R (A Child), Re [2016] EWFC B3 (28 January 2016)

HHJ TROY:

The Child

1. The court is concerned in these proceedings with one child "R" born on 20 ^th March 2015.

2. His Mother is the First Respondent to these proceedings ["the Mother"] and his Father is the Second Respondent ["the Father"].

3. His father is not identified on his birth certificate and he does not share parental responsibility for R.

4. R is represented in these proceedings through his Children's Guardian Julia Piotrowski.

The Applications

5. By application issued on 5 ^th October 2015 the Applicant Local Authority invited the court to make R the subject of a care order. The care plan filed dated 12 ^th November 2015 provides for R to be placed with prospective adoptive carers and by further application issued on 21 ^st December 2015 the Applicant Local Authority invites the court to make R the subject of a placement order.

6. The Mother is opposed to the applications and wishes to care for R herself.

7. The Father does not suggest that he could care for R. He would not seek to oppose either a decision to place R in his Mother's care or a decision to make the care and placement orders sought by the Applicant Local Authority.

8. R was made the subject of a special guardianship order in favour of his Maternal Uncle and Aunt on 15 ^th September 2015. The Maternal Uncle and Aunt were therefore respondents to the applications in respect of R. However, having been made aware of the findings of fact which the court was to be invited to make in this case, they each sought to be discharged as parties to the proceedings and they were discharged as parties by order made on 12 ^th November 2015. They have not sought contact with R and have not expressed any views about the applications made in respect of him.

9. On behalf of R, the Children's Guardian supports the applications for care and placement orders in respect of him.

Events prior to Issue of Proceedings

10. R's Mother suffered many years of abuse and neglect during her own childhood as a result of her own mother's chronic alcohol misuse.

11. R's Father has two older children, A [dob. 04.04.2008] and B [dob. 25.10.2009]. The Father inflicted serious injuries upon B when he was less than three months of age. He was convicted of an offence of causing Grievous Bodily Harm and other acts endangering the life of B. In these circumstances, the Applicant Local Authority undertook a pre-birth assessment of the parents' ability to meet the needs of their expected child.

12. Psychologist Dr Knowles completed an assessment of the Father on 12 ^th December 2014. He found that the Father has significant and global learning difficulties to a degree which compromise his ability to regulate his emotions and his reactions to stress which was described as "markedly limited". He presents a significant risk to others through violence specific to his inability to manage relationships. As a result, Dr Knowles concluded that the Father would not be able to parent adequately on his own and his difficulties are life long. He found that:

"Childcare demands hold the potential for overwhelming the Father's ability to problem solve and regulate his responses and there is the potential for risk of neglect or physical abuse due to him becoming distracted and losing his temper."

13. Although not originally instructed to assess the Mother, Dr Knowles met with her as part of his work assessing the Father. He found the Mother's ability to place the needs of her child over her need to be in a relationship to be in question given that the couple remained together despite the Mother being made aware of the concerns about the Father and the incidents of domestic violence between them.

14. The PAMS assessment of the Father undertaken by social worker Anna Gledhill concluded that the Father was unable to manage basic aspects of day to day living for himself. She reported that the Father presented a risk of physical harm as he was struggling to accept responsibility for the injuries he inflicted on his son B, and a risk of emotional harm as a result of the likely exposure of any child in his care to aggression and violence.

15. In January 2015 the Mother informed social care services that she had decided to end her relationship with the Father and therefore her ability to meet the needs of a baby as sole carer were assessed.

16. The Mother was seen by Dr Knowles and in his report about her dated 6 ^th March 2015, he noted that she was selective in her information sharing and had sought to deceive or misdirect professionals working with her. The Mother told Dr Knowles that she now anticipated that the Father would on occasions become violent and aggressive and had decided to separate from him on 27 ^th December 2014 in a tone described as "matter of fact" and whilst at the same time accepting that she still had photographs of the Father on display in her home. She faced difficulties managing her own home and finances and expressed an intention to engage in a new relationship with a man she had been in communication with via the internet whom she had invited into her home.

17. Dr Knowles reported that the Mother faced her own mental health difficulties though she did not have a diagnosed mental illness. She regarded the continued involvement of social care services in her life now that she had ended her relationship with the Father as intrusive, accepting that she told lies in her efforts to end visits from social workers as quickly as possible. He found that the circumstances faced by the Mother during her own childhood meant that she has difficulties managing relationships and struggles to show empathy and compassion but she fails to appreciate how her early development underpins her psychological difficulties as an adult. She can present as distant and removed, she was susceptible to forming negative personal relationships highly likely to have an adverse impact on her own wellbeing and that of any child in her care and she was resistant to working with professionals though he commented that:

"compassion is needed here given her history of deprivation and adversity through childhood as well as for her age".

18. I have been most conscious of these words of Dr Knowles in considering the applications in respect of R. The Mother is just 20 years of age and endured chronic neglect and gross abuse as a young child for which she is yet to receive professional support and therapy.

19. The Mother continued her involvement with the Father even after their separation including permitting him to attend R's birth and she allowed her home conditions to deteriorate to a point where it would not be safe for any child to live there.

20. The local authority concluded that it would necessary to commence proceedings on R's birth for his safety. He was made the subject of an interim care order and placed in foster care whilst further assessments were undertaken to determine the ability of the parents and members of the extended families to care for R.

21. The Mother attended regularly for contact with R and for assessment sessions but the assessment of her was negative. The Mother neglected herself despite suffering from deep vein thrombosis, she engaged in binge drinking and had to resort to the use of emergency contraceptives as she could not be sure whether or not she had engaged in sexual acts in drink. Conditions in her home were poor and her difficulties in working with professionals seeking to support her continued so that, by way of example, she chose not to disclose that she had entered into a new relationship.

22. The Father had two contact sessions with R before being sentenced on 5 ^th July 2015 to a period of 5 months imprisonment for repeated breaches of a non-molestation order obtained by the Mother. He was released from prison in September 2015 but has not seen R following his release due to the risk he poses to him.

23. There were positive assessments of two possible placements for R within his extended family, his Maternal Uncle and Aunt and his Paternal Aunt and Uncle. The Mother supported R being placed with the Maternal Uncle and Aunt and on 17 ^th August 2015, R moved to live with them. On 15 ^th September 2015 special guardianship orders were made in their favour in respect of R. Regrettably, on 1 ^st October 2015, R returned to his foster placement at the request of his Maternal Aunt following the breakdown of her marriage to the Maternal Uncle caused by his misuse of the special guardianship allowance to fund the purchase of drugs and alcohol and for gambling.

24. On his return to foster care, it was clear that R had suffered neglect in the care of his Maternal Uncle and Aunt. He was though fortunate in being able to return to his original foster placement and appears to have recovered from the neglect he had suffered and I would like to extend the thanks of the court to R's foster carers for accepting him back into their care and supporting him in his recovery from the time he spent away from them. He will benefit from the stability and security which they have been able to provide during a long period of uncertainty in his childhood for the whole of his life.

25. The Applicant Local Authority issued these proceedings in respect of R and undertook a re-assessment of the Mother and her ability to meet R's needs and also re-considered whether any other family members could care for R, in particular R's Paternal Aunt and Uncle who had been the subject of a positive assessment in the earlier proceedings

Events Following The Issue of Proceedings

26. R was made the subject of an interim care order on 22 ^nd October 2015.

27. The view of the Applicant Local Authority at the conclusion of their further assessment was that the Mother was unable to meet R's needs even with support. Unfortunately the Paternal Aunt and Uncle who had been the subject of the earlier positive assessment no longer felt in a position to offer to care for R. The Maternal Grandfather and Step-Grandmother were the subject of an assessment but this was negative and they have not sought to challenge the conclusions reached.

28. There was no other member of the extended family who could be considered as a carer for R and therefore the Local Authority's agency decision maker was invited to approve a care plan providing for R to be placed with permanent alternative carers with a view to him being adopted.

Section 31[2] Children Act 1989

29. In considering any application for a care order - the preliminary issue to be determined is whether the statutory threshold criteria set out in section 31[2] of the CA 1989 are met.

30. Supreme Court Justice Lady Hale emphasised in the case of Re: J [2013] UKSC 9 that the requirement that the threshold criteria must be met before a court can consider what order, if any, should be made in respect of a child is designed to restrict compulsory intervention in family life to cases which genuinely warrant it, while enabling the court to make the order which will best promote the child's welfare once the threshold has been crossed.

31. The court must be satisfied that - at the time these proceedings were issued - R was suffering or was likely to suffer significant harm and the harm or likelihood of harm must be attributable to the care given to him, or likely to be given to him, not being what it would be reasonable to expect a parent to give to him.

32. In this case - it is accepted by the parents that the court can make the findings of fact set out in the schedule at A17-18 in the court bundle. The special guardians were also aware of the findings the court would be invited to make and have not sought to challenge them. Having considered the documentary evidence filed I make the findings of fact in the schedule and determine on that basis that the criteria in section 31[2] CA 1989 are met.

Legal Principles to be Applied in Determining the Orders to be Made

33. Having found that the criteria set out in Section 31[2] CA 1989 are met I must now go on to consider whether to make any orders in respect of R and if so, what those orders should be.

34. The Children Act 1989 and the Adoption & Children Act 2002 set out the guiding principles which form the basis upon which these proceedings including this hearing are conducted - taking into account the judgments of the higher courts providing direction and guidance as to how these principles are to be interpreted and applied.

Firstly

Section 1[2] ACA 2002

35. In determining the appropriate orders to be made - section 1[2] of the ACA 2002 requires that the welfare of R throughout his life must be my paramount consideration.

Secondly

Sections 1[2] & 2A CA 1989 and Section 1[3] ACA 2002.

36. The principles encapsulated in section 1 [2] CA 1989 and section 1[3] of the ACA 2002 - which relate to delay - apply and the court is required pursuant to Section 2A of the Children Act 1989 to presume, unless the contrary is shown, that involvement of a parent in the life of the child concerned will further the welfare of the child.

Thirdly

Section 1[3] CA 1989 and Section 1[4] ACA 2002.

37. The court must have regard to the matters set out in section 1[3] of the Children Act 1989 and section 1[4] of the Adoption and Children Act 2002 which have become known as the welfare checklists.

Fourthly

Section 31[3A] CA 1989

38. Before making a care order the court is required pursuant to Section 31A of the Children Act 1989 to consider the permanence provisions of the Section 31A plans for R and pursuant to Section 34[11] to consider the arrangements the Applicant LA proposes to make for affording contact with those identified in section 34[1] of the Act - in this case his Mother and Father and to invite the parties to these proceedings to comment on those arrangements.

Fifthly

Articles 6 & 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950

39. The case of Re: B [2013] UKSC 33 lies at the heart of the jurisprudence concerning the making of care and placement orders and is thus of fundamental importance to this case.

40. The decision of the Supreme Court in the case of Re: B emphasises the duty of this court to determine these applications in a way which is compatible with R's and his parents' Article 6 rights to a fair trial and Article 8 rights to respect for his family life and in a manner which is proportionate to any risks identified which R would face in the care of either of his parents.

41. In order to determine the applications in the manner prescribed by the Supreme Court, I must bear in mind nature of the orders I am invited to make, described in the judgments as a 'very extreme thing, a last resort' to be made 'only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do'.

42. The proper interpretation of this aspect of the judgments delivered in the case of Re:B has been considered by the Court of Appeal in the case of CM -v- Blackburn with Darwen Borough Council [2014] EWCA Civ 1479. In his judgment, Lord Justice Ryder explains that the phrase "nothing else will do" does not require there to be no other realistic option on the table, even less so no other option or that there is only one possible course for the child. It is, he held, a description of the conclusion of a process of deductive reasoning within which there has been a careful consideration of each of the realistic options that are available on the facts so that there is no other comparable option that will meet the best interests of each child.

Sixthly

Analysis of the options available for the child

43. In determining whether to make orders in respect of R, and if so what those orders should be, it is necessary to undertake an analysis of each of the options available to the court and to assess each of these options in the context of the other options as the decisions of the Court of Appeal in the cases of Re: B-S and Re: R [2014] EWCA Civ 1625 make clear .

44. In Re: B-S [2013] EWCA Civ 1146 the President in his judgment emphasises two important matters of principles drawn from the judgments of Supreme Court Justices Lord Neuberger and Lady Hale in the case of Re: B which are to be taken into account in carrying out the analysis of the options available to the court.

45. The first matter of principle is the value and importance to a child of being brought up as a member of his birth family if his needs could possibly be met in this way. The President states:

'although the child's interests in an adoption case are paramount, the court must never lose sight of the fact that those interests include being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the overriding requirements of the child's welfare make that not possible'.

46. The second related matter of principle arises from the provisions of section 1[g] CA 1989 which provides that the court must have regard to

[g] the range of powers available to the court under this Act in the proceedings in question

- and section 1[6] of the ACA 2002 which provides that

1(6) The court .. must always consider the whole range of powers available to it in the child's case (whether under this Act or the Children Act 1989.

47. One aspect of these provisions is that the court's assessment of the Mother's ability to discharge her responsibilities towards R must take into account the assistance and support which the authorities could offer them. The President explains that

"before making an adoption order ... the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support."

48. In this context - the court must consider the decision of the ECtHR in the case of YC -v- United Kingdom [2012] EHRR 967 para. 134. The court found that:

"family ties may only be severed in very exceptional circumstances and... everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing."

49. In his judgment in the case of Re:D(A Child)(No 3)[2016] EWFC 1 the President described the concept of "parenting with support" as crucial, explaining that there is a positive obligation on the local authority to provide support if that will enable a child to remain with his parents.

50. Therefore, and as required by section 1(3)(g) of the 1989 Act and section 1(6) of the 2002 Act, the court "must" consider all the options before coming to a decision. As Supreme Court Justice Lady Hale said in Re: B it is "necessary to explore and attempt alternative solutions".

51. In considering the range of orders available to the court - Lord Justice McFarlane explains at paragraph 50 in his judgment in the case of Re: G[2013]EWCA Civ 965 that there must be

"a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare"

The Evidence

52. In determining the applications before the court - I have considered the documentary filed but I was not invited by any of the parties to hear any oral evidence.

53. Social worker Elaine Sugden prepared the further assessment of the Mother's ability to care for R dated 18 ^th November 2015.

54. The Mother asked for her ability to care for R to be assessed with her partner ["Mother's Partner"] with whom she had formed a relationship and with whom she had been living since August 2015. The Mother's Partner has his own son C [dob. 01.01.2010] with whom he had regular staying contact at the home of his own Mother in Barnsley. He has suffered with depression over a number of years and had not lived independently before moving to live with the Mother.

55. The Mother and the Mother's Partner engaged well with Ms Sugden in the work she undertook but Ms Sugden was concerned about the stability of the relationship which had developed quickly at a time in the Mother's life when she needed to address her own difficulties. The Mother accepted that she had not sought assistance in the past with her own mental and physical health and had instead resorted to binge drinking when feeling low in mood. The Mother explained that she had since sought support with alcohol misuse from "On Track" and was taking medication prescribed for depression. She had taken up the suggestion that she seek support from the organization "Women's Space" but formal therapeutic work was not recommended whilst the Mother remained involved in these proceedings. Ms Sugden concluded that the Mother needs further time to achieve stability in her mental health before moving on to address the impact on her of her childhood experiences.

56. The Mother had resumed attending her Church on a regular basis and participating in activities there. She had also been working for two years as a volunteer for the charity "One Good Turn" gaining support from friends made there. These organizations were identified by Ms Sugden as a source of support for the Mother but this was at an early stage and would need to be consistent over a period of time to allow the Mother to benefit from the support available. The Mother also hoped that her family, in particular her own father, would provide her with support but Ms Sugden was concerned that support had not been provided on a consistent basis and during the course of the assessment it became clear that he had not addressed problems with alcohol consumption as he had let the Mother believe.

57. The Mother moved from accommodation she had rented from the local authority to a property let to her by a member of her family in Huddersfield in June 2015. Ms Sugden was concerned about the security of this tenancy and the Mother was in fact required to leave that property, moving to temporary accommodation in December 2016 and moving again in January 2016 to one-bedroomed rented accommodation in Barnsley with her Partner as she hopes that she will there have the support of members of his family. How this will affect her ability to gain support from attendance at her Church and the friends she has made in the Huddersfield area remains to be seen.

58. The Mother attends regularly for contact with R and she is confident in meeting his physical care needs. Ms Sugden felt she observed in the Mother a "level of detachment" in her interactions with R and discussed means to promote the attachment between R and his Mother with the Mother and the Family Nurse Sue Head but she concluded in her report that there was a good attachment between R and his Mother. However, the concerns about the Mother's ability to work in co-operation with professionals remained, with the Mother seeking to present her situation as "fine" when in fact there were many areas in her life which need to change to enable her to care for R.

59. Ms Sugden concluded that the Mother could not meet R's needs as she has a tendency to become over-dependent on others "at any cost" which compromised her ability to prioritise R's needs, organise her own life, regulate her emotions and achieve stability.

60. The Mother explains in the statement she drafted herself in preparation for this hearing that she believes that she can now care for R with support. I have also seen the notes of contact sessions which the Mother attached to her statement in which there are reports of R and his Mother enjoying spending time together and the Mother comforting R when he became distressed. In addition to her own statement, the Mother's Partner has filed a statement confirming what she has said about their living arrangements and I have read a statement filed by a friend the Mother's met through her work with "One Good Turn".

61. The Mother hopes that living in Barnsley she will benefit from the support available from her Partner's family, though she does explain in her statement that she had only visited them "every two or three months" during her relationship with her Partner prior to their move. Although the Mother feels she has benefitted from attending a support group she explains that she does not "feel comfortable with one to one counselling" at this time.

62. In submissions made on behalf of the Mother, it was made clear that the Mother would now accept and welcome any support offered to her in caring for R. The Mother believes she has learnt valuable lessons from experiences during these proceedings, in particular about the problems that telling lies to professionals causes for her, and she accepts that in the future her care of R and her ability to maintain the changes she had made in her life would need to be monitored.

63. The Mother did not wish to give evidence but having heard submissions made on her behalf she spoke from her place in courtroom to amplify the submissions made. She described in eloquent and moving words the joy and pride R has brought to her life. She described him as "amazing" and explains how she tries to capture every moment she is able to spend with him. She had found the prospect of becoming a mother "scary" and simply had not anticipated the love she felt for R the moment he was born. She had been so desperate to care for him that she had tried to present a picture of her life as being perfect but she acknowledged that she had made what she described as "really bad choices" and hoped for an opportunity now to show how well she could care for him.

64. On behalf of R, his Solicitor confirmed that the view of his Children's Guardian remain as set out in her report dated 12 ^th January 2016. In her report, the Children's Guardian carefully reviews the assessments which have been undertaken, particularly in respect of the Mother, and she has observed for herself the love and care provided to R by his Mother during contact sessions. Nevertheless, she concludes that R's welfare requires that he is made the subject of care and placement orders.

Options Available In These Proceedings

65. Placing R in the care of his Mother or his Father . The court could determine that R should live with his Mother. If so, the court could simply make no order in these proceedings - which would mean that the Mother as the only person having parental responsibility for R would be entitled to care for him. R would in those circumstances be regarded by the Applicant Local Authority as a child in need and would be provided with support and assistance as a result. Alternatively, the court could make R the subject of a child arrangement order providing for him to live with his Mother or his Father. It would be open to the court at the same time make R the subject of a supervision order or a family assistance order if it was determined that the Applicant Local Authority should be placed under a statutory duty to allocate resources in order to advise, assist and befriend him.

66. Placing R with Prospective Adopters. The court could make R the subject of care and placement orders as sought - approving the care plan which provides for him to be placed with permanent adoptive carers and for direct contact with his Mother to be reduced until a permanent adoptive placement is found and then replaced with indirect, letterbox contact for R.

67. Adjourning the proceedings for further enquiries including considering long term foster care. The court could determine that further investigations are required before a final judgment about the appropriate orders to be made can be reached including considering whether the Applicant Local Authority should invited to submit care plans providing for R to be placed in a long term in a foster placement where he could continue to have direct contact with his Mother.

Sections 1[4] ACA 2002 and Section 1[3] CA 1989

68. I have considered in particular the following matters:

CA 1989 s.1[3][d] his age, sex, background and any characteristics of his which the court considers relevant

ACA 2002 s.1[4][d] the child's age, sex, background and any of the child's characteristics which the court consider relevant

69. R is a boy, now aged 10 months. His Mother is a practising Christian and wishes R to be brought up following the Christian faith.

CA 1989 s.1[3][a] the ascertainable wishes and feelings of the child concerned [considered in the light of his age and level of understanding];

70. R is too young to express any wishes and feelings about his situation or about his future directly but he has been observed in contact sessions to respond to the love and care offered to him by his Mother and it is proper to assume that he would wish to live with his Mother if she could possibly meet his needs.

ACA 2002 s.1[4][a] the child's ascertainable wishes and feelings regarding the decision [considered in the light of the child's age and understanding]

71. R is too young to express any wishes or feelings about the application for a placement order which has been made in respect of him but he is certain to wish to know, as he grows up, why he is not in the care of his Mother or his Father if that is the decision which is made. It will be important for any prospective adoptive carers identified for R to be provided with the information they require to explain the situation to R as he grows up taking into account his age and his level of understanding.

CA 1989 s.1[3][b] his physical, emotional and educational needs;

72. R has the same physical, emotional and educational needs of other young boys of his age for a loving, stable and supportive home where he is kept safe and where his needs are met. Although he suffered neglect in the care of his special guardians, it was for a short period and he appears to have made a complete recovery from this.

73. There is a history of eczema and asthma in R's maternal family and his Father has learning difficulties and R's carer need to be aware of these issues so that his health and development can be monitored though to date there are no concerns about him.

CA 1989 s.1[3][c] the likely effect on him of any change in his circumstances;

74. R has already faced changes in his circumstances moving from his foster carers to his special guardians and back and faces changes in the future in his circumstances. He will have to adapt to new circumstances and a new carer or carers whatever order is made by the court.

75. I agree with his Children's Guardian that it is important that R moves as quickly as possible to his permanent home and any delay in determining where his future lies will be detrimental to his welfare given his age and stage of development.

[c] the likely effect on the child [throughout his life] of having ceased to be a member of the original family and become an adopted person;

76. If a placement order is made in this case, R will cease to be a member of his original family. The impact of this is potentially damaging to his sense of identity and to his emotional wellbeing. Children who become adopted persons may face emotional challenges as they grow up and come to understand that they are not living with their original family. Older children and young adults often wish to seek out and meet with members of their family of origin. The real possibility that R will wish to have direct contact with his Mother and his Father as a young adult and the potential difficulties for him, practical and emotional, which would arise must be taken into account. He would need support from his carers in addressing these issues.

77. In determining what order to make in respect of R, I must consider not just the immediate future - when being so very young he will quickly form attachments to and relationships with his adopted carers and their extended family - but must look forward in time to the point when R may find it difficult to come to terms with his status as an adopted person and the issues that will raise for him. Furthermore and sadly, some adoptive placements do break down and placement breakdown is likely to cause emotional harm to the child, distress and uncertainty about their future.

78. Whilst there are many potential advantages for R in an adoptive placement which would meet all of his immediate needs - physical, emotional and educational - to a high standard it must be taken into account that there are also these possible negative consequences of such a placement for the future.

[f] the relationship which the child has with relatives and with any person in relation to whom the court considers the relationship to be relevant including -

[i] the likelihood of the relationship continuing and the value to the child of its doing so;

79. R has regular contact with his Mother. If R was to be placed in his Mother's or his Father's care, he would also have the opportunity to form relationships with members of his extended maternal and paternal families and to develop as other children do a sense of his own identity within his family of origin and an understanding of his cultural and religious background and heritage.

80. If R is placed with another family with a view to him being adopted, and if as planned there is no direct contact for R with his Mother or Father following his placement with prospective adoptive carers, he will not have the opportunity to develop the same understanding of his identity and background and he will no longer benefit from the love and affection he is shown during the contact sessions with his Mother.

[ii] the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop and otherwise to meet the child's needs;

81. The investigations undertaken by the Applicant Local Authority have established that there are no family members in a position to care for R.

[iii] the wishes and feelings of any of the child's relatives or of any such person regarding the child.

82. R's Mother has made it clear that she is opposed to R being placed for adoption.

CA 1989 s.1[3][f] how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

83. The key issues in these proceedings are whether the Mother or the Father is capable of meeting R's needs including whether they could be assisted and supported in doing so, whether the proceedings should be adjourned to allow the Mother more time to demonstrate that she could care for R and whether R should move to a long term foster placement rather than an adoptive placement. I bear in mind in considering these issues the significant benefits that there would be for R identified above if he could be cared for by his Mother or his Father and the importance of looking whenever possible of rebuilding a family and respecting this family's right to family life.

CA 1989 s.1[3][e] any harm which he has suffered or is at risk of suffering;

84. In determining this issue, I must take into account

a. the nature of the feared harm in the event that R was to be placed in the care of his Mother or his Father;

b. whether it is significant; and

c. how likely it was to happen.

85. In the care of his Father, R would face the risk of significant physical and emotional harm. The Father inflicted grave physical injuries on R's half-brother and has a history of violent behaviour. I accept the unchallenged evidence of Dr Knowles about him and the risk to children which he presents and it is almost inevitable that, in the care of his Father, R would suffer grave harm.

86. There is no risk that the Mother would deliberately harm R. However, I hope when the Mother looks back in January 2016 over her life during 2015 she will start to understand why in my judgment R would be at risk of significant emotional harm if he was placed in her care now.

87. During 2015, the Mother was involved in a relationship with the Father, a man she knew had seriously injured his own child. She had to extricate herself from that relationship yet immediately engaged in other relationships including with a man she contacted via the internet and others she associated with when in drink before deciding to live with her current Partner. There have been a series of house moves and it has been difficult for her to maintain adequate home conditions and manage her finances. She has faced serious problems with her own health but engaged in binge drinking and she has been let down yet again by members of own family whom she hoped would support her.

88. The Mother acknowledges that she requires support in caring for R arising from the difficulties she faces as a result of her childhood. Professionals were struggling to support the Mother during 2015 because she found their involvement in her life intrusive and she prevented them from working effectively with her by telling them lies and by failing to reveal information about the problems she faced. Regrettably therefore, she denied herself the support which she and R would need for her to care for him.

89. Although the Mother hopes that she will now settle in the new home in the new area to which she moved only this month and hopes to have the support of her Partner and his family there, there is no evidence before the court to establish that she will settle with her Partner in this home and begin to work in co-operation with professionals able to assist her.

90. The Mother needs therapeutic support herself to address the harm inflicted upon her and whilst these proceedings continue it is impossible for her to engage in this work. She demonstrated some real insight into the need for her to address the problems she faced in making her statement to the court, recognising the deficits in her own upbringing and commenting that her "recovery may not be in R's timescales".

91. Until the Mother is in a settled situation from which she can begin to engage with a therapist able to assist her in addressing the problems Dr Knowles identified, R would be at risk of significant emotional harm in her care and although the Mother would do everything in her power to love him and to protect him from harm, the risk that he would suffer emotional harm is very high.

CA 1989 s.1[3][g] the range of powers available to the court under this Act in the proceedings in question

92. l must consider whether there are steps which could be taken or orders made to manage or reduce the level of risk which R would face in the care of his Mother or his Father so that R's welfare would best be served by being placed in their care.

93. I accept the evidence of Dr Knowles and find there are no steps which could be taken to protect R from the risks presented by his Father.

94. In the Mother's case, until she is in a settled home and relationship, able to work in co-operation with professionals and undertake the therapeutic work recommended for her, there are no steps which could be taken to protect R from the risk of harm in his Mother's care or to reduce the risk to a manageable level. The unsuccessful efforts made to assist the Mother during 2015 provide the evidence upon which I formed this view and although I feel enormous sympathy for the Mother and hope that with her obvious intelligence and determination to improve her situation she can make the enormous changes to her life which would be required before she could care for a child, in my judgment R cannot wait in hope in foster care whilst his Mother works to change her life.

95. At the time she prepared her statement, the Mother did not feel that she could engage in the individual work with a therapist which will be required and in any event therapy is not recommended for her whilst her situation is still so difficult and unsettled. I hope I detected in what Mother said to the court that she would be prepared to consider engaging in therapeutic work in the future, even though she herself could recognise that this is not something which can be achieved before a decision has to be made in R's interests about his future.

Foster care/Adoption

96. In assessing the potential benefits and detriments for R in an adoptive placement as compared to a long term foster placement - I have considered the judgment of Lady Justice Black in the case of Re: V [2013] EWCA Civ 913 at paragraph 96 where she identifies some of the advantages and disadvantages of these alternatives.

97. Adoption makes a child a permanent part of the adoptive family to which he or she fully belongs. Adoptions do, of course, fail but the commitment of the adoptive family is of a different nature to that of a local authority foster carer whose circumstances may change and who is not in a position to determine the caring arrangements for children placed by the local authority in their care.

98. Whereas a parent may apply for the discharge of a care order with a view to having the child live with them, once an adoption order is made it is made for all time.

99. Contact in the context of adoption is different from contact in the context of a fostering arrangement. Where a child is in the care of a local authority, the starting point is that the authority is obliged to arrange reasonable contact for that child with their parents as provided by Section 34[1] of the Children Act 1989. The arrangements for contact can be regulated by orders under section 34 but there remains a marked contrast with the situation for adopted children. If a placement order is made - the care plan provides for there to be no direct contact for R with his Mother or his Father and the parents would need the permission of the court to make an application for a contact order.

100. The routine of life is different for a child in a long term foster placement. The Local Authority would have a role in his life for the whole of his childhood. There would be regular reviews and it would be necessary to consult with social workers about many issues which would ordinarily be decided by parents or carers. In contrast, for the adopted child, the Local Authority has no further role in his life.

101. A family approved as adopters would be in a position to meet R's practical, emotional and educational needs on a permanent basis and this must be balanced against the loss of the links with his Mother and his Father which would be a consequence of the care plan for adoption.

Adjournment

102. The proceedings could be adjourned. However, I can identify no advantage to R in delay in reaching a final determination in this case. There are no avenues left unexplored which might on further enquiry either enable the Mother to be better placed to meet the needs of R in a timescale in keeping with his needs or provide an option for his future care other than those which have been explored - and it is recognized as a matter of law as I indicated at the commencement of this judgment that delay in determining this matter is likely to prejudice the welfare of R.

evaluation of options

103. Having identified the positive and negative aspects of each realistic options for R's future care I must now determine whether to make any orders, and if orders are to be made, what those orders should be - the welfare of R throughout his life being the paramount consideration in forming this judgment.

104. The only realistic options for R are placement in the care of his Mother, the making of care and placement orders or a care order with a care plan for long term foster placement - since I have found no factors to support the adjournment of these proceedings.

105. I accept the clear evidence of the Children's Guardian in finding that remaining long term in a foster placement would not meet R's needs for a permanent home and family in which he can grow up, with whom he can form lifelong bonds and where plans can be made for his future both immediate and long term.

106. Balancing the harm R would suffer by not being returned to the care of his Mother or his Father and the risks for him in an adoptive placement against my findings as to the risk of the harm, the nature and likelihood of harm I have found he would face in the care of his Mother and his Father taking into account the support and assistance which could be provided to reduce or manage those risks, I am satisfied that placement for adoption is the only option which safeguards the welfare of R throughout his life. The risks R would face in the care of his Mother are very different to those he would face in the care of his Father, but the risks are still very significant and in my judgment R's welfare demands that he is protected from those risks even though the alternative of adoption for him is not a risk free option.

107. I have also considered the proportionality of permanent separation when set against the findings made as to the harm R would suffer or be at risk of suffering if returned to the care of his Mother or his Father. The risks faced by R on placing him in the care of his Mother or his Father are such as to negate all the other possible factors in favour of this course.

108. The orders sought would be an interference with R's, his Mother's and his Father's Article 8 rights to family life and such an interference will only be sanctioned by the court if it is satisfied that it is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of R. I am satisfied in this case that there is no other order which would promote R's welfare.

Application for A Placement Order

109. Having determined that it is in the best interests of R to make him the subject of a care order approving a care plan providing for him to be placed for adoption, I must go on to consider the applications for a placement order in respect of R.

110. Section 21[3] of the ACA 2002 provides that

(2) The court may not make a placement order in respect of a child unless-”

(a) the child is subject to a care order,

(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or

(3) The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied-”

(a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or

(b) that the parent's or guardian's consent should be dispensed with.

111. The Mother has made it clear that she does not consent to R being made the subject of a placement order. I must therefore determine whether a ground for dispensing with consent of the Mother is established. Although the Father does not oppose the application for a placement order, and although he does not share parental responsibility for R, I have also considered whether it would have been appropriate to dispense with his consent had this been a statutory requirement. Pursuant to the provisions of Section 52[1][b] ACA 2002 - the court cannot dispense with the consent of any parent of a child to the child being placed for adoption unless satisfied that the welfare of the child requires the consent to be dispensed with.

112. Taking into account the analysis of the relevant statutory criteria, the welfare evaluation set out above and the conclusion that in my judgment placement for adoption is the only option which safeguards R's welfare throughout his life, I have considered whether dispensing with the consent of the Mother [and, had it been necessary to do so, the Father] to the application for a placement order is a proportionate interference in the family life of R, his Mother and his Father. Although the nature of the interference with family life is the most draconian this court can sanction, the level of risk to R if the consent of his Mother and his Father to the application for a placement order is not dispensed with is such that it is both proportionate and necessary to dispense with their consent because the welfare of R requires their consent be dispensed with.

Orders

113. I therefore make the findings of fact set out in the schedule at A17-18. On the basis of those facts I find that the criteria set out in Section 31[2] CA 1989 are met in this case. I make R the subject of care and placement orders dispensing with the consent of his Mother on the grounds that the welfare of R requires that her consent be dispensed with and recording that if the consent of R's Father to the application had been required it would have been necessary to dispense with his consent on the same basis and there shall be detailed assessment of the costs of the publicly funded parties.

28 ^th January 2016

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> R (A Child), Re [2016] EWFC B3 (28 January 2016) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2016/B3.html Cite as: [2016] EWFC B3

England and Wales Family Court Decisions (other Judges)