L (Judgment) [2014] EWFC B168 (15 October 2014)

JUDGMENT 15^th October 2014

HIS HONOUR JUDGE GARETH JONES:

1. I have before me an application for a Care Order and a Placement Order with regard to one child, whose registered name is DJL-P, who I shall identify as D in the course of this judgement. He was born on 17^th April 2014 and is therefore approximately six months old.

2. The applicant Local Authority is Flintshire County Council. The Local Authority is represented by Mr Corbett Jones.

3. D’s mother (who I shall identify either as the mother or NL) is NMKLL, born in September 1994 and she is therefore twenty years of age, and she is represented by Mr Dodd.

4. D’s father (who I shall identify either as the father or as JA) is JEA. He was born in December 1984; he is therefore twenty nine years of age and he is represented by Mr Sefton.

5. The other party who has been present during this hearing is the mother’s partner. He is JJP who I shall identify as JP. He was born in January 1989 and he is therefore twenty five years of age. He has not been separately represented because his case has been put in common with the mother’s case during this hearing.

6. So far as D is concerned he is represented by his solicitor, Miss Edwards, and by his Guardian, Mrs Eleri Jones.

7. The case started on Monday 13^th October 2014; it continued on Tuesday and Wednesday the 14^th and 15^th of October 2014 respectively.

8. I have heard evidence from;

(i) the key social worker, Miss Frith;

(ii) the mother;

(iii) JP;

(iv) the father was due to give evidence but he did not attend after the first day of the hearing (on the second and the third day) without any adequate explanation. He had been given the opportunity of giving his evidence first, on the Monday, an opportunity he declined and therefore the evidence from the father has been given in documentary form without the benefit of any cross-examination; and

(v) the Guardian.

The background to the proceedings

9. D is the mother’s second child. K, her first child, was born in December 2011 and was removed from her care in May 2012. K was the subject of neglectful parenting at a Mother and Baby Unit in the [name of area given]. Police Protection Orders were executed in May 2012 and thereafter an application for a Care Order was made. An Interim Care Order was obtained from 18^th May 2012.

10. The father of K is AS. He is in his mid-twenties, and the mother was only seventeen years of age at the time of K’s birth.

11. The mother’s upbringing was an unhappy one as she explained to me in the witness box. She acknowledged that as a result she was unable to parent K properly. AS was unable to do so either, and in July 2013 a Placement Order was obtained in K’s case, and I am told that he has been placed for adoption outside the birth family.

12. These proceedings involving K were concluded in the Manchester County Court.

13. In August 2012, shortly after K was removed from her care, the mother moved to the [name of area given] where she has lived since that time.

14. She initially lived with Mr L who she believed was her father, at least until some recent doubt was cast upon that belief by Mr L himself. This is part of a wider hostile and acrimonious relationship which exists between the mother, the paternal grandfather Mr L, and the mother’s sister.

15. The mother and JP are so fearful of Mr L, and also D’s father, that they wish to withhold details of their current accommodation, which I have permitted them to do.

16. Sufficit to say that in that connection (without divulging any particulars) the geographic distance (since I am now aware of their accommodation) is not a protective element in this case, but I say no more about it than that for obvious reasons.

17. The mother lived at Mr L’s home until approximately February 2014.

18. D’s father, JA, was there as well and it was through Mr L’s friendship with JA that the mother came to be acquainted with D’s father from 2012 onwards.

19. The mother’s relationship with JA continued until September 2013 when the mother told me she formed a relationship with JP via Facebook.

20. Initially there was some uncertainty about D’s paternity. In May 2014, during the currency of these proceedings, DNA testing confirmed that JA was D’s birth father. JA became involved in these proceedings and I granted him parental responsibility in June 2014.

21. Despite the fact that the mother was quite aware of this test result she persisted in registering D’s paternity inaccurately and falsely in JP’s name, a registration which was wrongly assisted by JP also. Furthermore she registered D’s surname as L-P, which again does not accurately reflect his birth familial origin. Consequently, the mother and JP are now in the process of trying to secure a correction or rectification of this birth registration, which they both knew to be incorrect and false.

22. The mother when asked why she had acted in this manner, after some prevarication told me;

“I registered JP as the father because he had been there for me from the beginning, more than my own family”.

23. This may be perfectly true but this appears to be some sort of reward to JP for his devotion, and I am afraid demonstrates little insight into D’s longer term identity needs.

24. JP told me that he had co-operated with the mother because he felt scared of the increasing involvement of JA and Mr L in D’s life. If that be correct, again it demonstrates little regard for D’s wider interests.

25. Whether this dispute about paternity and the circumstances of the breakdown between the mother and JA, and the commencement of her relationship with JP played a part in the familial animosity thereafter, it is very difficult for me to say. The mother was unclear in her evidence about the origin of this intra-familial ill-feeling, but this is a significant feature of this case.

26. The mother and JP present as a couple. Mr L lives around the corner from JA in [name of town given] and the mother’s sister also currently lives at Mr L’s address.

27. The mother’s sister also has an acrimonious relationship with the mother. JP told me that the mother had been threatened by her sister, K, that she would;

“… smash the mother’s face in”.

28. Similarly D’s father and Mr L had previously made threats by email.

29. The father’s absence as a witness during this hearing has precluded a proper examination of this background and this risk factor. I simply have no idea what lies behind this extreme hostility and acrimony, and I have no idea whether or when the situation might improve, if it ever were to improve.

30. It was suggested by the mother that Mr L does not approve of JP, perhaps because of JP’s conduct towards a former partner (although again this is far from being clear).

31. In any event, the mother left Mr L’s home in approximately February 2014, towards the end of her pregnancy with D and at a very difficult time for her. As a result, during the course of this year the mother has moved addresses on several occasions over recent months. In February 2014 she moved to the [name of pub given] at F until March 2014. Then she moved to PB near N.

32. D was born prematurely on 17^th April 2014, and his discharge from hospital was delayed for medical reasons until early May 2014.

33. On 28^th April 2014 JP discovered that his mother was suffering from cancer. He was unable to control his emotional reaction and regulate his response to this news because of his poor anger management, and his mental health or personality traits. These have been evidenced since at least 2011 when JP’s grandfather died, but in fact they pre-date that family bereavement as well. I shall return to this issue later because it is a significant feature of this case.

34. In any event, JP and D’s mother became involved in a domestic argument which led to D’s mother assaulting JP. JP was then asked to leave PB and JP turned up at his parents’ home on 29^th April 2014, and angered by his father’s withholding of information about his own mother’s state of health, he assaulted his father. He was later prosecuted for this assault on his father and he was sentenced to a suspended sentence for a period of twelve months by the Magistrates.

35. D’s mother chose to leave PB when JP was evicted from that accommodation.

36. An application was made for an Interim Care Order by the Local Authority at the end of April 2014, and as I have said, an Interim Care Order was obtained shortly thereafter.

37. The mother’s poor parenting history with K, together with the mother’s troubled relationship with JP at that stage, coupled with the mother’s accommodation difficulties were the background to this application.

38. D has been in Local Authority foster care since 6^th May 2014, which followed shortly after his discharge from hospital.

39. I shall never know whether (if the mother had decided to stay at the accommodation in PB and separate from JP) D would have been released from hospital to her care. The mother has remained loyal to JP and they still present together as a couple.

40. After leaving PB in May 2014, the mother and JP stayed with friends; essentially they had no accommodation of their own. They also stayed with JP’s parents until they obtained their current accommodation in early August 2014.

41. The mother was born without a left forearm and she has the use of a prosthetic limb. Physically however she would be perfectly able to care for D. She has learned to adapt her physical movement to cater for his needs during contact. Some tasks may require assistance, but with practice and perseverance she could adapt, and has adapted and successfully learnt new techniques to manage D’s care. This is not an impediment to her future care of D and this is acknowledged by the Local Authority in its Parenting Assessment (see B109).

“The mother’s disability does not impact upon her parenting of D. She has clearly demonstrated that she is able to feed, bathe and change him without support. NL holds D with confidence”.

42. An occupational therapist has also provided advice for the mother which was acknowledged by her in the course of her evidence.

43. After its commencement, this case was transferred to me and timetabled for this hearing. The Local Authority has undertaken assessments of the mother and JP jointly as D’s carers, and a separate assessment of D’s father.

44. The mother has been afforded contact three times a week, twice with JP. The father’s contact provision was twice per week, a situation very near to one of parity.

45. The mother has been assiduous in her attendance, missing very few sessions and then with an adequate explanation.

46. The father (by the commencement of this hearing) had attended seventeen out of thirty three contact sessions and missed sixteen (nearly half of them) many without an adequate explanation. His recent commitment had decreased very significantly; that was the evidence of the key social worker to me, and his non attendance after the first day of this final hearing reinforces my impression in that respect.

47. There is no alternative familial carer other than the parents themselves, and in the mother’s case assisted by JP.

48. The Local Authority has concluded that these individuals could not safely care for D, and the Local Authority’s Final Care Plan (see C12) proposes a placement outside the birth family by way of adoption. The parents and JP’s contact would be tapered to a farewell contact in November 2014. Post placement indirect letterbox contact would be facilitated for the parents once a year.

49. There is a prospect that D might be placed with K, his half sibling. The Guardian told me in evidence that K’s adopters were actively considering this currently, however this is by no means a certain outcome but it is a distinct possibility.

50. The Guardian in her final evidence and report supports the Local Authority’s Final Care Plan.

51. The Local Authority has issued its application for a Placement Order on 1^st September 2014 and that has also been timetabled for this final hearing this week.

52. I will deal in a moment with the Local Authority and the Guardian’s position in greater detail.

53. The mother and the father oppose the Local Authority’s Final Care Plan and the application for a Placement Order. The mother avers that she and JP could care for D together, and the father contends that he also could care for D, although his failure to press his case personally at this final hearing calls that into question.

54. The Court has found proven already the threshold of significant harm on a balance of probabilities under Section 31(2) of the Children Act 1989, on the basis of a document (see P2 to P4). That is the combined effect of my Orders made on 12^th June 2014 and 3^rd October 2014.

55. The threshold draws very heavily on the significant features of neglect which were evident in K’s case, at a time when the mother was living in a supported environment. The chaotic circumstances of the mother’s life in April/May 2014 (which I have touched upon already) and JP’s emotional and behavioural instability are also identified as key features, and these will be referred to in greater detail later.

The mother and JP’s circumstances

The mother

56. The mother was born in [name of town given] as part of a large sibling group of eight children who are identified (see B32). Not all of these children had a common father. The mother said in evidence,

“My mother put her boyfriends first”,

and she acknowledged that she grew up in an atmosphere of domestic acrimony and violence.

“I was assaulted by my mother”.

57. Furthermore the mother said that she was the victim of a sexual assault by one of her mother’s partners when she was only fifteen years of age.

58. The mother was close to her brother, DL, who died in January 2011. This bereavement has left a significant impact upon the mother. The mother who was tearful throughout much of her oral evidence, broke down completely when she related to me that her disturbed behaviour in January and February 2014 was due to her reaction to the anniversary of her late brother’s death.

59. This loss has not been overcome by the mother and it can have (and has had in the recent past) an acute effect upon her coping ability, upon her functioning and upon her behaviour.

60. The mother as a child lived for much of the time with her grandparents or alternatively in foster care. There is some suggestion that the mother’s maternal grandfather, FL, sexually assaulted one of the mother’s sisters, but the mother denied to me in evidence that her maternal grandfather had ever sexually interfered with her.

61. The mother was bullied at school because of her disability (see B33). She confirmed to me that her school attendance was poor.

62. A psychologist, Dr Moore, has assessed the mother’s full scale IQ at 92, but elements of her functioning, for example her verbal comprehension, her conceptual thought, and her verbal expression is much more limited falling in the borderline range.

63. She has little contact with her siblings or her mother since her move to [name of area given]. As I have said, her relationship with Mr L and a sister who is now living at Mr L’s address is fractured and hostile.

64. She is wholly dependent upon JP and his family for support. Whether that would still be forthcoming if the relationship with JP ended is a matter of conjecture.

65. At page E18 Dr Moore indicated that the mother has previously been prescribed medication for depression. She told me in evidence that she was,

“… not on a prescription at the moment”,

but as recently as this summer, she told Dr Moore that she was seeing her GP fortnightly rather than monthly because her prescription had been altered (see B18).

66. The mother has never worked and she appeared to me to be lacking in self-confidence and assertiveness, and extremely fragile in her personality. At intervals she had reasonable self-awareness and insight. She could see the dangers for D as a vulnerable infant in being placed with adult carers with so many problems as are evident with her, the father and JP.

67. At other times, however, she was far more closed in her responses. She was defensive in her response to questions concerning her historic deficient care of K; indeed in some instances she denied some alleged shortcomings, maintaining that some details in the chronology of the [name of town given] proceedings had been,

“… made up”.

68. There are however, numerous documentary references to the mother’s poor conduct as a parent while caring for K in [name of town given]. These are identified in the Local Authority’s written opening, and they are identified in the extensive chronologies that are contained within the trial bundle. I doubt whether each and every documentary extract is incorrect.

69. When I asked the mother to summarise her accepted deficiencies in caring for K she mentioned the difficulties in bathing and changing him, and her self isolation in the Mother and Baby Unit, and she did not blame Social Services for taking K away. She was, she accepted,

“… in a very bad way”.

70. That is certainly evident in the papers before me. The mother totally failed to care properly for K within the supported environment provided. There were ten other residents at the Unit. The Unit was manned twenty four hours a day, and yet K’s neglectful condition resulted in Police intervention.

71. The circumstances described were significant and extreme. The mother’s reaction following K’s removal was to disappear. In June 2012,

“I went missing after K was taken away”.

This conduct by her has been repeated subsequently and it appears to be a response adopted by her when facing difficulty.

72. He grew up in H and has two siblings. He received a good upbringing and despite telling me that he had been bullied because of his dyslexia he appeared to have done reasonably well at school. There is no history of Social Services involvement in JP’s childhood. JP overcame a stammer and despite his dyslexia he enrolled on a college course for an NVQ, which he had successfully completed. He appeared to be set fair for a career in the building trade, either as a plasterer or a bricklayer but there had been behavioural problems evident in his adolescence, and ADHD had been identified.

73. However, in the last five years or so he has been beset with far more severe mental health and behavioural difficulties. He has not recently been in employment, although he told me that he wished to return to employment in the near future. He has used cannabis, and indeed he has done so with some regularity although the current position is somewhat unclear.

74. Currently (as I have said) JP is subject to a twelve months suspended sentence imposed by the Magistrates in May 2014 for assaulting his father. This is not the first incident of its kind between JP and his father, although it appears to be the most serious. In May 2010 JP’s father tried to get JP out of bed to go to work and this led to a domestic incident between the two of them (see H12).

75. I have read a Probation Progress Report about JP which includes details of his Sentence Plan. Historically, while a bipolar disorder was mentioned in July 2013 this is by no means a confirmed diagnosis, although he told me in evidence that his mood can and does fluctuate between those of depression and highs of extreme agitation.

76. Currently he has traits of emotionally unstable personality disorder, poor anger control and traits of borderline personality with associated impulsivity.

77. In June 2013 (see E7b) he was admitted to a psychiatric unit. He had split up from a previous girlfriend, had increased his cannabis use, and had lost his job as a bricklayer. He had threatened suicide, hence the hospital admission.

78. This was not the first time this threat had been made; he had threatened self-harm previously in 2011 when he tried to jump off a bridge, but his father had stopped him (see E7e).

79. In June 2013 medication was prescribed, but JP absconded from the psychiatric unit; he was returned by the Police and was later abusive to ward staff.

80. In February 2013 there was an argument or a fight between JP and his brother at home (see E12).

81. In June 2013 JP was in possession of a kitchen knife outside, wearing only his underpants or shorts, and threatening to, or making attempts to cut his wrists. This was because of a dispute with his ex-girlfriend (see E12).

82. Shortly thereafter he was admitted to the psychiatric ward of WM Hospital under Section 136 of the Mental Health Act after threatening suicide (see E12).

83. In July 2013 after his release he was apprehended by the Police in possession of a knife and cannabis. He had smashed up his computer and his mother had contacted the Police (see E11). He was subsequently charged with possession of the knife and the cannabis and convicted.

More recent episodes

84. It is these recent episodes which demonstrate the unstable interaction between the mother and JP’s extreme emotional responses.

85. At the end of January 2014 the mother (who was then pregnant with D) was reported to the Police to be missing. This occurred on at least two occasions at the end of January 2014 and the beginning of February 2014 (see E9).

86. The trigger for this response by the mother (according to her evidence) was the extreme reaction to the anniversary of her brother’s death. The details of precisely what happened are set out in the Police records (see H9 and H11).

87. According to the written record on 4^th February 2014 JP left the Probation Office indicating that he was going to kill himself, and the [name of Police force given] were alerted (see H10). JP was detained briefly under the Mental Health Act (see H11) and by 6^th February 2014 the mother had been located and JP and the mother were recorded as having an argument about her having gone missing (see H10).

88. On 17^th March 2014 the mother and JP were accommodated at PB (see B48). As I have said already, JP was evicted from there on 29^th April 2014 and I have dealt already with the circumstances which led to this eviction.

89. On 5^th June 2014 there was an emergency call by JP and it is recorded that he was threatening to,

“… end it all”.

The mother was upset and crying, and again JP attended at the psychiatric ward as a voluntary patient (see E10). The trigger on this occasion appeared to be the unwillingness of a GP to prescribe medication in accordance with JP’s wishes.

90. The key social worker in her evidence told me that on at least two occasions when JP had been confronted by bad news with regard to the Local Authority’s Plans for D, and the conclusion of the Local Authority’s assessments, JP had reacted by losing his self-control in an extreme and unrestrained manner.

91. JP’s Sentence Plan (see E6) contains a reference to an anger management course, however he has completed such a course previously in February 2014 and that has not seemingly resulted in any sustained improvement in his self-control.

92. I remind myself that it is still only just over a year since the mother met JP in September 2013. They have only lived together in settled accommodation since August 2014, and their relationship is still at an early stage. However, in these last twelve months, between the two of them there has been a flood of incidents and episodes of extreme and uncontrolled behaviour. How on earth would they have managed to care adequately for D (a vulnerable infant) with all of this distraction, aggravated also by the surrounding acrimony and hostility from the maternal family and D’s father?

93. JP like the father during this hearing, have both found it difficult to regulate their responses to the evidence given in the courtroom by other witnesses, or indeed to the quite proper questioning that has taken place by the Local Authority. The father for his part had his outburst during the key social worker’s evidence on several occasions, and JP had his difficulties during the mother’s evidence. Both were directed by me to leave the courtroom while they regained their composure. JP in fairness did manage to do so, and gave his own evidence quite properly from the witness box. The father, for his part did not return to the hearing after the first day.

94. If these two individuals cannot regulate their emotions and responses within the courtroom, how can I expect each of them to do so outside where there is no constraint whatsoever?

95. During the currency of these proceedings (and prior thereto) and certainly from 23^rd April 2014, the mother and JP have exhibited behaviour which if replicated in the future with D in their care would place him at risk of significant harm. The “harm” of course for these purposes includes,

“… impairment suffered from seeing or hearing the ill-treatment of another”.

Impairment of health and development which is included in the statutory definition of ‘harm’ includes both D’s physical and his emotional development.

96. I ask myself what would have happened to D if in January and February 2014 he had been cared for by the mother and JP, and the mother had gone missing because of an emotional crisis, and JP in his extreme anxiety because of the mother’s departure had been sectioned under the Mental Health Act?

97. D’s safety, both physical and emotional, could have been placed at risk; after all K’s care by his mother afforded an illustration of how bad the resulting outcome could be.

98. It is said on the mother’s behalf that since August 2014 she and JP have turned a corner, in particular since they have obtained their own accommodation. This accommodation is perfectly appropriate the key social worker told me, and she acknowledged that this was a significant step forward.

99. It was also acknowledged by the Local Authority that there were,

“… lots of positives in this case”.

The mother and JP’s basic care of D during contact sessions was perfectly acceptable, and the mother’s responses to D were attentive. They had both completed the Incredible Years Course to improve their parenting skills.

100. However, the mother has not received any counselling (other than one introductory session) to help her overcome her bereavement/loss for her brother, and the effect of her emotionally deprived and abusive childhood experiences, all of which have quite evidently left their mark.

101. JP’s Sentence Plan has identified the component elements of an action plan for the future, but he is still less than halfway through his suspended sentence and he is still prone to angry outbursts from time to time. He has attended some introductory sessions of his TAITH course, but as the Guardian said in evidence, the mother and JP have begun the process of making improvements and addressing their difficulties, but they still have a very long way to go.

102. I would not wish however, to present a wholly negative picture of this young couple. They are a young and attractive looking pair; they are obviously attached to one another and I have noted that during the course of this hearing their arms were interlocked during most of these proceedings. They provide mutual support, one for the other.

103. With the assistance of a more stable and emotionally secure individual the mother’s own deficiencies might be compensated for in the overall equation. Similarly if JP had the support of a more stable and emotionally secure individual then his deficiencies could be compensated for. But they do not have this safety net; they have not selected calm, stable and secure partners. Instead two emotionally brittle individuals with limited coping abilities and with the evident capacity for extreme and impulsive responses have found themselves together.

104. The mother is obviously dependent upon JP, hence her decision to leave PB in order to be with him. But JP is also dependent upon the mother and he is bereft without her, hence his extreme reaction when she the mother went missing in January 2014 and in February 2014.

105. Both of them depend on JP’s parents; the mother because there is no-one else she can turn to and she is isolated within her own family and in [name of area given] more generally, and JP because he lacks the maturity and the emotional stability of an adult twenty five year old. JP’s parents, however, do not have a complete picture with regard to the mother’s past parenting history. That at least was the Guardian’s belief having spoken to them. JP’s parents are not alternative familial carers for D if anything went wrong in the future. They may well be distracted themselves and quite understandably so with Mrs P’s ill-health, and of course JP’s future reaction to this uncertain state of affairs is potentially problematic.

106. The danger is that D would simply be crowded out of this equation. I ask myself who can be relied upon consistently and not intermittently to put his interests first?

The father’s circumstances

107. While it can be said that the mother and JP have tried to prove their capability, objectively that cannot be said of the father. It is asserted on his behalf that he may have withdrawn because of his despair at the likely outcome of these proceedings, however, if these proceedings have been difficult for him how much more difficult have they been for the mother who has persevered in her attendance despite every adversity.

108. The father had an equal opportunity to demonstrate his capability. Indeed, arguably at the outset of these proceedings he was marginally in a better placed position because he was less tainted with the precipitating events involving the mother’s past parenting history, and the troubled situation between the mother and JP at that time.

109. The father has another child, L, born in April 2007 and he is therefore seven years of age. The father has been involved in Private Law Proceedings with L’s mother in the [name of town given] Family Court for contact and parental responsibility. These proceedings are of longstanding duration and they started in or about 2008. It is unnecessary for me to chart every development, but I merely summarise some aspects of this dispute.

(i) The relationship between the father and L’s mother has been acrimonious and hostile, and the father has at times struggled to maintain his relationship with his son, L.

(ii) Protective agencies have intervened historically to protect L. In November 2011 a Section 47 investigation followed a domestic violence incident between L’s father and L’s mother. This led to a Child Protection Case Conference, and L’s name was registered because of the risk of significant emotional harm due to his potential exposure to high levels of conflict and violence between his mother and father. This registration lasted until March 2012 (see I22).

(iii) In May 2011 a Non-Molestation Injunction was obtained by L’s mother against L’s father, and in November 2011 the father was issued with a Police harassment warning.

(iv) For a time, because of the extreme difficulty between L’s mother and father, the father’s contact was limited to indirect contact.

(v) Happily there has been some improvement. L wishes to see his father and this may be an indicator that the father has done something right as a parent. Face-to-face contact has been reinstated; on 9^th September 2014 [name of town given] Family Court made provision for such contact (see I13).

(vi) I am told that L has stayed with his father for overnight contact at weekends, with the father travelling to [name of town given] to collect and return him.

110. Whether this rekindling of the father’s relationship with L has resulted in a modification of the father’s interest in D, I simply cannot say. What can, however, be discerned from this background is this; the father does have some parenting capability but he too is prone to loss of self-control and impulsivity, his conduct in a courtroom being just one indicator of that.

111. He has been involved in acrimony with his ex-partner (L’s mother) and is involved in the acrimonious relationship between Mr L and JP and D’s mother in these proceedings.

112. The father has a partner, TM. She is a mystery to everyone involved in this case because she has refused to meet with or to be assessed by any professional involved, and I have simply no means of knowing whether she could support the father, or whether she is a potentially safe or unsafe carer of D. I am told that TM suffers from extreme anxiety and is unable or unwilling to meet strangers.

113. D’s father has missed (as I have said) nearly half of the contact sessions and (as I have said also) he has absented himself during this hearing. His commitment therefore appears to be tokenistic only; he could not be relied upon as a consistent and reliable carer for D.

114. Furthermore, if D were to be placed with his father, with Mr L and the mother’s sister around the corner, and the mother and JP quite rightly demanding contact with D, what would life be like for D I ask myself?

115. As the Guardian said,

“The situation would be chaotic and acrimonious, and very frightening for an infant if D were with his father in these circumstances”.

116. The father when he has attended contact can demonstrate perfectly reasonable care for D, but in the home as a sole carer with little support, the situation could potentially be very different. I have no means of knowing precisely what the father’s domestic arrangements are.

117. The Guardian does not support parental reunification because the risk to D’s safety is simply too great. Direct post-adoption contact is not currently recommended by the Guardian, or indeed the Local Authority. The parents are opposed to adoption, according to the Guardian, and they are capable of volatile behaviour which could destabilise any placement, and the mother (at present at least) lacks the emotional resilience to deal with the demands of any kind of face-to-face post-adoptive contact herself, nor indeed could she modify her role within D’s life.

118. So far as the father is concerned one additional feature to be considered with regard to any post-adoptive contact would of course be his commitment to such provision, bearing in mind what has happened during this case.

119. There is the added practical complication if D were to be placed with K and his adopters (that I am assuming is a closed adoption so far as the mother is concerned and the mother has not utilised any of the indirect letterbox contact with K). That was the position explained by the Guardian in her evidence, and accepted by the mother today. The Guardian certainly was of the view that she could not recommend the making of an Order currently under Section 26 of the Adoption and Children Act 2002 for the reasons I have stated already.

120. The Guardian’s evidence confirmed that the provision of basic care by the mother and JP (or even by the father in contact) was not the real issue in this case. The mother and JP derived (it was acknowledged) much benefit from the Incredible Years course, and the mother may well derive further benefit from her attendance on the Freedom Programme. JP, if he successfully undertook the elements of his Sentencing Plan would also make progress, and with time the mother and JP will hopefully attain greater maturity and achieve some equilibrium in their lives and will be better able to manage the adversity of life. But that has not happened as yet and D cannot wait for his parents to establish this progress.

121. The mother has stopped recently taking her antidepressants without medical advice. She has not had any long-term counselling to any marked degree to address her psychological and emotional issues, and so far as JP is concerned, I am far from satisfied that the psychiatric and mental health professionals who have been dealing with him have got to the bottom of his difficulties.

122. There are elements of “parenting capacity” which have been demonstrated but not as yet ensuring safety and stability. There are several elements of the “family and environmental factors” which have not been met, relating to the wider family, the family history, functionality and social integration. There are key elements of a “child’s developmental needs” which are unrecognised; this relates to the emotional and behavioural development of a child, family and social relationships and the child’s identity needs.

123. I hope the mother, with JP, can in the future parent a child. If they show perseverance that is perfectly possible but I am afraid that this is not the current position which confronts me.

124. During the currency of these proceedings (and immediately prior thereto) the mother and JP for significant periods of time would have risked D’s emotional and physical safety. I do not believe they have the capability currently to parent D safely, and the risk to D as a child of only six months old is simply too great.

125. In Re C and B [2001] 1 FLR 611 at paragraph 30 Hale LJ identified the kind of case where local authority intervention could be required to protect a child.

“The cases where it is appropriate to do that are likely to involve long-standing problems which interfere with the capacity to provide even ‘good enough’ parenting in a serious way, such as serious mental illness, or a serious personality disorder, or intractable substance abuse or evidence of past chronic neglect or abuse, or evidence of serious ill-treatment and physical harm”.

126. A number of these features exist in combination in relation to the mother and JP.

127. Of course a local authority should work to support, and where possible re-unite families, unless the risks are so high that a child’s welfare requires alternative care.

128. I cannot at present envisage a protective regime even remotely compatible with ordinary family life, which could adequately protect D from the overall risk factors which surround him from both the wider family, from both his parents and from JP. I look in vain in this case for one grounded, consistent, secure and stable potential care-giver from the three adults who have presented themselves to me in this case, and there is no-one else available who has come forward.

129. It was put to a number of witnesses, to the key social worker and indeed to the Guardian on the mother’s behalf that unless they could be certain that D’s future care would be as poor as it would have been, if D had lived with his mother during the eventful incidents of this year, that adoption would represent a disproportionate response to the risk. Unless there was certainty about the future, the last resort of adoption would not be proportionate, nor legally justified.

130. I believe that to be an overstatement. There is a connection between the threshold criteria under Section 31(2) of the Children Act 1989, and the ‘welfare checklist’ under Section 1(3)(e) of the Children Act 1989 which deals with the risk of harm. Hale LJ in the case of Re B [2013] 2 FLR 1075 at paragraph 193(5) (in the section dealing with risk of harm) mentions the situation where a child has not actually suffered harm but is believed to be at risk of harm. This of course was the situation in which D found himself at the inception of these proceedings. Hale LJ says,

“Where harm has not yet been suffered, the Court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents’ future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harm feared and the likelihood that it will occur. Simply to state that there is a risk is not enough. The Court has to be satisfied by relevant and sufficient evidence that the harm is likely.”

131. The risk of significant harm as I have identified it in this case is real and significant and I believe is likely. How could it be otherwise, bearing in mind the recent events and the severity of those events relating to both K and D from 2012 to date?

132. In the circumstances of this vulnerable infant what other protective response, other than the provision of an alternative family life would address D’s welfare needs I ask myself? A proportionate response must be judged by the nature and the gravity of the feared harm having regard to the vulnerability of the child. Approval of the Care Plan as a proportionate response might well then entail the requirement for the dispensation of parental consent for a Placement Order.

133. The mother’s counsel urged upon me a contrary course. He recognised that D could only be placed safely with the mother and JP currently under a Care Order, and he invited me to urge the Local Authority to reconsider and potentially change its Care Plan to make such provision.

134. Alternatively he invited me to adjourn this case extending the timetable under Section 32 of the Children Act 1989, and to make an Order under Section 38(6) of the Children Act 1989 to allow D to be assessed in the care of his mother (and inferentially JP) within their home environment. It was unclear to me for how long these proceedings would be adjourned for.

135. The father’s counsel for his part urged a very similar outcome in relation to his client, but for very different reasons.

136. The Guardian and the Local Authority say that the mother’s changes are very recent and are limited, and they would not justify such a response by the Court. The risk they submit would be unmanageable and the kind of therapeutic assistance which would be needed for the mother and JP and the father to enable the Court to conclude that the risk had been reduced to a manageable level could not be provided within a timescale even remotely compatible with D’s paramount welfare.

The legal provisions and the conclusion in this case

137. In accordance with the guidance given in the case of Re B-S [2014] 1 FLR 1035, a pros and cons analysis has been undertaken by the Local Authority and the Guardian which is set out in a schedule form, in a preliminary section of the trial bundle, and also by the Guardian in her report.

138. McFarlane LJ in the case of Re C [2013] EWCA Civ 1257 has disapproved of the practice of treating applications for Care and Placement Orders separately where there are conjoined applications. That is at paragraph 28 and 29 of his judgment. Such an approach he warns may restrict,

“a proper holistic evaluation of the central welfare question”.

139. Since I have made threshold findings already, I have jurisdiction to make Care Orders and Placement Orders, in the latter instance under Section 21(2)(b) of the Adoption and Children Act 2002.

140. I have to scrutinise the Care Plan carefully and consider D’s individual welfare as paramount under Section 1(1) of the Children Act 1989, or his welfare throughout his life as paramount under Section 1(2) of the Adoption and Children Act 2002.

141. I have to apply the so called ‘checklist’ provisions under Section 1 of the Children Act 1989 and Section 1 of the Adoption and Children Act 2002 to the facts of this case.

142. In accordance with the Convention, the Local Authority’s Plan has to be a proportionate response and a necessary response to the risk of harm. That was decided in the case of Re C and B [2011] 1 FLR 611 (to which I have referred already) at paragraphs 33 and 34. I have referred already to the examples given by Lady Hale in that judgment at paragraph 30 and I believe that this case falls squarely within such a category.

143. In the case of Re B [2013] 2 FLR 1075 (to which I have referred already) the Supreme Court recently emphasised that a Care Order, and of course particularly a Care Order including a Plan for adoption, should be considered a

“last resort”.

That is paragraph 74 to 77 of Lord Neuberger’s judgment.

144. In support of the application for a Placement Order in the case of D, I have in a separate bundle the application, together with a statement of facts and an Annex B report. The application was issued on 1^st September 2014. The agency decision maker ratified the Plan on 27^th August 2014 and therefore the preliminary requirements of the Adoption Agency (Wales) Regulations 2005 as amended from 1^st September 2012, and Section 18(2) of the Adoption and Children Act 2002 have therefore been met.

145. I can only make a Placement Order if the consent of the mother and the father (since they both share parental responsibility) is dispensed with under Section 52 of the Adoption and Children Act 2002. I can only come to this conclusion by applying the paramountcy of D’s welfare throughout his life, and by applying the provisions of Section 1(4) of the Adoption and Children Act 2002.

146. This last section of course has to be applied when I come to a decision which relates to the adoption of a child (and that includes the making of any Placement Order) and that is the combined effect of Section 1(1) and Section 1(7) of the Adoption and Children Act 2002.

147. In the case of Re P [2008] 2 FLR 625 I must answer the question to which Section 52 gives rise, by applying the statute to the facts of the case, and because D’s Convention rights are engaged, any Order must be a proportionate and necessary response to the legitimate aim of protecting D’s welfare. What has to be shown is that D’s welfare requires adoption as opposed to something short of that.

148. As was emphasised in the case of Re B-S [2014] 1 FLR 1035 the word ‘require’ has the connotation of the imperative what is demanded.

149. I must bear in mind the suitability of all other potential Orders and I must have regard to the proposed contact arrangements under Section 27(4) of the Adoption and Children Act 2002. I would not make any Order for defined contact under Section 26 of the Adoption and Children Act 2002 in this case for the reasons I have given already.

150. In Re B-S guidance was offered in the case of placement applications.

151. Firstly, consistent with the least interventionist approach, adoption is a last resort (see paragraphs 23, 26 and 27);

152. Secondly, the Court should consider carefully the assistance which a local authority can provide for parents (see paragraph 29). So far as that is concerned the Local Authority could not, in my judgment, provide the assistance required by these parents to parent safely. The degree of supervision and monitoring, in my judgment, would simply be incompatible with ordinary family life, and therapeutic input would need to be intensive (and as I have said already) outside D’s timescale.

153. I cannot at the moment envisage any kind of protective regime, even with the assistance of exclusion orders or injunctions, which could cater for the risk factors adequately in this case.

154. Thirdly, there must be available from the Local Authority and the Guardian evidence addressing each realistic placement option (see paragraph 33 and 36) and I have that information before me in tabular form, which I have considered very carefully.

155. Finally, Judges must give adequately reasoned judgments analysing the options and giving clear conclusions (see paragraphs 41 and 48).

The holistic evaluation required

156. I do not propose to quote the ‘checklist’ provisions verbatim under Section 1 of the Children Act 1989, or Section 1 of the Adoption and Children Act 2002, but I apply the provisions in the following way;

157. Pursuant to Section 1(3)(e) of the Children Act 1989 and Section 1(4)(e) of the Adoption and Children Act 2002 there is a risk, that is to say a real possibility and indeed a likelihood that the significant harm which had been done to K historically could well be repeated in the future with regard to D, if D were to be returned to the care of the parents generally, or indeed to one of the parents (that is to say the mother and JP).

158. That is the overwhelming feature of this case which either outweighs or it illuminates all the other statutory considerations adversely from the parents, or more generally the family’s point of view. For instance this safety consideration wholly exposes the limitations of the parenting capabilities under Section 1(3)(f) of the Children Act 1989, and the likely deficiencies in addressing the children’s needs under Section 1(3)(b) of the Children Act 1989, and Section 1(4)(b) of the Adoption and Children Act 2002.

159. Even if D could articulate a wish (which of course he cannot because of his age) to live with his parents or with his wider family (although there is no obvious contender for that) that wish simply could not be acceded to without a grave risk to his emotional and physical safety. D requires nurturing, warm and attentive parenting as a constant and a consistent feature. That I am afraid is not potentially available in this case. There is no safe and suitable familial carer available for the reasons I have given already in my judgment.

160. So far as inter-sibling relationships are concerned, potentially of course if D and K were placed together these might be successfully promoted within a common adoptive placement. That I accept however, would not be the case as between D and L. However, so far as D’s future placement is concerned the possibility of such a placement with K is not of course a certainty at this juncture. However, the loss of the parental and the sibling relationships have to be balanced with the potential gain of a legally secure and hopefully stable adoptive placement with adopters who would view D as their own and be able to commit to him fully, providing him with appropriate care and buttressed by the legal security of an Adoption Order.

161. Since there is no alternative familial carer available, this would be a more normal childhood than foster care, which would be prone to breakdown and change and repeated statutory review, and this outcome would be more likely to promote firm attachments which would benefit D into his childhood.

162. I am of course required to consider under Section 1(4)(c) of the Adoption and Children Act 2002 i.e. the likely effect upon D throughout his life of having ceased to be a member of his birth family, and of being an adopted person. Within that context of course I should consider what kind of family life would it be likely to be, if D were returned to the parents care, including the mother and JP?

163. This adoption is intended to promote D’s safety. It is intended to be an essential prerequisite of a happy childhood and a building block for healthy adulthood. I have to assume that D will acquire in due course an accurate account of why he was removed from parental/familial care as part of his life-story work more generally. Of course it is perfectly possible that an adopted child could emerge into adulthood resentful of being removed from his or her family of origin, and I accept that such a decision could destabilise, disable and disadvantage a child, and thereafter an adult during his or her life. But in this case, the decision is prompted by an overwhelming imperative to promote D’s safety during his childhood, without physical and emotional harm. An individual who had this knowledge available to him or her in due course, and on attaining maturity is, I believe on balance, more likely to accept such a decision and hopefully to emerge as a secure and grounded adult himself/herself ready for parenthood.

164. I ask myself, would D emerging into adulthood with the benefit of the parental or familial care in this instance (as I conclude probably after a damaged early family upbringing) obtain a better template for the future?

165. What is the alternative for D outside parental and familial care if not adoption? As I have said already, a childhood within the care system, in foster care with all the attendant uncertainties and artificiality of such family life - with continued statutory reviews as a looked after child, is not I believe the best care that could be afforded for D.

166. I have considered the Local Authority and the Guardian’s assessment of the various factors both for and against reunification, and also for a familial placement, fostering and for adoption. Despite the many improvements made by the mother and JP, those improvements (for the reasons I have stated already) are not sufficient to enable me safely to conclude that D could be parented by the mother and JP, nor indeed his father in this case.

167. I believe that the balance overwhelmingly points to the requirement of a Placement Order as being necessary in these particular circumstances. It may be true that England and Wales is unique in favouring a system where the severance of family ties without parental consent is possible, however, Parliament has authorised the Family Courts of England and Wales to make Placement and indeed Adoption Orders on this basis where this does promote the welfare of a child in accordance with the Adoption and Children Act 2002, and also within the Convention.

168. I fully recognise that the severance of parental and familial relationships is always a serious step to contemplate; in this instance particularly so, because of the fragility of the mother and also JP. But in my judgment D’s welfare requires such an outcome pursuant to the Adoption and Children Act 2002 in the circumstances of this case, and accordingly I make the following Orders;

(i) the threshold having been established in the case of D I approve of the Local Authority’s Care Plan;

(ii) I make a Care Order with regard to D;

(iii) I dispense with the parents’ consent to the making of the Placement Order and I make a Placement Order for D; and

(iv) I make no Order with regard to Section 26 of the Adoption and Children Act 2002.

End of judgment

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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> L (Judgment) [2014] EWFC B168 (15 October 2014) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B168.html Cite as: [2014] EWFC B168

England and Wales Family Court Decisions (other Judges)