difficulties that LK has (including epilepsy and regular fits) including 4 recorded fits on the day of admission, the bruising noted was likely to be accidental.  In the light of this report, the LA in my view quite properly, does not seek any findings in respect of LK’s bruising.                                                

24.	This case has been before the court on numerous occasions due to ongoing concerns in relation to the father’s behaviour which have impacted on both the contact arrangements for the children with their mother and have impacted on the social work assessments.

25.	It was apparent from an early stage that the father’s behaviour was likely to be highly damaging to the prospects of him being able to maintain contact with his children and also of the prospects of the children being returned to his or their mother’s care.

26.	On the 19th November 2014 I made an order that the father should not attend at various LA venues and should be prohibited from initiating contact with the children.  I also ordered that he should be prohibited from threatening the social worker, Mr. Shearsmith and other LA employees.   Those orders have been made using the Family Law Act 1996.  These have not been successful as a number of breaches have been alleged and accepted by the father.  However, queries have been raised as to whether or not these orders were actually ultra vires.  The Family Law Act provides that those that can benefit from the protection of this Act must be “Associated Persons” which are defined in S62 as including those that were parties to the same proceedings.  At first blush it appears that this is capable of including the LA as a party and therefore the allocated social worker.  I intended to protect him and his colleagues from the threats and abuse that the father had levelled at professionals.  At the time of making the original orders I did not hear legal arguments.  However, it has subsequently been argued on behalf of the father that the LA is actually expressly excluded from being capable of being an Associated person by virtue of S62(6) which excludes a “body corporate” form being an associated person.  The LA and the Children’s representatives argued that the orders were capable of being made but were unable to point to any decided authority.  On rereading the Act I think Mr Watterson is right and the orders should not be made in order to protect the LA employees.

27.	Whilst it is not disputed that it was well within the remit of the Family Law Act to make orders to prevent the Father from contacting the children, a further legal problem arose in that the LA is also not able to bring an application in respect of any alleged breach of an order under this statute, despite holding PR for the children who the order was intended to protect.  In order to remedy these problem, the case was transferred to the High Court and released to me to deal with as a S9 Judge.   I granted orders in exactly the same terms but under the inherent jurisdiction.  The LA invites me to extend those orders.  The LA does not at this time pursue the application it had made for the father to be committed to prison for breaches of the original orders, many of which the father has accepted.

28.	I have made and extended an order under S34 of the Children Act 1989 throughout these proceedings authorising the LA to withhold contact between the children and their father.  Unfortunately, despite being aware of this restriction, the father attended at a contact session on the 7th November.  The father accepts that he attended contact on that date.  

29.	In late December 2014, a call was received by social services from Humberside police to inform the Local Authority that DK had contacted the police and informed them that CK and MK had been in contact with him and have alleged that their foster carers were being nasty to them.

30.	The Social Worker spoke with CK about the issue of telephone contact and she informed him that she was having telephone contact with her Father and that he rings her on her Mother’s phone when mother is in the shower and that Mother is unaware of this.

31.	The Social Worker visited CK and MK’s foster placement on 13th January 2015. CK stated that she had had several telephone conversations with her Father. She also stated that MK had a conversation with his father on the phone. CK did say that she had not been to her Mother’s home or seen her Father.

32.	It was the Social Workers opinion that it was highly likely that the Mother knew of the phone calls as Father was using her phone. Both parents had chosen to actively withhold this information from social services.  At a hearing on 23rd January 2015 it was recorded that :-
•	During the course of 22nd January 2015, CK disclosed to police that she had recently visited her Mother’s house regularly after school and that DK was present and that DK had driven her to the Foster Carers house on one occasion.
•	AE accepted that CK has been to the family home on an average of twice per week and that on occasions the father was present.  
•	During the course of his oral evidence the father accepted that he had had unauthorised contact with CK on 2 occasions when she had attended at her mother’s home and he happened to be there.

33.	On the 27th January 2015, due to the disclosures that the father had had direct contact with CK and telephone contact with MK; and that he knew about the location of the foster placement and due to previous threats, it was decided that the present placement for CK and MK could not safely be managed. CK was moved to a new placement outside of the Grimsby area and MK was moved to be with TK and LK.

34.	On the 22nd January 2015 the father rang social care on 7 occasions.  I have been provided with transcripts of those calls.         They are extremely abusive and threatening and personally offensive.  They are all directed towards the allocated social worker, Mr. Shearsmith.  In my view these transcripts give a clear picture of the father’s inability to manage his emotions when he became irate about something and ability to behave in a way which is intimidating and frightening and very aggressive.

35.	Under these constraints, the social worker John Shearsmith has undertaken a parenting assessment of AE and DK. Perhaps not surprisingly given what I have recorded in terms of the way in which the father was engaging, this concludes negatively.  The mother’s position throughout these proceedings has been consistent.  She is or wishes to be in an ongoing relationship with the father and she does not accept that he poses a risk to the children. 

36.	The parenting assessment therefore concludes,
“It is the view of the local authority that neither parent either presenting as a couple or separately are able to care for any of the children either together or separately. The risks are simply too high. Both parents need to acknowledge the harm they have exposed the children to and that they have not safeguarded the children.
Miss E is not accepting of Mr K’s behaviour and conduct, she does not see him as a risk to the children or herself. The Local Authority have tried to support Miss E in offering to signpost her to relevant agencies however she does not accept that there has been a history of domestic violence or that Mr K’s behaviour is a risk to her or her children.”. 

37.	I heard oral evidence from Mr. Shearsmith.  He quite rightly conceded that the parenting assessment he had completed was not a full assessment which he explained had been due to the difficulties that had arisen in working with the parents and the fact that the focus had been frequently directed away from the actual assessment due to the parents own behaviour (the threats that the father had made , the unauthorised attendance at contact, the revelation that the father had been having unauthorised telephone  contact with CK and TK and had had direct contact with CK who had been visiting her mothers home).

38.	Mr Shearsmith told me and I accept that the assessment was based on the full range of information that was coming to light in relation to the parents and their behaviour during these proceedings.  He also relied on the core assessments that had been completed in June 2013 prior to the family moving to this LA area.

39.	Ideally, there should have been a formal assessment plan and formal and structured assessment sessions.  However, I accept and agree with the views of the Children’s Guardian that I have sufficient assessment and information to enable me to proceed to a decision.  

40.	As I set out at the beginning, the LA amended care plans were for the children to see their mother once per week and to see each other once per week.  The guardian disagreed with this plan and recommended that the children should see their mother twice per week.  Mr Shearsmith was therefore asked about the reasons for the planned reduction in contact (it is currently twice per week).  He was unable in my view to give any welfare reasons for the proposed reduction.  He pointed to resources.  He was unable to point to any evidence that the contact was causing any disruption to the children or in any way preventing them from settling in their foster placement where it is proposed they will remain.  He indicated that any change of this plan would have to be discussed with a more senior practitioner.

41.	Following the conclusion of the evidence, the LA have now filed amended care plans and I note that these provide for contact between the boys and their mother to take place twice per week.  There is therefore no dispute between the parties as to the level of contact.

42.	A further element of the Local Authority's case is that the parents have failed to work openly and honestly.  I heard from two witnesses, Amanda Boafo and         Laura Snell. Their combined evidence was that they had both (separately) seen AE and DK together in Grimsby town centre on the 12th of March 2015. The significance of that evidence is that a statement signed by AE on the 16th of March 2015 states that she had not seen DK since the 12th of February 2015.  They were very clear in their oral evidence as to their certainty about recognising the parents (whom they had met before and indeed Ms Boafo had given evidence to the court before in relation to a contact that she had been involved in).  Their evidence was appropriately challenged and tested on behalf of each of the parents.  I found that both local authority witnesses were clear and compelling in their evidence of who they had seen, their ability to recognise them and their certainty of the identity of the two of them.   I accept and find that the parents were together on the 12th March 2015 as described by them.

The case for the parents
43.	As I have stated, the parents both oppose the LA applications and have filed a number of statements, all of which I have considered.  Dealing firstly with the evidence of the mother, in her first statement the mother asserts that historically there has only been one incident between herself and the father that she would describe as violent.  Her first statement directly contradicts the statement she had filed in support of her non molestation order in June 2013.  That statement and the evidence of professionals that the mother filed in support, sets out a history of domestic abuse and violence, beginning following the tragic death of the mother’s brother.  The maternal uncle died in a car accident, he was travelling in a car driven by the father.  This tragic accident will, I am sure, have had a dramatic and devastating impact on the family.  In her statement filed with this court in June 2013, the mother refers to the “a massive change to the dynamics of our relationship” following this accident.  She describes the father as becoming snappy with people over nothing and smoking cannabis that exacerbated his paranoia and temper.  She refers to arguments in which the father punched her in the head, throwing objects at her and smashing mobile phones belonging to the mother when he suspected her of beginning a new relationship.  She describes in detail the incident on the 19th January 2013 when the father hit her with a screwdriver, slapper her in the face, hit her around the head, and cut her had.  He then broke her hair straighteners and smashed her mobile phone.  He took £100 from her purse.  

44.	She also describes threats that the father had made to rape her and to kill her.  She goes on to describe an escalation in the controlling and threatening and physical behaviour, describing him hitting her, headbutting her and throwing things.  She says that he was losing control in front of the children and that the boys had witnessed him throwing a hot pan of food at her.  CK herself called the police on the 12 June 2013 at 2.29am as she was scared because she could hear her parents arguing.  When the police attended, the mother tells me that the father then threatened to stab the police officers.

45.	I was very troubled by the mother’s account that on the 15th June 2013 the father had sent a message to the mother in which he referred to CK as a “little bitch”.  She describes the fathers “fascination with weapons” and in her statement refers to the police removing a number of weapons including a “hammer with spiky balls”.  She also describes harassment by way of repeated calls and text messages.  In her oral evidence the mother confirmed the truth of the June 2013 statement and the level of violence described therein.

46.	In her final statement the mother makes it clear that she intends to parent the children as a single parent but to maintain a relationship with the father who she says will live separately.  She does not accept that she has prioritised her relationship with the father over the interests of the children.  She told me that she believes that the father has now changed his behaviour and will no  longer behave in a threatening or violent manner.  I am afraid that I find that the mother is deliberately trying to minimise the behaviour of the father both recently and historically.  Given the supporting evidence from other professionals at the time of the injunction proceedings and  the reports I have received of the father's behaviour during these proceedings I have come to the clear view that the account that mother initially gave to the court when applying for a non molestation order is a far more accurate picture of the relationship and the domestic abuse that she and the children were subject to.  Her optimism that he is now a reformed character I find is misplaced.  In addition to the emotional impact on the children of being present when their father behaved in a threatening and violent and aggressive manner, the children will also no doubt have been affected by his unpredictability and inconsistency.  His behaviour lead to the mother and the children having to leave their home suddenly on a number of occasions.  

47.	The mother raises concerns in respect of the adequacy of the parenting assessment and submits that she has been denied the opportunity to demonstrate her ability to recognise risk and act in a protective manner.  As I have already referred to, the social worker was forced to accept that the assessment he had undertaken was limited in terms of formal assessment sessions, however, the mother has in my view been given ample opportunity to demonstrate to professionals that she accepts and acknowledges the potential for harm for her children and is able to act protectively.  She has acted protectively before; she has undertaken work on the impact of domestic violence.  I am afraid that  her actions throughout these proceedings and her evidence in general leaves me far from satisfied that she even acknowledges the impact that her relationship with the father will have had on the children and has the potential to have in the future.  I do not find that the mother’s assessment has compromised her ability to demonstrate such capacity.

48.	The father has also filed a number of statements.  He does not accept that the threshold criteria for the making of a public law order is crossed and again repeats the mother’s evidence that there has only been one incident of violence between himself and the mother in their 16 year relationship.  He does not see any problems in the care that the children have received.  It appears from his statement that he seeks the return of the children to his and the mother’s joint care. 

49.	The father was the first witness I heard from by agreement with all the parties.  He impressed me that he was passionate in his beliefs and in his love for his children.  If the only decision I had to make was whether these parents love their children it would be an easy decision indeed.

50.	The father’s evidence entirely confirmed the findings of the psychologist.  He is at a loss to understand why his children are in care and why the professionals have any concerns at all.  I accept and appreciate that it must have been very distressing for the parents that the “trigger” event for the removal of the children (the bruises noted on LK) is no longer being pursued by the LA, but the case was never simply about concerning bruises.

51.	The father in his evidence was unable to accept simply how distressing some of the incidents that the children have experienced would have been.  For example, when he accepted the incident just prior to these proceedings when he broke CK’s phone, he was able to tell me about the frustration he felt as his children did not appear to be listening to him whilst he attempted to hold a “family meeting”.  He told me there was no shouting or anger, he simply took CK’s phone and smashed it and put it in the bin.  He told me he was so ashamed of this that he then took himself off and did not see the children for a week.  I find it hard to believe that the father did into show his anger and frustration to the children by shouting as all of the evidence suggests that this is how he would usually respond.  However, even if he did respond in angry silence, this would have been distressing and disturbing for his children.  He was unable to see this.

52.	He was unable to take any responsibility for the number of moves the children had had when they moved with their mother to refuge accommodation and then had to move again when he traced their whereabouts.  The moves, he saw, as all down to pressure from the LA rather than any response to his behaviour.  I was troubled by his description of tracing the mother and the children by hacking the mother’s email account.

53.	I was also concerned that during his oral evidence the father on a number of occasions told me he would go and kill himself in order to resolve matters – this is not a solution and showed no insight at all into the impact on his children if he were to take such action.

54.	The one incident that the father was able to express regret about was the occasion in November 2014 when he had attended at a contact session when he knew he was prohibited from attending.  Mr K arranged for CK to video this session and I have seen the video.  It shows, as the father describes, his children laughing and playing with him.  It is a very short video.  However, there are a number of issues that the father does not appear to recognise, both in attending the contact and in the manner in which he sought to produce evidence; this was a staged video – he was clearly performing for the camera and encouraging the children to do so too. As I have already said, I have no doubt that the father loves his children and that they love him and that they have no doubt had many happy occasions when they have been able to have fun and play together.  However the fact that the father was unable to recognise the impact of this children of this unexpected contact that they were possibly aware was unauthorised which in turn  lead to the supervisors having to intervene and terminate the contact; the impact on the children of feeling pressured to perform for the camera on this their first meeting with their father in a number of months; the pressure on CK who is clearly being directed by her father to capture this on film – all cause me concern that the father does not think through some of his actions and that this desire to prove his position certainly on this occasion, was in conflict with the interests of the children.

55.	I have witnessed the father in court on a number of occasions and his frustration and agitation is apparent.  I accept entirely that court proceedings of this nature are very stressful and of the utmost importance to these parents, however, he has been unable to contain himself in several hearings, shouting over witnesses and refusing to manage himself or listen to the wise advice of his counsel who has represented the father throughout these proceedings.  I have no doubt that the behaviour I have witnessed is an example of some of the behaviour reported by professionals.  I accept that this behaviour would be intimidating and possibly frightening to professionals and for the children would create a real degree of fearful anticipation.  For the children and the mother I can only imagine that they have the feeling of walking on eggshells so as not to provoke such a reaction in the father.

56.	CK has filed a statement.  She is clear that she wishes to return to the care of her mother.  She is 15 years old.  I have met her earlier in these proceedings.  She is articulate and composed.  She has decided that she does not wish to attend court for this final hearing but instead wishes me to take account of her clear wishes as recorded in her statement.  I have considered CK’s statement with care.
The Children’s Guardian
57.	The Guardian is clear in her final analysis that in reality, nothing has changed since these proceedings were issued.  She says “there has been no reduction in risk to the children throughout these proceedings.  Whilst the matter of the injuries to LK are not being pursued there is a history of unstable care for these children that includes a high level of risk as associated with domestic violence and abuse”.

58.	She disagreed with the original LA plan in terms of the level of contact proposed and instead recommended that contact should be at a much higher level, taking into account the boys significant difficulties and their need for care into adulthood and the fact that relationship that the boys have with their mother needs to endure and be promoted and that the current level of contact has not impacted on their family life in foster care.  She felt that there is a continued risk of contacts having to be cancelled and is concerned that with a frequency of once per week, cancelled contacts would leave too long a gap between the occasions when the children see their mother. She invited me to make an order that contact should be twice per week for all 4 children with mother and an additional contact for CK.

59.	As I have already set out, the level of contact is now agreed between the parties.

The law
Standard of proof
60.	Before the court may make any order at all with respect to these children, it must first be satisfied that the threshold set by s.31(2) of the Children Act 1989 is met. The burden of proving that the threshold is met rests upon the local authority. The standard of proof is the civil standard; that is the balance of probability. 

Evaluating the evidence
61.	In arriving at its conclusion the court is under a duty to evaluate the totality of the evidence. In Re T (Abuse: Standard of Proof) [2004] 2 FLR 838, at para [33] Butler-Sloss P made the point that evidence
‘cannot be evaluated in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.’

62.	This is a point that has been made loud and clear by the President in the recent case of Re A (A child) Neutral Citation Number: [2015] EWFC 11 where he reiterates the need for the local authority to prove its case with direct evidence wherever possible when the LA case is challenged by the parent.  It also reminds practitioners of the need to analyse the behaviour that is alleged to be of concern and the harm that it is alleged will arise or has arisen from such behaviour.
.
Threshold
63.	The first question that I must determine therefore is whether the statutory threshold pursuant to S31 of the Children Act is satisfied.  Have the LA proved that the children have suffered or are at risk of suffering significant harm as a result of the parents that they have or would be expected to receive?  I have no hesitation in find that they have undoubtedly suffered harm and been at risk of suffering harm.  I find that they have been exposed to the father’s erratic, abusive and unpredictable behaviour and that this will have been frightening for the children.  I find that they have witnessed and been aware of their father’s violence towards their mother.  They have been harmed by the impact of the domestic abuse in the relationship which has resulted in a number of moves which will have been sudden and unplanned.  These will have been particularly difficult for LK and MK given their difficulties on the autistic spectrum and their need for predictability and stability but for all 4 children these will have been distressing.  CK’s education will no doubt have been disrupted at a critical time for her.  Given the report of Dr McAnespie, it is apparent that these problems of the father are due to an underlying condition that without treatment will endure and place the children at further risk of harm.

64.	I further find that the parents have misled professionals and breached agreements in respect of their ongoing relationship and contact with each other.

The law – welfare issues
The approach to the application for a care order
65.	The finding that the threshold set by s.31(2) Children Act 1989 is satisfied is the gateway to the making of orders in respect of these children. Section 1(1) Children Act 1989 provides that when the court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration. In determining what is in a child’s best welfare interests the court must have regard to each of the factors set out in the welfare checklist in s.1(3). Section 1(5) provides that when a court is considering whether or not to make an order under the Act with respect to a child, it shall not make an order unless it considers that doing so would be better for the child than making no order at all. In public law cases this means that the level of state intervention should be no greater than is necessary in order to secure the child’s welfare. Section 1(2) sets out the general principle that any delay in concluding proceedings such as these is likely to prejudice the welfare of the child.

66.	In addition to those statutory provisions, the court must also have regard to the Article 8 rights of these children and of their parents and must endeavour to arrive at an outcome that is both proportionate and in their best welfare interests.
 
Discussion
67.	I propose to begin my evaluation of the evidence by undertaking a welfare checklist analysis in accordance with the provisions of s.1(3) of the Children Act 1989.  I have considered each aspect of the checklist in relation to each child individually.

68.	Section 1(3)(a) requires the court to consider the ascertainable wishes and feelings of the children concerned (considered in the light of their age and understanding).   This is of course most relevant in relation to CK but I have no doubt that the boys would also if they could express a wish to return to the care of their mother.  It is always difficult for a court to make an order that is contrary to the wishes and feelings of an older child, particularly one who is articulate and competent as indeed CK is.  I have attached a great deal of weight to what she says.

69.	Section 1(3)(b) requires the court to consider the children’s physical, emotional and educational needs.  In addition to the need to have a calm home and care givers that prioritise their needs.  They need to be protected from aggressive and threatening behaviour whether towards themselves or towards others.  In addition, the boys have additional needs as a result of their disabilities.

70.	Section 1(3)(c) requires the court to consider the likely effect on the children of any change in their circumstances.  If I make care orders, the boys will remain where they are so there will be no change.  If I don’t make the orders, they will return to the care of their parent(s) which is a clearly a situation that they have known throughout their lives.  CK has expressed a desire to change placements in the even that a final care order is made and this will obviously involve a change of circumstances and is a factor I have considered.

71.	Section 1(3)(d) requires the court to consider the children’s ages, sex, background and any characteristics of theirs which the court considers relevant.  I have considered each child individually and have taken into account that until October 2014, they had always lived together.

72.	Section 1(3)(e) requires the court to consider any harm which the children have suffered or are at risk of suffering.  I am afraid that I find there is overwhelming evidence that the children have suffered harm and in my view and as I have found, would be at risk of suffering further harm if they were to be cared for by either or both parents.  I balance this against the inevitable harm that they will suffer in being deprived the opportunity to be cared for within their birth family.  I  have considered the arguments very carefully as to CK's ability to reduce the harm by taking self protective action such as calling the police and the fact that due to her age she is more resilient and able to walk away.  I accept this to some extent but also see her increased age as potentially increasing the risks to her.  She is at an age where she is beginning to challenge her father and to act to protect her mother.  This is apparent from the fact that she did call the police when afraid for hers and her mother’s safety.  I have already referred to the disturbing text sent by the father to the mother and the way in which he referred to CK in that text.

73.	Section 1(3)(f) requires the court to consider how capable each of these children’s parents are of meeting their needs.  These parents can meet their children’s needs.  They have 4 children, 2 of whom have complex needs due to their disabilities.  No real concerns have been raised as to the parents’ ability to care for the children in a physical sense and they must be commended.  It will have been an enormous task to meet all of the children's physical needs and a tremendous amount of commitment and dedication.  In addition, I have no doubt whatsoever that both these parents love these children very much indeed.  That has been clear to me throughout and from all that I have read and seen.  However, I find that the parents are not capable of recognising how the difficulties in their relationship and the father’s ongoing and enduring psychological difficulties will have harmed the children.  The mother has not been able to separate from the father and prioritise the needs of the children.  The parents are not able to recognise and therefore are not able to meet the children's needs to be protected from domestic abuse in order to meet their emotional needs.

74.	What are the realistic options for these children? There are in my judgment three possibilities: the return of the children to the care of their mother or to their parents jointly or long-term foster care.

75.	There is an obvious advantage of returning the children to the care of their parent(s). As Lord Templeman memorably put it in Re KD (A Minor: Ward) (Termination of Access) [1988] 1 AC 806, at 812,
‘The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature”

76.	However, if the child will be harmed to such an extent that their safety, emotional wellbeing and development will be in danger, then it is clear that alternatives must be considered.  I am afraid that this is so in this case.

77.	Even taking into account the clear love that these parents have for their children, and taking into account CK’s strongly held wish to return to her mother’s care, I cannot be assured that they would be safe and that they would be protected.  I therefore reach the sad but almost inevitable conclusion that care orders must be made and the children must remain in local authority care.

78.	I therefore grant the LA applications for final care orders in relation to all 4 children and approve those revised plans.  In the light of the amendments to the contact arrangements I do not see that an order in relation to contact for the children with their mother is necessary.  I approve the plan of contact between the children and their father to be entirely at the discretion of the LA and authorise them to withhold contact between the children and their father.

79.	In relation to the injunction under the inherent jurisdiction, I had understood the LA application to be to extend the injunctive relief for a period of 12 months.  However, it was not until in the LA final submissions that the LA invited me to extend the injunctive relief until MK’s 18th birthday – in 2027.  I have considered the case of Birmingham City Council v Riaz & Others [2014] EWHC 4247 Fam.  

80.	The inherent jurisdiction of the High Court "may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways. This peculiar concept is indeed so amorphous and ubiquitous and so pervasive in its operation that it seems to defy challenge to determine its quality and establish its limits" Jacob, The Inherent Jurisdiction of the Court (1970) Current Legal Problems 23. 

81.	The Family Procedure Rules 2010, PD12D provides as follows: 
1.1 It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statue. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989. 
82.	I hope that the parents  will consider very carefully all that I have said in this judgement.  The parents need to accept that the father’s behaviour is frightening and intimidating to  all those that experience and observe it.  The father needs to accept this and to engage in appropriate work to address his behaviour and his response to stressful situations.  He needs to learn how to work appropriately with professionals.  The mother needs to accept that until the father accepts this and engages in work to help him address his underlying psychological issues, then he can’t live with or have contact with his children.  She needs to now prioritise the needs of her children and work towards a situation when she can demonstrate her acceptance of the risk and her ability to act appropriately to protect her children from the risks.  Unless and until she does this, her children are likely to remain in long term foster care.  I hope that the LA will support her in identifying appropriate work to understand the impact of the fathers behaviour and that she will engage in such work

83.	In the meantime I accept and agree that the use of the injunctive relief is proportionate and necessary.  However, I do not accept that such orders should be in place for so many years.  I hope that the situation will improve and change and that the father may be able to re-establish his relationship with the children once he has undertaken the work necessary.  With this hope in mind I grant the relief sought by the LA until CK’s 18th Birthday – i.e. until 14th October 2017.  

84.	I don’t think that it would be helpful for CK to receive a full copy of this judgement and I therefore direct that the contents can be discussed with her but she should not be given a full copy of this judgement prior to her attaining the age of 18.

85.	I make an order for public funding assessment for all the respondents in this matter.  I hope that my reasons as given are sufficient but if the advocates require any further detail to be given I would ask them to let me know.