England and Wales Magistrates' Court (Family)

X Local Authority

Applicant

and

Ms M

1^st Respondent

Mr T

2^nd Respondent

B(a child through his Children’s Guardian)

3^rd Respondent

Ms L

for the

  Applicant

Mr D of Counsel

for the

 1st Respondent

Mr M of Counsel

for the

2^nd Respondent

Ms S

for the

3^rd Respondent

1.

We are considering an application by X Local Authority for a Care Order and a Placement Order in respect of B who is 6 months old.  B’s mother is Ms M and his father is Mr T.  Both parents have parental responsibility for B.  B is Ms M’s second child; he has a half sibling D who is three years old..  D’s father is Mr C.   D was made the subject of a Care Order on the 17.3.08 and resides with her paternal grandmother.

2.

Ms M has attended court today and is represented by Mr D of Counsel.  Ms M opposes the Local Authority’s applications.  Ms M’s position is that she asks the court to delay making final orders today.  She asks the court to make a further interim care order with B remaining with his current foster carer and for the court to review this matter in four months time.  This four month period will provide further time for Ms M and Mr T, who present as a couple, to demonstrate to the professionals a sustained period of abstinence from illegal drugs and an ability to address their alcohol consumption, to continue to willingly co-operate with professionals and show that they could safely parent B.

3.

Mr T has attended court today and is represented by Mr M of Counsel.  Mr T opposes the Local Authority’s applications.  Essentially his case is identical to that of Ms M as they are couple and remain committed to their relationship.  Mr T asks the court to delay making final orders and to make a further interim order setting a review hearing after a period of four months for the same reason as Ms M.

4.

B himself is represented today through the Children’s Guardian, Mr A, who supports the Local Authority’s applications.  The Guardian is represented by Ms S.

5.

We have read the documents filed in the court bundle which includes agreed relevant documents from the proceedings relating to D.

6.

We have heard oral evidence from a Chartered Clinical Psychologist; the Social Worker; the mother, the father and the Children’s Guardian.  We have also considered the parties’ submissions.

7.

During D’s proceedings findings of fact were made that she was likely to suffer emotional physical and developmental harm.  On the 30.4.09 a referral was received from the Community Drug Team and also from a worker at the Addiction Unit in respect of Ms M’s unborn baby.  A pre-birth assessment of the parents was then undertaken by a Family Centre.  This assessment report can be found at (C4 – C31) of the court bundle.  During the course of this assessment the drug use of both parents continued and their commitment to the process of change faltered.  Mr T failed to engage appropriately with an “Addressing Substance Related Offending Course”, Probation and another organisation.  Both parents minimised the concerns of the Local Authority and failed to work openly and honestly with professionals during the assessment.  The recommendations of the pre-birth assessment were that the unborn baby should be removed from the parents’ care at birth and long-term plans made for him.

8.

When B was born he remained on the Neo Natal Ward whilst he was undergoing withdrawal from drugs.  On the 4.12.09 the Local Authority obtained an interim care order for B.  B was discharged from hospital into the care of a specialist foster carer where he remained until 25^.1.10 when he moved to his new foster placement where he has remained throughout the currency of these proceedings.

9.

A psychological assessment of both parents was undertaken which did not recommend the return of B to his parents’ care.

10.

An Adoption Panel has approved B as suitable for adoption on the 7.4.10 and this decision has been ratified by the agency’s decision maker.

11.

The Local Authority submits that the threshold criteria for the making of a final care order are met.  They submit that B has suffered significant physical harm and is at risk of suffering emotional harm, physical and developmental harm in the care of his parents.  The Local Authority has filed a schedule of findings sought which can be found at pages 11 – 13 of the court bundle. 

12.

Mr T has filed a response to this schedule which can be found at pages 16 – 20 of the bundle.  In this response he accepted all but one of the findings sought.  He did not accept that the parents had not prioritised their baby’s needs above their own.  However, in his evidence to us today he accepted that with hindsight his lifestyle was of concern during the pre-birth assessment.  He therefore concedes that the threshold criteria are met.

13.

Ms M has filed a response to the schedule of findings sought which can be found at pages 14 – 15 of the bundle.  In this document she accepts the same findings as Mr T but disputes that the parents did not prioritise their baby’s needs above their own.  In her evidence today Ms M has confirmed that she has been abstinent from illegal drugs since January 2010.  The parents had not realised the seriousness of their situation until that time and had not been motivated to change until they realised that B might not be rehabilitated to them.  The statement of one of the Social Workers involved in this case, which can be found at pages B21 – B 27, confirms that referrals were received from The Community Drugs Team and also from a Midwife working with an Addiction Unit.  Both were concerned about Ms M’s continued drug taking and non-engagement during her pregnancy.  It confirms that the parents were repeatedly warned about the dangers of drugs, alcohol and methadone to their unborn child.  We have the evidence of a Consultant in Neonatal Medicine, who reports B was born suffering from severe neonatal abstinence syndrome.  The baby was irritable, fractious, and inconsolable and required high doses of morphine and the addition of phenobarbitone.  B was not discharged for almost 4 weeks after his birth.  The foster carer had reported that she had never seen a baby so affected.  B continued to require treatment in a specialist foster care placement until he was well enough to move to his current placement.  On this evidence we are satisfied that this disputed finding is made out.

14.

Accordingly we are satisfied that at the time protective action was taken the child B had suffered significant harm and was likely to suffer significant harm being attributable to the care likely to be given to him not being what it would be reasonable to expect a parent to give a child.  The harm is the physical harm he suffered from the severe neonatal abstinence syndrome.  The risk of harm consists of developmental harm and neglect.  In light of the concessions made by the parents and our findings on the evidence we do make all the specific findings sought by the Local Authority in the document filed at pages 11 – 13 of the bundle, a copy of which is annexed to these reasons.

15.

We now turn to the need for an order.  In reaching our decision we remind ourselves that it is B’s welfare that must be our paramount concern.

16.

In our judgment most of the facts in this case are not in dispute.  It appears to us that the crucial issue for us to decide is whether to make final orders or to adjourn the final decision to enable the parents to demonstrate that they can maintain the progress they have made in abstaining from illegal drugs and co-operating with professional agencies.  The Local Authority supported by the Children’s Guardian submits that B can’t wait any longer for his parents.  The parents’ timescale and B’s timescale are not compatible.  The parents submissions are that by delaying a final decision the court would be giving B an opportunity to be brought up in his birth family and that a four month delay could be purposeful delay and it would be compatible with B’s timescale for forming new attachments.  Whilst acknowledging the immense progress that the parents have made the Local Authority and the Children’s Guardian believe that this progress is really too little too late for B.  The parents do not accept this and feel that a further period of four months abstinence would allow the professionals to have confidence in their ability to maintain abstinence from drugs and address their alcohol consumption.

17.

We first heard evidence from the Chartered Clinical Psychologist.  In these proceedings he has filed a report on both parents which can be found at pages C35 – C50 of the bundle.  A letter was sent to him containing further information and asking whether his initial recommendation would alter in light of this evidence.   This can be found at page C73 together with his response to this letter at page C74. 

18.

The psychologist’s assessment concluded that it was much too early to have confidence that the parents could maintain changes to their lifestyle and that the present changes are too late for B.   During his assessment he undertook psychometric testing of both parents.  Ms M’s test produced an invalid profile which indicates that she was trying to present herself in a positive way. This is consistent with the conclusion in the Family Centre assessment, which was that she was only co-operating at a superficial level (C29).  The psychologist found Ms M’s score on drug dependence unrealistically low given her self-reported history.  The psychologist believed Ms M was providing what she believed was socially acceptable answers and trying to present herself in a desirable light.  The psychologist accepted under cross-examination that Ms M was open and honest with him in his interview with her but this was not carried over into her completion of the psychometric test.

19.

Mr T’s test was valid.  It indicated the existence of negative traits rather than frank personality disorder (paragraph 7.5 page C44).  The psychologist concluded that Mr T did not like to be told what to do and therefore probably would not engage very well with professionals.  He would have to make an effort to co-operate and follow advice.  Mr T gives a young man’s profile which he will need to grow out of.  His profile reflects insecurity but given his own family history this was not unexpected.  The psychologist believed that with positive life experiences he could, over a period of time, change his personality.

20.

In his evidence to us, even under cross-examination, the psychologist did not depart from his initial conclusion that he supported the Local Authority’s plans for B to be adopted.  The psychologist told us that the parents should be congratulated on the progress that they had made since January 2010.  He went on to explain that he, however, was not confident that they would not relapse into their previous drug usage.   He was concerned that the parents changes had been made at a time when they were highly motivated, the subject of intensive assistance and continually in the spotlight, but he was still of the opinion that it was early days.  He had concerns that they had substituted alcohol for their drug use.  He considered the recent toxicology reports as very worrying; the parents appeared to have substituted alcohol for heroin and were still receiving a very high methadone prescription.  His evidence to us is that addressing the symptoms of drug use in isolation of its causes usually results in a relapse into usage at times of stress.  He believed that the parents would benefit from counselling to address the underlying causes of their drug use.   It is unusual to stop drug taking without relapse, because heroin is a powerful pain killer for both physical and emotional pain.   It is used to manage emotions.  The parents in his opinion are the same people psychologically as they were four months ago and therefore there is a high risk of relapse.  It is the psychologist’s opinion that this risk of relapse is too great a risk to gamble with for B.

21.

The psychologist told us that B is 6 months old and approaching a point in his life where stability is required.  B needs to establish a permanent bond with a long-term carer.  The worst possible outcome for B would be returning him to his parents’ care and this placement failing.  The psychologist told us that if he felt confident that the parents were at a position where they would not relapse he would be delighted to recommend the return of B to their care.  He described himself to us as having rather a lenient approach to rehabilitating children to their parents care because he believed that the best place for a child was with his parents.  In this case he said there was just too much uncertainty; it was too soon, too great a risk to take.  He went on to say that if the parents could maintain their abstinence from illegal drugs over the space of a year or so and also to address their alcohol consumption then this could mean that allowing them to retain the care of a future child may be realistic but he was unshaken in his belief that the present change has come too late for B the sooner he has stability the better.

22.

We next heard evidence from the Social Worker.  In these proceedings he has filed two statements which can be found at B28 – B36 of the court bundle and he has also prepared the care plan for B which can be found at CP1-12 of the bundle.  The Social Worker confirmed that he relied upon the contents of these documents.  He confirmed that most of the fact finding and evidence gathering in this case occurred before he became involved in it.  He went on to say that he believed he had a good relationship with the parents and that they had always been open and co-operative with him.  He told us that he found this a very sad case.  The parents clearly love B, have been committed to attending contact with him and they always behave appropriately and lovingly at contact.  The decision of the Local Authority in the care plan has been informed by the pre-birth assessment of the parents, the history relating to D’s proceedings and the assessment of the psychologist. 

23.

The Social Worker agrees with the psychologist that the parents’ recent motivation is too late for B.  He, like all the professionals recognises the progress that the parents have made since January 2010 but he feels that this progress is belated, has been under a high level of scrutiny and if they had changed in the early stages of pregnancy they would already have demonstrated a period of 12 months abstinence.

24.

The Social Worker highlighted four major concerns, namely the parents’ motivation to change and their ability to sustain this change over a prolonged period.  He explained to us that the parents were repeatedly given strong advice about the risk of using drugs in the early stages of pregnancy and he would have expected both parents to find this as motivation to change to protect their unborn child.

25.

The Social Worker was also concerned about the lack of family support networks.  He was not sufficiently assured that the immediate family understood the complexity of B’s needs and how difficult it is to manage contact with the parents.  The parents see their extended family on a regular basis, 2 or 3 times per week, yet he was concerned that this family support network was not able to persuade the parents to be motivated to stop drug taking during pregnancy.

26.

The Social Worker does not believe that the parents have properly severed contact with their previous drug networks.  The parents have told him that they use drugs in a social environment with friends and if drugs were there, they would take them.  He believes that because the underlying causes of their drug use have not been addressed then these risks remain.  The parents have used drugs as a coping mechanism and in his opinion he agrees with the psychologist that they have not had sufficient time or reflected upon their own life experiences to reassure him that they can overcome their problems.  His concerns are heightened by what appears to be the parents substituting alcohol for illegal drugs.  He told us that he had to balance the risk to B of a failed rehabilitation which is a risk he does not feel able to recommend.  He could not agree to any further delay. He believes that B needs a permanent and stable placement within a family he can call his own, who are able to promote his welfare, keep him safe, and meet his physical, social and emotional needs throughout his childhood and this should happen sooner rather than later in order for him to form a secure attachment to his new primary carer which hopefully will enable him to form secure attachments in the future.   He told us that it is important for B to know that he has two sets of parents, his birth parents and his psychological parents. 

27.

The Social Worker has made enquiries within the extended family to identify a possible family member who could care for B but there are no extended family members able to care for him on a long-term basis.  

28.

The Social Worker told us that if the orders sought by the Local Authority are granted then there are three prospective adopters within the local area and 29 prospective adopters on the National Register identified as suitable as a potential match for B.  He does not believe that there would be any delay in finding a new long-term placement for him.   He anticipated this would take weeks rather than months.

29.

We then heard evidence from Ms M who told us that she wanted B back; she would continue to engage with the professionals and is motivated to remaining drug free.  Ms M told us that she recognises the problems of drinking too much and does not intend to continue drinking at this level.  Ms M told us that she has completely separated from the friends who were involved in taking drugs; she does not intend to go back to her previous lifestyle because she knows that whatever the outcome of this case she has to do it and stay off the drugs.  Ms M believes she has a lot of family support and she sees this as beneficial.  She sees her family regularly and they offer her emotional support if she is upset or needs someone to talk to.

30.

Ms M said that if she was given the extra four months before a final decision was made then she would continue to make progress as she has done in the past. 

31.

Mr T then gave evidence to us.  He explained to us that he loved his son, he loved seeing him at contact and wanted to be able to care for him, and his contact with B was good.  Mr T wanted another four months to continue to demonstrate that he can maintain the progress he has made with abstaining from drugs and co-operating with professionals.  Mr T has arranged for his probation officer to write to the court explaining how much progress he has made this year in co-operating with court orders.  He appears to be taking responsibility for keeping appointments by using a diary.  In his evidence Mr T accepted the concerns raised about his alcohol consumption and agreed that he should try to reduce this.  Initially he did not accept the concerns raised by Family Centre assessors but as stated earlier in these reasons he now accepts these serious concerns and is confident that he will continue to work towards addressing them.  He said that he loved his son so much that if he has to, he will stop alcohol like he has stopped drugs. 

32.

Both parents told us that a delay of four months would not impact on B; it would not be incompatible with his needs.

33.

Lastly we heard evidence from the Children’s Guardian who has prepared two reports in these proceedings.  The first can be found at page C75 of the court bundle and the second is the last document filed in section F of the bundle.

34.

The Children’s Guardian confirmed that the contents of his reports were true to the best of his knowledge and belief and that nothing he had read or heard in evidence since preparing those reports has altered his recommendation to support the Local Authority’s care plan for B.

35.

The Children’s Guardian confirmed to us that he had only been appointed to this case in early April 2010 and that in an ideal situation he would have been appointed at the commencement of the proceedings and remained with the case throughout.  Despite his late allocation to this case he was confident that he had completed all necessary enquiries. 

36.

The Children’s Guardian agreed with the psychologist and the social worker in that the prime focus of this case is the parents’ drug use and the period of abstinence since January 2010 until now.  He told us that the four months period of abstinence from addictive substances is commendable because it is extremely difficult to do this and the parents should be given credit for this achievement.  The parents he felt sure would see this as a very substantial amount of time but in reality he did not believe that this was a significant period when looking at issues of addiction.  The longer they can evidence abstinence the more confidence the Local Authority would have that a relapse would not happen and a 12 month period is a realistic period.  This case is all a matter of timescales.  The parents have a timescale and B has a timescale but unfortunately in the Guardian’s opinion, these two timescales do not match up.

37.

In his report (page C84) The Children’s Guardian explains that B is at a crucial stage where he needs to form a secure attachment, this should happen in a child’s life between the ages of 6 – 18 months.  In his evidence he told us that B needs to build on his current attachment to his foster carer and use it in the transfer to his permanent carers.  This takes time but by 18 months he hoped that a child would form a secure attachment to his primary carer.  This first primary attachment is the prototype for future life and for forming attachments with friends and in all relationships in the future.  In his opinion this transfer needs to happen as soon as possible.   To delay for the prospect of a family placement is not in B’s best interests.

38.

In considering the evidence before us and how that relates to the welfare checklist contained in the Children Act we are satisfied that there is a need for an order in this case.  Little issue was taken by the parents in respect of the Guardian’s assessment of the welfare checklist which can be found at pages C78 – C80.  We have carefully considered his findings in respect of the checklist; we agree with these and adopt them as our findings in this regard in these reasons.

39.

As stated earlier this is a single issue case - can final decisions for B wait to allow the parents a further time to demonstrate sustained motivation to change.  Sadly, as set out above, all the evidence from the professionals in this case does not support further delay.  What is clear is that the parents have started to address their problems.  There is no doubt that the parents love their baby and desperately want to be able to care for him.  All the evidence before us is that the contact that the parents have with B is a lovely experience.  The Guardian told us that he had observed a lovely contact when the parents spoke to B in a warm and gentle way and they shared the parental tasks appropriately.  The Social Worker also observed the loving nature of contact.

40.

Regrettably we found the evidence of the psychologist, social worker and guardian compelling.  We accept all their evidence as set out above and feel that delaying a final decision for B would be detrimental to his welfare.  We are satisfied that it is not appropriate to adjourn this case for a further four months.  The Guardian was very clear in his evidence that the sooner B was in a position to form a secure attachment with his long-term carer the better the chance of an enduring attachment being made.    We recognise how difficult these proceedings will have been for B’s parents and like the other parties we would like to commend them for the progress they have already made. In our view however and for the reasons already given, the making a final care order today is what is in B’s best interest.  Accordingly we make a Care Order to X Local Authority in respect of B.

41.

The Local Authority has set out their proposals in respect of contact between B and his parents in their care plan.  Essentially the Local Authority proposes that if final orders are made then the parents will be offered one final extended goodbye contact.  This contact could include extended family members.  Post Adoption the Local Authority proposes indirect annual letter box contact with the parents. 

42.

It is the Local Authority’s intention to try to find an adoptive placement for B that will be open to continuing direct contact with his half-sibling, D.  If this is not possible then they will promote indirect contact between the children three times per year.

43.

The parents’ position, if final orders are made, is that they would wish for a phased reduction in their contact but for it to continue until an adoptive placement has been identified.  Post adoption they would like as much letter box contact as possible and for this to take place at lease twice per year.

44.

The Social Worker was cross-examined on the issue of contact and he told us that this was a difficult decision for him to take.  It was still his view that a final contact was best for B as it was unclear what the effect of a phased reduction would have on him and the Social Worker did not want to take any risks.

45.

The Guardian supported the Local Authority’s plans in respect of contact.  It was his evidence that the final contact with the parents should be before there was any move to a new placement.  The Guardian felt that B’s next move needed careful management and that it should be clearly separated from the break with birth parents.  B’s primary attachment is to his foster carer and the Guardian told us that he will need to go through a period of detachment from his foster carer whilst needing to invest emotionally in forming a new attachment.  This is a crucial period in B’s life and the final contact with his parents should not take place whilst this move is happening.  The Guardian is also satisfied that the proposed post adoption contact arrangements are appropriate.

46.

Having carefully considered all the evidence and the submissions made to us in respect of the contact arrangements we agree with the evidence of the Social Worker and the Guardian.  We are satisfied that the arrangements set out in the care plan meet B’s needs.  We are re-assured by the evidence of the Social Worker that he will be flexible in his arrangements for the extended final contact and set this up in a way which meets the parents’ wishes either with or without the presence of extended family members.

47.

We must now consider the placement application.  As B is only 6 months              old he requires a permanent stable and loving home where all his needs can be met throughout his childhood and into adolescence.  In our judgement this can only be achieved through adoption.  B has already been considered by the council’s adoption panel as suitable for adoption and the council have informed us that there are a number of potential families with whom he could be matched.  B has already formed attachments to his current foster carer but it is believed that these can be transferred to his new carers.  However, the sooner this change of placement occurs the easier it will be for B to begin to form new attachments.  Ms M and Mr T do not consent to the placement order being made and we can only proceed to make such an order if we dispense with their consent, which we are asked to do on the grounds that B’s welfare requires the parental agreement be dispensed with.  This of course mirrors the test which we must apply in considering the application generally namely that the paramount consideration must be B’s welfare throughout his life.

48.

For the reasons we have already given and applying the welfare checklist set out in the Adoption and Children Act 2002 we are satisfied that B’s welfare dictates that a placement order should be made so as to safeguard  his future care and that for the same reasons the consent of Ms M and Mr T should be dispensed with.  In arriving at this decision we are aware that B will not be brought up in his birth family and will have only limited contact with them through the Council’s letter-box scheme but we are satisfied that these arrangements are the best that can be made in the circumstances and will help meet B’s needs for information about his biological family as he grows older.   We therefore dispense with the consent of Ms M and Mr T and make a Placement Order in favour of X City Council in respect of B, in doing so we approve the care plan.

49.

In considering these applications we have had regard to the implications of the Human Rights Act.  We are satisfied that our decisions are necessary and proportionate in all the circumstances of this case.  

50.

Heard before Lay Magistrates on the 25.5.10.