Neutral Citation Number: [2010] EWCC 2 (Fam)

In the County Court

Before:
The District Judge
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Between:

	X Local Authority	Applicant	
	and		
	A Mother	1st Respondent	
	and		
	A Father	2nd Respondent	
	and		
	A Child	3rd Respondent	

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Hearing dates: 2nd February 2010

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WRITTEN REASONS

The written reasons are being distributed on the strict understanding that in any report, no person may be identified by name or location (Other than a person identified by name in the reasons themselves) and that in particular the anonymity of the children and the adult members of their family must be strictly preserved

These Facts and Reasons have been agreed by all parties save for Mother, who do not oppose nor consent to them, such Facts and Reasons being adopted by the Court and the Court is satisfied the proposed Order is appropriate in the circumstances of the case.

Judgment

1	These proceedings concern the child ‘C’ who was born in the autumn of 2008. He is now 15 months old. His mother M is aged18 and is the father ‘F. 

2	The Local Authority through their Social Services department have made an application for a care order pursuant to section 31 of the Children Act 1989 and for and order under section 21.[1] of the Adoption and Children Act 2002 authorising them to place C for adoption with prospective adopters [ a placement order ].

3	The Local Authority care plan is that C be placed for adoption. They propose that contact with mother should continue at the current level of 2 to 3 times per week but that contact should thereafter be reduced in stages until final placement with the prospective adopters. Thereafter there should be a letterbox contact, that is exchange of information on an annual basis through the letterbox scheme for information purposes only. They do not propose to promote any further contact between C and the mother or the father. This approach is supported by the Guardian [ GAL ]

4	The mother did not consent to the making of care order based on the Local Authority's care plan. The father did not participate at any stage of these proceedings despite having been served and having paternity confirmed.

5	There are no extended members of the mother's family who can be assessed as potential carers for this child. The maternal grandmother suffers with mental health issues, and has provided no assistance to M, and despite living locally has had little or no contact with M. 

6	The maternal grandfather was the product of the care system [see C 45 and E 90 ] and resides about 200 miles away in the south of England. He is not considered as a suitable alternative carer, as he also suffers with mental health issues.

7	The father of the child C, had a very troubled childhood. He suffered significant abuse as a child and had mental health problems. He was regarded as having an aggressive nature being of low esteem with some minor criminal convictions for burglary and violence He had made a number of attempts at suicide, and had been subject to a care order. He did not appear at any of the proceedings. 

Chronology
8	There is a detailed chronology set out at the beginning of the bundle which I have adopted for the purposes of this judgement

9	Care proceedings were commenced on 15 April 2009. Prior to that there had already been considerable input by the Local Authority social services department. Mother was the product of the care system .As a child she contacted ChildLine in December 2002, as she had been forced out of her home, resulting in the subsequent care proceedings. She was taken into care on 13 December. 2004. 

10	During those proceedings, she had been hoping to reside with her father, but he withdrew his support and showed no commitment to her. As a child in care she attended a number of placements, but was clearly distressed. She absconded frequently causing grave concern to the Local Authority. She was clearly putting herself at risk being promiscuous with unprotected sex and attention seeking behaviour. As a result of self harming, a number of attempted suicides, cannabis smoking and generally alcohol abuse, on 4th April 2006 she was placed in a secure unit. She tested positive for a number of drugs and failed to attend on other tests. For a period she was hospitalised following attempts at suicide in South Wales. An earlier and subsequent medical report from 2 psychiatrists stated that she did not have a mental disorder, and that it was not appropriate for her to be detained; she was clearly desperately seeking attention.

11	During this period she attended 5 different junior schools and at least 3 secondary schools and to her credit obtained passes in 5 GCSE at grade B in Mathematics, English, Science, Art, and Child Care. She is clearly a very bright young lady who despite all the hardships and adversity she has had to face, if given a better start in life with a proper family support could have progressed far in the education system. She presents herself as a pleasant shy young lady who is overwhelmed by the intensity of these proceedings and the attention they are bringing on her. She is neither wicked nor selfish but a young person without direction or experience, and with no family member to guide or advise her. However I am satisfied that she fully appreciates that the sole reason for these proceedings is the welfare of C.

12	In preparation for independent living as she remained a temporarily looked after child, residing locally under the care of the Local Authority. In early 2008 she discovered she was pregnant following a relationship with F. She was moved shortly thereafter, which allowed her considerable freedom of movement. Meanwhile her relationship with F ceased and she formed a close relationship with RW who was some 3 - 4 yrs older. That relationship flourished and she presented herself with RW as a couple. 

13	RW himself had been rejected by his own family and was immature. He also sought love and attention and had been the subject of a care order; he had considerable difficulties in engaging with the statutory agencies. The two of them spent a considerable amount of time together as RW had his own rented flat.

14	By mid 2008 a scan of baby C revealed it was suffering from hydronephrosis, a condition in which the kidney becomes distended – swollen with urine due to an obstruction in the urinary tract. To assist M and the baby, M was moved locally to a mother and baby foster placements, where she remained for about two months prior to the birth, and thereafter. Those arrangements appeared to work well. The child was born in the autumn but with the congenital kidney condition referred to above which required surgery. M gave the child C, the surname it currently holds which was not that of F.
 
15	Concerns were being expressed before and post birth in relation to mother's ability to prioritise the child needs over the desire to be with her boyfriend RW as she would take the child out locally in all weathers without due regard to the child's routine or health.
 
16	In late January 2009 despite mother attending Sure Start and The Way Forward projects [B 163] she terminated her stay at the baby foster placement. On 28 January 2009 the child was voluntary accommodated under S.20 of the Children Act, this being the date the Local Authority hold as the threshold date. Shortly there after, mother notified the Local Authority that she wished the child to be placed for adoption. She did not return to the foster placement. She stated that she could not prioritise the interests of the child over her boyfriend RW.

17	On 8 February 2009 the child underwent surgery for the removal of one of its kidneys. Despite being offered mother and baby facilities to remain in the hospital with C , the mother indicated that she could not cope and left. The child was discharged on 11th February and returned to the foster carer. For a period of time mother, who was cohabiting with the boyfriend RW was offered contact to C two hours for three times per week.

18	M did not, despite being advised, ask RW to refrain from inappropriate behaviour towards C even though she saw that RW‘s behaviour was frightening the child. She also had to be reminded when C was discharged from hospital following the surgery for the removal of it’s kidney, that it would be inappropriate for C to be taken out doors so quickly. A period of convalescence and rest for the child was essential, especially as it was winter.

19	Subsequently, Mother and RW were evicted as RW had allowed rent arrears to accrue on his flat. Mother subsequently withdrew her consent to the voluntary accommodation of C, and the local authority were therefore compelled to immediately apply for an interim care order which was granted. Some six weeks later, [ approximately 24th April 2009 ], M agreed to return to the mother and baby unit foster placement [B14 ] but that lasted only about 2-3 weeks. During this period M was continuing to spend significant periods of time away from the placement, which was terminated by the LA as a result as M preferring to be with RW rather than C. Subsequent to this period M was in living temporarily accommodation, returning home to her own mother, but following disagreement left that address yet again. Throughout these periods, M was offered contact 3 times per week, but not all these opportunities were taken.

20	For reason not clear to me baby C was moved to a new foster carer on 6th July 2009 where he remains today. Despite reservations by the GAL about the suitability of this move, [and expressed strongly, in which the GAL even considered taking judicial review proceedings] the situation remained, with C bonding closely with the new foster carer and thriving. It is from this period onwards that the LA sought a full care order with the intention of final adoption which is supported by the GAL. 

The proceedings

21	The action proceeded before me with various directions with a final hearing scheduled on 14th October 2010 following the final evidence being submitted by all the parties. At that hearing an application was made by M for her to be psychologically examined by an independent psychologist, as she argued there had been no independent assessment of her. Despite the application being apposed by the LA and GAL, permission was granted. 

22	I made it clear to M that she need to demonstrate her commitment to the child by attending regularly, punctually and consistently at the contact session, and that this had to have priority over everything else in her life. Despite her assurances that the relationship with RW was continuing it finished almost immediately, and M moved into a new flat. Within 2 weeks however, M had forged a new relationship with a new partner K, who shortly thereafter moved into her flat and where he has remained.

The independent psychologist 

This report was prepared by Dr Shaun Parson of Newcastle, and is dated 30th November, with answers to questions raised in the report dated 22nd December 2009. Although it contained certain favourable elements for M, the LA and GAL did not agree that it was sufficient to prevent the making of the final order sought.

23	The final hearing for care and placement applications were listed for 3 days before me on the 1st, 2nd and 3rd February 2010. I was presented with 10 lever arch bundles. The directions I had given in this case had been complied with, and with the agreement of the parties it was decided that following an opening by the LA, the case would turn largely on the evidence of Dr Shan Parson, who was to give his evidence by video link which he did on the 1st February.

24	His evidence given that day was that he felt the assessment of M in the foster parent home was not the best for mother and was inappropriate. A more suitable method being a community based assessment which with time would be more appropriate as it would be less invasive. Despite having a theoretical knowledge of child care through her grade B in GCSE, she had no practical knowledge of such. That could properly be assessed over 3-6months.

25	He also found that her personality was malleable and if exposed, she would easily follow. He was aware she had recently commenced a new relationship with K and the speed and depth at which it had developed was worrying and not a good indicator of M prioritising the needs of C over others. It was a clear example of mother not putting C needs in the forefront. This had been evidence before in the previous relationship which mother had with RW in which Dr Parsons recognised mother chose RW over C.

26	If he was to undertake an assessment he would need a longer period of examination and would need a lot more detail about her current partner K as the speed at which they had set up home was concerning, as it was far to quick for him to move in. In any assessment it was essential M engage consistently with a minimum contact period of 3mths and to see a proper pattern develop, and to avoid all pressure on M. It would have to be to a light touch. He did not feel he could give any assurance that on what he had read and seen that the conclusion would be positive for M. He would also need at least 10 weeks to report on K. 

27	He recognised that her attendance up until late December was inconsistent and her failure to do so was largely without good reason [ I recognise that for a short time she had been hospitalised when she had her appendix removed, but she was discharged from hospital promptly after a short stay as is done these days. But even under those circumstances the LA offered alternative contact arrangements which were not accepted.]

28	Following that evidence, the parties requested a period to reflect, which they all did overnight. Having discussed the case with her advisers, mother notified the court that she would not be challenging the evidence of the LA or the GAL and she would not be giving oral evidence. She also disclosed, which was unknown to everyone up until then, that she was 6weeks pregnant and that K who had accompanied her today and yesterday was the father of the child. She felt she could not consent to the applications as she really wanted C who she loved, to live with her.

Capability

29	I remind myself of the following
Re : L 2007 1 FLR 1068 ; ‘Children are best brought up by their families. It follows therefore that society must tolerate very diverse standards including the eccentric and barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means some children will experience disadvantage and harm while others will flourish in atmospheres of loving security and emotional stability. These are the consequences of of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting.
Significant harm therefore must be more than commonplace human failure or inadequacy. it is fact-specific and must retain the breath of meaning that human fallibility may require of it.

Threshold
30	In a Public Law case a Court has no jurisdiction to make any Public Law Order unless and until the so-called threshold criteria set out in section 31 of the Children Act 1989 are established. (According to Re H (Minors) (Sexual Abuse: Standard of Proof) 1996 1 FLR 80,) I have to be satisfied on the balance of probabilities (the more serious the allegation the more cogent must be the evidence to prove it), that the child concerned, “is suffering or is likely to suffer significant harm or likelihood of harm and that the harm or likelihood of harm is attributable to the care given to the child or likely to be given to him/her if the order were not made not being what it would be reasonable to expect a parent to give to him/her.

The Burden and Standard of Proof. 

31	The burden is on the local authority as the applicant and I remind myself of the following principles to be adopted,

In re: B 2008 UKHL 35, Baroness Hale stated ‘…I … would announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold at s31(2) or the welfare considerations at s1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies’.

Lord Hoffman ‘If a legal rule requires a fact to be proved…a judge … must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not’

Baroness Hale ‘To allow courts to make decisions about the allocation of parental responsibilities for children on the basis of unproven allegations and unsubstantiated suspicions would be to deny them their essential role in protecting both children and their families from the intervention of the state however well intentioned that intervention may be’

Lord Nichols ‘ It is of course open to a court to conclude there is a real possibility that the child will suffer harm in the future although harm in the past has not been established. There will be cases where although the alleged maltreatment itself is not proved the evidence does establish a combination of profoundly worrying features affecting the care of the child within the family’

 My Findings on threshold

32	Applying the above, at the 28th January 2009 the child C was voluntarily accommodated which is the date established for threshold. M was herself the subject of care order was vulnerable, had been promiscuous had misused alcohol and drugs, had absconded from care and had self harmed. These experiences will have impacted on her ability to parent C. 

33	This was not her fault and arose having been abandoned by her own parents at a time when she was impressionable, sensitive and vulnerable. She never witnessed or experienced appropriate parenting. Consequently, she failed over a prolonged period of 12-14monts to prioritise the needs of C both prior to and post C’s major surgery. She had positive drug tests whilst pregnant and her former partner was a cannabis user. She failed to protect C from the inappropriate behaviour of RW when child C was frightened, which M now acknowledges was inappropriate but at the time did not prevent. 
F has not participated in any of the proceedings save for participating in the paternity testing. He has a chaotic lifestyle with aggressive behaviour drug and alcohol misuse.

34	I find on the evidence filed which was not challenged, the threshold criteria are satisfied in respect of the child C

Disposal 
35	Once the threshold criteria are established the court has to ask a number of sequential questions. The essential questions are: Whether an order should be made at all, and if so, what kind of order.

36	In answering these fundamental questions, the Court has to apply the principle that the Child’s Welfare is the paramount consideration; apply the statutory Welfare Checklist; not to make an Order unless the Court considers that the making of an order would be better for the child than making no order at all; and before making a Care Order, to consider and approve the Care Plan and the proposals for future contact if any.

Decision 
37	On all the evidence I have heard and read it is clear that an Order has to be made. The only real option upon a proper consideration of the welfare checklist is for a Care Order. Both the allocated social worker and the guardian have completed the detailed exercise of the operation of the Welfare Checklist in the circumstances of this case and I respectfully agree with their views and adopt them.

The Human Rights Act 1998
38	The principle of proportionality must always be considered alongside the welfare checklist of s1.3. Children act 1989.

Hale LJ in re; C&B 2001 1 FLR ‘Intervention in the family must be proportionate, but the aim should be to reunite the family where the circumstances enable that, and the effort should be devoted to that end. Cutting off all contact and ending the relationship between the child and their family is only justified by the overriding necessity of the interest of the child’

39	I have considered the relevant articles of the Convention. I am satisfied that the interference with the Mother and Father’s right to family life is both justified in law and pursues a legitimate aim, namely the welfare of the child. By the same token the interference fulfils a pressing need and is proportionate to that end.

Order
The care order and placement order are made today.
Copies of this judgment shall be sent to the LA, the mother, Gal and to Dr Parsons.
Dated		2nd February 2010