B e f o r e :
| A Local Authority
|- and -
| A mother
| A grandfather
|A child (by his guardian)
Ms Moger for the Mother
Mr Morgan for the grandfather.
Ms Battrick for the child
Hearing dates: 7th and 8th August 2017
Crown Copyright ©
HHJ Wildblood QC :
i) The child should move to long term foster care with carers identified by the Local Authority. This is the option that the Local Authority and the guardian recommend. The recommendation is that the grandfather should have staying contact with him every fortnight as well as further staying contact during the holidays. These proceedings were adjourned on 21st June 2017 as suitable foster carers had not been found. The Local Authority has now found experienced foster carers who would wish to offer this child a home. The foster carers, who have their own child, are away until 28th August 2017, however, and so the Local Authority suggests that any placement with them should be delayed until they return. The Local Authority proposes that the mother should not have direct contact with the child until she is released from custody and has 'demonstrated a period of abstinence and stability'; in evidence the social worker thought that the period should be at least three months.
ii) The child should remain with the grandfather. It is argued that this should be by way of the continuation of the current child arrangements order, as a final order, on the basis that the grandfather may wish to apply for a special guardianship order later. At present there is no special guardianship support plan. The mother supports this second option and says in her statement of 9th June 2017: 'in time I wish to prove that I could care for [the child]. I accept that this is a long way off and I need to prove that I can be drug free and lead a healthy life but I will not have the opportunity of doing this if [the child] is in long term foster care as contact will be too limited…I am aware that one of the concerns that the Local Authority and the guardian have is that my father will not be able to protect [the child] from any demands I may make to see him. I do not accept this. I will abide by any order that the court thinks is appropriate and would not wish to undermine [the child's] placement with my father as I know this would mean that [the child] could be removed from his care'.
i) The chronic duration of her addiction to drugs.
ii) The very real risk that will revert to drug-taking and her previous chaotic way of life following her release from custody despite the efforts she has made whilst in prison.
iii) The need for the mother to undergo a significant period of treatment and drug relapse prevention work within the community before there could any confidence that her abstinence would be maintained. The guardian says in his report at paragraph 16: 'experts in working with drug addiction and associated mental health issues wold normally say there needs to be a period of at least 6 to 12 months of abstinence in the community before they would start to feel more confident about maintenance'.
iv) The extent of the neglect that the child suffered when in her care and the likelihood that the same neglect would arise if he were to return to her care in the immediate future.
i) The difficulty that the grandfather has shown in controlling the child's behaviour. The guardian says at paragraph 26 of his report: 'On several occasions, I have seen [the grandfather] with scratches to the face and head, where [the child] has lashed out at him. I have seen that [the grandfather] would try hard to set boundaries but at times [the child] would challenge them repeatedly, without [the grandfather] being able to carry through any real consequences…I think he has struggled with setting boundaries and ensuring that he remains in control of situations as far as possible, when [the child] will relentlessly try to take control himself'. This is the key reason advanced by the Local Authority and guardian. I accept that the grandfather does struggle significantly with the child's behaviour and finds it very difficult to keep control.
ii) He has little contact with his own family and little other community support. This is another important feature of the reasoning of the Local Authority and guardian and I accept that the Local Authority has established this point on evidence.
iii) The difficulty that he would encounter in regulating the mother's relationship with the child if the child were to be living with him. Given her wish to take over the care of the child in the fullness of time I accept that this could well pose difficulties for him in the future.
iv) The grandfather also has a history of drug addiction and criminality which, as he accepts, led to him being largely unavailable to his own four children when they were young. He still takes methadone but is drug free. He has 182 criminal offences recorded against him, many of which involved theft from shops; his last criminal conviction was on 19th December 2013 [H119]. I accept that there is no evidence of any likelihood that he will revert to drug taking, that he appears committed to coming off methadone and, later, subutex and also that he has remained free from criminality for over 3 ½ years. He gives every appearance of having turned his life around although there is an obvious and long-term vulnerability that arises from his past, as Mr Morgan accepted in submissions.
v) He suffers from hepatitis C as a result of his history of drug taking leaving him with liver damage and also exposing him to a significant risk of liver damage. He was taking interferon before the child came to live with him but, because of its side-effects, he stopped taking it and is hoping to start an alternative drug regime with less side-effects. In his most recent short report the guardian says that he is 'less certain about the implications of [the grandfather's] health issues for his ability to provide permanence for[the child] . He does appear to be in good health and energetic for his age but at some point he may need further treatment for hepatitis and would certainly need help to detoxify from methadone / subutex'. I note that the letter from his Consultant Heptalogist states that, from a medical point of view 'there is no reason why his ability to undertake ongoing care of his grandson should be impaired in any way by his hepatitis C infection or its treatment'. Given the state of the medical evidence I do not think that his Hepatitis C is relevant to whether he could care for the child and ignore it as a factor.
a) The child has now been with him for a long period of time and is settled. He and the child have a strong relationship with each other.
b) He has attended parenting classes and has two certificates from doing so. He is prepared to learn. For a man in his sixties to have made these efforts speaks volumes to the credit of this grandfather in my opinion.
c) He has introduced measures to deal with the child's behaviour and, for instance, has now got the child potty trained.
d) Recent medical tests suggest that his liver is functioning reasonably and he has been told that he will be started on a new treatment with no side effects and a 95% success rate. At the hearing he produced the above letter from a consultant heptalogist to this effect (it is dated 4th August).
e) He has regulated his own life.
f) He has the support of the mother and says: 'I know that she will understand if I have to explain the restrictions placed on her'.
• 'it is clear to me that both the Children's Guardian and the ISW fell into serious error by misunderstanding the need to evaluate the question of A's future welfare by affording due weight to all of the relevant factors and without applying any automatic "presumption" or "right" for a child to be brought up by a member of her natural family. The extracts from the reports of both of these witnesses indicate that they determined their recommendation for A on just that basis. Mrs Fairbairn repeatedly described the child as having a "right" to be brought up by the natural family where there is a viable placement available. The Guardian advised that adoption is not in A's best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option "a runner" but should not automatically make it "a winner" in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that "if a family placement is a 'runner', then it has to be regarded as a 'winner'".
• 71. The repeated reference to a 'right' for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such 'right' or presumption exists. The only 'right' is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged. In Re H (A Child)  EWCA Civ 1284 this court clearly stated that there is no presumption in favour of parents or the natural family in public law adoption cases at paragraphs 89 to 94 of the judgment of McFarlane LJ as follows:
• '89. The situation in public law proceedings, where the State, via a local authority, seeks to intervene in the life of a child by obtaining a care order and a placement for adoption order against the consent of a parent is entirely different [from private law proceedings], but also in this context there is no authority to the effect that there is a 'presumption' in favour of a natural parent or family member. As in the private law context, at the stage when a court is considering what, if any, order to make the only principle is that set out in CA 1989, s 1 and ACA 2002, s 1 requiring paramount consideration to be afforded to the welfare of the child throughout his lifetime. There is, however, a default position in favour of the natural family in public law proceedings at the earlier stage on the question of establishing the court's jurisdiction to make any public law order. Before the court may make a care order or a placement for adoption order, the statutory threshold criteria in CA 1989, s 31 must be satisfied (CA 1989, s 31(2) and ACA 2002, s 21(2)).
• 94. It is clear that for Russell J the outcome of this case did not turn on the deployment of the 'presumption' that she describes, and this point was not taken within the appeal. My attribution of some prominence to it is not therefore determinative of the appeal. My aim is solely to point out the need for caution in this regard. The House of Lords and Supreme Court have been at pains to avoid the attribution of any presumption where CA 1989, s 1 is being applied for the resolution of a private law dispute concerning a child's welfare; there is therefore a need for care before adopting a different approach to the welfare principle in public law cases. As the judgments in Re B, and indeed the years of case law preceding Re B, make plain, once the s 31 threshold is crossed the evaluation of a child's welfare in public law proceedings is determined on the basis of proportionality rather than by the application of presumptions. In that context it is not, in my view, apt to refer to there being a 'presumption' in favour of the natural family; each case falls to be determined on its own facts in accordance with the proportionate approach that is clearly described by the Supreme Court in Re B and in the subsequent decisions of this court.'
i) Necessary for the protection of the welfare rights of the child.
ii) Proportionate to the proven facts of the case.
iii) In accordance with our Convention compliant law, which is to be found in section one of The Children Act 1989 under which the welfare of the child is the paramount consideration. In applying that law I must avoid a linear approach to the analysis of welfare and should do that by setting out a balance sheet of the salient relevant welfare factors and should apply the welfare checklist in section 1(3) of the 1989 Act.
i) He has an existing attachment, commitment and love for the child.
ii) He offers the child the only possibility of an upbringing within his natural family.
iii) If the child remains with him it will preserve the status quo and avoid the major disruption of the change of circumstance that would arise from the Local Authority's plans.
iv) He is a known quantity unlike the foster carers in the sense that the benefits and detriments of his care are known whereas the care of the foster carers care is not yet tested in relation to this child.
v) He is doing his best to acquire parenting skills and listens to advice.
i) He has great difficulty controlling the child's behaviour and, as the child gets older this is likely to be an increasing problem.
ii) He has little support from family or close connections. Although he would accept respite care and would also accept Local Authority support, he remains an isolated figure and much of the child's care would be on a one to one basis.
iii) Although he listens to advice he has difficulty implementing it.
iv) There is a genuine risk that his care of the child may be disrupted by the mother when she comes out of custody.
v) He does have a past which has many vulnerabilities in it. This may affect his ability to cope in the long-term with the challenges of the child.
i) They are trained and experienced carers of children who have a clear understanding of the demands that the child will impose.
ii) It is more likely, in the medium and long term, that they will be able to regulate the child's behaviour.
iii) They are supportive of the grandfather's contact.
i) They are not family members and, if the child is placed with them he will face the stigma of being a child in care.
ii) The transition will not be easy and, in the short term, there is likely to be considerable emotional reaction from the child when he is removed from his grandfather.
iii) The child will be dividing his time between the grandfather and the foster carers whereas, if he remains with the grandfather, there will be one single family carer.
iv) As Mr Morgan put it: 'the natural affection of grandfather for his grandchild may not be replicated within the foster home'. One cannot assume that every foster carer will always attach to every foster child who comes into that foster carer's home.
i) It is committed to maintaining that contact.
ii) It has discussed the proposed arrangements for contact with the foster carers and they are committed to those arrangements as well.
iii) Staying contact will take place on alternate weekends for at least one night.
iv) There is a committed intention that there will be additional staying contact during school holidays (including half terms).
v) There will be a formal review of the contact arrangements in October 2017 with the intention that additional staying contact will take place by at least the commencement of the Christmas holidays but preferably during the October half-term.
HHJ Stephen Wildblood QC
8th August 2017.