ON APPEAL FROM SHEFFIELD COUNTY COURT
HIS HONOUR JUDGE BAKER QC
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK
LADY JUSTICE GLOSTER
Ms Nicole Erlen (instructed by Howells Solicitors) for the 1st Respondent
Mr Ian Miller (Pro-Bono) for the 2nd Respondent
Caroline Wigin (instructed by Maltas & Co) for the Children's Guardian
Hearing date: 20th June 2013
Crown Copyright ©
Lady Justice Black:
"To be driven to jettison the principles in G v G in this context is not to say that the factors which often vitiate the exercise of a discretion – namely that the judge considered an irrelevant matter, failed to consider a relevant matter, erred in law or applied a wrong principle – becomes irrelevant. On the contrary they may well generate a conclusion that the determination was wrong and should be set aside and either that it should be reversed or that the application should be remitted for consideration afresh."
"M variously ignored C, failed to interact with the children and failed to place boundaries upon their behaviour. In contrast the children appeared to have a good attachment to F, although he too failed to place boundaries upon some aspects of V's behaviour."
"there are the concerns in relation to M's past threats of physical harm to the children, her displays of both verbal and sometimes physical aggression with F, her ill-treatment of the children by way of physical chastisement, her frankly bizarre interactions with various agencies and her often volatile and critical attitude to offered assistance by the Social Services."
"F's failure to accept any responsibility for the situation in which his children found themselves and his consequential failure to care for them, was not that which could be considered to be reasonable to expect a parent to provide for his children."
and he was satisfied that:
"as matters progressed through to September of 2011, his neglect of his children's welfare placed the children at considerable risk of significant harm by way of impairment of their physical health and was impairing their emotional, intellectual and social development."
Events since the children came into care
"it is apparent from [C's] letter that her real and present wish is to be raised in a safe, loving and secure family environment which would be afforded by two parents living together; a situation which she realistically appreciates that neither of her parents can provide for her and V."
"Overall F has appeared to be far more engaged with the children in these sessions, whilst M has on many occasions appeared to be less inclined to do so. Not infrequently M has given priority to V over C. Moreover throughout this period there have been times when M has expressed views and displayed behaviour which are of concern to a number of agencies."
"I have studied the contact notes contained within the Trial Bundle and although it is apparent that there have been many occasions when M's behaviour during contact sessions has been inappropriate, there have been a significant number of others when it is clear that the children have appreciated their contact with her and benefitted from it. On these occasions she is able to play with them and interact both verbally and physically with them in an appropriate manner. Albeit on some of them M has either tended to baby the children ….. or been critical of them ….."
"….during the vast majority of the contact sessions with F, he has interacted well with them and they appear to have fully appreciated their time with him. He appears to be genuinely interested in their lives outside the contact sessions, asking appropriate questions of the children, to which they eagerly respond. He plays games with them either of their own choosing, or appropriately suggests games which they can play together. Most of these sessions ending with the children informing F that they love him. This is not to say that there have not been some concerns, such as his apparent difficulty in placing boundaries on the children's behaviour (e.g [dates of nine sessions between November 2011 and July 2012 quoted]). However, overall it is clear that his contact with the children during this period has been of positive value to them. The current contact regime is that both each [sic] parent has twice weekly contact with the children."
The judge's assessment
"It is apparent from the history of this matter that over a significant period of time whilst the children were being cared for by M, she appears to have prioritised her own concerns over those relating to the welfare of her children. Leading [sic] to the isolation of these children both from socialising and being appropriately educated outside the home, and from any emotional warmth and stimulation from M. Unfortunately during the course of the assessment, M's frequent lack of interaction with the children, particularly C, appears to have confirmed this situation as one that is likely to persist, rather than improve. Furthermore it is apparent that M shows little if any insight into the harm that this has already caused to the children and the further potential harm to them from its continuation in the future. The only parenting error which she conceded in the course of the assessment being [sic] to have allowed her children to be removed from her care."
"the prospects of M accepting and maintaining any safe level of medical treatment of her mental health are poor and are certainly insufficient to justify any delay in the making of any orders for the benefit of either of these children."
"M would not presently nor in the foreseeable future be able to provide the consistency of safe and secure care which both of these children need both now and throughout the remainder of their childhoods. Moreover if returned to her care, it is likely that the children would, at the very least, once again become isolated both from social interaction and appropriate education outside the home and from emotional warmth and stimulation within it. In my judgment the nature and extent of the harm to which this would be likely to expose these children is such that, despite the normally undoubted benefits of being with one or both birth parents, their welfare at this stage and in the future dictates that neither of these children should be returned to the care of M."
i) F played a minimal role in caring for C "for culturally understandable reasons" before he went to prison.
ii) Throughout the period before his imprisonment he was an alcoholic and was frequently physically violent to M in the presence of C.
iii) When he was asked by the LA in 2011 to provide assistance in the care of the children, he declined to do so despite the fact that he knew of the LA's concerns about M's ability to care for the children who were in foster care.
iv) He has extremely limited practical experience of child care.
v) Although he put himself forward in January 2012 as the sole carer for the children, in reality he intended that M would reside with him so that she could care for the children.
vi) It was apparent from the LA's parenting assessment that he failed "to acknowledge that there had been any significant concerns with M's past care of the children and suggested disbelief in C's account of physical chastisement by M, despite it being clear from her account that he was present on some of these occasions". He failed to appreciate that his own violence and the mutual violence between himself and M would have had a detrimental effect on the children. When M had behaved in a volatile and violent way towards him when he visited the children in her home, he left in order to ensure his own safety, without any regard for the children's safety.
vii) He did not consider he had made any mistakes in his parenting in the past and thought parenting would be straightforward in future.
viii) Although by the time of the hearing, he was asserting that he appreciated that he lacked parenting skills and said that he was undertaking parenting classes (which had only commenced in November 2012) and intended to attend a course to assist him with his alcohol consumption, the judge shared the pessimism of the LA and guardian as to the prospects of success in any parenting classes and had "very significant doubts as to the bona fides of F, not only in relation to his apparent acknowledgement of the LA's concerns about M but also as to his desire to be a sole carer of the children". He thought F's application to care for the children motivated rather by a wholly understandable desire to maintain a relationship with the children through direct contact with them.
ix) The LA had devoted "considerable and sufficient efforts to provide assistance and support to F in order to enable him to equip himself to be able to care for the children" but he had "failed to take any sufficient steps to respond to that assistance and support".
"F was fully aware of M's erratic and bizarre behaviour, and the abusive and unpredictable caregiving that the children were receiving. He chose to place his need for sanctuary away from such conflict and erratic behaviour above the need for him to protect his children. C and V have suffered prolonged feelings of fear, anxiety and stress as a result of F's unwillingness to protect them. "
"Indeed where continued contact with the birth parents is considered to be in the interest of the child both during his childhood and beyond, then it is of less weight still and may indeed provide a contrary indication to adoption itself."
"Such an approach will also have the advantage that as the children will not cease to be members of their birth family, they are more likely to retain a more meaningful tie with their cultural heritage. Although this is a matter which has not been at the forefront of the decision making process in this case, it will be a beneficial incidence of it."
Postscript to the judgment
The LA's submisssions
The parents' submissions
i) Adoption makes the child a permanent part of the adoptive family to which he or she fully belongs. To the child, it is likely therefore to "feel" different from fostering. Adoptions do, of course, fail but the commitment of the adoptive family is of a different nature to that of a local authority foster carer whose circumstances may change, however devoted he or she is, and who is free to determine the caring arrangement.
ii) Whereas the parents may apply for the discharge of a care order with a view to getting the child back to live with them, once an adoption order is made, it is made for all time.
iii) Contact in the adoption context is also a different matter from contact in the context of a fostering arrangement. Where a child is in the care of a local authority, the starting point is that the authority is obliged to allow the child reasonable contact with his parents (section 34(1) Children Act 1989). The contact position can, of course, be regulated by alternative orders under section 34 but the situation still contrasts markedly with that of an adoptive child. There are open adoptions, where the child sees his or her natural parents, but I think it would be fair to say that such arrangements tend not to be seen where the adoptive parents are not in full agreement. Once the adoption order has been made, the natural parents normally need leave before they can apply for contact.
iv) Routine life is different for the adopted child in that once he or she is adopted, the local authority have no further role in his or her life (no local authority medicals, no local authority reviews, no need to consult the social worker over school trips abroad, for example).
Lady Justice Gloster:
Lord Justice Longmore: