In its report, Cafcass said there should be a supervised transition plan of two months followed by a further two months in which the care of Finley could be monitored.
Marsden and Boden themselves backed the shorter plan and also rejected the need for further drug testing, saying they were smoking less than they used to.
In making their decision, Mrs Burns and Mrs Gallimore acknowledged that Derbyshire social services had found the couple were “dishonest over their respective drug use”.
In their ruling of Oct 1 2020, which Mrs Justice Lieven, sitting in the High Court this week, ordered should be published, the magistrates stated: “The local authority also asks the court to direct that further drug testing of the parents would be a prudent step in providing the court with concrete evidence of the parents’ drug misuse. It is noteworthy that the parents have been dishonest about their drug use and this additional evidence would assist the court.”
But the two magistrates concluded: “The parents and guardian oppose such testing as it is not necessary. We conclude that while such information may be beneficial, it is not necessary to ensure the proceedings are concluded appropriately. The parents should continue, however, to engage with Derbyshire Recovering Partnership regarding their drug use.”
Documents presented to the magistrates and now released by the High Court show that all the professionals involved appeared to agree at the time that both Marsden and Boden had the potential to be good, loving parents – as long as they modified aspects of their behaviour, in particular violent domestic arguments, the state of their home and their drug use.
But the subsequent five-week murder trial at Derby Crown Court heard that following the return of Finley, Marsden and Boden continued to spend much of their time smoking large amounts of cannabis.
Marsden admitted in court that she and Boden bought 3.5g of the drug every two days at a cost of £30, with one prosecution expert calculating they would have spent between £5,460 and £7,300 a year on the drug.
Photographs were shown to the jury of dirty household items found by police inside their home, including a vomit and faeces-stained cot mattress cover, duvet cover, Mickey Mouse baby grow and a “Captain Cute” T-shirt.
Violent domestic arguments
In their ruling Mrs Burns and Mrs Gallimore found there was a conflict between social workers and Finley’s carers on one side and the child’s Cafcass guardian and his parents on the other over how much time that should pass before Finley was returned to Marsden and Boden’s full-time care.
They stated: “The local authority argues that the transition plan over a four-month period . . . is a measured and reasonable one . . . and that it would provide the court with confidence that the rehabilitation plan will work.
“The [child’s] guardian disagrees. She argues that the [child’s] needs require a shorter time frame.”
Mrs Burns and Mrs Gallimore concluded: “We have given careful consideration to the transition that has been submitted today and we conclude that it is too long in order for appropriate rehabilitation to the parents’ care to take place. We believe that eight weeks is a reasonable and proportionate length of time for the process to take place which most importantly protects the [child’s] welfare which is our paramount concern.”
The February 2020 threshold report had found that both Marsden and Boden smoked cannabis to what was described as between medium and high levels and even smelt of cannabis whilst caring for Finley in hospital.
The report said Marsden and Boden “prioritised spending money on cannabis and had to apply to Derbyshire Discretionary Fund on two occasions to request extra finances in order to buy food and nappies”.
During the short period before his murder in which the family court placed Finley back in their care, Marsden and Boden did everything they could to undermine the agreed supervised transition plan.
Their murder trial heard that when a child protection worker rang two days before his death to say she had to see Finley face-to-face, Marsden told her that the baby was not well and dismissed her attempts to see him via WhatsApp, claiming she could not download the app.
At one stage, Marsden even turned a family member away when she dropped by to deliver Christmas presents, using the lockdown as pretext for not letting her into the house.
In granting permission for the Telegraph to publish their ruling Mrs Justice Lieven emphasised that magistrates had “an extremely difficult job” and described their decision as “reasonable”, adding: “Having read the papers here, I have every sympathy with the decision the magistrates made”.
She also noted that there was a “very strong public interest in the press being able to report on this case”.
Toby Perkins, MP for Chesterfield and Staveley, said: “I think it is deeply significant that this case was heard in front of magistrates – I think it’s legitimate to question that entire process, whether the care required for Finlay Boden’s safety was preserved by that process that took place, so I think it’s absolutely legitimate to question in a case of this seriousness, with the previous offending of Finlay’s father, with the serious concerns being raised by social services, whether the magistrate and that process was robust enough to ensure that the child’s needs were protected and clearly we know tragically that they weren’t.”
All the agencies involved in Finley’s care are now undertaking a review into what went wrong with his case.
A Derbyshire county council spokesman said: “The courts have released a selection of documents regarding decisions made by the family court in Finley’s case.
“The author of the independent Local Child Safeguarding Practice Review commissioned by the Derby and Derbyshire Safeguarding Children Partnership will consider the information contained within these documents to help form the partnership’s learning findings and recommendations.
“Our deepest sympathy goes to everyone who knew and loved Finley and we remain fully engaged with the statutory legal review process which looks in depth at the role of all agencies following the death of a child.”