IMPORTANT NOTICE
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 child[ren] and members of their [or his/her] 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. PX13C00116
IN THE FAMILY COURT
Sitting at PETERBOROUGH COUNTY COURT

Crown Buildings
Riverside
Peterborough
Cambridgeshire
Friday, 6th June 2014
Before:

HIS HONOUR JUDGE GREENE
(In Private)

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B E T W E E N :

		PETERBOROUGH CITY COUNCIL	Applicant

-  and  -

		SU and others	Respondents

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Transcribed by BEVERLEY F. NUNNERY & CO.
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A P P E A R A N C E S

MISS KING (instructed by the Legal Services Department of Peterborough City Council)  appeared on behalf of the Applicant.

MISS WILEY (instructed by Futter Chapman Solicitors) appeared on behalf of the First Respondent Mother.

MR. CASSIDY (instructed by Hunt & Coombs Solicitors) appeared on behalf of the Second Respondent Father.

MISS ELLIOTT (instructed by Adlams Solicitors) appeared on behalf of the Guardian.

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J U D G M E N T

JUDGE GREENE: 

1	These proceedings relate to a little girl, Z, 9 months old and I have been dealing with proceedings brought by Peterborough City Council who applied for a care order under s.31 of the Children Act and also a placement order under the Adoption and Children Act 2002.  The mother, SU, and the father, DE, both have, in different ways, troubled pasts.  I should say that they have been well represented by Miss Wiley and Mr. Cassidy and that Z is well represented by Miss Elliott through her Guardian, Jennie Beechy.  The local authority's position has been admirably argued on its behalf by counsel, Miss King.  

2	The mother's background is that she has had seven previous children removed in care proceedings on the basis that she was unable to meet their basic needs and orders were made on 11th September 2012.  For those proceedings she was assessed by Dr. Young who concluded that she would be unable to meet the needs of those children and, indeed, would struggle to meet the needs even of fewer children.  She had been in an abusive relationship and suffering from depression.  The children were a very wide range of ages and she was not coping in particular with the challenging behaviour of the older children.  The assessments carried out then did not address her ability to care for one child and the assessments carried out then have not been updated, no psychological or psychiatric evidence in respect of mother has been presented for these proceedings.  It was not felt necessary and no party applied for that.  It is by no means certain that I would have granted such an application even if it had been applied for.  

3	SU had moved to this area before the conclusion of those proceedings, having met DE.  The relationship with him does not seem to have the negative features of the previous relationships, but DE does have difficulties of his own in the sense that he has a diagnosis of paranoid schizophrenia.  I heard evidence from his treating psychiatrist, Dr. Orsucci, and also from Dr. Seivewright, a psychiatrist, who is an expert in substance abuse.  That was particularly relevant because the condition that DE has suffered from is of a type triggered or exacerbated by drugs which he, I am sure, himself would admit was foolishly continuing to take; amphetamine in particular.  There is no doubt that the threshold criteria was met at the time of Z's birth and the commencement of these proceedings and indeed during the course of this hearing. I have been told that there is now an agreed document under which the threshold criteria is conceded by both parents.  

4	Z was born just under two years after mother and father met.  Prior to her birth a pre-birth assessment had been carried out by a social worker who was then with Peterborough City Council, Mr. R.  That assessment concluded that there were sufficient positive features in the relationship and changes that had been achieved, by mother in particular, that rehabilitation should be tried.  Despite that pre-birth assessment recommendation for attempted rehabilitation, the social worker at the time of the commencement of the proceedings, Miss A, did not follow that recommendation.  She is a lady who qualified as a mature student as a social worker in 2007 having had previous careers in the caring services.  Her initial view was that the pre-birth assessment was overly optimistic without sufficient evidence at that stage to support it.  So the local authority applied for and obtained an interim care order and Z was placed in foster care with the carers with whom she remains.  That was on 15th November last year.  

5	So it was clear from that and also from her evidence when I heard from her that Miss A was clearly not a naïve social worker or lacking in appropriate caution nor was she unaware of the risks.  I make that comment because she herself subsequently put forward a plan for rehabilitation.  She did so after having carried out a detailed and lengthy assessment.  She concluded that the risks had reduced and were manageable and that there were a significant number of positive factors which tipped the scales in favour of a rehabilitation without losing sight of the risks that there were and have been. 

6	The plan was approved by her then manager and, as I understand it, also the Head of Services at that time.  The rehabilitation plan began to be implemented and there were a number of sessions of unsupervised contact.  Without anything untoward having happened the local authority senior managers then changed the care plan and directed the rehabilitation plan to stop, and for Miss A to file a new statement and care plan saying that on further analysis of the historical material Z's safety with her parents could not be ensured and that she should therefore be placed for adoption.  The team manager and Head of Service and Director who made that decision and, indeed, the independent reporting officer who had suggested it, had not taken any part in the assessments and did so by way of a paper exercise saying that the care plan and assessment of Miss A were overly optimistic, that it had not taken into account sufficiently the concerns raised in the assessments in the earlier proceedings.  

7	The evidence that I heard from Miss A satisfies me that she had conducted a proper balanced analysis.  On the other hand, the evidence which I then heard from the present team manager was not able to satisfy me that the present position is based on a balanced analysis of the overall picture sufficient to justify the sudden change in plan.  

8	Throughout the proceedings, mother and father have been fully co-operative with the local authority.  The contact with Z has been of excellent quality throughout.  Nothing has occurred since well before Z's birth of any significance that could be properly termed a negative incident or an incident that indicates any evidence of risk to Z.  The local authority pointed to an argument between the parents outside their flat but when examined it transpired that that was a trivial everyday matter of no relevance.  The team manager also sought to say that DE had been hostile and agitated towards professionals.  When that allegation was investigated it transpired that it was based upon his becoming, understandably and quite naturally, upset at being told that the plan had changed from rehabilitation to one of adoption.  So in my view it was entirely inappropriate to base any conclusions on that entirely normal reaction.  

9	SU and DE have been understandably and justifiably distressed at the volte face and they have been unable to understand the reason for it.  That, in my view, is not surprising as the very experienced children's guardian, Miss Beechy, has also been unable to understand the reason for the sudden change of plan.  The change seemed not to be based upon any incident or deterioration in the parents' position but simply on a paper review giving heavy, and in my view undue, influence to reports from the previous proceedings which were written in different circumstances.  Through all of this the mother and father have continued to co-operate.  The contact with Z has been excellent.  In the view of the guardian their conduct and the way that they have gone about things, even since knowing of the change of care plan, has all gone towards confirming the previous impression of the improved circumstances and insight on which the rehabilitation plan had been based.  

10	There has been no relapse in DE’s mental health.  The evidence of his treating doctor, Dr. Orsucci, and Dr. Seivewright was that he is stable and has been for some considerable time.  In relation to alcohol consumption, Dr. Seivewright position was that the evidence indicated that DE was not alcohol dependant and had not been alcohol dependant and that, accordingly, in his case it was not necessary to look for or insist upon abstinence.  The indications and observations in relation to drugs are that he has reduced to a comparatively small amount of amphetamine.  Of course that is not something which is condoned in any way, but it is noteworthy in this context that there have been no reports from anyone of DE having been seen at any time in the lead up to or during these proceedings under the influence of drink or drugs in any way.  It does of course remain a risk factor.  Dr. Seivewright said that if DE drinks it increases the risk that he may take amphetamines, that if he takes amphetamines that increases the risk that there may be a relapse of his mental health.  But the evidence is that that has not happened over some considerable period of time now.  Nevertheless, it would be sensible and responsible of DE to give up amphetamines and to keep his drinking to the moderate levels to reflect his drinking at the moment.  

11	There is every indication that the relationship between DE and SU is a good and supportive one and contains none of the elements that were so destructive in mother's previous relationship.  

12	So with that background, I have to remind myself of the legal position so far as applications for placement are concerned because of course I have had in mind that application throughout because although it was second in time and follows on from a care order, I necessarily have to have it at the forefront of my mind because the care plan in the care proceedings is based upon a plan for adoption.  The Supreme Court and the Court of Appeal in numerous cases over the past years, in particular Re B and Re B-S have reminded the courts that a care plan of adoption is inappropriate unless the court is satisfied that there is no alternative and that no other order will do.  It is an order of last resort that can only be ordered when absolutely necessary and where the parents are unable to meet a child's needs even with any reasonable support or services that may be available.  

13	The local authority therefore has a duty to explore every possible way of keeping children with their birth families, of course within reason.  The question for me therefore is whether I can be satisfied here that the local authority has discharged the heavy burden of demonstrating that even with reasonable help and support Z could not be safely cared for by her parents.  I remind myself it is not for the parents to satisfy me that they could safely care for Z.  The burden is on the local authority to satisfy me that they could not.  The evidence of Miss A, although she has now left the department, satisfied me quite to the contrary.  She said that she believes that the parents were able to care for Z; or at least there were sufficient indications of that to justify a plan for rehabilitation.  On that plan, had it been allowed to go through, Z would by now have been returned to their care.  When giving evidence and even under cross-examination that remained her view.  As I understand it, she has been replaced by a social worker who, for reasons I will not go into, has not yet met the parents.  

14	I heard in evidence from the team manager, Miss W.  In her evidence she said that it was accepted by her and her managers that mother has learned, that she has taken advice and that she has made positive changes.  She said that her concern was that there was no evidence that she can maintain the changes and that her department did not know that mother could safely parent.  That is not sufficient.  In order to support the care plan that the local authority seeks it is not for mother to bring evidence that she can maintain changes.  It is for the local authority to satisfy me that she cannot and I have seen no such evidence.  Equally, it is not for the mother to bring evidence to demonstrate that she can safely parent.  It is for the local authority to satisfy me that she cannot.  It was clear to me that the rehabilitation plan under an interim care order suggested by Miss A would have been an appropriate way to test out the progress made and to look at the answers to some of those questions.  Her proposal was entirely proper in the circumstances set out in her very thorough report and was entirely justified based on the progress that had been made both by mother and by father.  Equally, I was satisfied on the evidence that I heard that the summary termination of that rehabilitation plan was not justified and was contrary to Z's interests.  I do accept, as does the guardian, on the evidence, and particularly taking into account the history, that the position is not risk free, but of course that also is not the test.  There has to be a balancing of risk and I have to be satisfied that the risk to Z would be unacceptably high in a return home before I can consider any alternative.  

15	Miss W in her evidence also appeared to accept that there had been no proper analysis of what support or services could, if necessary, be put into place to assist the parents and improve the prospects of a positive outcome, particularly bearing in mind her acceptance that there had been positive progress.  She also appeared to accept that there had been no proper analysis of DE’s progress and, it seems to me, that the department were unaware that a relapse programme would have been available and, indeed, is still available through his psychiatric support services if needed.  It was accepted by all that mother and father have demonstrated a very good level of care in the supervised contact setting, and on that basis that it was not good enough to propose adoption on the basis that it had not been tested without supervision; of course the obvious step to achieve an analysis of that was to reduce that supervision.  It seems to me that was the obvious and appropriate step and one which had been contained within the local authority's plan in Miss A's second statement.  It was clear to me that the change of plan by the local authority did not follow any proper analysis and was contrary to Z's interests and welfare.  She has been deprived of three months of a more normalised relationship and the court has been deprived of the evidence that would have resulted from a properly planned and supervised programme of rehabilitation. 

16	So it is clear to me that although the threshold criteria under s.31 is clearly met, the criteria for the court to consider adoption as an appropriate care plan has not been met.  I have of course had the welfare check list and s.1 of the Adoption and Children Act in the forefront of my mind throughout and of course the Article 8 rights of the family.  

17	I found Miss A to be an impressive witness.  The evidence since her departure equally continues to point to positive progress by mother and father.  It seems to me that that positive progress, particularly given their background, is all the more impressive when they have had to face such a devastatingly distressing change of plan which was unjustified and a change of plan that was, in my view and also in the view of the guardian, equally contrary to the best interests of  Z's welfare.  I have of course taken into account the very positive reports as to contact and the useful evidence of both psychiatrists.  I was impressed by the careful analysis carried out by the children's guardian, Mrs. Beechy.  Of course I remind myself that were I not to follow her recommendation I would need to give very clear reasons.  As to the rejection of the care plan for adoption, there are in my view no such reasons.  I have had the benefit of a careful analysis from a very experienced guardian who, as with Miss A, approached this matter cautiously at the outset.  She supported the interim care order and removal of Z based on the history and the information known at the commencement of the proceedings and did so quite properly.  So her position now has been led by a careful analysis of the evidence.  

18	The local authority's conduct of the matter since early March, in my view, has not been good practice.  Indeed, it has been an example of very poor practice.  The original pulling back from rehabilitation at commencement of the proceedings by Miss A was appropriate, cautious and child focused, but the later sudden switching of the care plan after a rehabilitation plan had been filed, after being approved by her managers and after a careful intensive assessment was, in my view, a gross mis-judgment and was implemented appallingly.  I fully accept the children's guardian's comments that in the face of such distressing poor practice both parents have behaved commendably.  Miss Beechy said that ‘they had been incredibly brave and courageous and shown remarkable maturity’.  That comes clearly through the papers that I have read and the parents should be commended for maintaining a child focused approach in the face of such adversity.  The Guardian has seen them working together supportively in contact and meeting Z's needs very well.  Contact has been reported by all as being consistently good.  

19	The evidence that I have heard has therefore satisfied me not only that adoption would be entirely inappropriate but also that Z should return to live with her parents.  It was conceded on all sides that this was a case in which there was really nothing in the middle, those two extreme positions only being available or appropriate for Z at her age.  I accept the evidence of the Guardian, Mrs. Beechy, that rehabilitation should begin now and that after approximately two weeks of unsupervised contact that should lead to overnight contact and should then lead to Z moving to live with her parents in approximately the fourth week.  In all the circumstances I reject the local authority's care plan and I dismiss the application for a placement order.  

20	The question for me now is under what order the rehabilitation should proceed.  This is a matter which was given careful consideration by all parties and in the submissions which I heard in closing.  Although in her report for these proceedings Mrs. Beechy recommended that there should be a supervision order and private law orders under which Z went home to her parents, in submissions today after giving evidence and, indeed, during her evidence she indicated that she would have preferred it to have taken place under an interim care order.  That could only be achieved if the local authority puts forward an amended care plan.  It would also require both the court and the parents to have confidence that the local authority had embraced that plan of rehabilitation.  The parents' position is that they would prefer there to be final orders today.  It was, however, said on their behalf that they are so keen to have Z home that they would agree to any means of achieving that.  

21	After submissions were made and just immediately prior to my giving this judgment I was told by Miss King on behalf of the local authority that the local authority had begun to draw up a plan under which it would implement rehabilitation if I were to direct that.  She concedes that that does not in fact amount to a formal care plan and I have to comment that yesterday I gave a clear indication that having heard the local authority's evidence I was not satisfied that the criteria for a placement order had been made out.  Miss King, as I understand it, took that back to the senior managers yesterday who remained intransigent at that stage.  

22	In those circumstances I have to ask myself whether I could have confidence in there being a change of heart and approach even if there were to be a change of care plan.  I have reached the conclusion that it would not be appropriate for me to adjourn with a view to there being a fresh care plan presented perhaps next week.  It would cause delay.  There would be some uncertainty associated with that as to whether it was acceptable, although to an extent that has been ameliorated by what I was told a few moments ago.  Both of the parents have indicated that they would proceed under a rehabilitation plan as outlined by the guardian and, indeed, based very much on the local authority's initial care plan put forward by Miss A, subject to some variations to take into account the changes that have taken place since then and the fact that part of the rehabilitation plan was implemented before it was abruptly stopped.  They have indicated that they would co-operate by agreeing s.20 accommodation whilst that were achieved.  I have no reason to suppose that they would not keep to that agreement and I have no reason to suppose that the Guardian is wrong in her assessment of mother and father.  Accordingly, it seems to me that I can have reasonable confidence that both SU and DE  would continue to behave appropriately and in Z's interests.  

23	The question therefore for me is whether rehabilitation should be under a supervision order or an interim supervision order.  In view of the recent changes to the legislation I cannot extend these proceedings unless I am satisfied that it is necessary to do so in Z's interests.  Understandably, Mrs. Beechy prefers to remain involved and of course I can see advantages in that, particularly in view of the difficulties that there have been during the course of these proceedings.  It is a natural instinct of guardians to want to see a happy outcome and to see things through to the end.  The question is if there is a detailed plan and a written agreement entered into today, what would an interim supervision order achieve for Z that would be necessary before I could justly conclude these proceedings.  Of course it would involve, as I have said, the guardian remaining involved and all of the parties remaining legally represented.  There would be an inevitable return to court for another hearing.  

24	I have to consider what that hearing might achieve.  Of course it would enable us all to know how it had gone and hopefully convert that to a final order.  Certainly it would be preferable to know that and to see that through, but the question for me is whether it would be necessary in circumstances when a final supervision order could be made now with a written agreement from all parties both as to the care plan and as to s.20 accommodation.  The question was posed: “what if problems were to occur?”   But of course that is an approach which no longer finds favour either with the legislature or with the higher judiciary.  If there are minor problems, then it cannot be said that it would be necessary to hear about them as they would not change the outcome.  This is not a case, I remind myself, where the decision was finely balanced or on a knife-edge.  On the other hand, if there are major problems they firstly would be unexpected and unforeseeable on the present evidence of the positive assessments of the parents and the steady progress that there has been throughout the course of these proceedings.  I have to consider therefore whether there is any reason why these parents should not be in the same position as any other parents in the community, namely that it should only be if something significant occurs that meets the threshold of significant harm that they should again face an application for intervention by the local authority.  Under a final supervision order the local authority can bring the matter back in any event if necessary.  

25	So although the answer may have been different only a few months ago, I have to apply the new approach and, in doing so, I conclude that having considered the welfare checklist and Z's welfare throughout her life as paramount that there should be a final supervision order today, as indeed originally advocated by the guardian in her report.  That Order should be with a recital as to the agreements reached which I have indicated and which have been discussed during submissions and prior to that, both as to the rehabilitation plan and the s.20 accommodation and all of the other matters that go along with it.  Mention was made in submissions as to whether or not there could or should be private law orders and whether there would be any advantage in that, and on reflection, with both parents being together and having parental responsibility, it seems to me that I am not able to say that it would be better in Z's interest for there to be an order rather than no order.  I would if any party wishes to address me further on that reconsider the question of whether there should be private law orders, but my view otherwise is that it is not necessary.  So that is my decision.  
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