This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

No. IL3C00723

IN THE PRINCIPAL REGISTRY
      OF THE FAMILY DIVISION		

First Avenue House
42-49 High Holborn, WC1
Monday, 24th March 2014 

Before:

HER HONOUR JUDGE COX
(In Private)

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B E T W E E N :

		LONDON BOROUGH OF WANDSWORTH	Applicant

-  and -

		A G	1st Respondent
(by her Litigation Friend The Official Solicitor)

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	                                                                      B G                                                    2nd Respondent
	                                               (by his Guardian Jenny Ryan )

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Transcribed by BEVERLEY F. NUNNERY & CO.
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J U D G M E N T

HER HONOUR JUDGE COX: 

1	This is a final hearing in care proceedings commenced by the London Borough of Wandsworth, the Local Authority, on 30th September 2013 in respect of B, who was born on 27th September 2013.  He is now six months old. 

2	His mother is A G.  She was born on 14th May 1982.  She is 31 years old.  She is a woman of black African Caribbean heritage.  She is the first respondent to the Local Authority’s applications for a care order in respect of B and a placement order.  The application for a placement order was issued by the Local Authority on 5th March 2014, and I am satisfied that the mother and B’s guardian have both had proper notice of that application.  

3	B’s father’s identity is unknown.  The mother has never revealed the father’s identity, and it is not clear to me whether she is unable to reveal his identity or whether she does not wish to.  I am quite satisfied that it would be impossible to require her to disclose his identity, and that there is no way of knowing B’s paternal heritage or his family.  

4	The reason for that is that B’s mother has a diagnosis of paranoid schizophrenia, which is complicated by chronic substance misuse.  She has a serious history of mental illness, and she is currently the subject of detention under s.3 of the Mental Health Act 1983.  It is therefore clear that she suffers from a recognised psychiatric illness, and that she is a danger to herself, or to others.  Although she has periods of lucidity, and has been able throughout these proceedings, either personally or through her solicitors, to make her views known, she is not able to retain a sufficient focus on the reality of the situation in respect of B, or her own position, to give coherent instructions or to engage in the litigation.  

5	Having considered the psychiatric reports of Drs. Turner and Magioli, and the expert option of Dr. Bashir, I made a determination that the mother lacked litigation capacity on 27th November 2013.  I have had no evidence that would cause me to revisit that determination.  The mother’s situation has not changed.  She has at various times during the litigation indicated an intention to challenge her detention under s.3 of the Mental Health Act, but such challenges have either been unsuccessful or have not taken place. The fact that AG is the subject of detention under s 3 of the Mental Health Act 1983 does not necessarily demonstrate that AG lacks litigation capacity. There is a presumption that a person has litigation capacity, which may only be displaced by cogent evidence. That evidence was provided to the court on the 27th November 2013. The situation has been consistently monitored by the court and by the Official Solicitor, who acts as AG’s Litigation Friend. AG is represented at this final hearing by counsel instructed by the Official Solicitor.

6	B was born on 27th September 2013 by elected caesarean section, and fairly shortly after his birth, less than 24 hours after his birth, he was separated from his mother and placed in foster care, where he has remained.  His removal from his mother’s care was necessary to promote his welfare and to protect him from significant harm. His mother is not able properly to care for herself in a reliable and consistent calm way because of her illness, and there was a likelihood that if B remained in her care, even under supervision, he would suffer significant physical and emotional harm.  

7	The mother has had two older children, A, who is now 13, and S, who is now 10, nearly 11.  They were both subject to emergency protection orders, and care proceedings were commenced in respect of them in 2004.  The concerns related to their wellbeing, centred on AG’s ill health, and a risk to them of significant harm, both physical and emotional.  The care proceedings resulted in a residence order being made in respect of each of the children that they should reside with their father and that order was made on 21st October 2005.  There is no direct contact between A, S and their mother.  

8	The facts in relation to the mother’s mental health history, and the history of her family, are tragic.  The maternal grandmother has a longstanding history of alcohol addiction, and has been known to use other non prescription drugs.  The mother and her brother were the subject of care proceedings in relation to significant harm, and the mother’s brother was removed from the maternal grandmother’s care and spent most of his childhood in care himself.  Later, he suffered from mental health difficulties and tragically took his own life.  There is a genetic history of systematic lupus erythematosus, and there is also a sickle cell trait history.  Therefore, B has a significant hereditary genetic heritage of addiction, a sickle cell trait, and lupus.  

9	B, as I have said, was removed from his mother’s care shortly after his birth and placed, once he was discharged from hospital, in foster care.  He has remained with the same foster family throughout, where he has thrived.  He is described as a happy, undemanding baby, full of smiles.  Physically, he is considered to be slightly delayed, in that he is still not sitting.  However, children develop at different paces, and it is impossible to say whether he has any developmental delay yet.  He has made a good secure attachment to his foster mother and is much loved by his foster family.  

10	A G has continued to have contact with her son.  That contact has been monitored carefully, and has been variable in quality, but often A G has been able to show tenderness and love towards B.  However, on occasions B, who, as I have said, is a contented baby, has displayed distress, over-stimulation, and insecurity on his return from contact with his mother.  It may be that A G showers him with her attention in the time that she has available to demonstrate how much she loves B, and that as a result he becomes unsettled and over-stimulated.  

11	I begin, because the law requires it, and B’s given rights require it, and because it is right in a civilised society, with the proposition that children are best looked after during their childhood by their parents, and that the state has no power to intervene in private family life unless a child’s welfare demands it, because the child requires protection, and for his or her welfare to be promoted by such intervention.  

12	I am satisfied from all the facts that I have read, which are unchallenged by any party in these proceedings, and are set out fully in the guardian’s initial analysis, and in her final analysis and recommendations, and in the report of Dr. Charlotte Harrison in respect of the mother, and in the reports of three separate social workers who have been responsible for B’s welfare since his birth, that B is likely to suffer significant physical and emotional harm were he to be placed in his mother’s care.  

13	Because this court is required to scrutinise whether or not B could be brought up by his mother, I caused enquiries to be made at an early stage in these proceedings, in October 2013, of a specialist residential unit, Coombe Wood, which specialises in assessing the parenting capacity of parents who have mental health difficulties, or illness.  It seemed to me that the only way in which it would be possible safely to assess A G’s ability to care for B without separating her from her son, or continuing separation, would be to approach such a residential unit.  This was done, and Coombe Wood, having read the facts relating to the case, responded that they were unable to provide an assessment of B with his mother because A G herself was not able to look after herself, and that efforts should be concentrated on assisting her to be able to become independent herself, and that it was not viable for her to be assessed with B.  I am satisfied that that was the case then and continues still to be case.  

14	During the first five months of these proceedings, A G has been detained in a medium secure setting, although she has been able to have unsupervised day release from her hospital.  On occasions when she has returned to hospital, it has been demonstrated that she has tested positive for street drugs.  

15	Recently, she has been transferred to a lower security placement where she is going to be rehabilitated.  It is a rehabilitation unit attached to the Springfield Hospital, and he consultant psychiatrist is Charlotte Harrison, who I have mentioned.  There it is hoped that A G will be able to be supported and treated so that she will be able to live in semi supported accommodation within the community.  The timeframe for that may be about six months.  But it is, from the evidence I have read, quite unclear as to the exact timescales when A G might be able to move into the community and live in a supported way.  I am quite satisfied that there is no prospect of her being able to look after B in a consistently safe, secure and nurturing way for a considerable period, if at all.  

16	The facts set out in the materials to which I have referred clearly give me a jurisdiction to make a care order and a placement order under s 31 of the Children Act 1989 and the Adoption and Children Act 2002.  In order for such orders to be proportionate I must be satisfied that they are the only orders which will secure and promote B’s future welfare and safety, and that it is necessary to make such draconian orders.  I remind myself in particular that a placement order is a draconian order to make.  It is a very serious interference with B’s right to family life, and to be brought up by his mother, and a very serious interference with the mother’s right to look after her child.  

17	It is quite clear to me, from having read the analysis of the s.1(3) Welfare Checklist, contained in B’s Guardian Jenny Ryan’s final analysis and recommendations, and her analysis of the s.1(4) checklist in the 2002 Adoption and Children Act, that only a care order and a placement order will secure B’s safety and future welfare.  

18	In so saying, I have in particular been very careful throughout the course of these proceedings to investigate fully the possibility that B could be cared for by his extended family, and I have required the Local Authority to make serious and thorough investigations of the maternal extended family to see if there were any person able to offer B a safe and happy childhood.  The investigations made by B’s social worker in the Autumn of 2013, in respect of four people put forward by the mother, were thorough and more than merely precursory.  A number of opportunities were given to the family to respond to enquiries by the Local Authority as to whether they would be able to care for B during his childhood.  

19	The social worker, Karen Miller-Fields, has provided a detailed statement dated 18th November 2013, in which she sets out the various investigations and enquiries made by her and the Local Authority to assess those people.  Those people were the maternal grandmother, the maternal aunt, a relative called C, and T G.  Those were the named extended family members investigated.  Miss Miller-Fields was persistent in her communications with each of the members of the family, giving them a number of opportunities to respond and to engage in the assessment process.  In the end, no family member has been able to sustain the assessment process.   In particular, the maternal grandmother, who was the focus of the family’s proposals for the care of B, was unable to sustain the detailed assessment required.  This is unsurprising since the circumstances of B’s placement in foster care reminded her painfully and acutely of the removal of her own children.  She freely admitted her history of alcoholism, and described her battle with alcohol as currently being a daily battle.  Furthermore, there were concerns about the way in which she treated her children, emotionally and physically, which was the reason why A G’s brother was removed from the grandmother’s care.  

20	I am satisfied that no further investigations could have been made to find a family placement suitable to promote B’s welfare during his childhood, and I am satisfied that Miss Ryan’s analysis of s.1(4), in particular sub-section (f) of sub-section 1(4), has been thoroughly carried out.    

21	Miss Ryan has also suggested that the Local Authority should amend its care plan to reflect how it is to manage contact between A G and B until he is placed for adoption, and a plan for a gradual reduction of the mother’s contact with B until a baseline of monthly supervised contact until placement has been agreed.  The issue of contact between B and his much older half siblings, A and S, has also been considered.  That will now be specified in the care plan as being indirect contact.  It will be important for B, and for A and S, to understand their relationship as part of life story work.  

22	On behalf of the mother, the Official Solicitor, through Miss Neathey, the mother’s counsel, has asked that active steps be taken to help the mother to take up the indirect contact which is planned.  I am satisfied that whilst the mother engages with adult mental health services, that there will be liaison between the children’s specialist services of the Local Authority and the adult mental health team to assist the mother to exercise indirect contact.  This too will be important for B.  

23	The Official Solicitor has, rightly, identified that although I have made a declaration that the mother lacks litigation capacity, I have not made such a declaration, or decision, in relation to her capacity to give or withhold her consent to a placement order.  I have on a number of occasions at the various interlocutory hearings in these proceedings, listened to A G when she has come to court and has spoken on her own behalf in the presence of her solicitor.  She has also given evidence to me.  I am clear that whilst she definitely lacks litigation capacity, she does not lack the capacity to understand what adoption is, what the Local Authority’s proposals are in relation to B, and to object to them, which she does, since she believes that she is able to look after B.  This is, of course, something into which she lacks insight, as she does into her own predicament.  However, I am quite clear that she is able to withhold her consent.  Therefore, it falls to the court to consider whether her consent should be dispensed with.  I must consider whether or not B’s welfare throughout his life requires that I should dispense with A G’s consent to his being placed for adoption. 

24	Everything I have read drives me to the conclusion that B’s welfare interests throughout his life require that he should be made the subject of a placement order, and that he should be placed for adoption, where he will be claimed for life by a new family.  I am informed that there is a family under consideration, a family who are already approved as adopters, and are approved to adopt more than one child.  They have already adopted one child and have demonstrated interest in B’s profile.  They are suitable in terms of heritage, in that the mother is black English.  The Local Authority, therefore, has already, through a nationwide adoption agency, identified one possible suitable placement, and notwithstanding B’s difficult genetic profile, I have no doubt that within a relatively short period he will be found a family who will claim him for life.  He clearly very much needs love, stability, nurturing, and stimulation.  He has formed a very secure attachment to his current foster family, and his next move should be the only move he has to make, and the only loss he has to suffer of that kind during his childhood. 

25	It seems to me that it is demonstrably in B’s interests that he be made 
	the subject of a placement order since neither his mother nor any family member is able to care for him.  There are no arguments that have been advanced, or that I have been able to identify, which would displace that requirement.  Therefore, I dispense with A G’s consent to the placement order.  I make a care order in respect of B to the London Borough of Wandsworth, I make a placement order in respect of him, and I endorse the order for the disclosure of identified documents to any adoption agency and prospective adopters so that they may understand the full nature of B’s heritage.