M (A Child : care order) [2017] EWFC B68 (04 September 2017)

RECORDER HENLEY:

Introduction

1. This is an application for a care order brought by the local authority, which is represented by Mr Cahill.

2. I am concerned with M, born on [a date in] 2016, now aged almost one year old. M resides in local authority foster care under the auspices of an interim care order. M’s Children’s Guardian is Ms Aileen Firth who has instructed Mr Rowlands to represent M during this hearing.

3. The Mother is aged 35 years old; she suffers from a learning disability. The Mother is represented by Miss Usher.

4. The Father is aged 48 years old; he is represented by Miss Hodge.

5. The parents present as a couple, they are not married but live together and advanced a position that they sought to care for M together, during the course of these proceedings. M is the only child of their relationship. The Mother has always accepted throughout these proceedings that as a consequence of her own limitations she is unable to parent M on her own.

6. This matter comes before the court today for a final hearing in public law proceedings, with a time estimate of five days. All parties accept that the court can now deal with this matter and that I can give judgment this morning, the first morning of the hearing.

7. These proceedings were issued on 13 September 2016, the 26‑week timetable for the completion of this case expired on 14 March 2017.

8. During this hearing, I have heard brief submissions from counsel for the Local Authority and on behalf of the child, and from the solicitors for each of the parents. I have read the bundle filed for these proceedings.

Background

9. As I have stated the Mother suffers from a learning disability. Her childhood was a traumatic one and she was known to Children’s Services as a child. She suffered sexual abuse perpetrated by adult male members of her family, resulting in her being placed in local authority foster care. The Mother’s first child, K, was removed from her care following care proceedings brought in another part of the country, and was ultimately placed for adoption in 2015. Concerns about the parenting that K received centred on neglectful parenting resulting in K’s developmental delay, and the Mother’s inability to meet K’s basic needs. The parents had formed their relationship by the time that care proceedings had commenced in respect of K and a negative viability assessment was completed in respect of them. K was the subject of involvement from Children’s Services in three different areas of the country.

10. The Father’s older three children were permanently removed from the care of their birth family in 1998. Two were adopted and one was placed in long-term foster care. The Father has had extensive involvement with Children’s Services in two different areas of the country, and involvement with Children’s Services in four other different areas of the country.

11. The parents have each moved address repeatedly over the years leading to professional concerns about their transient lifestyles. Police information about the Father is held by seven Police forces.

12. As a consequence of this history, the Local Authority became involved with the family during the Mother’s pregnancy with M, in April 2016. Pre-birth assessments were negative for the following reasons:

(i) The Mother’s neglect of K despite lengthy involvement from Children’s Services, resulting in him being adopted.

(ii) The Father’s negative assessment as a carer for his three children, who were placed permanently outside the care of their birth family.

(iii) The parents’ negative assessment as carers for K.

(iv) The Mother’s learning disability and her limited understanding of basic parenting.

(v) The Father’s inability to recognise the deficits in the Mother’s parenting capacity.

(vi) The Mother’s disclosed alcohol use during her pregnancy.

(vii) The Father’s unwillingness to disclose all necessary information in respect of his previous addresses and National Insurance number so that safeguarding checks could be carried out with the Police and Children’s Services.

13. M was born at the RVI in Newcastle upon Tyne on [a date in] 2016. She was discharged from hospital into Local Authority foster care the following day on a voluntary basis, pursuant to Section 20 of the Children Act 1989. Care proceedings were issued on 13^th September 2016. The Local Authority carried out a parenting assessment of the parents based upon the Parenting Assessment Manual (‘PAMs’) toolkit as a consequence of the Mother’s learning disability. This assessment took place over a six-week period, within the parents’ home involving them having contact with M within the home environment, five days every week for several hours at a time. It was, however, acknowledged by the Local Authority that they did not employ a social worker with PAMs training. The assessment was largely positive, recommending that, subject to the completion of a parenting course and further safeguarding checks being done, contact could improve for the parents, with a view to a rehabilitation plan being tested out.

14. The Children’s Guardian, Ms Aileen Firth, disagreed with this plan, raising concerns about the quality of the Local Authority’s assessment work, and invited the court to the view that since the Local Authority did not have a PAMs trained social worker, an independent social worker with requisite PAMs training should be commissioned to carry out a full parenting assessment of the parents. The Guardian raised concerns that the Local Authority had not carried out full safeguarding checks in respect of the Father and that alcohol testing should be carried out in respect of him, based upon historical concerns and based upon her own observations that at a court hearing on 15 September 2016, she thought he smelled of alcohol. On 21 October 2016 an interim care order was granted. M remains the subject of an interim care order to date.

15. On 4 November 2016, District Judge Grey granted an oral application, made on behalf of the Guardian for an independent social worker to assess the parents, using the PAMs model of assessment. That report was directed to be filed by 13 January 2017. Mrs Deborah Gaskin was accordingly instructed.

16. Throughout these protracted proceedings the Local Authority and Children’s Guardian have disagreed about the interim care arrangements for M. The Local Authority formed the view at the very beginning of the proceedings that the parents should be afforded extended periods of unsupervised contact with M to enable a rehabilitation plan to be effected. The Guardian opposed this course and repeatedly raised concerns about the Local Authority’s lack of basic safeguarding information, lack of analysis of risk - based upon historical concerns about the Father, in particular in relation to domestic violence, and lack of independent information about the Father’s alcohol use.

17. At the request of the Guardian, the Father agreed to undertake liver function tests and a hair strand test in respect of alcohol use. The Local Authority “did not see this testing was necessary but did not oppose it”. On 16 November 2016, a report from Lextox revealed that by the time the hair samples were to be taken, the Father had insufficient hair, including body hair, to test and therefore hair alcohol analysis could not be properly performed. However, liver function test results did show that the level of Gamma GT was above the normal range and it was stated that that could be due to excessive alcohol consumption. The Father had shaved his hair off in between hair strand analysis being ordered and the samples being taken.

18. Notwithstanding these concerns, contact with the parents increased and took place on an unsupervised basis from 1 December 2016. This contact continued to increase during these proceedings so that by the summer of this year it included unsupervised contact all day each day on Monday to Friday every week, plus three overnight stays in the parents’ home each week. During the course of proceedings, at the request of the Guardian, the court directed police disclosure in respect of the Father and directed that the Local Authority obtain and review the case recordings of other local authorities in respect of the Father.

19. During the course of that disclosure it became apparent that the Father had two convictions associated with domestic abuse, one for common assault against a previous partner in 2010, for which he was ordered to complete a Domestic Violence Perpetrator’s Programme and a subsequent conviction for an offence of Harassment against a different former partner in 2013. The Father consistently maintained to professionals, when questioned about these offences, that he had successfully completed the Domestic Violence Perpetrator’s Programme.

20. The role of the independent social worker in these proceedings was enlarged, following a contested hearing. The Local Authority and the parents opposed the continuation of Mrs Gaskin’s instruction. The Guardian sought for a more in-depth piece of work, given her concerns about the deficiencies in the Local Authority’s assessments. Throughout her involvement Mrs Gaskin highlighted the need for full safeguarding checks to be carried out, echoing the Guardian’s concerns in that regard.

21. Belated information received from the Probation Service in May of this year revealed that contrary to the Father’s assertions, he had not in fact completed a Domestic Violence Perpetrators Programme. He had completed just 6 out of 24 sessions and was suspended from the programme due to a combination of a lack of responsibility for the index offence, poor understanding of the reasons behind the index offence and his employment commitments. Notwithstanding this information the Local Authority continued to press ahead with its position that M should be rehabilitated to the parents’ care but suggested that the Father should now undertake a Domestic Violence Perpetrator’s Programme.

22. A referral was made to Barnardo’s Impact Domestic Abuse Services funded by the Local Authority. Jackie Moulding carried out an assessment of the Father’s suitability to complete the course. Her report is dated 4 July 2017. She concluded that he was unsuitable for the programme as a consequence of his inability to accept responsibility for his abusive behaviour, his lack of remorse or empathy for his previous partners, his lack of insight in to the effect of his behaviour on his previous partners and their children and for the minimisation, denial and blame of his previous partners in respect of his offending behaviour. Notwithstanding this conclusion, the Local Authority continued to advance its plan for rehabilitation to the parents’ care.

23. Further police disclosure revealed that a number of police call outs had been made in which the Father was alleged to have behaved in an abusive fashion towards intimate partners when under the influence of alcohol and that he had a number of offences for drink driving. Information from his medical practitioner revealed a previous alcohol dependency dating back to 2008. Throughout these proceedings the Father repeatedly denied any recent problematic drinking to all professionals and to the Court.

24. The Local Authority filed its final care plan dated 11 August 2017 in preparation for this final hearing. This was a rehabilitation plan, which provided for M to be placed in her parents’ care by the Friday of this week, supported by the making of a 12‑month supervision order. On 29 August 2017 Lextox filed updated results of a hair strand test and a liver function test in respect of the Father. Those results indicated that between the middle of May this year and the beginning of August this year, the Father’s alcohol use was excessive and chronic. On the same date Mrs Gaskin filed her addendum parenting assessment. As a consequence of the updated safeguarding information and risks identified pertaining to the Father, she was unable to recommend that M be rehabilitated to the care of her parents.

25. This matter was last before the court on Wednesday of last week before His Honour Judge Simon Wood, when following submissions from the parties, all unsupervised contact between the parents and M was suspended and the parents’ contact with M was dramatically reduced to take place on a supervised basis only. The Local Authority indicated that it would urgently convene a care team meeting in order to revise its final care plan.

The positions of the parties

26. The Local Authority now seeks a care order in respect of M with a revised care plan for adoption.

27. Neither of the parents attended today’s hearing, each is represented today and has been throughout these proceedings. I am satisfied, based upon their attendance at court last week, when His Honour Judge Simon Wood made clear that this hearing would remain listed as a final hearing, and upon the assurances given to me today by those representing the parents, that the parents are aware of today’s hearing and have chosen not to attend.

28. The Mother has filed a statement dated 1 September 2017 setting out that she now does not actively oppose the Local Authority’s care plan and admitting her part in deceiving professionals in so far as the Father’s alcohol use is concerned.

29. The Father has failed to file a statement.

30. The Children’s Guardian supports the making of a care order in respect of M and recommends that she be placed for adoption.

Legal Framework

31. I remind myself that M’s welfare is my paramount consideration, that is Section 1(1) of the Children Act 1989. In considering what orders to make I have regard to the welfare checklist found in Section 1(3) of the 1989 Act.

32. In relation to the threshold criteria in Section 31(2) of the Children Act I must have regard to whether I am satisfied that M has suffered or is at risk of suffering significant harm. When considering which orders, if any, are in the best interest of M I start very clearly from the position that wherever possible children should be brought up by their natural parents and if not by other members of their family. The State should not interfere in family life so as to separate children from their families unless it has been demonstrated to be both necessary and proportionate and that no other less radical form of order would achieve the essential aim of promoting her welfare.

33. In the case of Re B [2013] UKSC 33 the Supreme Court emphasised this, reminding us such orders are "very extreme", and should only be made when "necessary" for the protection of the child's interests, "when nothing else will do". The court "must never lose sight of the fact that (the child's) interests include being brought up by her natural family, ideally her parents, or at least one of them".

34. It is not for the court to look for a better placement for a child; social engineering is not permitted. In YC v United Kingdom [2012] 55 EHRR 967 it was said: "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."

35. I have looked again at the words of the President in Re B-S (Children) [2013] EWCA Civ 1146 as well as the judgments in Re B (supra) and reminded myself of the importance of addressing my mind to all the realistic options for M, taking into account the assistance and support which the authorities or others would offer.

36. In considering making a Care Order I have had close regard to the Article 6 ECHR and Article 8 ECHR rights of each parent and of the child, but I remind myself that where there is tension between the Article 8 rights of the parent, on the one hand, and of the child, on the other, the rights of the child prevail; Yousef v The Netherlands [2003] 1 FLR 210.

Threshold criteria

37. In terms of the threshold criteria the Mother has made a series of concessions prior to today’s hearing. I am satisfied, based upon those threshold concessions and upon the Father’s convictions for domestic violence, his failure to complete a domestic violence perpetrator’s programme, together with his deceit about the same, his continued excessive and chronic alcohol abuse and the parents’ dishonesty with professionals and the court, that the threshold criteria is crossed. I am satisfied that M would be at risk of significant harm should be rehabilitated to the care of her parents.

Welfare analysis

38. In light of the revised position of the parents, there is now only one realistic placement option for M, namely adoption. No other alternative kinship carers have ever been put forward for her or come forward to care for her. I am satisfied, based upon all of the unchallenged evidence before me, in particular the reports of Mrs Gaskin, the results of the Father’s hair strand and liver function testing for alcohol and the reports of the Children’s Guardian, that the revised care plan before the court is necessary and proportionate in all the circumstances and that M requires a permanent home outside of her parents’ care.

39. I am very grateful to the Guardian and to Mrs Gaskin for their thorough, detailed and balanced reports in this matter. Each of those professionals has clearly worked extremely hard to ensure that the court has the best evidence available before it in this case. I am satisfied that M cannot be safely returned to the care of her parents and that nothing else will do for her but adoption. In reaching this conclusion I adopt the analysis of the Children’s Guardian. I am satisfied that to return M home to her parents would result in her being at risk of suffering significant harm in the form of neglect, physical harm and emotional harm, as a consequence of the Father’s continued excessive and chronic alcohol use and the Mother’s inability to provide good enough basic care to M on her own. I acknowledge that at the current time the parents have demonstrated an ability to meet the basic care needs of M when acting together. However, this case is not and has never been a case solely about basic parenting. This case is about risk of harm based upon past parenting and behaviour of the parents, in particular the Father.

40. I am satisfied that there is no measure or intervention, which would ameliorate the risks presented by the Father. I am fortified in that conclusion by the parents’ continued and sustained deceit of professionals and of the court. Each parent has managed to effectively conceal the Father’s drinking throughout these proceedings, despite a very high level of professional involvement.

41. I am anxious that in light of this child’s age, she is placed for adoption without delay and having heard submissions from each of the parties about the appropriate timescale for the reduction of contact, I am satisfied that the plan proposed by the Guardian is the correct one. The local authority’s revised care plan does not contain this level of detail but the local authority argues orally that M’s contact with the parents should reduce over a six-week period. Those submissions were adopted and supported on behalf of each parent.

42. I agree with the submissions made on behalf of the child by Mr Rowlands. I have reached this decision because I consider that contact for the parents is likely to be extremely difficult at this juncture and that that could well have an adverse effect on the child. Contact must be viewed from the point of view of the child and her best interests, not from the point of view of the parents’ and it seems to me that this is an eminently adoptable little girl who needs to be placed for adoption as swiftly as possible. There has already been an unacceptable delay in this case. I agree with the Guardian that there needs to be a break between contact ceasing and the child being introduced to and placed with adopters. It seems to me that a reduction in contact over the next four weeks, three sessions this week, two next week, one session in the third week and a goodbye contact following that is the appropriate timescale for this child. I intend to deal with the Local Authority’s placement application at the earliest possible opportunity and therefore will list it at two o’clock on Friday of this week, on the basis that the Local Authority has assured me that the placement application will be issued by 12 noon on Thursday this week and I approve the consequential directions agreed by the parties in respect of that proposed application.

43. Finally, I am bound to say that I am deeply troubled, firstly, that this case has taken the length of time that it has to reach a conclusion and secondly, that basic safeguarding information was not obtained far earlier in these proceedings. I am deeply troubled that in the absence of negative alcohol testing and full disclosure from the police, from other Children’s Services departments and from the Probation Service, this child was having such extensive and significant unsupervised contact with her parents. I agree with the Guardian that by failing to undertake basic safeguarding checks at a far earlier stage, and by failing to properly analyse the information that was being revealed piecemeal about this father, namely:

(i) Two convictions for domestic violence

(ii) His failure to complete a domestic violence perpetrator’s course, despite his protestations to the contrary,

(iii) His failure to comply with hair strand testing, by shaving off his hair, including body hair,

(iv) His failure to permit enquiries to be made with his older child and previous partners,

(v) A failure at the outset by the Father to provide details of past addresses and his National Insurance number, thereby thwarting the Local Authority’s ability to perform basic safeguarding checks before M was born,

(vi) The Father’s sustained attitude towards his previous offending behaviour

(vii) and the report of Jackie Moulding, an experienced domestic violence worker,

the Local Authority placed M at risk of significant harm in the care of her parents by permitting such extensive unsupervised contact.

44. The Local Authority failed to re-evaluate its stance on rehabilitation until the eleventh hour, despite a series of alarm bells which should have been ringing loudly and clearly in this case. I have no doubt that these parents love their child. I have no doubt that they have good quality contact with her but those matters only take this case so far. The best predictor for the future is the past. A failure to acknowledge the need to fully investigate the past in circumstances where a father has convictions for domestic abuse and has had previous children placed permanently outside his care, is a very serious failure indeed, which could have had catastrophic consequences for this child. The assessments that the Local Authority completed were deficient as a consequence of its failure to perform basic safeguarding checks and its failure to complete a proper and rigorous analysis of risk in this case. Information was misreported and/or misunderstood. For example, it is repeatedly stated in the Local Authority’s documentation that the Father’s hair strand analysis, in November 2016, was negative. It was not. After the local authority discovered that the Father had failed to complete domestic violence work having lied about that issue, and following on from his rejection as a suitable candidate to do the course with Barnardos, the local authority formed the view that there was no need for the Father to complete a domestic violence perpetrator’s course. I disagree. The Father’s protestations that he was not responsible for domestic abuse against two previous partners were accepted, notwithstanding the local authority’s knowledge of his convictions. Assessments were based largely on unchallenged self-reporting by the Father. This is the danger of failing to access independent information from other agencies at an early stage to enable parents to be effectively and properly challenged during assessment work.

45. I am concerned to ensure that these mistakes are not repeated again. I direct that an expedited transcript of this judgment be prepared at public expense and that a copy of it and a copy of each of the Guardian’s reports be sent to the manager of the Independent Reviewing Officer in this case and to the Director of Children Services.

End of Judgment

	[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) >> M (A Child : care order) [2017] EWFC B68 (04 September 2017) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2017/B68.html Cite as: [2017] EWFC B68

England and Wales Family Court Decisions (other Judges)