IN THE MATTER OF THE CHILDREN ACT 1989 and
THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF J AND M (CHILDREN)
B e f o r e :
| Flintshire County Council
|- and -
| Mrs LD(1)
Posib Ltd, Y Gilfach, Ffordd y Pentre, Nercwys, Flintshire, CH7 4EL
Official Transcribers to Her Majesty's Courts and Tribunals Service
Tel: 01352 757273 Fax: 01352 757252
Miss Sheren Guirguis of Counsel (instructed by Messrs Llewellyn Jones, Mold, CH7 1EJ) for the First Respondent
Mr Matthew Corbett-Jones of Counsel (instructed by Messrs Griffith Hughes Parry, Holywell, CH8 7RD) for the Second Respondent
Miss Debbie Owens, Solicitor (instructed by Messrs Humphrys & Co, Wrexham LL13 8BG) for the Children's Guardian
Hearing dates: 10th – 12th February 2014
Crown Copyright ©
HIS HONOUR JUDGE GARETH JONES:
"I have gone full circle at certain stages during the hearing. I've thought different things".
The children's medical reports
(i) her faltering growth;
(iii) a marked plagiocephaly; that is to say a flattening of one side of the head and torticollis (a twisted neck);
(iv) developmental delay and in particular gross motor delay; and
(v) a deviation (squint) of the left eye and possibly also of her right eye.
"Ja presented as a slightly dysmorphic child with … significant global delay [and] with particular difficulties in the areas of social interaction, communication and play." [E56]
He had also demonstrated aversive feeding (E56). Physically, J appeared to be reasonably well.
"It was three to four weeks before eye contact was made. He did not respond to voice and did not acknowledge M or anyone else. He did not turn when his name was called. … However, gradually his interaction improved and he now demonstrates an excellent relationship with his carer. He goes for a cuddle, holds her hand and initiates interaction. He enjoys playing with toys."
There are concerns that Ja may be short-sighted and a follow-up ophthalmic appointment is awaited. His dental health was poor largely because of his diet of sugary milkshakes and baby food whereby he developed an aversive feeding pattern and a dislike of some food textures.
"Staff at school had expressed concern that Ja exhibited repetitive behaviour. He was seen to peer through cracks in the door. He liked being in a cardboard box and repetitively felt around the edges. However staff at school have seen a huge difference in his behaviour and he is now making progress both socially and academically. He is beginning to use his hands to paint; previously he was averse to messy play."
"Ja was walking when he became Looked After but was unsteady when he arrived. He kept falling over the door threshold. His mobility has improved but he still has difficulty in coping with slopes and kerbs. He tends to climb up the slide and crawls upstairs on his knees. He walks hand-held. He comes down the stairs on his bottom or is hand-held. He is not yet able to kick a ball or peddle a trike. Overall his gross motor development is at around a fifteen month level. He is able to rise to standing from sitting on the floor. He was seen bottom shuffling at times although he is able to walk. He has low central tone."
I observe that with a developmental level assessed at around fifteen months, that is of course less than one half of Ja's chronological age. So far as his fine motor development is concerned, those skills are assessed at the twelve month level.
"Ja was initially quite silent and then started to vocalise loudly. The foster carer stated that he had no recognisable words used purposefully but makes lots of sounds. He has double babble and waves and claps. When he is excited he flaps his hands. He also flaps his hands when singing songs such as 'Wheels on the Bus'. He loves interactive games and is beginning to join in nursery rhymes such as 'Row, Row, Row the Boat'. Language and communication skills are still below and twelve month level."
"He drinks from a lidded beaker (initially a bottle). However, he no longer feeds from a bottle and uses a doidy cup. He has also progressed to a normal cup although he tends to spill a lot. He is not yet toilet trained and he is still in nappies. In the course of the assessment, Ja was seen rocking. This tends to be worse at bedtime. His carer stated that he initially rocked constantly and on occasions rocked from the bed onto the floor. He also tapped objects constantly. Ja likes the colour red and is attracted to objects such as fire extinguishers. He likes to hide under a blanket and pulls a blanket over his head. On his first night in care he slept on the floor. However, he now sleeps happily in a bed. He takes a long time to settle to sleep, taking up to an hour and a half. However, he is content in bed and does not cry. He is happy touching the walls. He is now beginning to come out of his room at night like a normal toddler. He occasionally bangs his head repetitively on the bed-frame. He enjoys lights and things that flash. He enjoys 'cause and effect' toys and an iPod. His play is not obviously obsessive or repetitive and is now more exploratory."
"… with significant delay in all areas of development including gross and fine motor development, play skills and cognitive function, speech and language development and self-care skills."
"Ja has very significant developmental delay and is likely to continue to have needs significantly above his peers in terms of cognition, communication and care throughout his childhood and into adult life".
"Ja needs more than 'good enough' care by carers who are able to accept the uncertainties of his prognosis and the complexity of his condition. Ja needs to experience consistent care and routine, and insightful care by carers who are able to understand his difficulties in understanding the world around him and the impact of sensory issues. Ja needs good levels of stimulation, an appreciation of using non-verbal communication, encouragement of play, self-care and social interaction. It is essential that carers are able to work in partnership with professionals in Health, Education and Social Care to ensure that his needs are met. In health terms Ja needs the following:
(i) input of multi-disciplinary team to address his developmental needs;
(ii) community paediatrician – a paediatrician would monitor his general health and growth and act as a co-ordinator of general health and therapeutic input;
(iii) speech and language therapist to address language, communication and feeding difficulties;
(iv) physiotherapist – Ja is able to walk independently, but motor coordination is immature;
(v) occupational therapist input regarding his fine motor and self-care needs;
(vi) early years specialists focusing on play and cognitive development;
(vii) Ja has special educational needs and an assessment of his future needs and education should take place;
(viii) ear nose and throat; Ja has a tendency to snore and some upper airways obstruction. He requires assessment by an ENT specialist to check for adenoidal and tonsilar hypertrophy. Hearing has been checked and found to be satisfactory;
(ix) ophthalmology – Ja has seen an orthoptist and optician; he is thought to be short-sighted but it is difficult to test him at his stage. Testing should be repeated as he becomes older;
(x) orthopaedic surgeon – review of a shallow acetabulum to exclude hip dysplasia/risk of dislocation;
(xi) dietician - support the carers and guidance regarding adequacy of diet. Ja currently receives one carton of Paedisure per day to supplement. This will require review;
(xii) input in a joint feeding clinic would be helpful to carers to address his feeding problem;
(xiii) genetics – it may be helpful for Ja to see a geneticist. I have referred to recent developments in genetic testing including the microarray test which may be appropriate in his case; and
(xiv) Ja may benefit from input from a clinical psychologist with an interest in children with special educational needs and difficulties with social interaction to help him make sense of his life experiences."
"Ja was seen by Dr Sathyamoorthy in September 2013 and she felt his development level was below eighteen months. Today I felt his skills might just be above the eighteen months level, but his language development and complexity of his play are below the eighteen month level. As Ja is now three and a half years old his developmental rate is less than half. This is generally called a severe learning difficulty. …
… Ja also had intra-uterine growth retardation, the underlying cause of which is unknown. He has severe developmental delay. He is generally a happy and placid boy who enjoys the attention of his carer. Physically he appears to be healthy. Although long-term predictors are extremely imprecise, the most likely outcome for Ja is that he will need special education throughout his childhood and probably will need to live residentially or heavily supported as an adult. …
… Although the developmental profiles are somewhat different my feeling is that Ja [and M] may have the same underlying but as yet undiagnosed condition. Although both have had chromosome tests returned normal, referral to the North Wales Geneticist is appropriate for the consideration of more detailed chromosomal analysis which has recently become available in Wales".
Dr Bos will make that referral.
"M is delayed in her gross motor skills."
He goes on to say:
"Considering the information today her gross motor skills are at seven months level while her language skills and understanding of toys have reached a nine month level."
Chronologically of course M is thirteen/fourteen months old.
"In summary, M was born with intra-uterine growth retardation i.e. was born much smaller than expected for her gestational age. M has developmental delay. An estimate of the prognosis can only be vague as M is still so young. My impression today is that M may have moderate learning difficulties but they could turn out to be only mild with the passing of time. M's development will need to be monitored".
"These children have complex needs. They will benefit from experienced parents. It is difficult to find placements for children with complex needs with uncertain prognosis. These children, particularly Ja, are going to need a significant amount of support not just throughout their childhood but into adulthood. Any adopters are likely to need lifelong support not just the usual three years that are guaranteed. These children have the right to a 'forever family' however their current carers who are tried and tested have indicated that they would like to be long-term foster carers for Ja and M. These children are much loved by their foster family and well-established with their family grouping. I have observed the three children of the foster family to interact with and accept Ja and M as younger siblings. The foster mother is a qualified nurse and well placed to meet the children's complex needs. She has indicated that she would be willing to promote sibling contact between the children and their half-siblings within her home. The foster family would not consider adopting Ja and M or becoming their Special Guardians on the basis that they will need a varying degree of social work support in order to successfully parent the children. It is also their view that their own children benefit from the services available to them as children of a fostering family".
The placement of the children
"… a proper holistic evaluation of the central welfare question".
(i) consistent with the least interventionist approach, adoption is a last resort (see paragraphs 23, 26 and 27 of the judgment);
(ii) the Court should consider carefully the assistance which a local authority could provide for parents (see paragraph 29). In the circumstances of this case, that is not a material consideration;
(iii) there must be evidence available from the Local Authority and the Guardian addressing each realistic option for placement together with a reasoned recommendation (see paragraph 33 and 36 of the judgment). I have that information in the documentation before me and the oral evidence which has been provided; and
(iv) Judges must give adequately reasoned judgments analysing the options and giving clear conclusions (see paragraphs 41 and 48 in Re B-S).
"Even if there is a real possibility that an adoptive placement will not be found it by no means follows that adoption is not in the best interests of the child. … Mere uncertainty as to whether adoption will actually follow is not a reason for not making a Placement Order".
In Re T of course a distinction was drawn between the potential difficulty of placement, and children who were not suitable for adoption and required specialist therapeutic foster care as a prelude to any adoption.
(i) the permanent nature of adoption;
(ii) the fact that adoption of course applies for all time;
(iii) that the regime of contact under adoption is very different to that of a Looked After child within the ambit of a Care Order; and
(iv) that the quality of the experience for a child is very different within an adoptive as opposed to a foster care placement because of the intrusion of the Looked After Child system.
"20. Section 52(1)(b) of the 2002 Act provides, as we have seen, that the consent of a parent with capacity can be dispensed with only if the welfare of the child 'requires' this. 'Require' here has the Strasbourg meaning of necessary, 'the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable'. This is a stringent and demanding test.
21. Just how stringent and demanding has been spelt out very recently by the Supreme Court in In Re B (A Child) (Care Proceedings: Threshold Criteria)  2FLR 1075 …
22. The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are 'a very extreme thing, a last resort', only to be made where 'nothing else will do', where 'no other course [is] possible in [the child's] interests', they are 'the most extreme option', a 'last resort – when all else fails', 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.' …"
The factors in relation to each type of placement
(i) the current foster carers have demonstrated an ability to care for the children already to a very high standard;
(ii) the children are well settled and they are integrated with their foster carers and with the foster carers' family and they are cared for together, and potentially this could be continued;
(iii) the female foster carer's nursing qualification is a positive advantage;
(iv) the foster carers have available to them all the support which the Local Authority can offer to these children throughout their minority, including of course respite care which might well be of benefit in this case;
(v) foster care offers the prospect of maintaining familial relationships (parental and sibling) otherwise lost during childhood and potentially impaired throughout life;
(vi) the current educational and health provision appears to be suited to the children's needs, although I recognise that they could be replicated in other parts of the country if the children were to be found adoptive placements out of area;
(vii) the foster placement could break down if circumstances changed and the Local Authority would then be forced to implement contingency plans and this might of course be less likely if adoptive placements were secured for the children;
(viii) the nature of the relationship between foster carer and fostered child when contrasted with adopters and adopted children is of course a very different one. Adoption more closely replicates family life, without continued interference by statutory agencies. Of course in this case because of the children's particular needs they will be the subject of external agency intervention (educational, medical and so on), and post adoption support will also probably be necessary for any adopters taking on these children. The children's awareness of being looked after children may of course be more limited, bearing in mind the children's particular developmental progress;
(ix) there is real uncertainty about whether adoption in practice will be achieved and if so when it will be achieved, even during a time limited search. In short is the safer immediate option of foster care (hopefully with the existing carers) reprersenting the 'bird in the hand' better than a yet to be captured bird of bright plumage in the tree above (representing as it does the possibility of adoption);
(x) adoption of course is a lifelong relationship; foster care may not be. Having said that, both of these children, and in particular Ja, have significant needs well beyond their childhood which may require (at least in Ja's case) Leaving Care assistance and potentially Adult Social Care intervention throughout his life. That at least appears to be the information provided to me by the medical experts at present. This safety net may be as real for these children as may be the commitment of any adopters to them throughout their childhood. The very fact that an adoptive status exists does not of course guarantee any kind of particular support by an adult adoptive carer for adoptive children once they attain their adulthood. The position is much the same as a birth parent with regard to a child of the family. Of course there are important emotional links between an adult child and his or her parents, and they may be recognised by the parent as the child grows into adulthood, but there is no legal requirement upon any parent to support his or her child once that child attains the age of majority.
The statutory provisions
"It is, we think worthwhile pausing for a moment to reflect on why a Court is entitled to exercise a discretionary jurisdiction to adjourn in order to invite a local authority to reconsider. The answer we think is that much of what we have said already is self-evident. Care Proceedings are only quasi-adversarial. There is a powerful inquisitorial element. But above all they are proceedings in which the Court and the Local Authority should both be striving to achieve an Order which is in the best interests of the child. There needs to be mutual respect and understanding for the different role and perspective which each has in the process. We repeat: the shared objective should be to achieve a result which is in the best interests of the child."
End of judgment